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March 1, 2021

Primer on Repealing PLCAA

By Larry Keane

An Attack on the Firearm Industry, Constitution and People’s Elected Representation

There’s a lot of talk from President Joe Biden, antigun politicians and antigun groups about repealing the Federal law that keeps legally frivolous and harassing lawsuits against members of the firearm industry at bay. Much of this talk is based on falsehoods and half-truths, seeking to achieve gun control regulation through litigation and coming from elected officials who are misleading the public to deflect attention from their failure to effectively enforce our nation’s gun laws.

The Protection of Lawful Commerce in Arms Act (PLCAA) was passed with wide bipartisan support in 2005 and signed into law by President George W. Bush. The law was passed in response to a wave of lawsuits attempting to hold firearm companies liable for the criminal misuse of firearms by remote third parties. The lawsuits were really aimed at putting those companies out of business based on circumstances beyond their control. The law – PLCAA – keeps activist lawyers from placing the blame on members of the industry for the criminal misuse of legal firearms that are lawfully sold.

How It Got Here

Lawsuits were piling up in the mid to late 1990’s and early 2000’s when over 40 big city mayors conspired through the U.S. Conference of Mayors with gun control activist lawyers from the Brady Center and greedy trial lawyers. Their plan was to haul firearm manufacturers and sellers into court to make the industry pay for the subsequent criminal misuse of legal, non-defective firearms lawfully sold after a background check to law-abiding Americans exercising their Second Amendment rights. These lawsuits amounted to suing Ford or General Motors for the harm caused by drunk drivers.

This legal nightmare for the industry began when New Orleans filed suit on Halloween Day in 1998 followed the next day by Chicago’s Democratic Mayor Richard Daley. The last of the municipal lawsuits was filed by then-New York Attorney General Eliot Spitzer in June of 2000. All the cities were run by Democrat mayors, except for then-New York City Republican Mayor Rudy Giuliani whose case was taken over by Michael Bloomberg when he was elected mayor of the Big Apple. Even New York’s Gov. Andrew Cuomo, who was serving as President Bill Clinton’s Secretary of Housing and Urban Development, got involved when he organized dozens of local housing authorities to bring their own lawsuits against gunmakers and threatened the industry with “death by a thousand cuts.”

The majority of the states – 33 – saw the misuse of the legal system and passed their own state laws barring these lawsuits from clogging court dockets and bankrupting companies through legal fees. Congress finally acted. The bill that would become PLCAA passed out of the U.S. House of Representatives with a lopsided approval of 283-144. The same happened in the U.S. Senate, which passed the measure 65-31. President Bush signed it in 2005. The PLCAA does nothing more than codify black letter tort law. No other industry in America had been so targeted by such baseless, politically motivated lawsuits.

What It Does & Doesn’t Do

Since the day it was signed, gun control politicians and antigun groups have been doing everything possible to smear the law, willfully ignoring what it does and doesn’t do. Hillary Clinton, during her failed 2016 presidential campaign, claimed the law gave the firearm industry absolute immunity.” That lie was repeated by President Biden during his own campaign and again recently when he pitched a gun control push in Congress. The notion of “blanket immunity” is an outright lie.

Politifact rated Hillary Clinton’s 2016 immunity claims “false” then and they’re still false today. Both manufacturers and firearms retailers can, and are, held responsible for harm caused by defective products, breach of contract, criminal misconduct or other actions of which they are directly responsible. That’s the same liability as any other product manufacturer or seller.

The law simply says that these agenda-driven lawsuits can’t be brought against a manufacturer that had nothing to do with the criminal or wrongful misuse of their product.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University addressed this in an op-ed for The Hill, “Product liability and tort actions against manufacturers have uniformly and correctly been rejected by the courts. Guns are lawful products, and holding companies liable for later misuse of such products is absurd. You might as well sue an axe manufacturer for the Lizzy Borden murders.”

Other Industries, Similar Protections

This type of tort protection law isn’t unique to the firearm industry. The recent pandemic is proof of that. Vaccine makers producing the life-saving drugs are doing so with the protection of the 2005 Public Readiness and Emergency Preparedness Act, which gives the Health and Human Services Secretary authority to provide legal protection to companies making or distributing the vaccines. That protection, like the PLCAA, doesn’t include “willful misconduct.”

Manufacturers of medical devices, the airline industries and even online service and content providers are protected from frivolous lawsuits when defamatory information posted is by others.

The reason PLCAA was signed into law was because Congress knew antigun politicians were using the courts as an end-round to circumvent the lawmaking process. The irony was elected officials then – and now – oppose PLCAA because it blocked their “attempt to circumvent the Legislative branch of government” and “would expand civil liability in a manner never contemplated by the framers of the Constitution.” Those are actual words within the law.

When President Biden, and his Congressional gun control allies, talk about repealing PLCAA, this is what they’re doing in their attack on the firearm industry. They’re also attacking the representation of the People and the Constitution that protects their rights.

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