During last night’s Democratic primary debate, Hillary Clinton hit Bernie Sanders’s gun record hard. Most notably, Clinton knocked Sanders once again for supporting a 2005 NRA-backed bill that gave limited immunity to gun manufacturers:
Yes look, I have made it clear based on Senator Sanders’ own record that he has voted with the NRA, with the gun lobby numerous times. . . . He voted for immunity from gunmakers and sellers which the NRA said, “was the most important piece of gun legislation in 20 years.” . . . Now, I am pleased to hear that Senator Sanders has reversed his position on immunity and I look forward to him joining with those members of Congress who have already introduced legislation. There is no other industry in America that was given the total pass that the gun makers and dealers were and that needs to be reversed.
Hillary is referring here to the 2005 Protection of Lawful Commerce in Arms Act, which has become something of an obsession for her of late. Here, by way of example, is one of many agitated references to the law on her official Twitter account:
You can sue a company for making an unsafe toy—but not for making an assault rifle used to kill children. https://t.co/TvASrWpgim
— Hillary Clinton (@HillaryClinton) January 13, 2016
By phrasing her criticism this way, Clinton hopes to trick her audience into believing that gun manufacturers are immune from prosecution when their products do not work properly — and, worse still, that they have been accorded a “pass” that “no other industry in America” enjoys. But that’s not true. Not at all. In fact, as the Washington Post’s debate reviewers note today, “gun manufacturers can be sued if injuries result from a defective product that is used properly.” As with Clinton’s hypothetical toys, an American who injures himself with a gun that doesn’t work has every opportunity to take the maker to court. What he cannot do, thanks to the 2005 reform, is sue the manufacturer when a working gun was used for ill. This, in my view, is sensible. As with knives, screwdrivers, poisons, and acids, it makes no sense to hold gun-makers liable for the misuse of their functioning products. Thanks to lawmakers such as Bernie Sanders, we don’t.
Away from the campaign trail it is common to hear gun controllers draw a similar analogy to Clinton’s, but with automobiles in the place of toys. “If you can sue a car manufacturer when the brakes don’t work,” these people often cry, “why can’t you sue Smith and Wesson when a crazy walks into a school?” Once again, though, this is to compare apples with oranges. You can indeed sue a car manufacturer if the brakes don’t work, just as you can sue a gun manufacturer if the weapon goes off without your touching it. But you cannot sue Ford if a murderous lunatic drives his dependable F-250 into a crowd — the correct analog to a crazy taking a rifle into a school. And why not? Well, because that’s not Ford’s fault in any way, shape, or form. Despite Clinton’s insinuations, the purpose of the 2005 law was nothing more than to make that principle explicit in the gun industry — and in the wake of near-unprecedented legal activism. As Walter Olson noted in 2013, the:
PLCAA codified the common-law principles that have long applied in tort claims following shootings: if an otherwise lawful firearm has performed as it was designed and intended to do, its maker and seller are not liable for its misuse. (Exceptions permit liability in some situations where, e.g., a defendant has broken regulations or knowingly sold to a buyer intent on harm.) In other words, Congress acted specifically to preserve the law’s traditional handling of gun liability as against activists’ efforts to develop novel legal doctrine.
And why did Congress do that? Because:
anti-gun strategists were actively employing individual as well as municipal suits in their nearly successful effort to bury gun makers under the costs of legal defense.
In consequence, the bill had broad support from across the business world, and among Americans who did not want to see the habit spread. Inter alia, its backers
included a united business community — the Chamber, NAM, NFIB, National Association of Wholesalers-Distributors — which saw the gun-suit onslaught as the cutting edge of a movement to bypass the democratic lawmaking process and impose regulation through litigation on other industries.
Bernie Sanders once understood this. Indeed, in June of last year he told Jake Tapper that:
If somebody has a gun and it falls into the hands of a murderer and the murderer kills somebody with a gun, do you hold the gun manufacturer responsible? Not any more than you would hold a hammer company responsible if somebody beats somebody over the head with a hammer. That is not what a lawsuit should be about.
Although he has now flipped, Sanders was correct in this initial assessment. As it should be, the private ownership of firearms is not only legal in the United States, it is constitutionally protected. In consequence, any blame in this area must lie with the law and with those who break it, and not with those who operate entirely within the rules. That Clinton believes otherwise is worrying — to say the least.