Protection of Lawful Commerce in Arms Act

Mr. President, the actions that have just taken place have put us on S. 397, the Protection of Lawful Commerce in Arms Act. Earlier this morning, I submitted for the Record some now 67 cosponsors, which demonstrates that this bill is clearly very bipartisan legislation, supported by a Republican and Democrat majority in the Senate.

The actions the leader has just taken to file cloture would allow the cloture motion to ripen by as early as 1 a.m. Friday morning. Amendments have just been filed by the leader, and we will begin the process of debate on this important legislation.

With that in mind, if this bill and this debate seem familiar to any of us,

it should, because the Senate debated a very similar measure a little over a year ago. At that time, we had a full debate over a number of days. It is worth noting that the Senate defeated every amendment addressing the actual substance of the bill. However, opponents succeeded in attaching a couple of unrelated poison-pill amendments that ultimately caused the bill to fail.

The need for this legislation is very real. Over the course of yesterday and today, some of us have expressed what we believe is the urgency of this legislation. The Protection of Lawful Commerce in Arms Act would stop junk lawsuits that attempt to pin the blame and the cost of criminal behavior on businesspeople who are following the law and selling a legal product. In fact, the one consumer product where access is protected by nothing less than our Constitution itself is our firearms, and that is exactly what is at stake today: the right of law- abiding American consumers, American citizens, to have access to a robust and productive marketplace in the effective manufacturing and sale of firearms.

This bill responds to a series of lawsuits filed primarily by municipalities to shift the financial burden for criminal violence onto the law-abiding business community. These suits are based on a variety of legal theories. We heard some of them expressed by opposition to this bill earlier in the day seeking to hold gun manufacturers and sellers liable for the cost of injuries caused by people over whom they have no control--criminals who choose to use firearms illegally.

This is a bipartisan bill, as I mentioned. Let me acknowledge my primary Democrat sponsor, Senator Max Baucus of Montana, and thank him for his work on this initiative. Senator Baucus and I introduced this bill in February, and more than half of the Senate, both Republicans and Democrats, have now joined us since it was formally introduced in its final form.

Earlier in the day, I inserted into the Record all of those who are now cosponsors. This range of cosponsorship reflects extraordinary, widespread support that crosses party and demographic lines and covers the spectrum of political ideologies represented in the Senate. It demonstrates a strong commitment by a majority of this body to take a stand against a trend toward predatory litigation that impugns the integrity of our courts, threatens a domestic industry that is critical to our national defense, jeopardizes hundreds of thousands of good- paying jobs of hard-working men and women across America, and puts at risk the access Americans have to a legal product used for hundreds of years across the Nation for lawful purposes such as recreation and, most important, self-defense.

I have used the term ``junk lawsuits,'' and I wish to make very clear to everyone listening to this debate that I do not mean any disrespect in any way whatsoever to the victims of gun violence who might be involved in these actions. Although their names are sometimes used in these lawsuits, they are not the people who came up with the notion of going after the industry instead of going after the criminals responsible for the injuries or the loss of life of their loved ones. That notion originated with bureaucrats, anti-gun advocates and the lawyers who work with them.

Victims, including their families and communities, deserve our support and compassion, not to mention our insistence on an aggressive law enforcement effort that puts punishment where it ought to be rendered--to the criminal.

In the nearly 6 years of the Bush administration, death by guns and crime in which guns were used in the commission of that crime have plummeted. Why? Because this Justice Department has gone after the criminal and not the law-abiding citizen.

It is the criminal who acts illegally. It is the criminal who ought to be prosecuted. But somehow, some who are involved in this movement have a tremendously distorted idea that the person who produces a legal product and sells that legal product somehow is responsible because they just should have known that product might fall into the hands of a criminal and might cost someone their life.

If those laws need to be toughened or if law enforcement efforts need to be improved, then the proper source of help is legislators and governments to ensure the tightening of the laws and not the courts and certainly not law-abiding businesses or workers who had nothing to do with those who were victimized by the criminal element of this country.

No. These junk lawsuits do not target the responsible party in those terrible crimes. This is predatory legislation, looking for a convenient deep pocket to pay for somebody else's criminal behavior, and by every definition it therefore deserves to be called a junk lawsuit. If one wants to stand on the floor and defend that kind of action in the courts of America, so be it. I believe in the democratic process. But Americans get it, they clearly understand it, and so do Senators, and that is why now 67 Senators support this legislation. These are junk lawsuits because they are driven for political motives to hobble or bankrupt the gun industry as a way of controlling guns.

For decades, anti-gunners have come to the Senate floor or the House with one scheme or one idea after another, and the American people, based on what they believe strongly to be their constitutional rights, have rejected this. Now the anti-gun community attempts once again to come through the back door of the Congress by going in through the front door of the courthouse. It simply has not worked, and it will not work.

But there is another motive in mind. By definition, the legislation we are considering today aims to stop lawsuits that are trying to force the gun industry to pay for the crimes of people over whom they have no control.

I used an analogy last year. I will use it again today. It is like saying to GM, General Motors, or any car manufacturer that because somebody buys their car and gets drunk and gets in that car and kills someone out on the road, gee whiz, they should have known that a drunk would drive that car, and therefore they should never have produced it, and therefore they are liable. For years, I have always understood that there are some in our society who say no one is responsible for their action, no one should be held responsible for their action, and that is an underlying core of the debate we are talking about or the issue we are talking about today.

Let me stop a minute and make sure everyone understands the limited nature of the bill. Some will argue it differently, but I would argue those who argue it differently are trying to expand the definition of what we believe to be very clear within the legislation. What this bill does not do is as important as what it does do. This is not a gun industry immunity bill. I think I have already heard that said since the clock tolled 12 noon. This bill does not create a legal shield for anybody who manufactures or sells a firearm. It does not protect members of the gun industry from every lawsuit or legal action that could be filed against them. It does not prevent them from being sued for their own misconduct.

This bill only stops one extremely narrow category of lawsuits, lawsuits that attempt to force the gun industry to pay for the crimes of third parties over whom they have no control. We have tried to make that limitation as clear as we possibly can and in several ways. For instance, section 2(b) of the bill says its No. 1 purpose is:

to prohibit causes of action against manufacturers,

distributors, dealers and importers of firearms or ammunition

products and their trade associations for the harm solely

caused by the criminal or unlawful use or misuse of firearms

products or ammunition products by others when the product

functions as designed and intended.

We have also tried to make the bill's narrow purpose clear by defining the kind of lawsuit that is prohibited. Section 5 defines the one and only kind of action prohibited by this bill as follows:

[A] . . . civil action or proceeding or an administrative

proceeding brought by any person against a manufacturer or

seller of a qualified product, or a trade association, for

damages, punitive damages, injunctive or declaratory relief,

abatement, restitution, fines, or penalties, or other relief

resulting from the criminal or unlawful misuse of a qualified

product by the person or a third party. . . .

We have also tried to make the narrow scope of the bill clear by listing specific kinds of lawsuits that are not prohibited. Section 5 says they include actions for harm resulting from defects

in the firearm itself when used as intended--in other words, a faulty product--that is, product liability suits; actions based on negligence or negligent entrustment; or breach of contract.

Furthermore, if someone has been convicted under title 18, section 924(h) of the U.S. Code or comparable State law--in plain English, that means someone who has been convicted of transferring a firearm knowing that the gun will be used in the commission of a crime of violence or drug trafficking--that individual is not shielded from civil lawsuits by anybody harmed by that firearm transfer.

I am not quite sure how much more clearly we can make the law.

Finally, this bill does not protect any member of the gun industry from lawsuits for harm resulting from any illegal actions they have committed. Let me repeat it. If a gun dealer or manufacturer violates the law, this bill is not going to protect them from a lawsuit brought against them for harm resulting from that misconduct. Section 5 further explains that this includes, but is not limited to, the situation in which these parties falsify the firearms records they are required to keep under Federal or State law or knowingly fail to make appropriate entries into those records or if they worked with others in making false statements about the lawfulness of the selling of firearms.

You will hear arguments on the floor about certain gun dealers and that we are now holding them harmless, even though on the surface of the argument it appears they violated the law. Let me again say, as I said, if in any way they violate State or Federal law or alter or fail to keep records that are appropriate as it relates to their inventories, they are in violation of law. This bill does not shield them, as some would argue. Quite the contrary. If they have violated existing law, they violated the law, and I am referring to the Federal firearms laws that govern a licensed firearm dealer and that govern our manufacturers today.

Another example of conduct that would not be shielded from a civil lawsuit under this bill is the case in which the manufacturer or seller aided, abetted or conspired with any other person to sell firearms or ammunition if they knew or had reasonable cause to believe that the purchaser intended to use those products for the furtherance of a crime.

How clear can you get? If a manufacturer or a federally licensed firearms dealer knew they were selling to somebody who had criminal intent in mind for the use of the weapon, the firearm they just purchased, they are in violation of the law and it does not protect them. This is not a shield to do just that.

What I have listed for the convenience of my colleagues is all spelled out in title V of the bill. For those who question it, read it. If you don't understand it, get your lawyer and read it again because we worked overtime to make this as clear as it possibly can be made. Again, this is a rundown of the universe of lawsuits against members of the firearms industry that would not be stopped by this narrowly targeted bill.

What all these nonprohibited lawsuits have in common is that they involve actual misconduct or wrongful actions of some sort by a gun manufacturer, a seller or a trade association. Whether you support or oppose the bill, I think you can all agree that individuals should not be shielded from the legal repercussions of their own lawless acts. The Protection of Lawful Commerce in Arms Act expressly does not provide such a shield.

I am going to repeat this because some opponents continue to mischaracterize the bill. My guess is, in the closing arguments on Friday of this week, that mischaracterization will continue. This is not a gun industry immunity bill. It prohibits one kind of lawsuit, a suit trying to fix the blame of a third party's criminal acts or misdeeds on the manufacturer or the seller of the firearm used in that crime.

Even though this is a narrowly focused bill, it is an extremely important one. The junk lawsuits we are addressing today would reverse a longstanding legal principle in this country, and that principle is that manufacturers of products are not responsible for the criminal misuse of those products. You don't have to be a lawyer to know that runaway juries and activist judges can turn common sense on its head in a lot of cases, setting precedents that have dramatic repercussions and are potentially devastating in their results.

If a gun manufacturer is held liable for the harm done by a criminal who misuses a gun, then there is nothing to stop the manufacturers of any product used in crimes from having to bear the costs resulting from the actions of those criminals. So as I mentioned earlier, automobile manufacturers will have to take the blame for the death of a bystander who gets in the way of the drunk driver. The local hardware store will have to be held responsible for a kitchen knife it sold, if later that knife is used in the commission of a rape. The baseball team whose bat was used to bludgeon a victim will have to pay the cost of the crime. The list goes on and on.

Did that sound silly? Tragically enough, some lawyers and some activist judges and some runaway juries have taken us in those directions in the past. That is why we constantly, in the Congress, talk about tort reform, trying to narrow it, trying to make it more clear--still recognizing that law-abiding citizens have their rights and should not in any way be jeopardized in the legal sense from their constitutional right to go to court. At the same time, I don't think any of us believed that the court system of America would be gamed the way it has been gamed or that we would see the myriad of junk lawsuits that are being filed today and the venue shopping that continues to go on.

It is not just unfair to hold law-abiding businesses and workers responsible for criminal misconduct with the products they have made and sell, but this would also bring havoc to our marketplace. Hold onto your wallets, America, because those businesses will have to pass those costs directly on to the consumer if they plan to stay in business. Worse, some of those businesses will not be able to pass on those costs and still stay competitive. For some of them, this will mean layoffs, and ultimate bankruptcies, and the closure of the manufacturer's door.

We have already seen this in some of the firearm industry. In fact, these lawsuits have the potential to bankrupt the gun industry, even if they are not successful.

How could that be? The sheer cost of litigation, the repetitive filing of laws, the need to defend those lawsuits literally costs hundreds of millions of dollars. It is important to keep in mind that the deep pocket of the gun industry is not all that deep. In hearings before the House of Representatives, experts testified that the sales of the firearms industry taken together would not equal those of a single Fortune 500 company.

Why would I say that? People think this is a monolithic, large industry. It is not. It is a lot of small businesses, small manufacturers. In other words, all of them combined in America today would not equal one Fortune 500 company.

As of this year, it was estimated--and we can only estimate because the cost of litigation is confidential business information--that these baseless lawsuits have cost the firearms industry more than $250 million. Half of them have already been thrown out of court. Furthermore, don't think these companies can pass the costs off to their insurers because in nearly every case insurance carriers have denied coverage.

The impact on innocent workers and communities is not the only potential repercussion of these lawsuits. If U.S. firearms manufacturers close their doors, where will our military and our peace officers go to obtain their guns? As my colleagues know, the United States of America is the only major world power that does not have a government-run firearms factory. This is a little known fact but a reality. Yet last year we purchased more than 200,000 small arms for our soldiers, sailors, airmen, and marines. The very same companies that supply our troops in the war on terrorism, both abroad and here at home, are the targets of these reckless lawsuits that could force them to close their doors.

Some would say: Oh, gee, we buy some of our arms already from foreign countries.

Yes, we do. Does that mean that is where we should buy all of them; that we should be dependent on foreign

countries for the supply of firearms to our military? Surely we do not want foreign suppliers to control our national defense and community law enforcement--not to mention the ability of individual American citizens to exercise their second amendment-protected rights through accessing firearms for self-defense, recreation or other lawful purposes.

For all of those reasons, more than 30 States have laws on the books offering some protection for the gun industry from these extraordinary threats. Support has already grown in Congress to take action at the Federal level. The House has passed this measure several times. The Senate is now attempting to do so.

This would not be the first time Congress acted to prevent a threat on an industry. Some would wring their hands and say: Oh, dare not, dare not change the Federal law; dare not, in some way offer some protection. But let me tell you this is not the first time, and my guess is, with the courts and the trial bar where it is, it will not be the last.

For example, there are a number of Members in this Chamber who were serving in Congress when the General Aviation Revitalization Act was passed barring product liability suits against manufacturers of planes more than 18 years ago. Just a few years ago in the Homeland Security Act, Congress placed limits on the liability of a half a dozen industries, including the manufacturers of smallpox vaccine and the sellers of antiterrorism technology.

These are only a couple of examples of a significant list of Federal tort reform measures that have been enacted over the years when Congress perceived a need to protect a specific sector of our economy or our defense interests from the burdensome, unfair and, as I believe, frivolous litigation of the kind we see today.

It is high time we act to stop this threat to our courts, our communities, our economy, and, yes, to our defense.

I have heard some Senators talking about loading up this bill with political amendments that have nothing whatsoever to do with the legislation. Let me say right here and now these are killer amendments. Many of them know that. That is why they are trying to place them.

I ask my colleagues to support the underlying legislation. It is well written, it is thoroughly vetted with all of the interested parties. I ask my colleagues to look at it as they have already looked at it--in a very strong, bipartisan way. Here now in the Senate a supermajority, Democrats and Republicans alike, supports this legislation. I hope they would resist the kinds of amendments that are obviously intended to drag this bill down once again. Some attempted it last year, and they were successful in doing so. I hope those who have signed on as cosponsors are sincere in their support of the bill, as I believe they are, and they will allow us to move it through the process over the next several days in a clean and effective way.

Our courts are supposed to be a forum to redress wrongs, not enact political agendas. How many times has the anti-gun community been rejected by the American public through the voice of their Senator or through the voice of their Congress men and women? Time and time again. And yet because of their political alignment and their philosophical bent, they stay at the issue even though clearly and profoundly we have described it as and believe it to be a constitutional right of an American citizen to own a firearm. Well, because they have not been successful at the doorsteps of Congress, they have turned to the doors of the courtroom. Lawsuits are being filed. Lawsuits are being rejected. Thousands upon thousands of dollars are used in legal fees to prepare the arguments. New and inventive ways are approached: Let's try this angle, let's try that angle. Surely we can get to the deep pocket.

I am also amazed at those who would not suggest that American citizens are responsible for their own actions, and most assuredly the criminal element ought to be. We have watched some administrations walk one direction. But I tell you where this administration is. It believes the criminal element ought to be prosecuted. And guess what happened in America when we started prosecuting the criminal element and putting them behind bars. Crime began to go down very rapidly. The streets of America and the communities of America became safer places because those who would violate the law and, more importantly, those who use a gun in the commission of a crime get locked up. That is gun control in the right sense. That is gun control that a majority of the American people support and that the Congress has continually supported.

This legislation, as I have mentioned, is clear. It is well defined, and it is narrow by its action. We believe that is why a bipartisan majority now supports it and why it deserves to become the law of the land, so we don't have venue-seeking, politically minded efforts to ignore the criminal element in the zealous support or approach to gun control but to go after the law-abiding citizen who either manufactures the firearm or sells it under a Federal firearms license.

That is the essence of S. 397, and I hope as we work through this bill, the clarity of that issue comes forward.

With that, Mr. President, I yield the floor.

I object.

Will the Senator yield?

Obviously, I have an amendment on the floor now, or I should say an amendment that was filed by Leader Frist. Under appropriate consultation, it is very possible there are a variety of amendments that could come to the floor prior to the ripening of the cloture motion. To now immediately move to that without consultation with the floor leader, myself, is something I will object to, and the Senator understands that. So let us not be tactical here. Let us work and cooperate. I am very happy to look at any amendments----

The Senator might have, but with that, my objection still stands until full consultation is brought, full cooperation is sought. I thank you.

Will the Senator yield again?

Last year this amendment was offered by Senator Boxer, modified by Senator Kohl, and passed the Senate. We are examining the amendment now. We have only had it for 30 minutes or less. The Senator is absolutely right. And the amendment is substantively the same, but there are some differences in it. We are analyzing to see what those differences might be.

So, you see, there was a basis for my objection--until we clearly understand it. I think the agreement the Senator

was speaking to was one based on the exact amendment of Senator Kohl of a year ago. So let us examine what those changes might be in the amendment and then there may be no objection on this side. But until that time I believe we have adequate time here to resolve the issue, and my objection would have to stand.

