We’re still waiting on Joe Biden’s first round of executive actions dealing with gun control, but the new administration is signaling that it will work with Democrats in Congress to target the firearms industry with legislation as well as using the power of the executive branch to restrict the Second Amendment rights of Americans.
According to Biden’s plan for his first 100 days in office, the president plans on introducing a bill to repeal the Protection of Lawful Commerce in Arms Act. The law, signed by President George W. Bush in 2005, curtails the filing of lawsuits seeking to hold the firearms industry responsible for the third-party acts of criminals and was approved by a bipartisan majority of Congress when it became clear that the gun control movement was using a strategy of trying to bankrupt the industry through litigation.
Even if none of the cases filed against gun manufacturers went to trial, the companies still were on the hook for legal fees, while the cities and individuals who’d filed suit often relied on pro-bono representation by anti-gun litigators. It was a “death by a thousand cuts” strategy, but the Protection of Lawful Commerce in Arms Act put a stop to the vast majority of the lawsuits that had been filed.
As NRA’s Institute for Legislative action explains in a new alert to members:
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.
Some courts have even allowed lawsuits based on the marketing of firearms to proceed, as with a lawsuit filed against Remington by survivors and family members of the shooting at Sandy Hook Elementary in Newtown, Connecticut.
Still, that’s not enough for the Biden administration, which is now targeting the law with an attempt at repealing it. As the NRA correctly points out, an effort to undo the law is likely to far less attention than the president’s plan to ban and “buyback” tens of millions of modern sporting rifles and hundreds of millions of so-called high capacity magazines.
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.
As long as the legislative filibuster remains in place in the Senate, Democrats are going to be limited in their options to pass a repeal. They could try to use a budget measure known as reconciliation that allows for passage by simple majorities, but that will be difficult given that the PLCAA doesn’t actually involve any federal funding of any nature.
Sen. Joe Manchin of West Virginia continues to claim that he’s not in favor of nuking the filibuster, but Democrats are pushing hard for the change, and will continue to do so as long as Biden’s legislative agenda is hamstrung by the fact that it doesn’t have 60 votes in the Senate.
Of course, if Democrats do go nuclear and get rid of the last check on pure majoritarianism in Congress, we’re going to have more than just the repeal of the PLCAA to worry about. At that point, all bets would be off, and all checks on the power of Democrats in D.C. would be removed save for the Supreme Court. Democrats would almost certainly move to enact Biden’s gun ban and compensated confiscation efforts along with a host of other far-Left radical legislation, and an attack designed to put the gun industry out of business would be just one piece of an all-out assault on our right to keep and bear arms.