President Joe Biden recently asserted, incorrectly, that the firearms industry is the only industry in the United States that cannot be sued. He did so while announcing a priority of his administration to expand civil lawsuits against firearm manufacturers and sellers so they are liable for the damages caused by criminals who misuse a firearm to kill or injure others. This administration priority is akin to having victims of a drunken-driving accident sue the manufacturer of the car that struck them instead of the drunken driver.
Specifically, Biden wants to open the door to more litigation against the firearms industry by repealing the Protection of Lawful Commerce in Arms Act of 2005. This act, which was adopted with bipartisan support, is far afield from the one-of-a-kind blanket industry immunity law that Biden and others have suggested. The president can hardly be faulted for mischaracterizing this law, though, because the PLCAA has been repeatedly mischaracterized over the years, including by former Secretary of State Hillary Clinton during a 2016 presidential debate with Vermont Sen. Bernie Sanders, who voted for the act.
In truth, the PLCAA stands for the unremarkable proposition that a manufacturer or seller is not liable for a person’s misuse of a legal, nondefective product in which the manufacturer or seller has no control over that person. The same commonsense legal rule is why the manufacturer of a sharp knife is not liable when a stabbing occurs or why the manufacturer of a hammer or some other instrument is not liable when someone intentionally uses it to injure another.
Congress enacted the PLCAA to codify this basic legal rule in response to a wave of lawsuits in the late 1990s and early 2000s that sought to undo the application of traditional liability law solely in the context of firearms. The law makes clear that a firearm manufacturer or seller is not responsible for the actions of a criminal, such as the perpetrator of a shooting. Rather, the person who pulls the trigger bears responsibility for a shooting injury or death.
Contrary to what Biden suggested, the PLCAA also does not grant the firearms industry total immunity from liability. Under the act, firearm manufacturers and sellers are subject to liability for any product defects, such as when a firearm backfires or explodes in a user’s hand, and certain other violations of law, such as making illegal sales. The act essentially treats firearm manufacturers and sellers like other makers and sellers by codifying bedrock principles of liability law.
The lawsuits against the firearms industry, which the Biden administration hopes to revive, sought to impose massive civil liability to either bankrupt or regulate the industry: an already heavily regulated, lawful industry whose products enjoy special protection under the Second Amendment. Former Clinton administration Labor Secretary Robert Reich aptly labeled this strategy “regulation through litigation.” He recognized that it amounts to “faux legislation, which sacrifices democracy” by using the judiciary to implement policy preferences in place of the representative branches of government. Under such a litigation strategy, any lawful yet “unpopular” industry may be targeted and sued out of existence based on the conduct of criminals or other third parties who misuse products.
The notion that only the firearms industry enjoys such protection is also incorrect. Several other industries that have been threatened with potentially crushing civil liability are protected by qualified civil immunity laws. For example, the General Aviation Revitalization Act of 1994 bars lawsuits involving general aviation aircraft and products that are more than 18 years old, the Biomaterials Access Assurance Act of 1998 bars lawsuits against suppliers of chemical components and raw materials used in medical devices, and the Public Readiness and Emergency Preparedness Act of 2005 protects vaccine manufacturers from liability exposure in the event of a declared public health emergency.
The PLCAA remains a commonsense law that protects against unsound attempts to change radically a fundamental liability law principle. Misstatements by Biden and others attacking this law warrant correction to have a frank and honest debate about firearm use in the U.S.
Victor Schwartz is a former law professor and law school dean and the current co-chairman of the Public Policy Group of the law firm Shook, Hardy & Bacon.