Mr. President, I will submit for the Record a letter from Beretta U.S.A. Corporation that the Senator just mentioned as an Italian subsidiary, fully owned U.S. corporation. It is a significant letter because it effectively refutes almost all of what the Senator has said. I say that in this respect. It is true everything the Senator has said, and that is not in dispute as it relates to who Beretta is and what they do. They make the standard sidearm for U.S. Armed Forces, and they have had a long-term contract right now to supply this pistol to our fighting forces in Iraq. These pistols have been used extensively in combat during the current campaign, just as they have been used since the adoption of the Armed Forces in 1985.

Beretta U.S.A. also supplies pistols to law enforcement departments throughout the United States, including the Maryland State Police, Los Angeles City Police Department, and Chicago Police Department.

But here is what is significant about Beretta. What Beretta says is exactly what the Senator refuses to recognize. The decision by the District Court of Appeals to uphold the DC strict liability statute as they have in the case of DC v. Beretta U.S.A. has the likelihood of bankrupting not only Beretta U.S.A. but every manufacturer of semiautomatic pistols and rifles since 1991.

The letter to this administration, to Vice President Dick Cheney, goes on to say:

There are hundreds of homicides committed with firearms

each year in D.C. and additional hundreds of injuries

involving criminal misuse of firearms. No firearm

manufacturer has the resources to defend itself against

hundreds of lawsuits each year and, if that company's pistol

or rifle is determined to have been used in a criminal

shooting in the District, these companies do not have the

resources to pay the resultant judgment against them in which

they would have no defense if the pistol or rifle was

originally sold to a civilian consumer.

That is the essence of a lawsuit that has just been decided in the District.

I did not say you didn't.

Mr. President, I thank my colleague.

Let me read another paragraph from that letter, which I think clearly spells out the fear that my colleague would wish to step aside from and argue that is simply not the case. He is dealing with a strict liability statute.

This paragraph says:

Passed in 1991, the D.C. statute had not been used until

the District of Columbia recently filed a lawsuit against the

firearm industry in an attempt to hold the firearm makers,

importers and distributors liable for the cost of criminal

gun misuse in the District. Although the Court of Appeals

(sitting en banc in the case D.C. v. Beretta U.S.A. et al.)

dismissed many parts of the case, it affirmed the D.C. strict

liability statute and, moreover, ruled that victims of gun

violence can sue firearm manufacturers simply to determine

whether that company's firearm was used in the victim's

shooting.

Now, does that take away the costs involved in the preparation, the hundreds of millions of dollars that are now being spent? No, it does not. This was a frivolous lawsuit from the beginning. It was clearly intended. And that is what the district court said. The District of Columbia did not hide it. They were after the industry because they believed the industry had produced the gun that the criminal used in the commission of a crime.

So it goes on. I submit this letter for the Record. I think the letter stands on its own. It clearly affirms why we are here on this floor debating S. 397 and the importance of this legislation.

Mr. President, I ask unanimous consent that this letter be printed in the Record.

Mr. President, reserving the right to object, we are going to make every effort, over the course of today and tomorrow, to screen the amendments that are coming forward because there is a pending amendment on the floor that would have to be set aside. We are looking at the Senator's amendment now. He has just submitted it to us. Once we have analyzed it, I will be happy to get with him to determine whether I feel comfortable or we feel comfortable with that amendment and go forward.

So at this time, clearly, I appreciate the Senator's sincerity, but I would have to object to the setting aside of the pending business on the floor, which is the amendment offered by the majority leader.

If the Senator will yield, Mr. President.

Mr. President, the rulings of the Senate. There is pending business before the Senate. It would take unanimous consent to set aside the pending business to go on to other business. So that is the circumstance we are involved in at this moment. And defending my right to the floor and the amendment before the floor, I am simply upholding that right to the rules of the Senate.

The leader has said, most sincerely, that we would examine all the amendments that are brought forth to determine if there are some that we can agree on, that ought to go forward, that fall, I think, into the conscript of those of us 67 Senators who are the supporters of this legislation and who would do so. But now it is the rules of the Senate that cause me to take the action I have taken.

Reserving the right to object, we appreciate the Senator coming to the floor. I know he is committed to these issues and has been for a good number of years. We are reviewing the amendment now consistent with all of the amendments that are being submitted at this moment. We have not yet completed that review. We received the amendment about 25 or 30 minutes ago.

With that, I object to the unanimous consent request.

Mr. President, we are examining these amendments closely. As I had mentioned to the Democratic floor leader a few moments ago on the trigger lock amendment, it was not last year's amendment. We are examining it now. It is quite extensive. It is a new approach toward trigger locks and licensed gun dealers and a much broader issue than before.

I see another Senator on the floor to speak. Let me speak only briefly because the Democratic floor leader, Senator Reid, had mentioned in his debate a few moments ago a statement by Smith & Wesson in relation to the expenses involved as it relates to defending themselves in these frivolous lawsuits.

I have a letter from Smith & Wesson to Senator Bill Frist that I think is

important to recognize because it does put in context something that can very easily be taken out of context.

Michael Golden, president and CEO of Smith & Wesson, put it this way. He speaks to a letter in response to the Brady Center's wire story, obviously trying to knock down the claims of gun manufacturers in their support of the Protection of Lawful Commerce in Arms Act. He stated:

In the article, the Brady Center attempts to minimize the

financial implications that the numerous ``junk'' lawsuits

have had on the firearms industries. To support their

position, they cite, among other things, Smith & Wesson's

most recent 10-Q, filed with the Securities and Exchange

Commission. They quote Smith & Wesson's filing, stating, ``In

the nine months ended January 31, 2005, we incurred $4,535 in

defense costs, net of amounts received from insurance

carriers, relative to product liability and municipal

litigation.''

As stated in our filing, the figure report reflects fees

incurred over a 9-month period, and is exclusive of

settlement amounts received from our insurers. Smith & Wesson

entered into settlement agreements with two of its insurance

carriers following years of coverage disputes. The settlement

amounts equal a fraction of the total fees incurred by Smith

& Wesson in defending against frivolous lawsuits. In fact,

over the past 10 years, Smith & Wesson has spent millions of

dollars defending itself against precisely the type of

``junk'' lawsuits that the legislation--

Referencing the legislation that is before us today--

is designed to prevent.

So they do openly support passage of the Protection of Lawful Commerce in Arms Act. They feel it is critical to not only the survival of Smith & Wesson but to the firearms industry of America.

I ask unanimous consent that the letter be printed in the Record.

Mr. President, as most of our colleagues know, we are now on S. 397, the Protection of Lawful Commerce in Firearms Act. There is an amendment on the Senate floor for consideration at this moment. Cloture on the bill has been filed.

What I thought I might do is take a few moments to discuss some of the differences between S. 397, the one currently on the Senate floor, and S. 1805, the previous version of the Protection of Lawful Commerce in Firearms Act, which was considered in the Senate in the 108th Congress. Language has been added in this version to address developing issues or concerns expressed last Congress, garnering more support and adding more cosponsors on both sides.

As I announced this morning and submitted for the Record, we now have 61 cosponsors including myself. In some cases, the changes are just technical in their character.

But before I get to the changes, let me assure my colleagues that these changes do not alter the essential purpose and effect of the bill. As we have stressed repeatedly, this legislation will not bar the courthouse doors to victims who have been harmed by the negligence or misdeeds of anyone in the gun industry. Well recognized causes of action are protected by the bill. Plaintiffs can still argue their cases for violations of law, breach of warranty, and knowing transfers to dangerous persons. Specific language has been added to make it clear that the bill is not intended to prevent suits for damage caused by defective firearms or ammunition. The only lawsuits this legislation seeks to prevent are novel causes of action that have no history or grounding in legal principle.

This bill places blame where blame is due. If manufacturers or dealers break the law or commit negligence, they are still liable. However, if the cause of harm is the criminal act of a third person, this bill will prevent lawsuits targeting companies that have ``deep pockets'' but no control over those third persons.

The first change we made in this bill was to add the words ``injunctive or other relief' in the title of the bill. This is to make sure S. 397 will prevent all qualified suits and respond to concerns that the 108th version would only have prevented suits for damages. The version of the bill before us today will prevent suits that seek injunctive or other relief besides those seeking only money damages. Without adding this language, law-abiding firearms businesses could still be crippled by being prevented from manufacturing or selling firearms. Any court decision that incorrectly finds dealers or manufacturers liable for criminal acts of others will destroy an industry whether there is an award of money damages or not.

In the ``findings'' section of the bill, we have made a couple of changes that do not alter but strengthen and clarify the second amendment principles that are reviewed there.

That same section contains a new paragraph responding to questions about the bill's Commerce Clause implications. That new section expresses the reality that the bill actually strengthens federalism and protects interstate commerce. Thirty-three states have already forbidden lawsuits like the ones this bill seeks to eliminate. Advocates of gun control are trying to usurp State power by circumventing the legislative process through judgments and judicial decrees. Allowing activist judges to legislate from the bench will destroy state sovereignty. This bill will protect it.

A new paragraph in the ``purposes'' section of the bill echoes this change.

In the ``definitions'' section of the bill spelling out what we mean by a ``qualified civil liability action,'' we have added the words ``or administrative proceeding . . .''. This change responds to the experience of some in the industry, who have found themselves not only the target of junk lawsuits filed by a municipality but also the target of administrative proceedings, such as those to change zoning restrictions, also aimed at putting a law-abiding manufacturer or seller out of business just because it made or sold a firearm that was later used in a crime. However, it must be remembered that not all administrative proceedings involving someone in the firearms industry would be covered by this addition--only those that were ``resulting from the criminal or unlawful misuse of a qualified product by the person [bringing the action] or a third party . . .''. Let me emphasize: this change is not intended to, and would not, have the effect of preventing ATF or any other Federal, State, or local agency from using administrative proceedings to enforce Federal or State regulations that control the firearms business. So we are not trying to circumvent the Justice Department in any sense of the

word; or, as I have said, State or local agencies that have the right to enforce the law. For example, if a dealer actually violated a zoning regulation or local licensure requirement, this provision would not prevent an action against the dealer. Likewise, if a dealer knowingly violated the law or committed any other infraction for which he or she could lose a Federal firearms dealer's license, this provision would not prevent ATF from initiating an administrative proceeding to revoke or suspend that dealer's license. This addition of the words ``administrative proceeding'' is simply intended to clarify that whether it is a reckless court or court-like administrative proceeding that is brought against a law-abiding business, based on a third party's misuse of a firearm, it is covered by this bill.

Also in this section of the bill, we have added the words ``injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief . . .''. This is to ensure that the bill encompasses all qualified lawsuits, regardless of the relief being sought.

In the section relating to causes of action that would not be barred by this legislation, we have specifically listed circumstances in which manufacturers or sellers ``knowingly'' violate a statute. In the last Congress, we had two different versions of this section: one required the violation to be both knowing and willful, and the other version didn't require either. Since a person cannot violate the law ``willfully'' without doing so ``knowingly,'' we have dropped the word ``willfully'' in this version.

Also in the section relating to causes of action that would not be barred by this legislation, we have made some clarifying changes to the paragraph concerning product liability actions. Again, this bill is not intended to prevent lawsuits against the industry for damages resulting from a defective product. Language was added to this section of the bill to make clear that even if the person who discharged a defective product was technically in violation of some law relating to possession of the product, that alone would not bar the lawsuit. For instance, if a juvenile were target shooting without written permission from his parents--that is a violation of current law, a violation of 18 U.S.C. 922y--and was injured by defective ammunition, the juvenile would still be able to bring a suit against the ammunition manufacturer.

The final major change, other than clarifications and emphasizing language, is the provision conforming the definition of trade association to the definition in the Internal Revenue regulations. The purpose of the change was to address some arguments that were made in the last Congress, attempting to stretch the concept of ``trade association'' to include groups that no one has ever considered to be a trade association. So, for anyone who might have been concerned that the National Rifle Association would somehow be protected by this bill--as was argued last time--being defined as a trade association, this change will prevent that from happening. We want that to be perfectly clear. It will also prevent illegitimate gun sellers, such as gangs or gun traffickers, from somehow qualifying as a trade association under the bill.

I believe that I have addressed most, if not all, of the significant changes in the bill. As we often find with legislation, while they are relatively small changes in the language itself, it took a lot of words to describe them. Even so, I hope this explanation is helpful to my colleagues.

This legislation is not identical to the legislation of the 108th, but it is to all intents and purposes the same, with the kind of clarifying examples I have just given. I certainly welcome the debate on the importance of this measure. I hope we can move it quickly through the Senate and conclude our work and provide this country with the Protection of Lawful Commerce in Firearms as should be the case.

I yield the floor.

I will be very brief.

Mr. President, in the context of what the Senator from Connecticut has said, let me read some statistics from the National Safety Council injury fact sheet. I am talking about some very important statistics: Between 1993 and 2003, accidental or unintentional deaths by firearms has gone down 40 percent in America. Between 2002 and 2003, that reduction of accidental deaths has again gone down by 33 percent. Very significant numbers.

Here also are other significant numbers that my colleagues would want to be aware of that are tremendously important. Total unintentional accidental deaths in America, 101,500 in 2003; motor vehicle deaths of that year, 44,000; falls at home and work and on the streets of America, 16,000; drownings, 13,000; fire and burns, 4,300; ingestion of food objects, 2,900; firearms was down into the number of 700. That is less than 1 percent.

Here is what is most significant, because I don't take 700 unintentional accidental deaths by firearms lightly. But these are important statistics to understand as we look at the total scope of the legislation and even what the Senator from Connecticut said that I don't think pertains to this legislation.

Here are the statistics from the National Safety Council. Accidental firearms-related fatalities have been consistently decreasing for many years. Primarily, statistics show accidental firearms-related fatalities decline by 13 percent in one category, 2002 to 2003. Here is what is most important because we are all concerned about the young people of America. Over the past 7 years, accidental firearms-related fatalities among children under 14 years of age has decreased by 60 percent. Why? Because there are tremendous safety efforts not by the Federal Government but by private organizations and by responsible parents to teach their young people how to deal with firearms when they are either subject to them or find them in a location. These numbers are important in the context of this debate.

Again, this debate has nothing to do with crime on the street. This has everything to do with frivolous lawsuits against law-abiding citizens. I am afraid we have to start dealing with the criminal element instead of the law abiding.

I yield the floor.

What the Senator is saying, there have been 24 or 25 lawsuits filed against gun manufacturers and dealers by municipalities. Half of them have been thrown out of the courts as being frivolous.

The problem is, and the Senator well knows, this Congress has, from time to time when they have seen industries subjected to wrongful lawsuits, chosen to exempt them from the wrongful lawsuit but not from liability.

And millions and millions and millions of dollars spent. I appreciate the Senator's mindset on this issue. He is fundamentally wrong, and that is why we have the legislation now to provide a very narrow scope of protection, but certainly not from malfunctioning, not from bad product, only from that third-party criminal issue.

I am sorry to say the Senator would disagree with me, but a person who manufacturers a firearm is not the criminal who pulls the trigger and therefore should not be liable for that criminal act.

We did it for aircraft industry some years ago because of frivolous lawsuits that nearly bankrupted them until Congress stepped in and said, No, in certain categories that is unfair, and it allowed them to stabilize their economy and continue to build aircraft for the American consumer.

I apologize.

If the Senator will yield.

Mr. President, let me address the minority leader.

Certainly, all that he has said is exactly the conversation from my reference point that went on between him and the majority leader. There is no intent to block all amendments. That is not the intent of what the majority leader did.

We have seen these amendments less than 30 minutes, in almost every instance, prior to the time they were offered. Certainly, the Senator from Nevada knows the opportunity to examine and look at these amendments, in light of similar amendments offered last year, is a reasonable request. That is the request the majority leader and I, as the floor manager, have made. Those amendments are under review now.

The floor leader for the Democrats, Senator Reed, and I have visited about some of them that may well meet that scope, and we are reviewing them at this moment. This is not unprecedented, and the Senator from Nevada knows that. This is a procedure under the rules of the Senate that has been used over time. Has Majority Leader Frist used it? I don't know. I am not that good of a historian. But I have been here not quite as long as the Senator from Nevada, and I do know that both his side and our side have used it from time to time. It is clearly within the prerogative of the Senate to do so under its rules.

At the same time, clearly, what the majority leader has expressed was expressed in good faith with the minority leader. I would hope in the course of the evening--and we will certainly be on this legislation all day tomorrow because the cloture motion does not ripen until early Friday morning--- that it would be adequate time to consider several of these amendments that have been offered. I know that is the intent of this floor leader. And certainly I believe it is the intent of the majority leader to do so.

Mr. President, reserving the right to object, my colleague is most sincere in his effort. We received the amendment about 30 minutes ago. We are taking a look at it now. I remind my colleagues, Senator Levin offered a similar amendment last year that dealt with gross negligence and reckless conduct.

I must say, my frustration with these kinds of amendments are that these are not well-defined terms. There are thousands, if not millions, of pages of case law that have attempted to define them, but not successfully.

I suggest to the Senator, he refers to State law and State venue. Thirty-three States have already very specifically restricted liability in the context of what we are attempting to do here. Thirty-three States have already spoken. We did table this amendment last year by a fairly substantial margin. So at this time, until I have had a chance to review----

I will.

Mr. President, I do appreciate the Senator's effort, but at this time, until we have effectively reviewed the amendment, I object.

Reserving the right to object, I know the intent of the Senator from Virginia is to file an amendment at the desk and not usurp the position of the current amendment that is before the Congress. I would have to ask the Parliamentarian as to the priority of that.

The Senator does not have to lay the pending amendment aside to file an amendment?

I would object to the laying aside of the pending amendment, which would not restrict the Senator's right to file an amendment at the desk and speak about it.

Will the Senator yield.

I thank the Senator from Virginia. I know he is sincere in the offering of this amendment. Of course, it will be reviewed by the Parliamentarian as to its germaneness postcloture. I would ask the Senator and his staff to examine the Frist amendment that was laid down and that is now pending because what we attempt to do by that amendment is to send a message, if you will, downline to federally licensed firearms dealers that there is no forgiveness here to bad faith and/or to the misuse or the misconduct within the current Federal statutes. We are examining now, but clearly that Washington dealer that the Senator referred to--

Washington State dealer the Senator referred to--yes, there are no gun dealers in Washington, this city--those were actions in violation of Federal firearms law. And of course the question is the administering of the law, and clearly that amendment does so.

