REPOST: A Law That Keeps Gun Makers Smiling

This New York Times article reports the constitutionality of the Protection of Lawful Commerce in Arms Act - a law that grants a special shield around the gun manufacturers.


A line of tobacco executives stood in Congress one day in 1994 with their right hands raised, just before they swore, one by one, that they did not believe nicotine was addictive.

They looked miserable: within a few years, their companies would be paying out hundreds of billions in damages for the illnesses caused by smoking.

For happier faces, you could look at a picture taken in the Oval Office when President George W. Bush signed a bill in 2005. Surrounded by beaming gun manufacturers, Mr. Bush put the final touch — his signature — on a piece of legislation that would make it very difficult for anyone hurt by gun violence to sue the makers for injuries.

And why wouldn’t they be smiling?

The law signed that day, the Protection of Lawful Commerce in Arms Act, has smothered lawsuits by cities around the country, including by New York, that sought to force manufacturers to be more careful in how they sold and distributed guns.

Under President Obama, the Justice Department has continued to line up with gun manufacturers to defend the constitutionality of the law.

Last year, a state court threw out a lawsuit by Daniel Williams, of Buffalo, who, as a high school junior, was mistaken for a gang member and shot by a Saturday-night special — a Hi-Point 9-millimeter semiautomatic pistol, manufactured by the thousands by Beemiller Inc. of Ohio.

The sole distributor of the Hi-Point, a man named Charles Brown of MKS Supply, “has sold at least 630 handguns traced to crime in the State of New York,” according to the lawsuit.

Like many others in the manufacture and distribution of guns, Mr. Brown has shown little curiosity about how the weapons were used. An article in The New York Times on Tuesday reported that numerous gun executives stated during sworn depositions that it was not important for them to keep track of how often their guns were used in crimes.

For instance, Mr. Brown said that he never examined the “trace” requests that came from law enforcement to see which of the companies that he supplied were, in turn, selling guns that ended up being used in crimes.

Time after time, the executives said they were not concerned with finding out what happened to the guns.

All these statements were made in lawsuits brought before the 2005 law put up a special shield around the gun manufacturers. The law grants an exception for manufacturers or distributors who are accused of having knowingly violated state or federal laws. Because of that exception, a state appellate court in October restored the suit brought by Mr. Williams against Hi-Point, Beemiller, MKS Supply and others. (The owner of Beemiller, Tom Deeb, has said that law enforcement authorities have recognized him for the special help he has given in investigations.)

The Williams lawsuit is one of very few cases not eliminated by the law.

Before the law’s passage, a federal judge in Brooklyn hearing a case brought by the N.A.A.C.P. found that gun manufacturers and distributors were not doing simple things that would reduce the number of weapons available to criminals. As examples of what could be done, wrote the judge, Jack B. Weinstein, manufacturers could only allow their products to be distributed to retailers who had actual storefronts, carried insurance, keep a minimum inventory, and allow the manufacturers to review their books.

Such measures would not restrict any Second Amendment rights, the judge ruled, and the evidence showed that “more prudent and easily available merchandising practices on the part of the defendants would have saved many lives in the past — and would save many in the future.”

Why weren’t these steps being taken?

“Some members of the industry believe that unified, well-organized voluntary attempt to limit diversion of guns to criminals would be the equivalent of a public recognition of failures to take such steps in the past,” Judge Weinstein wrote, “with an implied responsibility for thousands of avoidable deaths.”

What to make of the Department of Justice under President Obama? “We hope they will change their view on the constitutionality of a federal law that effectively rewrites state’s civil justice laws to protect one industry,” said Jonathan Lowy, a lawyer with the Brady Center who has brought many cases against gun manufacturers.

Allison Price, a spokeswoman for the Justice Department, said: “We continue to defend the constitutionality of this law. While the Newtown tragedy does not alter the department’s view regarding the constitutionality of the statute, it does underscore the need for new gun legislation, as the president and attorney general have said.”

The gun makers can still smile about the 2005 law.

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