Has Clinton Ever Actually READ the Protection of Lawful Commerce in Arms Act (the PLCAA)? She Doesn’t Seem to Know What It Says.

Blogger Phil Ebersole, who is a retired journalist, picked up and commented favorably on my Oct. 17 post refuting refuting Clinton’s statement during the Oct. 13 debate that the 2005 federal statute known as the Protection of Lawful Commerce in Arms Act (the PLCAA), which Sanders voted for and Clinton voted against, “give[s] immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers.”

Clinton’s full, five-sentence statement was:

Senator Sanders did vote five times against the Brady Bill. Since it was passed, more than 2 million prohibited purchases have been prevented. He also did vote, as he said, for this immunity provision. I voted against it. I was in the Senate at the same time. It wasn’t complicated to me. It was pretty straightforward to me that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers. And we need to stand up and say, “Enough of that.”

As I said in my initial post, the second-last sentence—“It was pretty straightforward to me that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers.”—contains two clear falsehoods.  The statute by no means gives blanket immunity to gun manufacturers and dealers. And no other industry in America is held accountable for the things that the PLCAA actually provides civil legal immunity for.

Nor, for that matter, did the statute change the law in any but a few legal localities (“jurisdictions”) in the country.

The Wikipedia entry for the statute begins:

The Protection of Lawful Commerce in Arms Act (PLCAA) is a United States law which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S. based manufacturer of consumer products are held responsible. They may also be held liable for negligence when they have reason to know a gun is intended for use in a crime.

This is accurate.  The statute prohibits states and municipalities from treating gun manufacturers and dealers differently than other manufacturers and retailers are treated in American jurisprudence.  The title of my post was long but captures the actual issue:

Why does Clinton keep getting away with saying that gun manufacturers are the only industry in America that is immune from being held accountable for criminal acts by the purchasers of their products?  Almost NO manufacturers are, by law, accountable for criminal acts by purchasers of their products.  Someone should ask her to name one that is.

Ebersole has now posted a blog entry titled “Second thoughts on Hillary Clinton and guns”, about his earlier post about my post.  He begins by saying,“I have to backtrack a little bit on a previous post, in which I cited the following question.  What I wrote was not exactly wrong, but not the whole story.”  He quotes the full title of my post, then says:

True, no manufacturer is held responsible for the criminal use of their legal products, unless it can be shown that they knowingly or negligently sold the products to criminals.  What makes gun manufacturers different is that in their case, this is spelled out in positive law, a law that Bernie Sanders supported.

Hillary Clinton was giving a dog whistle to members of the anti-gun movement, who would have understood she was referring to the Protection of Lawful Commerce in Arms Act.

Based on the exceptions written into the PLCAA, I don’t think it bars reasonable lawsuits against gun manufacturers or dealers.  The significance of the issue in the context of the Democratic Presidential debate is that it shows Bernie Sanders has more sympathy for gun owners and gun manufacturers than Hillary Clinton does.

All true, certainly.  But also not itself quite the whole story.  What makes gun manufacturers different is that in their case, this is spelled out in positive law, a law that Bernie Sanders supported.  But that law was proposed because gun manufacturers and dealers were different in that a few municipalities—most prominently Chicago, but a few others as well—were enacting ordinances that altered state common law to permit civil liability solely against this industry when their product is used by a purchaser to commit a criminal act in the absence of negligence or willful misconduct by the manufacturer or dealer.

This is known in legal jargon as “strict liability”—liability even absent fault.  And no other industry is held “strictly liable”, I believe, anywhere in this country, for criminal acts of purchasers or users of their product absent negligence or willful misconduct by the manufacturer or the retailer. Which is why the gun industry is different in that this statute spells out the absence of strict liability for criminal acts of purchasers or users of their product absent negligence or willful misconduct by the manufacturer or the retailer.  All other industries have that immunity from strict liability in such instances, even though there is no federal statute spelling out in positive law.  At the time the PLCAA was enacted, the gun industry, too, still had it in most jurisdictions in this country.  But not all.

If it really was pretty straightforward to Clinton that he was going to give immunity to the only industry in America — everybody else has to be accountable but not the gun manufacturers, then Clinton was seriously misinformed about the state of strict-liability tort law in this country.  Then again, her comments seem to indicate that she did not know, and still does not know, that the statute ensures immunity only from strict liability, not negligence or willful misconduct, regarding criminal use of the product by a purchaser.*  Did she not read the legislation before voting on it?

In two recent posts on another of Clinton’s misrepresentations-via-snappy-soundbite-sleight-of-hand-zinger-at-the-end-of-a-response-or-retort, I said that the more seriously you actually take a subject, the less likely you are to misrepresent or cry ‘wolf’ about it.

And I’ll reiterate this from another of my recent posts: I don’t think Clinton and the supposed establishment Republican candidates realize how out-of-sync this type of campaign tactic is with this political moment.  If, as seems likely, Clinton is the Democratic nominee, she will have forfeited a potent argument.  She will not be able to claim convincingly that the Democrats respect the public enough to make straightforward arguments based on tangible, accurately presented fact.

In any event, it will not be true.

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* The clause at the end of the sentence, saying “regarding criminal use of the product by a purchaser”, added for clarity after initial posting, to make the distinction in that paragraph between criminal use of the product–the only issue that the PLCAA addresses–and traditional products-liability safety issues. The distinction was made in an earlier paragraph, but to avoid confusion on what (Clinton’s protestation notwithstanding, actually is complicated) needed to be made again in this paragraph.  11/2 at 7:05 p.m.

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