But I have seen the amendment in quick glance, will review it to see if there can be some accommodation here. I know the intent of the Senator. It is intent in good faith to do exactly what he said and that is exactly what we want done. We do not want those who are under the umbrella of a federally licensed dealer to in any way misuse that law and not to be prosecuted for the misuse of that law.

That is the intent here. It is the frivolous lawsuits that we are attempting to block. We have been very clean and specific in the language of the bill. We have even refined it over last year in a way that I hope the Senator might be able to support in the end because I think it clarifies a complicated situation that is currently before manufacturers and licensed dealers.

I thank the Senator.

Exhibit 1

Beretta U.S.A. Corp.,

Beretta Drive,

Accokeek, MD, May 11, 2005.

Hon. Richard B. Cheney,

Vice President of the United States, Eisenhower Executive

Office Building, Washington, DC.

Dear Mr. Vice President: A few weeks ago, the Washington,

D.C. Court of Appeals issued a decision supporting a D.C.

statute that holds the manufacturers of semiautomatic pistols

and rifles strictly liable for any crime committed in the

District with such a firearm.

Passed in 1991, the D.C. statute had not been used until

the District of Columbia recently filed a lawsuit against the

firearm industry in an attempt to hold firearm makers,

importers and distributors liable for the cost of criminal

gun misuse in the District. Although the Court of Appeals

(sitting en banc in the case D.C. v. Beretta U.S.A. et al.)

dismissed many parts of the case, it affirmed the D.C. strict

liability statute and, moreover, ruled that victims of gun

violence can sue firearm manufacturers simply to determine

whether that company's firearm was used in the victim's

shooting.

It is unlawful to possess most firearms in the District

(including semiautomatic pistols) and it is unlawful to

assault someone using a firearm. Notwithstanding these two

criminal acts, neither of which are within the control of or

can be prevented by firearm makers, the D.C. strict liability

statute (and the D.C. Court of Appeals decision supporting

it) will make firearm manufacturers liable for all costs

attributed to such shootings, even if the firearm involved

was originally sold in a state far from the District to a

lawful customer.

Beretta U.S.A. Corp. makes the standard sidearm for the

U.S. Armed Forces (the Beretta M9 9mm pistol). We have long-

term contracts right now to supply this pistol to our

fighting forces in Iraq and these pistols have been used

extensively in combat during the current campaign, just as

they have seen use since adopted by the Armed Forces in 1985.

Beretta U.S.A. also supplies pistols to law enforcement

departments throughout the U.S., including the Maryland State

Police, Los Angeles City Police Department and to the Chicago

Police Department. We also supply firearms used for self-

protection and for sporting purposes to private citizens

throughout our country.

The decision of the D.C. Court of Appeals to uphold the

D.C. strict liability statute has the likelihood of

bankrupting, not only Beretta U.S.A., but every maker of

semiautomatic pistols and rifles since 1991. There are

hundreds of homicides committed with firearms each year in

D.C. and additional hundreds of injuries involving

criminal misuse of firearms. No firearm maker has the

resources to defend against hundreds of lawsuits each year

and, if that company's pistol or rifle is determined to

have been used in a criminal shooting in the District,

these companies do not have the resources to pay the

resultant judgment against them--a judgment against which

they would have no defense if the pistol or rifle was

originally sold to a civilian customer.

When the D.C. law was passed in 1991 it was styled to apply

only to the makers of ``assault rifles'' and machineguns.

Strangely, the definition of ``machineguns'' in the statute

includes semiautomatic firearms capable of holding more than

12 rounds. Since any magazine-fed firearm is capable of

receiving magazines (whether made by the firearm manufacturer

or by someone else later) that hold more than 12 rounds, this

means that such a product is considered a machinegun in the

District, even though it is semi-automatic and even if it did

not hold 12 rounds at the time of its misuse.

The Protection of Lawful Commerce in Arms Act (S. 397. H.R.

800) would stop this remarkable and egregious decision by the

D.C. Court of Appeals. The Act, if passed, will block

lawsuits against the makers, distributions and dealers of

firearms for criminal misuse of their products over which

they have no control.

We urgently request your support for this legislation.

Without it, companies like Beretta U.S.A., Colt, Smith &

Wesson, Ruger and dozens of others could be wiped out by a

flood of lawsuits emanating from the District.

This is not a theoretical concern. The instrument to

deprive U.S. citizens of the tools through which they enjoy

their 2nd Amendment freedoms now rests in the hands of trial

lawyers in the District Equally grave, control of the future

supply of firearms needed by our fighting forces and by law

enforcement officials and private citizens throughout the

U.S. also rests in the hands of these attorneys.

We will seek Supreme Court review of this decision, but the

result of a Supreme Court review is also not guaranteed. Your

help in supporting S. 397 and H.R. 800 might provide our only

other chance at survival.

Sincerest and respectful regards,

Jeffrey K. Reh,

General Counsel and Vice-General Manager.

Mr. President, I think if Senator Reid is ready, I am ready to propound a unanimous consent request.

Mr. President, I ask unanimous consent that the pending amendments be temporarily set aside and that Senator Reed then be recognized in order to call up amendment No. 1626 on behalf of Senator Kohl; provided further that on Wednesday there be 1 hour equally divided for debate in relation to the Kohl amendment and that following the use or yielding back of time, the Senate proceed to a vote in relation to the Kohl amendment, with no amendment in order to the amendment prior to the vote.

I should say, yes, I would amend that unanimous consent to say Thursday, not Wednesday.

If the Senator wishes to make brief remarks, then I would put the Senate in morning business.

Surely.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, we are now proceeding to S. 397, after a very strong cloture vote with 66 Senators voting to move forward on this legislation. It is something we have had taken up quite a number of times. It has broad support in terms of business groups, gun owners, law enforcement, labor unions, and sportsmen. There is nothing in it that is harmful or damaging to our legal system. There is nothing in it that provides any special interest protection to gun manufacturers. But it is a legitimate response to a growing concern that our legal system is being abused in such a way that could actually take legitimate businesses and put them out of business.

I think it is something that is of great concern to us, and this Senate has a majority that is ready to move forward with it. In the great spirit of our Senate, we will have a lot of debate. There are those who don't approve. I know Senator Reed of Rhode Island is a strong opponent of this legislation and he will certainly have a great opportunity to express his concerns on it. That is part of what we do. I note, however, this is not the first time the words will have been spoken on this issue. This bill has been up for some years now and has come close to becoming law on several occasions, but has not yet done so.

It is important that we note that this legislation has the potential to impact our economy adversely. We need to look at how these proposed novel legal theories adversely affect our economy. Someone will be making firearms in the world. People are not going to stop buying firearms. They have a constitutional right to do so. It would be the height of stupidity if we were to create laws and a legal system that put our firearm manufacturers out of business so that we have to buy imported firearms. That would not make good sense.

Our ultimate obligation is to the public. This body should take no steps that would provide improper immunity for defective practices or defective firearms that could be sold. That absolutely must not be done. With that said, it is essential that we refrain from developing a legal system, however, where lawyers are able to create causes of action and steer public policy through litigation--a public policy they have not been able to win at the ballot box, and not been able to win through their State legislatures and the Congress. So since they have not been able to win in the legislative branches, what we have had is a group of activist anti-gun people trying to accomplish the same goal through litigation.

We also need to remember in all we do regarding litigation that personal responsibility is an important American characteristic. Individual responsibility must not be stripped from all our expectations, where plaintiffs are suing third parties on an almost strict liability theory. Many trial lawyers are attempting to invent new causes of action, with hopes of striking a litigation oil well. As a result, industries such as arms manufacturing and the food industry are facing enormous insecurities. These industries have great reason to be insecure. Everyone knows

how detrimental runaway verdicts can be and one major verdict can bankrupt an industry. Huge costs arise from simply defending an unjust lawsuit. Indeed, such lawsuits, even if lacking any merit and ultimately unsuccessful, can deplete an industry's resources and depress stock prices.

Defendant industries must hire expensive attorneys and have their employees spending countless hours responding to the lawyers, providing them information and so forth, and meeting with them. Industries, in addition, must purchase liability insurance which takes away from funds necessary for expanding their new jobs, safety, research and development that they might otherwise be able to spend it on, which is important. No other nation must compete in the world marketplace carrying such a huge litigation cost as American businesses do and particularly gun manufacturers. Eventually, these costs are passed on to the consumer. Product prices increase and availability of the products becomes scarce.

In 1998, individuals and municipalities began filing dozens of novel lawsuits against members of the firearms industry. These suits are intended to drive the gun industry out of business by holding manufacturers and dealers liable for the intentional and criminal acts of third parties over whom they have absolutely no control. The firearms industry is particularly vulnerable to lawsuits.

In his testimony before a House subcommittee in 2003, the general counsel of the National Shooting Sports Federation stated:

Industry-wide cost of defense to date [against these

lawsuits] now exceed $100 million. This is a huge sum of

money for a small industry like ours. The firearms industry

taken together would not equal a Fortune 500 company. The

National Shooting Sports Foundation now believes litigation

expenses have exceeded $150 million, Mr. President.

The danger that these lawsuits can destroy the gun industry is especially ominous because our national security and liberties are at stake. First, the gun industry manufactures firearms for American military forces and law enforcement agencies. Unlike many foreign countries, the United States doesn't have a government armory, but relies on private industry to make our firearms. Due in part to Federal purchasing rules, these guns are made in the United States by American workers. Successful lawsuits can leave the U.S. at the mercy of foreign small arms suppliers.

Second, by restricting the industry's ability to make and sell guns and ammunition, the lawsuits threaten the ability of Americans to exercise their second amendment rights. I can imagine the impact the ruin of the gun manufacturing industry would have on my home State of Alabama, which is one of the premier States in the Nation for hunting whitetail deer and eastern wild turkey. Hunting is a part of the way of life for nearly 500,000 Alabamans. That is about 1 in 9 of our citizens. Imagine if they were unable to obtain hunting rifles or ammunition. What would happen to the hunting industry, which brings close to $45 million a year in revenues into the State and provides nearly 16,000 jobs?

Additionally, if the arms industry must continue to hash out massive legal fees or eventually goes under, thousands of workers will lose their jobs. Manufacturers are already laying off workers to pay the legal bills. Secondary suppliers to gun makers have also suffered. This is why it is not surprising that the labor unions representing workers at major firearms plants, such as the International Association of Machinists and Aerospace Workers of East Alton, IL, support this bill. This union's business representatives stated the jobs of their 2,850 union members ``would disappear if the trial lawyers and opportunistic politicians get their way.''

Insurance rates for firearms manufacturers have skyrocketed since these suits began. I am going to talk about these suits and why they are fundamentally wrong in a minute. These suits have caused the insurance to go up and some manufacturers are being denied insurance and seeing their policies cancelled, leaving them unprotected and vulnerable to bankruptcy.

Thirty-three State legislatures have acted to block similar lawsuits, either by limiting the power of localities to file suit or by amending State product liability laws. However, one lawsuit in one State could bankrupt the industry, making all of those State laws inconsequential. That is why it is essential that we pass this law.

The lawsuits we are talking about--the kind of lawsuits we will be discussing today are the kind of lawsuits that do not have merit. They are not the kind of lawsuits that ought to be brought. Many of them eventually get dismissed by judges. Most of them do eventually. But the costs are huge and, who knows, some day an activist court may start allowing these lawsuits to be successful.

The anti-gun activists, at their base philosophy, want to blame violent acts of third parties--that is violent, illegal acts by criminals--on manufacturers of guns, because they manufactured the gun, and they want to be able to sue the seller who sold the gun simply for selling them. This doesn't make sense. Should a car dealer be sued if someone intentionally runs down a pedestrian because the car dealer sold the car that was used by a third party to commit a crime, a homicide? What about the car manufacturer? What an absurd thought. But that is the equivalent of what these plaintiffs are arguing to recover from gun manufacturers and sellers.

Guns can be dangerous in the wrong hands, but so can cars. Why would the manufacturer or seller of a gun who is not negligent, who obeys all of the applicable laws--we have a host of them--be held accountable for the unforeseeable action of some criminal third party? They should not, and this bill would simply prohibit that.

If you buy a gun and someone comes into your house and attempts to attack you or your family and you pull out that gun and attempt to use it and it fails to work because it was defective, and that criminal harms you or your family, you should be able to sue the gun manufacturer for a defective product. But if it fires as it is supposed to, as it was designed to, it operates like whatever widget is made in this manufacturing world we are in, and it does what it is supposed to do and it is a lawful product, you should not be able to be sued.

I don't understand how these lawsuits are being maintained. But we have major cities in this country that have taken it as a policy to sue the manufacturers for creating a product that works precisely as it is supposed to work, that is designed according to the laws of the United States, and it is sold according to the laws of the United States, and they still want to sue them for an intervening criminal act. That is contrary to our classical law of lawsuits and plaintiff lawsuits. It is something that I sense is being eroded, these classical principles of litigation today. I think that is one reason we are beginning to have movements to have court reform, lawsuit reform, around the country because courts have allowed things to go beyond what traditionally they were ever allowed to do.

So it sort of makes these gun manufacturers a guarantor, a person who would pay for all damages that might occur for a gun they manufactured. That cannot be the law and must not be the law. These plaintiffs are demanding colossal monetary damages and a broad range of injunctive relief; that is, orders from the court concerning this. These injunctions would relate to the design, manufacture, distribution, marketing, and the sale of firearms. We already have laws that cover all of that.

By the way, we have had laws about all of that. We have debated other laws the Congress and State legislatures have chosen not to pass. So the attempt, in a very real sense, is to put pressure on these companies to do things the elected representatives have decided they should not do or should not be required to do.

Some of the demands that are being made are the kinds of demands that legislatures, not courts, should be deciding: one-gun-a-month purchase restrictions not required by the State law, requiring manufacturers and distributors ``to participate in a court-ordered study of demand for firearms and to cease sales in excess of lawful demand,'' prohibition on sales to dealers who are not stocking dealers with at least $250,000 in inventory, a permanent injunction requiring the addition of a

safety feature for handguns that will prevent their discharge by ``those who steal handguns.''

That will be a pretty ingenious device, if you can make it work. It is going to be on every gun that is sold? It may be within the power of this Congress to vote such a restriction if it can be done. It seems like somewhere in my memory we voted on something such as that.

But to have a judge who is supposed to be a neutral arbiter in a lawsuit start entering injunctions to require these kinds of things is beyond legitimate principles of law.

One of the most amusing demands was a prohibition on the sale of guns near Chicago ``that by their design are unreasonably attractive to criminals.'' Guns could not be sold near Chicago that are ``by their design unreasonably attractive to criminals.''

What would that mean? What kind of responsibility does a manufacturer have? Should each court make that determination? Is that what they were elected to do? Is that the role of the court? No. It is a legislative requirement.

These lawsuits are part of an anti-gun activist effort to make an end run around the legislative system. That is the fact. Because their efforts to pass restrictive legislation have only partially succeeded, they want to do more. So they are taking their cause to the judicial system hoping they will land in court before an activist judge who will somehow allow their view of how guns should be sold and manufactured to become a part of a judge's order. Just impose it. One judge who may not be elected--if it is a Federal judge, he has a lifetime appointment-- just impose this by a court order. That is why people are concerned. So far they have not been successful in winning these cases.

The Ohio Court of Appeals held that allowing this type of liability would--they were correct about this--``open up a Pandora's box. For example, the city could sue manufacturers of matches for arson, or automobile manufacturers for traffic accidents, or breweries for drunk driving.''

That is the same principle. I believe that judge in Ohio was correct. In the city of Bridgeport v. Smith & Wesson Corporation, Judge Robert McWeeny aptly stated that ``plaintiffs must have envisioned such settlements as the dawning of a new age of litigation during which the gun industry, liquor industry and purveyors of junk food would follow the tobacco industry.'' It is clearly an attempt to build on and expand those kinds of theories of tobacco lawsuits to go even further than what we are dealing with here.

The Florida Supreme Court summed up the issue nicely when it refused to hear a plaintiff's appeal against the firearms industry in a lawsuit.

The plaintiff did not prevail in an appeal to the higher court in Florida, and the court held this:

The power to legislate belongs not to the judicial branch

of Government, but to the legislative branch.

Hallelujah, Judge. I am glad you get it. Judges ought to be neutral umpires, not activists. They should not be setting public policy. They should not allow their courts to be used as a tool to further a political agenda, an agenda that has been rejected in the State legislature or Congress.

However, all it will take is one activist judge or activist court to destroy an entire industry in reality. So that is why the legislation is important.

Let me mention what this bill does and does not do. The bill is incredibly narrow. It only forbids lawsuits brought against lawful manufacturers and sellers of firearms or ammunition if the suits are based on criminal or unlawful misuse of the product by a third party.

I know it is hard to believe, but that is the theory of these lawsuits. That theory is you sold a gun lawfully, OK. You followed the complex Federal regulations that have a huge host of requirements. You followed the State legislature's requirements, often very complex, also, to the T, and it comes in the hand of a criminal, and they use it for a crime. Now the manufacturer and the seller are liable. What kind of law is that? We do not need that. These lawsuits are happening, and so all this would say is that those kinds of lawsuits cannot be brought.

Manufacturers and sellers are still responsible for their own negligent or criminal conduct and must operate entirely within the complex State and Federal laws. Therefore, plaintiffs are not prevented from having a day in court. Plaintiffs can go to court if the gun dealers do not follow the law, if they negligently sell the gun, if they produce a product that is improper or they sell to someone they know should not be sold to or did not follow steps to determine whether the individual was properly subject to buying a gun.

The plaintiff can still argue that actions such as negligent entrustment, breach of contract, or warranty, or normal product liability involving actual industries caused by an improperly functioning firearm can be legitimately brought as a lawsuit and should be able to be brought. Furthermore, any allegation that the bill burdens law enforcement is completely false. Gun manufacturers and sellers are already heavily regulated by hundreds of pages of statutes and regulations. The Government requires that all gun manufacturers, importers, and dealers receive licenses. They have to have those licenses. And they must keep all their records by serial number, and each gun has to have a distinct, separate serial number recorded before entering or leaving their inventory. That is, if they are manufactured in Massachusetts or someplace and they are shipped to Alabama, they ship it by each one's serial number and it is recorded. If it is received by a distribution center in Alabama, it is recorded there, and if it is moved off to a gun store or a Wal-Mart where they sell guns, it is entered there. When it is sold, it is entered. That serial number is recorded against the name of the person who bought it. That person who bought it must produce identification, must sign a sworn statement that they have not been convicted of a crime, that they are not under the influence of drugs, and a number of other things. They sign it. It is a Federal offense if they lie about it. And they do a background check.

