Joe Biden has unveiled his agenda for his first 100 days in the White House, and his list includes an initiative aimed at nothing less than the destruction of the U.S. firearms industry. This is what would happen if Biden succeeds in his pledge to repeal the Protection of Lawful Commerce in Arms Act.
Imagine if firearm manufactures and sellers – even those who strictly followed the laws enacted to regulate their industry – faced potential civil liability every time a criminal misused a firearm. The effect would be similar to holding automobile makers and dealers responsible for injuries caused by drunk drivers. No business, no matter how conscientious and law-abiding, could ever survive being liable for the acts of millions of random people over whom it had no control.
And that is exactly why the law generally imposes no duty on a person or entity to control the acts of third persons to prevent them from causing harm (unless the person or entity has certain types of relationships with those causing the harm or being harmed).
Yet gun control activists in and outside of government hoped to rewrite that principle when it came to the makers and sellers of firearms. During the 1980s and ‘90s, a coordinated series of lawsuits against the gun industry sought to hold these businesses responsible for the criminal acts third parties committed with firearms.
The plaintiffs knew they faced an uphill climb legally, but winning cases wasn’t necessarily the point. They could also prevail by bankrupting the targets of their predatory litigation by forcing them to defend multiple suits simultaneously in courts throughout the nation or by extorting industry members to adopt “best practices” that required them to follow the terms of unsuccessful gun control legislation.
This egregious abuse of the legal system to destroy an industry providing constitutionally protected goods and services sparked a bipartisan response from coast to coast. Thirty-four states passed laws to block these suits in their own courts. Finally, in 2005, Congress followed these examples by enacting the Protection of Lawful Commerce in Arms Act (PLCAA) to provide a floor of protection nationwide.
While portrayed by opponents as providing “extraordinary” immunity to the firearms industry, the essence of the PLCAA is simply that the gun industry would be subject to the same rules of third party liability that apply to other businesses. Thus, the PLCAA prohibits, in state or federal court, a civil action or administrative proceeding by any person against a manufacturer or seller of a firearm, ammunition, or “component part” thereof, or a trade association, for harms resulting from the criminal/unlawful misuse of the product by the person or a third party.
Contrary to the way the PLCAA is portrayed by the antigun media and other opponents, it does not provide “absolute immunity” to unscrupulous gun companies. Most common and legitimate forms of recovery are still available to plaintiffs under the PLCAA, including those based on the manufacturers’ or sellers’ own violations of gun control laws or laws governing the sale or marketing of the products; negligent entrustment by sellers; breach of contract or warranty; design or manufacturing defects (when the harm was not caused by a volitional criminal act); and enforcement of federal gun control laws.
In other words, while the PLCAA has been successfully used to block litigation arising from the behavior of third parties, it allows various sorts of suits alleging harm from the manufacturers’ and sellers’ own bad actions.
Yet even relative parity under the law is too much for Joe Biden and his gun control collaborators. That is exactly why Biden pledged during the campaign to repeal the PLCAA and why his agenda for his first 100 days in office includes introducing legislation to accomplish this goal.
Eliminating a defense to certain forms of civil liability is not a move likely to generate the same kinds of headlines as gun bans and mandatory taxing or surrender programs (also features of Biden’s larger gun control agenda).
But make no mistake, repeal of the PLCAA would potentially have even more devastating impacts than new federal prohibitions on the types of firearms Americans could own. That is because it would leave to the imaginations of thousands of greedy trial lawyers and activist judges reasons for why this or that type of firearm or ammunition is “too dangerous” to be available to the American public. These suits, moreover, would undoubtedly be underwritten by any number of billionaire activists, creating a litigation war chest that no single player in the gun industry could match.
Congress saw the existential threat these tactics posed to the industries that support America’s Second Amendment, as well as its defense and security infrastructure. That is why the PLCAA enjoyed broad bi-partisan support, including from the likes of Vermont Sen. Bernie Sanders.
But politics change, and now Biden believes there is an appetite in his caucus to inflict mortal damage to the U.S. firearms industry.
The NRA is determined to prevent that. But we’ll need your help. More than ever, gun owners will need to be active and engaged to defend their freedoms in this perilous new political climate
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