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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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Adam Liptak, gun legislation, the Supreme Court

More on gun legislation and law:

…the bottom line is that Liptak’s spot-on, and that I think that the Supreme Court will use that Illinois case that Liptak discusses to make clear that the Second Amendment is not absolute. The Illinois statute bars carrying any weapons in public, even unconcealed ones.

I think that, 5-4, they’ll say that that is unconstitutional but that laws banning carrying concealed weapons in public are constitutional. I also think that, now, finally, Congress will pass laws against the sale of semi-automatic weapons and against the sale of ammunition clips of more than 10 bullets, and that once a constitutional challenge to those laws gets to the Supreme Court, the Court will uphold the laws.  

Beverly Mann, lifted from an e-mail to me

Gun plans don’t conflict with Justices 08 ruling by Adam Liptak reasons:

Despite the sweeping language of a 2008 Supreme Court decision that struck down parts of the District of Columbia’s strict gun-control law, the decision appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn.

Legal experts say the decision in the case, District of Columbia v. Heller, has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them have succeeded.

“Of the 12 deadliest mass shootings in American history, six have occurred since 2007” also caught my attention.

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Okay, What Exactly Did Chris Cillizza MEAN By “Mental Health Sentencing”?

I rarely watch TV news shows anymore, much less cable political talk shows.  (Okay, I rarely watch TV at all anymore.)  But I happened to watch Chris Matthews’ Hardball tonight on MSNBC.  The topic was, of course, gun control. (Actually, the lack thereof, and whether is any real chance that that might change now.)  And Washington Post political blogger and reporter* Chris Cillizza was answering Matthews’ question about what he thought was the problem with this country.  As in, why do we have so many mass shootings?  Matthews suggested some possibilities.  Is it the absence of meaningful gun laws?  Is it lack of health care to treat mental illness?  (At least that’s how I recall it; I haven’t reviewed a transcript of the show.)

Cillizza responded with something like, “It’s gun laws.  It’s healthcare.  It’s mental health sentencing.” His emphasis, not mine.

It’s mental health sentencing?  Really?  How so, exactly–since actually there is no such thing.  Not formally, any way.  In truth, of course, large percentages of people serving prison sentences in this country, including people serving very long sentences, are mentally ill, some of them severely so.  But, thanks to John Hinckley, mental illness almost never is a defense to a criminal charge in this country. Presumably, Cillizza knows this.

But also presumably, he knows that Adam Lanza, James Holmes, Jared Loughner, Cho Seung-Hui, Eric Harris, Dylan Klebold, and the others–several of whom (including Lanza, Cho, Harris and Klebold) killed themselves at the end of their maniacal spree–had no criminal record and therefore no mental illness sentence.  Whatever that is.

What concerns me about Cillizza’s statement is that the very last thing we should do is allow gun-rights fanatics to try to turn this debate into one about whether prison sentences for mentally ill mass shooters are long enough to serve as a deterrent–which is what I assume that Cillizza meant.  Lanza and most of the others sentenced themselves to death.  And Loughner’s plea agreement calls for a life sentence.  But I doubt that that will deter the next severely mentally ill teenager or young man who has access to an assault rifle and enough ammunition to kill or maim a lot of people during a rampage, and wants to do exactly that.

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*This post originally referred incorrectly to Cillizza as a political columnist.

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