So there are a lot of regulations set forth. The records have to be open for inspection by the Bureau of Alcohol, Tobacco and Firearms without a warrant and at any time. They don't have a warrant. They can go into these licensed dealers any time, any day, and examine their records. That is the burden we put on gun dealers.

They can also do annual inspections without a specific investigation or obtain a warrant as any other law enforcement agency can.

Mr. President, I think I overstated it. The ATF can without a warrant any time do an inspection if it is related to an investigation of a gun that has been traced there, and they have an opportunity to do annual inspections at any time through the year as part of their enforcement dealings, and they do that. That guns are not heavily regulated is a complete myth. Gun dealers are carefully managed.

As a former U.S. attorney, I participated in the prosecution of a gun dealer for bad recordkeeping. He was most offended. Over a number of years we have created even more regulation. He really felt put upon, but he wasn't filling out the forms. He wasn't making people sign. He was telling people not to put down that they lived out of State because that affected whether the gun could be sold. He would tell them, don't fill that out, and things of that nature. He was not complying, and we prosecuted him. He went to jail and lost his ability to sell guns.

Licensed dealers have to conduct a Federal criminal background check on their retail sales either directly through the FBI, through its National Instant Criminal Background Check, NICS, or through State systems that also use NICS. All retail gun buyers are screened to the best of the Government's ability.

Additionally, the industry has voluntary programs to promote safe gun storage and to help dealers avoid selling to potential illegal traffickers in guns. Manufacturers also have a time-honored tradition of acting responsibly to issue recalls and make repairs if they become aware of defects. Law-abiding manufacturers and dealers of firearms are not threats to our society. They have not committed crimes by supplying our citizens with lawfully acquired firearms. It is essential that the people who are guilty, people who commit the crime, who deserve punishment, receive the punishment. More

importantly, this legislation is needed so that people who have suffered a real injury from a real cause of action can be heard and taken seriously while those who are trying to improperly spread the blame will not.

Mr. President, it is the responsibility of Congress to review our civil litigation system, our court system, and see how it is working. If over a period of years tactics and techniques are developed that exploit weaknesses or loopholes or gaps in that system or allow the system to be abused, then I think everybody would recognize that we ought to take action to fix it. Every day, attorneys file lawsuits under laws that we pass and the court's interpretation of those laws. Congress has every right to monitor this, and we have a duty once we determine a type of litigation is so legally unsound and detrimental to lawful commerce that it should be constrained to enact meaningful legislation to constrain it and to stop abuse.

In the past, Congress has found it necessary to protect the light aircraft industry, community health centers, aviation industry, medical implant makers, Amtrak, computer industry members affected by Y2K problems, and good Samaritans.

Senator McConnell offered a bill to protect a person who tried to save another person, who was the victim of an accident, from dying. He believed that a person trying to do the best they can to protect someone else should not be sued, if they are somehow found to be faulty in a good Samaritan act.

Congress may enact litigation reforms when lawsuits are affecting interstate commerce, and many of these lawsuits are trying to use State courts to restrict the conduct of the firearms nationally. They are trying to create legal holdings by the courts that would impact the entire industry nationally. In fact, it is the stated purpose of many of these groups. And a single verdict, even a single verdict, large verdict of an anti-gun plaintiff, could bankrupt or in effect regulate an entire segment of our economy and of America's national defense and put it out of business.

I do not know when there has been a better example of when this type of legislation is needed. We must pass this bill. It is long overdue. It has 60 cosponsors. It is time for us to move forward and get it done.

It is simply wrong when we as a Congress have approved the sale of firearms in America and, through the Constitution, allowed the manufacture and sale of firearms, to allow those manufacturers who comply with the many rules we have set forth--they comply with those rules, to be sued for intervening criminal acts. They sell a gun and it ends up in the hands of a criminal, unbeknownst to them. If they knew, if they had reason to know, if they were negligent in going through the requirements of the law or failed to do the requirements of the law, they can be sued. But if they do it right and it goes into the hands of someone who uses it for a criminal purpose, the manufacturer of that gun absolutely should not be subject to a lawsuit. It is a political thing that is going on out there, the filing of these lawsuits all over the country in an attempt to crush an industry that this Congress and our Constitution have stated to be a legitimate industry.

I know Senator Reed has many wise comments on this, able Senator that he is. We will disagree, but I certainly respect his views.

I yield the floor.

Mr. President, there still remains a very serious problem and a very serious threat to gun manufacturers in the United States. Sure, a lot of these cases have not been successful because they are so bogus, so contrary to classical rules that a person is not liable for an intervening action done by a criminal, an intervening criminal act.

I will add, when I was a U.S. attorney, an individual walked off a veterans hospital grounds and was murdered. They sued the VA hospital for wrongful death. I defended on the theory that the hospital could be liable under certain circumstances, but there was a strong principle of law which I cited that an intervening criminal act is not foreseeable. You are not expected to foresee that someone will take a lawful product and use it to commit a crime or that they would commit a crime. This is a settled legal principle.

We are eroding these things and we end up with all kinds of problems. That is one of the things disrupting our legal system, particularly if there is a political cause here, a group of people who absolutely oppose firearms in any fashion. Mayors in major cities are encouraging these lawsuits and pushing them. We end up with some real problems.

Let me share with our colleagues this letter from Beretta Corporation. It was mailed out in 2005 by Mr. Jeff Reh, general counsel, written to the Vice President of the United States. He says a few weeks ago the District of Columbia Court of Appeals issued a decision supporting a DC statute that those manufacturers of semi- automatic pistols and rifles are held strictly liable for any crime committed in the District with such a firearm.

It had not been used until the District of Columbia recently filed a lawsuit against the firearm industry in an attempt to hold firearm makers, manufacturers, importers, and distributors liable for the cost of criminal gun misuse in the District.

The court of appeals, sitting en banc, dismissed many parts of the case but did rule that:

Victims of gun violence can sue firearm manufacturers

simply to determine whether that company's firearm was used

in the victim's shooting, and if so, they become liable.

He goes on to say that such a decision ``will make firearm manufacturers liable for all costs attributed to such shootings, even if the firearm involved was originally sold in a State far from the District of Columbia and to a lawful customer.''

If you sell a gun to somebody in Minnesota and they bring it to DC and some criminal uses it to shoot somebody, the gun manufacturer now becomes liable for that Beretta or Smith & Wesson or whoever made it. They go on to say this decision ``has a likelihood of bankrupting not only Beretta, but every maker of semiautomatic pistols and rifles since 1991.'' There are hundreds of homicides committed with firearms each year in DC, and others are injured. And the defendants, under this bill, would have no defense that they originally sold the pistol or rifle to a civilian customer. So they ask that this legislation be supported.

Without it, companies like Beretta, Colt, Smith & Wesson,

Ruger, and dozens of others, could be wiped out by a flood of

lawsuits emanating from the District. This is not a

theoretical concern.

The instrument to deprive the United States citizens of the

tools through which they enjoyed a second amendment freedom

now rests in the hands of trial lawyers in the District.

Equally grave, control of the future supply of firearms

needed by our fighting forces and law enforcement officials

and private citizens throughout the country also rests in the

hands of these attorneys. We will seek Supreme Court review

of this decision, but the result of a Supreme Court review is

not guaranteed. Your help might provide our only chance of

survival.

It is the principle of the thing we are concerned about, first and foremost. Do we believe that a manufacturer who complied with the law and who sold a gun in Minnesota or in Kansas and sold it lawfully, according to the rules of the State of Alabama or Minnesota and Federal Government rules, and that gun ends up in the District of Columbia, they now become liable for an intervening criminal act? That is not a principle of law that can be defended,

according to justice or fairness. But we are in that mode now of using the courts to effect a political agenda that goes beyond what the Congress and elected representatives are prepared to vote. In effect, it would bankrupt these companies and may be able to prohibit people from even having firearms or certainly denying them a place to go buy a new firearm and ultimately denying them the right to purchase firearms.

So that is what we are concerned about. We are not trying to overreach here. We are trying to eliminate this political abuse of the legal system to effect a policy decision not subject to being won in the legislative branch.

Under this bill, I think it is very important to note that you can sue gun sellers and manufacturers who violate the law. It is crystal clear in the statute that this is so. To start off, one of the first things it says is an action can be brought against a transferer--that is, a seller--of a gun by any party directly harmed by the product of which the transferee is so convicted for violating the law. It also says this in paragraph 2:

These are actions that are allowed to be maintained by this

legislation and are not constricted.--An action brought

against a seller of the gun for negligent entrustment for

negligence per se.

It is some sort of negligent act that gave the gun to the customer. We will leave it at that.

No. 3, an action can be brought against a manufacturer or seller of a qualified product, or gun, who knowingly violated a State or Federal statute applicable to the sale or marketing of the product when that was the proximate cause of the injury, such as the 12 guns being sold and mentioned by Senator Reed earlier. I suspect that violated a law. It is certainly a violation of the law for a person to knowingly or negligently entrust a gun to someone when they believe or have reason to believe that it is a straw purchase. That would be a violation of the law. You have to produce an ID, sign a statement, say it is your gun, say you have not been convicted of a crime, say you are not a drug addict, where your residence is, and other laws that States and communities may have, such as waiting periods, before you can pick it up. You have to wait for the background check to see if those statements you made are valid.

So you can still bring those lawsuits if you don't comply with that. Lawsuits can be brought whenever the manufacturer or seller knowingly made any false entry or failed to make, negligently or otherwise, an appropriate entry in any record required to be kept under Federal or State law with respect to the qualified product or if they aided or abetted or conspired with any person in making any false or fictitious oral or written statements with respect to any material fact to the law necessary in the sale or other disposition of the qualified product. And if they can maintain a lawsuit also, if you aided and abetted or conspired to sell or dispose of a qualified product, knowing or having reasonable cause to believe the buyer of the qualified product was prohibited from possessing or receiving a firearm, which would include a straw purchase, if you know you are selling it to this person and you know it is going to that person, then you would know that would be improper and it would be a negligent entrustment or violation of the statute.

I think those are important exceptions, as are many others. So it doesn't give immunity to gun dealers. That much we can say for sure. Now, it has been said that, well, these dealers--this little gunshop down here did something wrong and they would have insurance and the insurance company would pay. It is not so bad on them. But, Mr. President, that is a slippery slope, an unwise public policy argument that I think we use too much. One of the things that raises questions in my mind about the effectiveness of a lot of litigation today is it is argued that it is going to punish this person who did something wrong. But in truth, the insurance company pays all of it probably-- maybe all of it, maybe a small deductible is paid by the wrongdoer, and insurance company pays the cost of defending the lawsuit. It is not the wrongdoer. So the juries are told they are punishing this wrongdoer who made an error, but really the insurance company pays it. What happens? They raise the rates on everybody. So if one gun dealer has messed up and he gets sued, as he should be, and he has to pay a verdict, the weird way our system is working today is the insurance company pays the verdict, and everybody's rates go up--every gun dealer who complies with the law, their rates go up too. It is something that has been bothering me as time goes by.

They are stating, as legal theories, broad powers and requesting broad relief, similar to some of the things I mentioned here in the District of Columbia in the Beretta letter. Sometimes the plaintiffs have argued that the very sale of a large number of guns and pistols, when a manufacturer knows that some of those ``might'' end up in the hands of criminals, means that they become liable. What kind of law is that? It is a stretch beyond the breaking point that if you comply with the law, you sell a firearm to a lawful customer in your shop and they have the proper identification, and you take all the proper steps, somehow that you become liable if that person utilizes it unlawfully or sells it or gives it to somebody who utilizes it unlawfully.

That is not the way the American legal system works. Those are the kinds of lawsuits being pushed, I submit, for political reasons because people are frustrated that they have not been able to get the legislatures to eliminate firearms. Who should be liable? The person who commits the crime. John Malvo--if he commits a crime using a gun, he should be the one that pays and is sued in our system but, of course, people say Malvo doesn't have any money, so we will sue Wal- Mart because Wal-Mart sold the gun to somebody and it eventually went through somebody's hands and they got it, or whatever store sold the gun. Or we will even sue Smith & Wesson in Boston because they sold the gun and somebody was injured with it. What kind of law is that? I am very concerned about this theory. We have moved so far from our principle of liability. That is why it is quite appropriate here. And there may be other instances with other businesses around the country that are being unfairly held liable for actions that should not be their responsibility.

I will make a point about the serial number. I raised an issue I am personally aware of. The manufacturers have to put a serial number on every gun, which has to be recorded every step of the way as it moves from the manufacturer, to the distributor, to the subdistributor, to the retail store, to the customer. They are recorded and kept up with. A statement is filed including the name, address, phone number, driver's license, and a number of other things that are required by State and Federal law before it can ever be sold. It is now, and has been for many years, a crime to produce a gun that does not have that serial number, and it is a crime to erase it. It is a crime to sell a gun that doesn't have a serial number on it or has a number that has been erased. When I was a Federal prosecutor, I prosecuted many cases-- 30, 40, or 50 cases--in which criminals, thinking they could somehow avoid detection, would file off the serial number or somebody filed it off for somebody and delivered it to them, and both of them have committed a crime at that point. That is because we want to be able to identify that weapon and not have it subject to moving around without being able to be identified.

I would just say, there are a lot of laws that we pass in our legal system to clamp down on the sale of guns because they are, indeed, a dangerous instrumentality. But our Constitution provides the right of citizens to keep and bear arms. Our State and local laws provide that protection to our citizens, and we set many restrictions on it. The problem we are dealing with is the possibility that courts will create legal liability on a manufacturer of a lawful product, a lawful product that has been sold according to the strict requirements of Federal and State law, and that they somehow become an insurer of everything wrong that occurs as a result of the utilization of that lawful product.

All we are trying to do is bring some balance. I think the statute has been gone over for many years now. People on both sides of the aisle understand; there are probably 60-plus votes of people who are prepared to vote for this

legislation. One reason it has that kind of broad support is that the bugs have been worked out of it. Things that would have gone too far have been eliminated. People have had many months to review it. I think we have a good piece of legislation.

I respect my colleagues who differ, but I strongly think it would be in the interest of good public policy to pass this legislation, and that is why I support it.

I offer the letter from the Beretta Corporation and ask unanimous consent it be printed in the Record.

Mr. President, reserving the right to object, the time would be counted against the 30 hours; is that correct?

No objection.

I suggest the absence of a quorum.

Mr. President, I thank Senator Murkowski for her eloquent remarks and for taking this opportunity to reflect on the contribution of these Boy Scout leaders to the moral and spiritual and emotional and psychological maturation of young boys.

The truth is, young boys today are having a harder time than girls in relation to their graduation rate from college, their crime rate, their imprisonment rate. There are other problems occurring in boys. Boys are struggling in our society today.

I am a strong believer in the Boy Scouts. I thank so much the Senator from Alaska for her kind remarks. I had the honor to be an Eagle Scout. Every Thursday night, a group of us from Hybart, AL, met in Camden, AL, which was 15 miles north of Hybart. Hybart was just a little crossroads community. My father had a country store. There were a couple little stores. People were farmers and carpenters and worked at the railroad or whatever.

There were nine boys there. Of those nine boys, eight became Eagle Scouts. I don't think a single one had a parent who graduated completely from college. One became a Life Scout, he almost became an Eagle Scout. And as I think of those kids with whom I grew up, they did well. One is a Ph.D. now, teaching at the University of South Carolina. One is a dentist in Charleston. One is a medical doctor, Johnny Hybart from Hybart. He is in Pensacola now, working at the hospital there. Bob Vick is a CPA. Pete Miles is an engineering graduate and a former plant manager at a major corporation. And Andy and Greg Johnson both graduated from college, one in engineering and one in business, and are very successful. Mike Hybart graduated with a horticulture degree from Auburn and is in the real estate business now.

It was a great pleasure for me to participate as a member of Troop 94 in Camden. As the Senator from Alaska read the names of Michael Shibe and Michael LaCroix and Ronald Bitzer and Scott Edward Powell, who were killed serving their boys, I thought of people who meant so much to me: John Gates and Peyton Burford and Billy Malone and Dean Tait, and quite a number of others, and Rev. Frank Scott, my Methodist preacher who traveled with us on trips, and how much that meant to me and us as a community and how it shaped our lives in ways that are really unknowable.

I also remember the most exciting trip I ever took; it was with Troop 94 and we stayed at Fort A.P. Hill, Camp A.P. Hill, I believe it was called at the time. As our troop came to Washington, I do not think a single member of the troop had ever been to Washington. We were from rural Alabama. Our leaders decided it would be a big trip, and everybody planned it for a year or more, and we came up.

Our Scoutmaster, Mr. John Gates, was quite a leader, and Peyton Burford and the team of adults made it a highly successful trip. It was in the springtime, as I recall, and I do not think they had hot water at A.P. Hill. It was cold water, but they made you take a shower. We stayed in the old barracks that were vacant at the time. The Army was very helpful to us in making that facility available. We were able to use it as a base to come in to Washington and to tour the area during a trip that was very, very, very meaningful to me and to others.

I have on my mantlepiece in my office here in Washington, on this very day, a picture of that troop with all those kids--60 or more, I guess it was. A big chunk--maybe 12 or 14--at that time were Eagle Scouts, and more than that became Eagle Scouts.

It was a very, very important part of our lives. The key to it was good leadership. Our leaders, as those leaders in Alaska, gave untold hours to make those events meaningful. If you were not a good leader, you would not be able to maintain a troop, and you would not be able to bring them from Alaska all the way down to A.P. Hill in Virginia as part of a Jamboree.

There are 32,000 Scouts at that Jamboree, I understand, with over 3,000 leaders present. It is a very important and good thing that at this very moment we think about the thousands and thousands of leaders in the Scouting program all over America who have meant so much to young people and have shaped their lives in so many positive ways that would not have happened otherwise.

When you go to your Scout meeting--every Thursday night, as we did-- you say that oath: On my honor, I will do my best to do my duty to God and my country, to obey the Scout laws, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.

Some find that offensive. I can't imagine why. What kind of objection could somebody have to ideals such as that. Every week you also recite the Scout laws. A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty--you don't hear that word much anymore--brave, clean and reverent. Those are good qualities. I don't see anything in those qualities that violates the Constitution or should in any way cause them to not be able to be supported by the military on their bases.

