Academic journal article Harvard Law Review

Tort Law - Civil Immunity - Congress Passes Prohibition of Qualified Civil Claims against Gun Manufacturers and Distributors

Academic journal article Harvard Law Review

Tort Law - Civil Immunity - Congress Passes Prohibition of Qualified Civil Claims against Gun Manufacturers and Distributors

Article excerpt

TORT LAW--CIVIL IMMUNITY--CONGRESS PASSES PROHIBITION OF QUALIFIED CIVIL CLAIMS AGAINST GUN MANUFACTURERS AND DISTRIBUTORS.--Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, 119 Stat. 2095 (2005) (to be codified at 15 U.S.C. [sub section] 7901-7903, 18 U.S.C. [sub section] 922, 924).

The year 2002 saw an estimated 30,242 firearm deaths (1) and 58,841 nonfatal firearm injuries. (2) Recently, various municipalities pursued civil actions against firearm manufacturers, alleging negligent distribution of firearms and creation of a public nuisance. The municipalities claimed damages relating to the provision of emergency services to gunshot victims. In response to this trend, thirty states passed laws preempting this type of suit in order to prevent litigation that could possibly cripple commerce in firearms. (3) Due to court decisions and legislative intervention, these suits generally were not successful. (4) However, the claims were still damaging to the gun industry, as municipal leaders pressed on regardless of their chance of success, spending taxpayers' money in a war of attrition against the firearms industry. When one suit was preempted or dismissed in one jurisdiction, another arose in a jurisdiction that had not yet considered the issue. This cycle ended on October 26, 2005, when President George W. Bush signed the Protection of Lawful Commerce in Arms Act (5) (PLCAA) into law, dismissing all current claims of this nature in both federal and state courts and preempting future claims. (6) By passing the PLCAA, Congress and the President indicated that the Second Amendment is an individual right incorporated against the states, perhaps offering persuasive authority to the Supreme Court for use in deciding precisely what right is conferred by the following words: "A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." (7)

The congressional findings for the PLCAA demonstrate that the legislature relied on a variety of constitutional provisions to justify limited legal immunity for the firearms industry. Congress found that the Second Amendment guarantees an individual right to keep and bear arms, regardless of whether the individual is part of a militia, (8) and that the law was intended to preserve individual access to firearms "for all lawful purposes." (9) Notably, Congress used its Section 5 enforcement power under the Fourteenth Amendment to "guarantee a citizen's rights, privileges, and immunities, as applied to the States" (10) and invoked its Commerce Clause power, noting that firearms and ammunition pass through interstate commerce. (11) Congress also relied on separation of powers and federalism to chastise political subdivisions for trying to regulate guns nationally through litigation. (12)

The operational text of the Act is brief yet effective. First, "[a] qualified civil liability action may not be brought in any Federal or State court." (13) Second, "[a] qualified civil liability action that is pending on the date of enactment of this Act shall be immediately dismissed by the court in which the action was brought or is currently pending." (14) A "qualified civil liability action" is an action brought against a dealer, manufacturer, or trade association for damages resulting from the unlawful use of a firearm by another. (15) However, six exceptions would pierce the immunity. First, a claim against a transferor of a firearm who knew the firearm would be used in drug trafficking or a violent crime is valid if the plaintiff's injury was a proximate result. (16) Second, a claim "brought against a seller for negligent entrustment or negligence per se" is not preempted. (17) Third, if a seller knowingly violates a federal or state statute applicable to the sale or marketing of firearms and the violation is the proximate cause of the injury, the claim is not "qualified." (18) Fourth, a claim may proceed if it is based on a breach of contract or warranty. …

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