I am thankful that the majority leader, Bill Frist, offered legislation to make crystal clear that Scouts will be able to participate actively on our military facilities as they have for so many years. Along with Senator Reed--a graduate of West Point he is--I serve on the board of West Point with him. Senator Reed chairs that board. I remember one of the briefings we had about the young people who graduate from West Point and go on to a military career. They said the two groups of graduates that had the highest reenlistment rate, the two groups that made the Army a career in the highest

percentage, were children of former military parents and Eagle Scouts.

There is some connection there, a connection in terms of duty and honor and commitment to country and to our creator in a way that is special. The Scouts and our military do share some ideals.

I thank the Chair for allowing me to share these remarks. I appreciate the Senator from Alaska so much for her tribute to these fine leaders who gave their lives in service to the young men under their supervision.

I yield the floor.

Mr. President, I join with Senator Alexander in complimenting you and Senator Kyl for the legislation that you have just described for us. The Senator from Texas, as I know, has taken the lead on this very important and complex subject. I salute you for it.

Some would say it is a thankless task, it can't be done, and will make nobody happy. But I believe you have the right principles. If the right principles are applied with the right prescriptive language, we can make great progress in this area, and I salute you for it.

Frequently have I quoted Senator Alexander in the phrase he has used: No child should grow up in America who doesn't know what it means to be an American.

I think that is good for immigrants, too, as the Senator just said so eloquently. I salute him.

I also thank the Senator from Texas for considering a critical component of this legislation he has proposed, and that is the part that deals with State and local law enforcement. I have just written a Law Review article for Stanford University to deal with that area of the law. Suffice it to say, local law enforcement does have complete authority to detain people who are violating the criminal laws of the United States. But that has been confused. Clearing this up more, setting up a mechanism so that they can participate if they choose, would be helpful to enforcing the law. That is so because we have 700,000 State and local law enforcement officers at every street corner and town in America. We have only 2,000 INS immigration officers inside the border--not those on the Border Patrol and on the border, but those inside the border. So obviously we are not very serious about ultimately reaching a lawful system if we exclude them.

I thank the Senator from Texas.

Mr. President, I suggest the absence of a quorum.

Mr. President, I rise in strong opposition to S. 397, the so-called Protection of Lawful Commerce in Arms Act. Like its predecessor which the Senate soundly rejected last year, this bill is one of the most blatant special interest giveaways that I have seen during my time in the Senate. At a time when more than 7.5 million Americans are unemployed and our Nation faces a deficit of $333 billion, war in Iraq and Afghanistan, inadequate homeland security funding, and now a Supreme Court vacancy, to me the Republican leadership choosing to devote our precious time to a bill that would deny victims of gun violence their day in court and protect the gun industry is a travesty.

The gun lobby argues that this legislation would put an end to frivolous lawsuits that claim gun companies should be liable simply because their guns are used in crimes. In fact, the bill would bar virtually all negligence and product liability cases in State and Federal courts while throwing out pending cases as well as preventing future cases. The bill would provide this sweeping immunity to gun dealers, gun manufacturers, and even trade associations. Interestingly, the NRA modified the bill so that this year they don't appear to be granting themselves legal immunity as they did the last time around.

The track record for this bill in the last two Congresses has, thankfully, been one of failure. We can only assume that the gun lobby is hoping that the third time will be the charm. The gun lobby and its allies in Congress had to abandon their effort to pass similar legislation in the 107th Congress, after the Washington area sniper attacks terrorized an entire region. Then last year, in one of the more bizarre twists in recent Senate history, the National Rifle Association instructed the Republican leadership to kill the bill after a majority of Senators voted to add reasonable gun safety measures--to require background checks at gun shows, renew the assault weapons ban, and require child safety locks to be sold with handguns.

It is a good thing that the Senate defeated this bill because it would have thrown out the civil lawsuits filed by the families of the victims of the sniper attacks, even though the Washington State gun dealer who had the Bushmaster sniper rifle in his inventory could not account for that weapon or more than 230 others. Instead, the families of the victims won a $2.5 million settlement from Bull's Eye Shooter Supply and Bushmaster, the assault weapons maker who negligently supplied Bull's Eye despite its abysmal record of missing guns and regulatory violations.

At the heart here is not activist courts making law. The heart of this is people who have been harmed by weapons, innocent people, people such as the victims of the Washington sniper--someone walking to their car from the Home Depot and being shot and killed; a bus driver waiting to take his rounds in the morning, having a cup of coffee, reading the paper, with a wife and children at home, shot by snipers. Where did they get those weapons? They got them through the negligence of a licensed gun dealer. This legislation would effectively prevent those families from recovering damages, compensation for the loss of a husband and father, the loss of a wife. This is not about activist judges making law. This is about shutting the doors to the courts of America, mostly State courts, to prevent those who have been harmed by the negligence of others to be made whole. That is what this is about. That is why it is so wrong.

With respect to the sort of activism of public policymaking, we all recognize in this body that Federal law is one aspect, but State law is also important. In fact, most tort law is based upon State law. State assemblies make up State laws. They decide causes of action. They decide defenses. They do a lot of those things in conjunction with litigation in their courts. This legislation preempts all 50 States. This says to the State of Georgia, the State of Alabama, the State of Rhode Island, the State of Michigan, you can't have the ability of your citizens to go to court. Even if you believe it is appropriate and right in your State courts, we are preempting you. That is also wrong.

In addition to the monetary settlement for the victims of the families that were the victims of the snipers, in the settlement, Bushmaster agreed to inform its dealers of safer sales practices that should prevent other criminals from obtaining guns, something Bushmaster had never done before. What you have is a situation of negligence, and this negligence can extend not only from the dealer but to the manufacturer. This legislation not only would deny the right of a victim to come forward and ask for compensation, but also to reform the system.

We have to recognize, too, that there are elaborate rules for the governance of weapons and firearms and tobacco, an agency of the Federal Government. But this is one industry that is virtually not subject to any product liability, any consumer product safety

rules, any other type of regulation. This legislation would undercut ways in which a court could do justice. Because the Senate rejected this legislation last year, these victims and their families had their day in court, and at least one manufacturer's commercial practices were improved in ways that benefit all Americans. What could be more helpful to all of us if a manufacturer takes the time and the effort, appropriately, to inform his dealers about appropriate practices in selling weapons, about avoiding selling weapons to those people who might be trafficking in weapons, avoiding selling weapons to those people who might be irresponsible and reckless in the use of those weapons? That can only benefit all of us.

But despite all of these things, we find ourselves again in a familiar situation, one in which the NRA's pet project is again being granted a virtually direct, nonstop ticket to the Senate floor. The Senate Judiciary Committee has held no hearings on this legislation, and no committee markups were ever scheduled. The bill's supporters knew it would be difficult to withstand the kind of scrutiny that might result in careful, deliberate, and thorough committee hearings, so they brought it straight to the Senate floor. Here we are today. Now it is up to us make sure that there is a full and vigorous debate, including not only amendments to deal directly with aspects of this legislation but also to address other issues with respect to violence in America and gun safety.

If we are going to grant blanket legal immunity to the firearms industry, it is imperative that we address inadequacies in other areas with respect to gun safety legislation. Mothers and fathers across America go out of their way every day to protect themselves and their children from harm. How unsettling it must be for these families to think that the gun industry, which is already exempt from Federal product safety regulations that apply to children's toys, pharmaceuticals, and virtually every other product in this country, may now receive legal protection that no other industry enjoys.

I listened closely to the Senator from Alabama talking about this as if a car manufacturer was being held responsible for the actions of others. Well, they could be in certain situations. If a car dealer leaves his cars unlocked with keys in the ignition at night and someone comes and takes that car, drives it away, causes damage, certainly the issue arises, was that car dealer using good common sense? Certainly, that would be a case that would at least get to the notion of filing the case.

This bill would prevent such a similar case from the gun manufacturers and the gun dealers, but there is no attempt, at least today, to limit those types of liability to other manufacturers. I believe that shows how narrow this is and how it is focused to a very special interest. That is unfortunate.

As with any other business, there are good actors and bad actors with respect to the gun industry. There are those who carefully follow the law and those who ignore it. But granting unprecedented legal immunity to the entire industry without requiring any additional responsibilities to protect the public from reckless behavior would be a grave mistake. It will only encourage those who already engage in questionable conduct.

I urge my colleagues, as we work through this debate, to listen closely and to try to recognize that we are taking unprecedented action with respect to undermining the traditional system of common justice. First, we are usurping authority for State law that is traditionally the purview of State assemblies and legislatures. Then we are granting an unprecedented immunity to one very particular industry. That might be a precedent, unfortunately, for other industries that come forward, which would be a severe unraveling of the protections we all have.

All of this, again, begins not with someone going out to stage a lawsuit by being shot. That is the last thing that happens. The victims of this gun violence, who are the subject of these suits, didn't want to be victims. They didn't want to be in court. The bus driver waiting there to start his run was not thinking, Oh, boy, someone is going to shoot me so we can start a case and change public policy. He was shot by a sniper who obtained a gun through the negligence of others. Yet that family would have been denied their relief in court if this bill had passed last year.

There was discussion about personal responsibility. There is personal responsibility. It is important. It is fundamental to everything we do. What about the responsibility of the gun dealer to know how many weapons he has on hand, where they are, not to leave it out so it can be taken? Apparently the youngest sniper, who was barely of age, just picked it up off a counter and walked out of the store with it, a rifle that was used later to shoot and kill several people. Where is that personal responsibility? And if you are the victim of that lack of responsibility, how can you have your day in court if this legislation passes?

Now, we have a lot of work to do in this Congress. We should get on with it. That is why it is amazing that we have left the Defense bill that would provide the resources to protect our soldiers, sailors, marines, airmen and airwomen across the globe to move to this very narrow, special interest bill. I think it is extremely unfortunate.

A part of the rationale for this bill advanced by the proponents is that there is a crisis. There is a crisis with respect to the industry. They are about to lose their ability to manufacture. They are going to go bankrupt. We won't have any weapons for our national security. That is not substantiated by any of the facts before us.

The gun lobby says it needs protection because it is faced with a litigation crisis. The facts tell precisely the opposite story. There is no crisis. There is a crisis in Iraq. There is a crisis in Afghanistan. There is a crisis across the globe with international terrorists. That is a crisis. But it is not a crisis with respect to gun liability in this country. Yet we move from legislation dealing with these huge crises, some of which have existential consequences to us, particularly if terrorists ever get their hands on any type of nuclear material, to a situation where there is no crisis.

I am happy to yield to the Senator from Connecticut.

I thank the Senator from Connecticut.

The only two publicly held gun companies that have filed recent statements at the Securities and Exchange Commission contradict the claim that they are threatened by lawsuits. Smith & Wesson filed a statement with the SEC on June 29, 2005, stating that:

We expect net product sales in fiscal 2005 to be

approximately $124 million, a 5% increase over the $117.9

million reported for fiscal 2004. Firearms sales for fiscal

2005 are expected to increase by approximately 11% over

fiscal 2004 levels.

That is their SEC report which they have to file subject to severe penalties for misstatement and mistruth. I believe that. It appears to be a banner year for Smith & Wesson. There is no crisis.

They go on and say in another filing on March 10, 2005:

In the nine months ended January 31, 2005, we incurred

$4,535 in defense costs, net of amounts received from

insurance carriers, relative to product liability and

municipal litigation.

What they said is--this company, with a banner year of increased sales, with projections for better sales--they incurred $4,535 in out- of-pocket costs to defend product liability and municipal litigation claims and suits. That is a crisis? Sales are up. Litigation costs in this particular area--out-of-pocket costs, to be accurate, of $4,500. That is what they are telling the Federal regulators, under severe penalties for misstatements and even inaccurate statements. There is no crisis.

In that same period for which they incurred $4,535 in out-of-pocket costs, Smith & Wesson spent over $4.1 million in advertising. Maybe the real crisis is they have to spend a lot on advertising. But that is not a crisis situation. That is not sufficient to bring the Senate here to debate a bill to give them protections from these types of suits.

Meanwhile, gun manufacturer Sturm, Ruger told the SEC in a March 11, 2005 filing:

It is not probable and is unlikely that litigation,

including punitive damage claims,

will have a material adverse effect on the financial position

of the Company.

Essentially, what these two publicly reporting companies have said, despite all of the discussion by others that they are on the verge of bankruptcy, is: There is no material adverse effect on our financials based on this type of litigation. There is no crisis.

So at the same time the gun makers are reporting to the SEC that litigation costs are not likely to have a material adverse effect on the businesses, their trade associations have been rapidly inflating the unsubstantiated estimates of litigation costs. Gun lobby claims of alleged litigation costs have risen in $25 million increments, with no data of any kind to support these claims because most of these companies in the industry are privately held. But I would suggest if the publicly held companies are offering their truthful admissions to the SEC--unless the privately held companies are woefully unmanaged or are unusually involved in this type of litigation--then these estimates have to be widely suspect.

Here are the claims of increased costs: April of 2003, estimated litigation has cost the industry $100 million in the last 5 years; July of 2004, estimated litigation costs of $150 million; November of 2004, estimated litigation costs of $175 million; February of 2005, some estimates talk about $200 million.

Now, it does not seem to track when you have major companies saying they have no material impact, paying out of pocket $4,500, and then you have these wildly inflated estimates.

Number of lawsuits faced by the gun industry is, if anything, far less than many other industries. From 1993 to 2003, 57 suits were filed against gun industry defendants, out of an estimated 10 million tort suits, according to the State Court Journal published by the National Center for State Courts--57 out of 10 million. That is not a record of litigants out of control.

The actual monetary awards faced by the gun lobby are even less. The gun lobby's record in court is far worse than the tobacco industry's, which for decades won every case brought against it. But the gun lobby has not lost them all either. In fact, many of the cases my colleague from Alabama was citing were some appeals court cases that were turning down plaintiffs who were unsuccessful at the trial court level. The results of these cases are what one would expect as suits against any industry: Some cases are dismissed, some cases are won by plaintiffs, some are on appeal, others are the result of a settlement between the parties.

Now, the fact is, most of the legal defense costs faced by gun industry participants have been covered by product liability insurance, with very little funding coming out of pocket. Again, every industry in the country has to insure itself against these risks. It seems to me there is nothing to indicate the insurance claims against these gun lobbies and gun manufacturers are out of line with those. In this respect, the gun lobby is no different than any other industry. Moreover, the power of the gun lobby to protect itself from litigation and promote its views is illustrated by the war chest it has put together for this specific purpose over the past several years.

In 1999, the National Shooting Sports Foundation and others in the gun lobby created what is known as the Hunting and Shooting Sports Heritage Fund by setting aside a small percentage of industry revenues. The fund supports lobbying activities as well as industry public relations initiatives emphasizing the positive aspects of firearms, and it helps cover the cost of retaining internal memos and other sensitive documents with a law firm in California so the gun lobby can avoid the kind of unwanted leaks and exposure that plagued the tobacco industry for many years. Some reports indicate the fund has raised as much as $100 million.

We are going to be talking about a lot of victims of gun violence over the next few days, and I can tell you that none of them has access to a $100 million war chest to protect their legal interests or promote their point of view.

In any case, the purpose of lawsuits filed on behalf of victims is not to bankrupt the industry. In fact, some of the cases filed have sought only injunctive relief, including reforms of industry trade practices that would make the public safer. This is not always about money. In some cases it is about safety for the general public.

It is telling that the new Senate version of the gun industry immunity bill has been changed specifically to ban suits seeking injunctive relief. The argument, of course, is there is a crisis, and the crisis is the financial crisis of the gun manufacturers and the gun dealers, but yet this legislation was altered this year to avoid injunctive relief, which has very little direct impact in terms of awards, punitive or otherwise.

Even when plaintiffs seek commonsense reforms in the industry that could save lives, rather than have money damages, the gun lobby and its allies in Congress seek to shut the courthouse door in the face of these victims.

The findings section of the bill states:

[T]he possibility of imposing liability on an entire

industry for harm that is solely caused by others is an abuse

of the legal system.

That sounds reasonable until you consider that the very essence of the cases the bill seeks to eliminate is that the harm suffered by victims of gun violence is often not solely caused by others, but that specific negligent conduct by defendants in the industry contributed to that harm. That is a key point here. This is not a situation as to anyone in the industry--a manufacturer or dealer--who has followed all the rules and has done everything correctly, and then someone else did something wrong. In order to bring a suit for negligence, you have to point out, allege at least negligent activities on behalf of the defendant, be he or she a manufacturer or dealer. So the core here is the allegation that the defendant--those people this legislation seeks to immunize--did something wrong. Liability attaches if a court finds they did something wrong.

Moreover, the bill would exclude many cases that do not seek to hold the entire industry liable but instead focuses on specific dealers or manufacturers based on their negligent contribution to specific instances of harm to victims of gun violence. This is not just a situation where the whole industry is sued. This is a situation where anybody in the industry who is sued gets the benefit of these protections.

Unfortunately, this bill would overturn longstanding, widely accepted principles of civil liability law, which generally holds that persons and companies may be liable for the foreseeable consequences of their wrongful acts. By throwing out common law standards established throughout our Nation's history by State courts, and substituting new standards for negligence and product liability actions conceived by attorneys of the gun lobby, this bill would deprive Americans of their legal rights in cases involving a wide range of industry misconduct.

Even if we concede, for the sake of argument, that some cases against the industry might be frivolous, this bill applies the legislative equivalent of a weapon of mass destruction where a surgical strike would be sufficient. The bill proposes a sweeping Federal intrusion into traditional State responsibilities for defining and administering State tort law, yet there is no evidence that the State courts are not handling their responsibilities competently in this area of law. There has been no rash of questionable jury awards, and not a single decision or final judgment of any court that justifies this unprecedented legislation.

Nevertheless, the bill's proponents seek to preempt the law of 50 States to create a special, higher standard for negligence and product liability actions against gun manufacturers, gun dealers, and trade associations.

We are being asked to do this for an industry that already enjoys an exemption from the Federal health and safety regulations that apply to virtually every other product made in this country. There is no crisis. There is no showing that the gun lobby is in danger of extinction as a result of lawsuits.

We must look at the facts and not the rhetoric. Again, as to a company that spends out of pocket $4,500 a year, when their sales are increasing by about 11 percent, that is not a crisis. There is nothing, I think, substantiated to suggest otherwise.

Now, Mr. President, we are going to engage in a series of discussions over

the next several days here. But I think we have to be very clear, this legislation would undercut State laws and State court practices that have existed for as long as the country has existed. It would do so for the benefit of a very special interest group. It would deny access to courts for people who have been harmed, really harmed.

Let's take some of these cases. Take the case of Denise Johnson, the wife of the late Conrad Johnson. Conrad Johnson was the bus driver who was the final sniper victim of the Washington area snipers. The snipers' Bushmaster assault rifle was one of more than 230 guns that disappeared from the Bull's Eye Shooter Supply gun store in Washington State. The gun store's careless oversight of firearms in its inventory raised serious questions of negligence that fully deserved to be explored by the civil courts.

Two hundred thirty misplaced weapons--if that is not at least a suggestion of some negligence, I do not know what is. This legislation, had it been enacted last year, would have denied the Johnson family their rights in court, their rights to go to that alleged negligent dealer and say: Without your action, without your negligence, my husband, our father, would be alive today.

But in addition to that, the manufacturer's actions also were questionable. Despite questionable control activities in relation to their inventory at Bull's Eye--serious and well-known problems at the gun store--they were still able to acquire weapons from the manufacturer. As I indicated before, the Johnsons were able to settle their claim in court. But if this legislation had passed last year, they would have been thrown out.

Now, there are other examples that are prevalent that also would have been dismissed by this legislation had it been passed, and future cases if, in fact, we pass it in this session.

There is the case of David Lemongello and Ken McGuire, former police officers of Orange, NJ. On January 12, 2001, Mr. Lemongello and Mr. McGuire were shot several times by a violent criminal who should never have had a gun. Because of the injuries he suffered, Mr. Lemongello will never be a police officer again. The gun used in the shooting was one of 12 guns purchased by 2 individuals on a single day from Will Jewelry & Loan, a gun dealership in West Virginia.

Mr. James Gray, a felon, used a woman with a clean record to purchase all 12 guns at once with cash. He and the woman came into the gun shop with thousands of dollars, and Gray pointed out guns he wanted, and then had the woman purchase them in a clear example of a ``straw purchase'' to evade the law. In fact, the gun dealer was so concerned about the suspicious transaction that, after taking the money and giving him the gun, he called the ATF. But it was too late; the guns were already destined for the illegal market. The actions of the gun dealer--who failed to follow sales guidelines recommended by the National Shooting Sports Foundation--raise serious questions of negligence.

The manufacturer of the gun, Sturm, Ruger, is a member of NSSF, yet it failed to require its dealers and distributors to follow the guidelines. At one point in the proceedings, the West Virginia gun dealer and the manufacturer of the gun asked Judge Irene Berger of Kanawha County, West Virginia, to dismiss the case. She heard the gun seller's legal arguments and rejected each of them, applying the general rule of West Virginia law to allow the case to proceed.

Here is a classic example. Someone comes in with another person, purchases 12 guns at once, selects the guns, and pays with cash, but making sure the other person is the one whose name is run through the FBI records check, and then drives away. Doesn't that raise suspicion in your mind if you are a conscientious dealer? Don't you do anything other than call ATF? That is negligence in many respects. Certainly a victim of that crime eventually should have the right to take that case to court.

The gun industry bill would have overridden that judge's decision in West Virginia and thrown out the case of the police officers. Again, the Senate rejected this legislation last year, and in June 2004 Officers Lemongello and McGuire won a $1 million settlement to compensate them for their career-ending injuries. After the lawsuit, the dealer and two other area pawnshops agreed to implement safer practices to prevent sales to traffickers, including a new policy of ending large-volume sales of handguns. These practices go beyond the law and are not imposed by any manufacturers or distributors.

So here is another situation. It is not only the immediate compensation to these police officers whose whole lives and careers have been changed irrevocably; it is also making it safer for other people so the next time someone wanders into this particular gun shop of this dealer, they won't be selling 12 or so handguns without seriously checking who is buying.

Today, as we face another attempt in the Senate to take away the rights of innocent victims of gun lobby negligence, there are still many legitimate pending cases that will be thrown out by the bill before the Senate. We can always anticipate additional situations. In fact, there is a very strong likelihood that if this legislation passes, whatever steps are taken today by gun dealers and manufacturers will be abandoned or lessened because effectively they have a free pass. No one can sue them. They don't have to worry about the litigant going to court and saying, your sales practices or your behavior were negligent. We have given them immunity. In fact, one might even anticipate more incidents.

But there are cases pending today that could be affected. For example, in another case, Guzman v. Kahr Arms, a lawsuit was filed by the family of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded when a 9 mm gun stolen from a gun manufacturer's plant was stolen by a drug-addicted employee who had a criminal record. The manufacturer, Kahr Arms, operated the factory without basic security measures to protect against thefts, such as metal detectors, security mirrors, or security guards. Guns were routinely taken from the factory by felons it had hired without conducting background checks. The gun used to kill Danny Guzman was one of several stolen by Kahr Arms employees before serial numbers had been stamped on them, rendering them virtually untraceable. The guns were then resold to criminals in exchange for money and drugs.

The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting. Had Kahr Arms performed drug tests or background checks on the prospective employees or secured its facilities to prevent thefts, Danny Guzman might be alive today. A Massachusetts judge has held that the suit states a valid legal claim for negligence. But this bill would throw the case out of court, denying Danny's family their day in court.

That is the reality of this legislation. That is what we are protecting. We are protecting manufacturers who take no care in hiring employees, yet give them access and proximity to weapons, and who employ no effective security measures. That, at least, is negligence. At least they should be tried in court. This legislation would immunize that.

Ask yourselves again, What incentive would manufacturers such as Kahr Arms have to spend any money on background checks, to spend any money on security? None at all because, frankly, they have a free ride, a pass. No one can touch them. And in this legislation we are not about to start regulating the manufacturing practices of gun manufacturers in the United States.

Now, every industry has good actors and bad actors and the firearms industry is no exception. There are manufacturers that produce high- quality products that feature necessary devices to make the firearms as safe as possible. There are other manufacturers that create poorly designed, poorly constructed firearms that are favored by criminals, that have no place in the home, at the shooting range, or on hunting grounds. Likewise, there are licensed dealers who comply with both the letter and the spirit of our gun laws and do everything in their power to ensure firearms are sold only to lawful buyers. There are other dealers who routinely sell guns regardless of the age or criminal background of the buyer. Essentially, they wink and look the other way.

This small minority of bad apple dealers has a significant impact on gun

violence on our streets throughout the country. According to the Federal data from 2000, 1.2 percent of dealers account for 57 percent of all guns recovered in all criminal investigations; 57 percent of the guns recovered in criminal investigations pass through their hands. Does that suggest there are some gun dealers who are negligent, who are not following the letter or the spirit of the law? And the gun manufacturers know who the problem dealers are because when guns are recovered at crime scenes, they receive firearm tracing reports that show which dealers sell disproportionally to criminals. But in too many cases, the gun industry refuses to police itself.

If this legislation passes, there will be less incentive to take precautions, to take steps to prevent guns from getting in the hands of those people who would use them irresponsibly.

The national crime gun trace data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives indicates the following gun dealers sold the highest number of crime guns in America and exhibited crime gun tracing patterns indicative of drug trafficking. Whereas most gun dealers have been associated with zero gun traces, guns sold by these suspect gun dealers turn up in the wrong hands over and over again.

For example, in Badger Outdoors, Inc., of West Milwaukee, Wi, the dealer sold 554 guns traced to a crime, and 475 of those guns had a ``short time to crime'' as defined by ATF. The guns were involved in at least 27 homicides, 101 assaults, 9 robberies, and 417 additional gun crimes. The dealer also sold at least 1,563 handguns in multiple sales. From 1994 to 1996, straw purchaser Lawrence Shikes bought 10 guns from Badger. In one case, he immediately sold the gun to an undercover Federal agent who told Shikes he was a felon. Several weapons Shikes purchased have been recovered from a killer, a rapist, a convicted armed robber, a man who shot a police officer, and three juvenile shooting suspects.

So, again, a very small percentage, but still we are immunizing these people also. This legislation doesn't make any distinction between competent, conscientious gun dealers. It is everyone. And we know everybody is not following the rules as scrupulously as they should.

To put a check on the behavior, if you are harmed and injured by this negligence, go to court and say, I have been harmed, this defendant contributed to my injury and I seek compensation, this legislation will tell that victim, go away; the courts are closed to you.

There are other cases. Realco Guns of Forestville, MD; Southern Police Equipment, Richmond, Va; Atlantic Gun & Tackle, Bedford Heights, OH; Colosimo's of Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN. Throughout the country, the exception to the rule, and the rule is generally conscientious individuals follow the laws. But this legislation protects these individuals as well as the conscientious dealers. Again, it is inappropriate, unfortunate, unsubstantiated.

Where is the crisis? All the public records we have of the gun manufacturers say there is no material impact on the financial well- being. Those are reports submitted to the SEC, not press releases from lobbying groups. We are going to upset the traditions of tort law throughout this country for a situation where no crisis exists.

Again, we have moved from consideration of one of the most significant pieces of legislation we consider every year, the Armed Forces authorization, to deal with this issue--no crisis, no substance, but an industry-political motivation by the NRA and the gun lobby to protect their members from bona fide allegations of negligence in certain cases.

There is no explosion of suits. These are minimal, a fraction of the tort suits in this country. Yet we are here today to devote a huge amount of time after moving away from the Defense bill to consider this legislation. Procedurally, it is terrible. We should be talking now, as we all hoped we would, about further benefits for our military personnel, about improving their quality of life, improving their equipment, giving them the resources to defend us. Yet we are now staked out, literally, to try to provide benefits for the negligence of a few people in an industry that has no financial crisis and is in no danger of going away.

I yield the floor.

First, let me thank the Senator for yielding the time. I appreciate that very much. I want to make some brief comments.

My colleague and friend from Alabama made reference to the Beretta Company and apparently their concern about legislation in the District of Columbia. I want to make a few points to clarify what I believe the context of this letter from Beretta is. First, the District of Columbia Council apparently passed strict liability legislation which is an example of an elected body, not a judge, making up laws. We might disagree with them, but the point is that this is an elected body doing this; this is not judge-made law. As I understand it, the Court of Appeals for the District of Columbia simply upheld the statute. They acted appropriately, procedurally correct, and the statute is in force. I do not know if this is the intent of the suggestion, but a lot of the debate today has been about letting legislators and legislatures do their jobs without defying the court. In this situation of Beretta, that is exactly what happened. The DC Council acted, the court of appeals said we have no reason to disagree substantively with what you have done and the law stands.

But I think there are much more important points to be made in the context of this legislation. The proposed legislation is not simply attempting to eliminate claims of strict liability against gun manufacturers, gun dealers, and trade associations. It goes all the way to wiping out a broad array of negligence claims. And the essence of negligence is that the defendant, or the one who is being accused of negligence, must fail to perform some duty, the duty to the injured party.

There has to be some personal action, not simply doing something that has been legislatively ruled to be wrong. In that context, one can look at the concerns of the Beretta Company about strict liability much differently than in this legislation, and I think it would be wrong to assume and argue that because they are concerned about strict liability applied entirely to the legislation before us.

Now I assume they oppose the legislation. But the issue is much broader than strict liability; it is negligence. It is not a situation where a manufacturer or an individual will be held liable for something they never did. The essence of negligence is you have to fail to perform a duty, and that is at the heart of the legislation before us, providing broad exemptions and immunities for gun dealers, gun manufacturers, and trade associations whose own conduct would at least lead to allegations in court of negligent behavior.

I wanted to make those two points, and I yield the floor.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I take a moment to explain the effect of our proceeding to this gun bill. We are putting aside an important debate on national security and the needs of our troops in a time of war. Last Friday I listed a number of the amendments that still were pending that would affect the National Guard and our Reserve troops and also provide additional kinds of protections for the service men and women. The decision by the Republican leadership was that we had spent enough time on the legislation, even though we chose to spend 2 weeks earlier in the year on the credit card industry and on bankruptcy and a similar amount of time on the class action legislation which benefited special interest groups. The credit card industry will profit about $6 billion more this year than last year because of the actions taken. We also spent time on the special interest legislation dealing with class actions. We spent the time on that, but we are not on the Defense authorization bill.

We had an important amendment on the whole policy of the administration in developing new nuclear weapons which has profound implications in terms of the issues of nuclear proliferation and nuclear safety. We looked forward to having an opportunity to debate that issue. That was put aside by the Republican leadership because they were concerned about a provision that had been introduced to the Defense authorization bill last Thursday. Senator Levin, Senator Reed, Senator Rockefeller, and I introduced an amendment to create an independent commission to examine the administration's policy surrounding the detention and interrogation of detainees as an amendment to the Defense authorization bill.

The response of the White House was instant and negative. The President announced he would veto the Defense authorization bill, all $442 billion of it, if it included any provisions to restrict the Pentagon's treatment of detainees or creating a commission to investigate detainee operations. No other response could have demonstrated so

clearly the urgent need to establish a commission than that this imperial White House considers itself immune from restraints by Congress on its powers no matter what the Constitution says.

It is appalling that the administration is so afraid of the truth that they are even willing to veto the Defense bill which includes billions of dollars for our troops, pay raises for our troops, and funds for armored humvees to protect our troops in Iraq. But the administration was prepared to veto that legislation because of this amendment that had been offered by Senator Levin, Senator Reed, Senator Rockefeller, and myself.

Now the Senate Republican leaders have pulled the Defense bill from the floor. It is interesting that Republican leaders hatched this plan after Vice President Cheney visited with Senate Republicans last week. He told them the White House does not want votes on amendments to require an inquiry into their detention policies and practices. The White House has not only threatened to veto a national defense bill to avoid accountability, but is preventing us from voting on the issue. It is already obvious that the administration's detention and interrogation policy failed to respect the longstanding rules that have guided our policy in the past, rejecting the collective wisdom of our career military and State Department officials. In today's newspapers we see the result of this action once again with the use of dogs against detainees.

We need to return to our core values of openness and accountability. The facts we know so far about torture and other abuses, about indefinite detention, have already become recruiting tools for terrorists. But if we act now to uphold our principles, we can end the outrage, we can end the coverups, and hold officials accountable at the highest levels. We need to disavow the abuses and harsh techniques. We need to ensure our actions do not become an excuse for our enemies to torture American troops when they are captured in the future or to attack innocent Americans in any part of the world.

The reports of abuse also undermine our own security efforts at home. The vast majority of Muslim Americans and Arab Americans are willing to help identify potential terrorists, help prevent charitable donations from being misused, and act as eyes and ears of a community uniquely capable of identifying potential threats. When the reports of abuses go unanswered, they undermine the community's willingness to provide that assistance. It is impossible for many Muslim Americans and Arab Americans to be persuaded to help against such threats if they feel their own religious beliefs have been targeted.

The reality is our safety and security depend on accountability. It is not enough to pretend that problem does not exist, but that is how the President has responded to the flow of reports about abuses. Contrary to the protests of the administration, we do not have the answers we need. So far, we have had 12 separate so-called investigations of allegations, but not a single report has adequately examined the role that civilian authorities have played in crafting the policies that led to our missteps. Twelve investigations and counting, and the coverup continues.

The administration and its proxies in the coverup have vilified anyone who calls for a full inquiry into the policies. They even stooped to claiming a request for full accounting is somehow a smear against our troops. The real smear is that the administration continues to prosecute only a few low-level offenders without holding accountable the higher-ups who laid the groundwork for all the abuses. The real disservice to our troops and to our country is done by those who leave those at the bottom of the chain of command holding the bag while officials at the top are promoted and rewarded.

We need a commission independent of political influence to find the relevant facts, not just the facts that suit the partisan needs of the administration. We need an investigation of the country's so-called rendition policy which sends detainees to other countries where torture is well known. We need answers about the administration's reaction to FBI complaints about abuse. We need a thorough assessment of the legal regime that is currently in effect.

With its willingness to conceal the truth, the administration will never tell the American people about this practice of rendition on its own. We need an independent commission to examine our policies and practices and make appropriate recommendations. The American people deserve to understand the choices made by this President and to evaluate them.

In sum, our interrogation and detention policies need much more thorough review. In avoiding accountability, the administration has made it clear it won't accept responsibility for giving our Nation the clear answers it deserves. As Benjamin Franklin said, half a truth is often a great lie. Until now we have been fed half truths and coverups by the administration.

With the recent veto threat, the White House has declared war on any full and honest accounting of responsibility. The safety of our troops and our citizens depends on finding out the whole truth and acting on it. An independent commission of respected professionals with backgrounds in law and military policy and international relations is the only way we can learn the truth about what has happened so we can end the suppression and establish a policy for the future that is worthy of our Nation and worthy of our respect of all nations.

Administration secrecy doesn't stop with their interrogation policy. This administration has a systematic disregard for oversight and openness. Government is intended to be ``of the people, by the people, and for the people.'' Democracy requires informed citizens, and to be informed, citizens need to have information about the government. Congress and the executive branch are supposed to be open and accountable, so the American people know what is being done in their name. But under the Bush administration, openness and accountability have been replaced by secrecy and evasion of responsibility. They abuse their power, conceal their actions from the American people, and refuse to hold officials accountable.

No one disputes the necessity of classifying information critical to protecting our national security--military operations, weapon designs, intelligence sources, and similar information. But in the post-9/11 world, the administration is making secrecy the norm and openness the exception. It has used the tragedy of 9/11 to classify unprecedented amounts of information. Material off-limits to the public has become so extensive that no other conclusion is possible. The Bush administration has a pervasive strategy to limit access to information in order to avoid independent evaluation of its actions by Americans whose job it is to observe and critique their government. When even Congressmen, journalists, and public interest groups complain about limits on access to information, we know the difficulties faced by ordinary Americans seeking information from their government.

At a hearing last August in the House Subcommittee on National Security, the Director of the Government's Information Security Oversight Office, J. William Leonard, testified that ``it is no secret that the government classifies too much information. Too much classification unnecessarily impedes effective information sharing.''

The Deputy Under Secretary of Defense for Counterintelligence and Security, Carol A. Haave, said that as much as half of all classified information doesn't need to be classified.

Last year, a record 15.6 million documents were classified by the Bush administration at a cost of $7.2 billion, many under newly invented categories with fewer requirements for classification.

The administration argues that all this secrecy is necessary to win the war on terrorism. But the 9/11 Commission Report said that too much government secrecy had hurt U.S. intelligence capability even before 9/ 11. ``Secrecy stifles oversight, accountability, and information sharing,'' says the report. They know from their own experience.

In July 2003, the 9/11 Commission's cochairmen, Thomas Kean and Lee Hamilton, complained publicly that the administration was failing to provide requested information.

In October 2003, the Commission had no choice, after repeated requests, but to subpoena records from the FAA.

In November 2003, after multiple requests, the Commission again had to subpoena information, this time from the Department of Defense.

For the rest of that fall and spring, the administration repeatedly tried to deny access to presidential documents important to the Commission's investigation, until public outcry grew loud enough to convince the administration otherwise.

Key members of the administration balked at testifying, until public opinion again swayed their stance.

And then, in an ironic twist, 28 pages of the 9/11 Commission Report itself was classified. So, is all this secrecy really about protecting us from the terrorists? Or is it just to avoid accountability?

This administration, once in office, wasted no time challenging those who would hold them accountable. In May 2001, Vice President Cheney's energy task force issued its report recommending more oil and gas drilling to solve our energy problems. In light of his former employment at Halliburton, the recommendation was hardly astonishing. What was astonishing was the Vice President's refusal to identify the people and groups who helped write the policy. In June 2001, the GAO, the nonpartisan, investigative arm of Congress, requested information on the energy task force, following reports that campaign contributors had special access while the public was shut out. GAO's request was simple. It asked, ``Who serves on this task force; what information is being presented to the task force and by whom is it being given; and the costs involved in the gathering of the facts.'' Considering that the task force wrote the nation's energy policy, it was not an unreasonable request.

The administration refused to comply, even though GAO's request was not out of the ordinary. President Clinton's task forces on health care and on China trade relations were both investigated by GAO. The Clinton administration turned over detailed information on the participants and proceedings of the task forces.

But the Bush administration argued that GAO did not have the authority to conduct the investigation. For the first time in its 80- year history, GAO was forced to file suit against an administration to obtain requested information. But the court sided with the administration in Walker v. Cheney, and GAO's investigative oversight authority was effectively reduced. Independent oversight is critically important when one party controls both Congress and the White House, and GAO is critical to that oversight.

On October 12, 2001, John Ashcroft wrote a memo outlining the Justice Department's views on Freedom of Information Act requests. The memo set the tone for an administration hostile to such requests. It discouraged executive branch agencies from responding to Freedom of Information Act requests, even when the agencies had the option to respond. He basically reversed the longstanding policy of prior administrations.

The Clinton administration policy, set forth by Attorney General Janet Reno, was that if a document could be released without harm, an agency should do so, even if there were technical grounds for withholding it. They knew that government openness was essential to an informed public.

When the Bush administration came to office, Attorney General Ashcroft disagreed--he wrote that if there is any technical ground for withholding a document under the Freedom of Information Act, an agency should withhold it. The Clinton policy had been ``release if at all possible.'' The Bush policy was ``keep secret if at all possible.''

Why should the public know what the administration is doing? Why release documents that might be embarrassing to the White House or its friends in business?

Some organizations claim, based on their experience, that this obsession with secrecy goes even farther, and that executive branch agencies are being told to withhold information until it is subpoenaed. Sean Moulton, a senior policy analyst at OMB Watch, argued that ``if there are documents the government doesn't want to release but doesn't have any legal basis for withholding, unless you're willing to go to court, you're not getting those documents.''

Since the tragedy of September 11, this administration has effectively shut down inquiry after inquiry:

In November 2001, energy companies were planning a natural gas pipeline through the Blue Ridge Mountains of Virginia. Local citizens, led by former U.S. Army Ranger Joseph McCormick, asked the Federal Energy Regulatory Commission for a map of the planned pipeline. These citizens weren't being nosy--they wanted to know if a large new pipeline for natural gas would be going through their backyards. FERC denied the citizens' request in the name of national security, even though this type of information had been public before 9/11. Clearly, national security concerns are legitimate. But without knowledge of the pipeline's location, how could these citizens defend their property? Joseph McCormick put it bluntly: ``There certainly is a balance,'' he said. ``It's about people's right to use the information of an open society to protect their rights.''

In the fall of 2002, the chemical compound perchlorate was found in the water supply of Aberdeen, Maryland--near the Army's famous Aberdeen Proving Ground. Perchlorate is a main ingredient of rocket fuel. It also stunts the metabolism and brain growth of newborns. A group of citizens organized, and worked with the Army to protect their drinking water from further contamination. But a few months later, the Army began censoring maps and information that would help determine which areas were contaminated, supposedly in the interest of national security--if citizens could find out where the water was contaminated, then terrorists could find it too. The head of the citizens' group was a 20-year army veteran. His water well was only a mile and a half away from the proving ground. ``It's an abuse of power,'' he said. ``The government has to be transparent.''

Even Members of Congress have had to subpoena information in order to do their work. Last October, Congressmen Christopher Shays and Henry Waxman, the chairman and ranking Democrat on the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations, asked for an audit of the Development Fund for Iraq. The copy they received had over 400 items blacked out. They had so much difficulty obtaining an unredacted report from the Defense Department that they had to prepare a subpoena. Once they finally received an unredacted copy, guess what had been blacked out? More than $218 million in charges from Halliburton. So far, no one has been held accountable.

It has now been 744 days without a White House investigation into the CIA leak case. It took 85 days for the administration even to require its staff to turn over evidence relating to the leak. Senate Republicans held 20 hearings on accusations against President Clinton and the Whitewater case, but they have held zero hearings on the leak of the covert identity of CIA agent Valerie Plame. So far, no one has been held accountable.

Last week, the Defense Department refused to cooperate with a federal judge's order to release secret photographs and videotapes of prisoner abuse at Abu Ghraib. The ACLU had sued to obtain release of 87 photographs and 4 videotapes, but the administration filed sealed documents resisting the order. They are so obsessed with secrecy that they even make secret arguments to keep their secrets. So far, no one has been held accountable.

Also last week, the administration submitted an initial report on progress in training Iraqi security forces. It has been more than 2 years since the fall of Baghdad, and a reliable assessment of our progress in training those forces was long overdue. The key questions that the American people want to know are how many Iraqi security forces are capable of fighting on their own and what our military requirements will be the months ahead. But the answers remain classified. The American people deserve to know the facts about our policy. They want to know how long it will take to fully train the Iraqis and when our military mission will be completed. They can deal with the truth, and they deserve it.

No one wants to do anything that would help the insurgents. But the administration must do a better job of responding to the legitimate concerns of the American people. The administration still isn't willing to be candid. It needs to find a way to shed some of the secrecy and answer these questions in good faith for the American people. The silence is deafening.

There is also a pattern of withholding information from members of Congress on the administration's nominations. In 2003, Miguel Estrada was nominated for a Federal judgeship. We requested legal memoranda he wrote as Assistant Solicitor General, and we were repeatedly denied. In 2004, Alberto Gonzales was nominated to be Attorney General. We requested various memoranda he authorized on administration torture policy, and we were repeatedly denied. Earlier this year, John Bolton was nominated to be Ambassador to the United Nations. We requested documents to determine if he acted appropriately in his previous job, and we have been repeatedly denied.

Instead of coming clean and providing the information to the Congress, we have been stonewalled. Our questions have gone unanswered. And now, the President appears to be poised to abuse his power further, rub salt in the wound, and send John Bolton to the United Nations anyway with a recess appointment of dubious constitutionality.

Now John Roberts has been nominated to a lifetime seat on the Supreme Court. We hope this nomination will not be another occasion for administration secrecy, but press accounts suggest otherwise. Even before we asked for any documents, the administration announced it will not release many of the memoranda written by John Roberts. The White House spokesman says they will claim attorney-client privilege, but many of the memos vital to our consideration of Judge Roberts for the Supreme Court were written while he worked as a top political and policy official in the Solicitor General's office. That office works for all the American people--not just the President. Attorney-client privilege clearly has never been a bar to providing the Senate with what it needs to process a nomination.

As we all know, no one is simply entitled to serve on the Supreme Court of the United States. One has to earn that right. And one earns that right by getting the support of the American people, reflected in the vote here in the United States Senate. And that is what the confirmation process is all about. We know that the administration is familiar with and aware of Judge Roberts' positions on various issues. They have had a year to study it and had their associates talk with him and with those who worked with him. The real question is: Shouldn't the American people have the opportunity to get the same kind of information so that they can form their own impression and so that the Senate can make a balanced, informed judgment and see whether or not the balance in the Supreme Court will be furthered? That is the issue and it appears that the administration is continuing to withhold important information that would permit the Congress the ability to do so.

Yes, the administration has consistently used the horror of 9/11 and its disdain of congressional oversight to get its way and avoid accountability. It consistently uses this secrecy to roll back the rights of average Americans. But even its best spin doctors can't conceal some of the administration's most flagrant abuses of power.

Last August, the New York Times reported that ``health rules, environmental regulations, energy initiatives, worker-safety standards and product-safety disclosure policies have been modified in ways that often please business and industry leaders while dismaying interest groups representing consumers, workers, drivers, medical patients, the elderly and many others.'' Often, this has been done in silence and near secrecy.

In 2000, Congress responded to the disclosure of defects in Firestone tires, which may have been responsible for as many as 270 deaths, by passing legislation which would make information on auto safety and related defects readily available. But in July 2003, the National Highway Traffic Safety Administration decided that reports of defects would cause ``substantial competitive harm'' to the auto industry, and exempted warranty claims and consumer complaints from the Freedom of Information Act. Clearly, that was another abuse of power that protects big business while putting the American public at greater risk.

In 2003, the administration knowingly withheld cost estimates of its Medicare prescription drug bill--one of the most important pieces of legislation that year. The estimates showed costs over $100 billion more than the administration claimed, but the information was withheld because of fears that the actual numbers would persuade Members of Congress to vote no. Administration officials threatened to fire Chief Actuary Richard Foster ``so fast his head would spin,'' if he informed Congress of the real cost estimate. I wrote a letter to the administration on this subject, but they never responded to my questions.

In 2003, the Food and Drug Administration kept secret a report that children on antidepressants were twice as likely to be involved in suicide-related behavior. The FDA also prevented the author of the study--their expert on the issue--from presenting his findings to an FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist, said ``Evidence that they're suppressing a report like this is an outrage, given the public health and safety issues at stake . . . For the FDA to issue an ambiguous warning when they had unambiguous data like this is an outrage.''

In November 2003, the White House told the Appropriations Committees in both Houses of Congress that it would only respond to requests for information if they were signed by the committee chairman. In a time of one-party rule, this tactic made congressional oversight almost completely impossible.

In April 2004, the ranking member of the Environment and Public Works Committee, Senator Jeffords, was forced to place holds on several EPA nominees after the administration refused to respond to twelve outstanding information requests, including information on air pollution.

In August 2004, under pressure from the Department of Homeland Security, the FCC decided to make telephone service outage reports confidential, and exempt them from Freedom of Information Act requests. The FCC argued it was because companies could use competitors' service outages in ad campaigns. You may not be able to make informed decisions on your phone company, but at least the company will be protected from nasty advertising.

Last month, we discovered that the administration had blocked studies criticizing the Central American Free Trade Agreement--after it had already paid for them. In 2002, the Department of Labor hired the International Labor Rights Fund to back up its argument that Central American countries had improved on labor issues. The contractor found the opposite, and posted its results on its Web site in March 2004. The Labor Department ordered its removal from the website, banned its release, and barred the contractor's employees from discussing the report. The Department of Labor denied a Congressman's request for the report under the Freedom of Information Act. These are the American people's tax dollars. But when the administration didn't like an answer, it abused its power to avoid accountability--at their expense.

Yesterday, the Wall Street Journal disclosed yet another list of abuses in Iraq reconstruction. Ten billion dollars of no-bid contracts were awarded; $89 million was doled out without contracts at all; $9 billion is unaccounted for, and may have been embezzled. An official fired for incompetence was still giving out millions of dollars in aid, weeks after his termination. A contractor was paid twice for the same job. A third of all U.S. vehicles that Halliburton was paid to manage are missing. It is a staggering display of incompetence and cover-up, so that no one will be held accountable.

Americans deserve better. They deserve the information necessary to become informed, effective citizens. We as lawmakers are better able to represent our constituents when we have access to the critical information held by the executive branch. We must never forget who we work for--the American people. Congress is a co-equal branch of government, and we

have a duty to hold the administration accountable for its actions.

Mr. President, on the matter we have before the Senate at the present time, here we go again on the issue of legal immunity for the gun industry. Without shame, the Republican leadership has brought back this special interest, anti-law enforcement bill that strips away the rights of victims to go to court.

Why the urgency to take up this bill now? This is a critical moment in this country's future. Surely, the Republican leadership can take some time to address other priorities before attempting to give a free pass to the gun industry. Why aren't we completing our work on the Defense authorization bill? That is what was before the Senate. Why have we displaced a full and fair debate on the issue of the Defense authorization bill--which has so many provisions in there concerning our fighting men and women in Iraq and about the National Guard and defense--in order to consider special interest legislation?

That is what is before the Senate, and that is what we are considering at the present time, as a result of the Republican leadership. Surely, the Congress can do more for our citizens than rush to pass unprecedented special interest legislation. We can and should be acting to meet our real challenges.

Last year, the Federal Government recalled a water pistol, the Super Soaker, just a few days before the assault weapons ban expired. America does more to regulate the safety of toy guns than real guns, and it is a national disgrace. The gun industry has worked hard to avoid Federal consumer safety regulation. Where are our priorities? Where is the logic in passing a bill that makes it harder to sue for harm caused by real guns than harm caused by a plastic toy gun?

The industry has conspicuously failed to use technology to make guns safer. It has attempted to insulate itself from its distributors and dealers, once guns leave the factory. Under this bill, it will not even matter if the guns are stolen by factory employees and snuck out of the factory in the middle of the night.

The overwhelming majority of Americans believe gun dealers and gun manufacturers should be held accountable for their irresponsible conduct, similar to everyone else.

Cities, counties, and States incur billions of dollars in costs each year as a result of gun violence. Studies estimate that the public cost of firearm-related injuries is over $1 million for each shooting victim. Yet this bill would take a fierce toll and dismiss even pending cases where communities are trying to get relief.

This bill would bar the legal rights of hard-working law enforcement officers, such as Ken McGuire and David Lemongello. These two police officers from Orange, NJ, were seriously wounded in a shootout with a burglary suspect. The gun used by the suspect was one of 12 guns sold by a West Virginia pawnshop to an obvious straw purchaser for an illegal gun trafficker. Fortunately for the officers, this bill did not become law last year, and their case was able to proceed.

Recently, David Lemongello was able to obtain a $1 million settlement. Significantly, the settlement required the dealer and other area pawnshops to adopt safer practices. These reforms go beyond the requirements of current law and are not imposed by any manufacturers or distributors. This is not about money. This is about public safety, and I commend these brave officers for their courageous battle to change the system.

It is clear what will happen if Congress gives the gun industry this unprecedented legal immunity, on top of its existing exemption from Federal consumer safety regulations. Guns will be more dangerous. Gun dealers will be more irresponsible. More guns will be available to terrorists and criminals. There will be more shootings and more dead children.

The Nation's response to this death toll has been unacceptable. Yet, year after year, little changes in our approach to regulating guns. How can we justify this neglect? How can we continue to ignore the vast discrepancy in gun deaths in the United States compared to other nations? How can we possibly justify this effort to give the gun industry even greater protection for irresponsible behavior?

Mr. President, this bill is nothing short of Congress aiding and abetting the provision of guns to criminals. It takes the gun industry off the hook when their guns are sold to the wrong people who are out to hurt us. Under this administration, we have seen the budget cuts to the Bureau of Alcohol, Tobacco and Firearms, so our law enforcement do not have the resources they need to keep guns out of criminal hands. That is why these citizen lawsuits are so important. If the police cannot do their job, then citizens should be able to do it. But this legislation will throw the citizens out of court. It is wrong.

I yield the floor.

Reserving the right to object, can the leader give us some indication as to when we will go on the Defense authorization bill, as one who has an amendment and is glad to participate?

Mr. President, I will not object. My feeling is, I regretted the fact we got off the Defense bill--particularly because of its importance to our national security--to go on to this gun liability bill. I am not going to object to the leader coming back. As one who has an amendment--I know many of our colleagues were eager to focus on those amendments. We will expect to hear from our leader as to when the leader will do that.

Further reserving the right to object, is it the intention of the leader to permit amendments to the gun liability bill so we will, now that we are on that legislation, at least be able to talk about and offer amendments on the gun liability legislation?

Mr. President, I am not going to object to the other, but that sounds to me as if--having been around and familiar with the rules of the Senate--they can effectively let what amendments come up that are agreeable to the floor managers and deny other Members the opportunity to offer amendments. I think the Senate rules provide, when we are dealing with cloture, to be able to offer amendments that are relevant to the underlying bill. I don't understand why we are not going to be permitted the different options. I am not going to object to the leader being able to go to Defense authorization when he wants to, but it does seem to me we are facing a stacked deck here and denying Members under the Senate rules the opportunity which the rules provide for. It would be simple to say we are going to run consideration of the gun liability according to the Senate rules. That would be the answer most of us would have hoped. I guess there is a different plan ahead for the Senate, but we all want to be fully aware of what that means. That means some Members will be able to get their amendments in and others will not.

Mr. President, I know we are currently debating the motion to proceed on S. 397, the Protection of Lawful Commerce in Arms Act. I am supportive of this legislation. I am happy to see 65 of my colleagues join me in invoking cloture today so we can reach resolution on the bill later this week. This is critical legislation for gun manufacturers, some of whom work in my State and employ hard-working Texans. It is important for our economy and for our national security. I plan to speak about this issue in greater detail later, but I wanted to take a few moments to address another urgent matter.

I ask unanimous consent to speak as in morning business, and that the time be discounted against the 30 hours.

Mr. President, earlier today, Chairman Specter of the Senate Judiciary Committee convened a very important hearing addressing one of the most urgent matters confronting our Nation; that is, the need to fix our broken immigration system. I want to speak a few minutes about a proposal that I have made, along with my colleague from Arizona, Senator Kyl, together representing two border States, ones that perhaps have the most experience with this issue because of our proximity to the border with Mexico.

In summary, this bill strengthens our border enforcement while it comprehensively reforms our immigration system. Unfortunately, the ongoing immigration debate has too often divided Americans of goodwill into two camps--those who are angry and frustrated by our failure to enforce the law, and those who are angry and frustrated that our immigration laws do not reflect reality. I have learned that those two groups, both of whom deeply care about America and are committed to building a system that works, share more in common than they or many other people actually realize. The only groups who benefit from the current system are human smugglers, unscrupulous employers, and others who profit at the expense of people who are trying to come into this country and work through illegal channels. Unfortunately, we know that those channels are being investigated and potentially exploited by those who want to come here to do us harm.

The reality is we need both stronger enforcement and reasonable reform of our immigration laws. It is my opinion that we, in the past, have not devoted the funds, the resources, or the manpower necessary to enforce our immigration laws or to protect our borders. No discussion of reform is possible without a clear commitment to--and a substantial escalation of--our efforts to enforce the law.

Over a series of months now, as chairman of the Immigration Subcommittee of the Senate Judiciary Committee, I have come to believe that increased enforcement alone cannot solve the problem. Any reform proposal must both serve our national security and our national economy. It must be capable of securing our country, but it must also be compatible with our growing economy.

As I mentioned a moment ago, as chairman of the Subcommittee on Immigration, I have worked closely with Senator Kyl, who chairs the Terrorism Subcommittee of the Senate Judiciary Committee, to conduct a thorough review of our Nation's immigration laws. We have covered a wide variety of subjects, and we have had the opportunity to hear from a diverse group of experts. From an analysis of how the immigration system failed on 9/11, to the role of our neighboring countries in raising living standards in their home countries, our hearings have laid a foundation upon which we have developed a comprehensive solution, one that will not result in yet another immigration crisis some 10 or 20 years down the road.

We all know our immigration system has been broken for many years. First, the volume of illegal immigration continues to increase. According to the Pew Hispanic Center, there has been a dramatic increase in illegal immigration since 9/11, approximately 30% since 2000. That same organization estimates there are approximately 10.3 million illegal aliens in the United States currently.

Over the course of the 1990s, the number of illegal aliens increased by half a million a year, almost matching the number of visas that Congress has made available for legal immigrants. Last year alone, the Border Patrol detained roughly 1.1 million aliens who had come across the border. Professionals I have talked with on my travels to Texas and along the border, people whose experience and professionalism I trust, estimate that we are only detaining perhaps one out of every three or one out of every four people who are coming across our borders illegally.

Second, and for me the most alarming, is the information that suggests that terrorists and other criminals, including smugglers, are aware of the holes in our system. They may be--and I am confident that they are--looking at ways to exploit these weaknesses.

In recent visits in McAllen, TX, and Laredo, TX, I learned from people who have been long familiar with the movement of people back and forwards across our borders that the nature of illegal immigration has changed dramatically. The number of aliens from noncontiguous countries, sometimes called OTMs--in other words, people from countries other than Mexico--has doubled in the last year alone. Already this year the Department of Homeland Security has apprehended about 100,000 aliens across the southern border who are from noncontiguous countries.

While many of these individuals are coming from countries that you would expect, countries in Central and South America, many come from countries that have direct connections with terrorism. For example, we know that the Border Patrol has apprehended at least 400 aliens from countries with direct ties to terrorism.

Former Deputy Secretary of the Department of Homeland Security, Admiral James Loy, stated that ``entrenched human smuggling networks and corruption in areas beyond our boarders can be exploited by terrorist organizations.'' He went on to state that ``several al-Qaeda leaders believe operatives can pay their way into the country through Mexico and also believe that illegal entry is more advantageous than legal entry for operational security reasons.''

I believe the vast majority of the people who come to this country, even those who come outside of our laws, come here for understandable reasons. That is, people who have no hope and no opportunity where they live see this tremendous beacon of opportunity that America represents, and they want to come here to work and provide for their families.

At the same time, we have to acknowledge that our porous borders represent a national security vulnerability which can also be exploited by international terrorists. We know the current system benefits smugglers and all too frequently leads to the deaths of immigrants whose only crime was trying to find a better life for themselves and their families. Indeed, the greatest hazard to people who come to this country to find work is the fact that they have to, under current law, resort too often to an illegal entry into the country. They turn their lives over to people who care nothing about them and who are willing to leave them to die under the most extraordinarily bad circumstances. They must work for employers who can exploit them because they know they can't report labor law violations to the authorities. And they suffer criminal acts, such as domestic violence, and they must endure these acts because they believe they can't report the crime to law enforcement authorities or else they risk deportation.

I believe a reform proposal must encourage aliens to participate in the legal process, to live within the law.

Ultimately, after they have completed their time of work in this country, most will return home to their countries and to their families and to contribute to their societies in their homeland. And those who decide to live permanently must enter through the legal process.

When people who come to this country live outside of the law, they are vulnerable to exploitation and violence. They risk their lives, sometimes just to visit their families. I believe we must take away this black market from smugglers and others who exploit these vulnerable immigrants by addressing deficiencies in our current system.

Identifying problems, of course, is not the most difficult part of our jobs. If this were easy, someone would have already done it. It is not easy, but it merits our best efforts. The challenge that Senator Kyl and I have assumed is to find a solution, to find workable results.

Last Wednesday, we introduced the Comprehensive Enforcement and Immigration Reform Act of 2005, a bill that we believe will restore America's faith in lawful immigration and will meet the needs of our country, both from a security perspective and from the standpoint of our growing economy which needs the work provided by many immigrants.

The bill is based upon certain principles. First, we have to reestablish the rule of law. Second, we have to enact laws that are capable of strong enforcement. That means they have to be realistic. Third, and most importantly, the law must be fair. If we address deficiencies in the current immigration process, then we must require that everyone who is here, even those who have come here just to provide for their families, must go through normal legal channels.

The good news is that our bill provides them a direction and a way to do that in a way that is not overly disruptive of their employment or of their family life. We believe it provides a path so that they can regain their status as legal temporary workers or, if eligible, as legal permanent residents.

The men and women who secure our borders at the ports of entry, and frequently at remote locations, should be commended for the job they do every day. But we have not provided them with the resources they need to be able to give them any reasonable chance of success.

Last week, the Senate approved the Department of Homeland Security appropriations bill, which, to the credit of the Senator from New Hampshire, Senator Gregg, included increases for border security and immigration enforcement.

Senator Kyl and I have introduced a bill that we believe builds on that foundation. First of all, it authorizes 1,250 new Customs and border protection officers over the next 5 years. It calls on the Department of Homeland Security to hire 10,000 new Border Patrol agents over that same 5-year period. That same amount was authorized by Congress in the Intelligence Reform Act of 2004. It calls for the expansion of a process called expedited removal, which is a fair and effective system for quickly removing those who are ineligible to enter our country. Right now, we only use expedited removal in a few locations along the border. But our bill calls for the Department of Homeland Security to expand that process to all Border Patrol sectors, and we also provide for additional safeguards for aliens by requiring a supervisory official with the Government sign off on any removal.

Let me say a quick word about expedited removal. Right now, because of a lack of detention facilities, we have what is commonly called a ``catch and release'' program. For those we catch coming across the border illegally, a criminal background check is done to determine whether they are a threat to the American people; but if they don't appear on one of these watch lists or criminal background databases, they are released into the U.S. and asked to return for a hearing. It should not surprise any of us that this ``catch and release'' program results in more people not showing up than do show up, and those who show up for their hearing and are ordered removed then do not show up later when they are asked to report for their deportation process.

So that is the problem that we simply have to remedy. And I believe that expansion of the expedited removal process will deal with it in a way that is consistent with our laws and our values and our need for an effective border security program.

Our bill also addresses the release of aliens who come into the country from countries other than Mexico. It raises the minimum bond amounts for these aliens from $1,500 to $5,000. That means that fewer people from countries other than Mexico will be released, and those who are released will have a greater incentive to appear for their hearings.

Another important component of immigration reform is interior enforcement. We also need to deal with those who make it past the border and into the interior of our Nation. Tackling illegal immigration cannot be done in a piecemeal fashion. If we increase our ability to apprehend illegal aliens at the border, we must have a place to put them. Once detained, lawyers and judges are necessary to ensure that these people receive timely and fair hearings. Reform, therefore, must evaluate the whole enforcement process, and we must remove obstacles that appear anywhere in the process.

The goal is simple: If we apprehend someone who has no legal right to be in this country and is not entitled to any claim of asylum, then we must have an effective and efficient means to remove them from the U.S.

The bill Senator Kyl and I have introduced will restore confidence in the system. First, it authorizes an additional 10,000 detention beds. Currently, there are only 23,000 detention beds. You will recall that a moment ago I said last year alone immigration control authorities apprehended 1.1 million people coming across our border illegally. Yet we only have 23,000 detention beds. That leads to what I described earlier as the ``catch and release'' program, which has proven to be completely unworkable.

The intelligence reform bill called for an additional 40,000 beds over the next few years. The bill that we have introduced increases the total amount to 50,000 detention beds. Still, that is not enough to detain everyone who comes across the border illegally. That is where expedited removal comes into play--a process to remove aliens quickly so that we reduce the need for bed space.

Our bill also increases penalties for alien smuggling, document fraud, and gang violence by aliens. We know, as I said a moment ago, that the nature of the people coming across our border, through our porous southern border, has changed. We are seeing many people who are violent gang members coming from places in Central America. We know that people are coming from Asia and from Europe, all around the world, and they are transiting through Mexico.

Alien smugglers are the people that make that happen. We have learned that they consider human beings to be just another commodity. They are just as likely to smuggle arms, drugs or anything else that will make them money. We need to make sure that we crack down on these alien smugglers that facilitate this intrusion into our country illegally and show that we are committed to tough punishment. Our bill accomplishes that.

We provide greater tools for the Department of Homeland Security and the Department of State to require that countries accept their own citizens back if they violate our immigration laws and they come into our country illegally.

Our bill also clarifies the authority of State and local officials to enforce immigration laws and authorizes the reimbursement of local and State officials for costs they incur in enforcing Federal immigration law.

Recently, I traveled to Victoria, TX, and met with a group of sheriffs down there. It so happened that the Minutemen who first organized in Arizona were organizing in Goliad, TX, and local law enforcement officials were concerned about having these citizen volunteers engage in what essentially is a law enforcement process. They said to me:

If the Federal Government would provide us additional

resources, we would be glad to help. We need some training,

but we would be glad to be cross-designated, if that is

important, to enforce both Federal immigration laws as well

as State and local laws. We would be glad to detain them in

our local jail

facilities pending their hearings, if necessary, but it is

going to take a little help from the Federal Government.

I told them that I welcomed their offer to assist because I believe interior enforcement performed by many of these local law enforcement officials is an important part of this puzzle.

Our bill also creates a new senior-level position at the Department of Justice committed to immigration enforcement.

The third piece of the enforcement puzzle deals with the employment of undocumented immigrants. The Congressional Research Service estimates that out of the roughly 10 million people who have come into our country in violation of our laws, about 6 million are currently in the workforce. I believe that a vast majority of employers simply want an effective, user-friendly way to comply with the law. In other words, they want a way to determine whether the person who shows up in their place of business saying ``I would like to work for you'' is in fact legally authorized to work in the United States. We must ensure that we provide them an efficient, easy-to-use system that is airtight.

The example I often use is the following: if I show up at a convenience store and buy something, I can present my debit card or Visa or Master Card. In a matter of seconds, the clerk can swipe the card and it can authorize that purchase using modern technology. Why can we not use something similar--maybe with a few more bells and whistles--to allow employers to determine whether a person they want to hire is in fact eligible to work?

Since 1996, the Government has been testing an electronic verification system that provides instantaneous confirmation of an individual's authorization to work in the United States. Our experience with this program tells us that it can work but only if we give it sufficient resources. Our bill calls for an expansion of this electronic verification system and requires all employers to participate.

But while we make sure that there is a way for employers to check, we also have to make sure we crack down on employers who continue to operate in the black market of illegal labor. We have to crack down on the criminals who sell and who create fake identity documents and Social Security cards, which can also be exploited by terrorists.

Because our bill will create bright-line rules for employers, companies will be able to know whether they are in compliance or not. That is an obligation we owe them. If we are going to ask them to comply with the law, we have to give them a clear and simple way to do so. Our bill will further reduce identity theft and fraud by increasing the penalties for false claims to citizenship or for filing false information with the Social Security Administration. It requires Social Security cards to be more secure and it imposes standards for the issuance of birth certificates, so someone may not simply counterfeit these documents and make a false claim to citizenship.

Our bill also imposes certain obligations on countries who would like to make their citizens eligible to participate in this program. This would address another big challenge that we have, and that is the development gap between the United States and other countries.

We, along with those other countries, have an interest in ending the one-way flow of workers, which only results in the drain of highly motivated workers from those countries and further impedes their development. Our proposal would not only require the sending countries to assist with border security, but it will require them to cooperate with the United States in bridging the development gap between our country and theirs. Foreign Minister Derbez of Mexico has said that ``[T]he Mexican government has to be able to give Mexicans . . . the opportunity to generate the wealth that today they produce in other places.''

I could not agree more. Other countries need for their young, energetic risk-takers and hard workers to ultimately return home, to bring back to their countries the savings and skills they have acquired in the United States.

The bill we have introduced will require countries to enter into an agreement in which each country agrees to cooperate on border enforcement, to work to reduce gang violence and smuggling, to provide information on criminal aliens and terrorists, and to accept the return of nationals whom the United States has ordered removed.

Lastly, let me cover the temporary worker program. I mentioned a moment ago that out of the 10 million or so people who have come to this country illegally, about 6 million are in the workforce. I believe the fact is many of these immigrants have come here to provide for their families, something all of us as human beings can empathize with and understand. Who among us would not do anything in our power, risk life itself, to provide for our families, even if it happened to be outside of our laws?

We know many jobs being performed by immigrants in this country are jobs American citizens are reluctant to fill. I can only think about roofers working with hot asphalt in south Texas during August as the one example of that kind of job. Whether it is that or picking agricultural products, there are a lot of jobs, unfortunately, that Americans simply are reluctant to fill. We know we have a need for the work provided by many immigrants.

What we provide for in our bill is a temporary worker program. That is something I believe can best be characterized as a work-and-return program, not a work-and-stay program.

Some have said that is unrealistic, that you will never get people who come to the United States to agree to return. I guess we can all have opinions, but I have something even better than my opinion. The Pew Hispanic Center, a nonpartisan, impartial think-tank that looks at some of these matters, has done a survey of almost 5,000 Mexican immigrants who applied for matricula consular card, a Mexican identity card, at Mexican consulates in the United States. They asked migrants to fill out a 12-page survey, and one of the questions they answered was this: Would you agree to work in a temporary worker program in the United States if it was legally authorized, even though at the end of that time period you would have to return home to your country of origin?

By a ratio of 4 to 1, 71 percent to 17 percent, these immigrants said they would. I think that is solid evidence that people who are currently working in the shadows realize that they operate without the protection of our labor laws, without the protection of our criminal laws, and all too frequently they view law enforcement with suspicion rather than as an ally. They are looking for an opportunity to come out into the sunshine and to secure the protection our laws provide.

Our bill does create a new temporary worker category that allows workers who have a job offer from a U.S. employer to enter the country for a period of up to 2 years to work in the United States. Before the employer can hire the worker, the employer must advertise a position, offer it to any qualified American worker, and agree to pay at least minimum wage. The worker will go through background screening, will be issued secure biometric documentation, that they are who they say they are and are coming here to work and not for some other nefarious purpose.

We also create some financial incentives so that the worker, after the period of their temporary visa expires, will return home with the savings and skills they have acquired while working in the United States.

I talked moments ago about the Pew Hispanic survey. Circular migration is important both for the United States and for countries such as Mexico and the countries of Central America who are losing their young risk takers and the potential entrepreneurs, the people who are essential to the development of their own economy.

What economy could withstand the loss of the young men and women, the people who are going to be the engines of those economies and the prosperity of those countries? The public officials in Mexico and Central America with whom I talked do understand they need to have these people come back with the savings and skills they have acquired in the United States, so they can develop a way forward for their own people. In the end, it will benefit the United States because it will take a lot of pressure off illegal immigration if people can find hope and opportunity and good jobs in their own country.

Finally, let me address what perhaps is the hardest issue: the people who are here now who have come here outside of our laws.

According to the Pew Hispanic Center again, about a third of these individuals have been here for more than 10 years. So we do know that some have established roots in the United States, but we also know we have to find some way to transition this population into legal status. It must not, however, create a new path for people who have come here outside our laws. Our bill allows them to get back in line so they can return to the United States in a temporary worker program or, should they choose, as legal permanent residents.

But we do it in a way that is premised upon fundamental fairness. I believe there are many people in America who would be deeply offended if we said: if you come to this country through legal channels, that is nice, but we are going to allow people who have come here illegally to have a preference, and we are going to let them jump ahead of you in line.

Our bill provides a path for people to return to their country of origin and then, on an expedited basis, return to the United States. It will not be disruptive. To secure their participation, it may be necessary for them to know by the time they leave that they will be eligible to come back immediately once they secure the proper documentation. And we need to address processing delays so that they can obtain that proper documentation in a matter of days. If disruption is the only concern, then I see no reason why the model cannot minimize or eliminate that disruption.

This bill is a comprehensive bill, and I know my colleagues are as concerned as I am about finding a workable solution to this problem. I speak today to share with all of our colleagues, not just the people who sit on the Judiciary Committee and who participated in the hearing this morning, an overview of our proposal which I think has some real promise in achieving results.

I believe our constituents sent us here to represent them to solve problems, not to engage in partisan or otherwise divisive rhetoric designed to pick a fight. Our proposal is one idea about how we can find our way through this thicket, how we can thread the needle in a way that does not provide amnesty. I think our colleagues across the Rotunda in the House of Representatives will be open to discussing our proposal, for it is consistent with their principles of reform.

I thank the Chair. I thank the indulgence of my colleagues. I yield the remainder of my hour to the Senator from Alabama.

I yield the floor.

Mr. President, I suggest the absence of a quorum.