Human Chimera Prohibition Act of 2005

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in strong opposition to this dangerous and misguided bill that would exempt gun dealers from liability even when they negligently sell weapons to criminals.

It is particularly distressing that we are taking up this bill at this particular time. It was just 3 years ago this month, in October, when the community that I represent right outside here of Washington, DC was terrorized by two snipers, who left 10 people dead and three people injured. The snipers obtained their weapons from a negligent gun dealer in Washington State.

Mr. Speaker, I have been struck by how some people in this institution and other places believe that the name given to a bill will somehow fool the American people as to what the bill actually does. This bill has the title on it Protection of Lawful Commerce in Arms Act. In fact, what the bill does is to make lawful many negligent actions that today are unlawful. What it actually does is protect those gun dealers who are engaged in wrongful, negligent sales of weapons to criminals. How does it do it? Very simple. It lowers the legal standard of care that gun dealers must today exercise to prevent guns from falling into the hands of criminals.

As a result, the passage of this bill will make it easier, easier, for criminals to get weapons and it will ensure that those gun dealers who negligently, negligently, put guns in the hands of criminals will not be held responsible for their wrongful actions. And it is a sad day, Mr. Speaker, in this body when special interests and the gun industry exert such influence that they are able to convince the Congress to strip innocent victims of crimes of their rights and instead extend protections to those unscrupulous dealers who put guns into the hands of criminals.

Now, proponents of this legislation will tell us that most gun dealers in our Nation are honest and law abiding. I agree. That is true. In fact, the Bureau of Alcohol, Firearms, and Tobacco has found that about 1 percent, about 1 percent, of gun dealers are responsible for nearly 60 percent of the guns that are traced to crimes. So if most gun dealers are honorable and responsible citizens, why do they need protection? They do not. The real beneficiaries of this legislation are those small handful of dealers who are negligently putting guns in the hands of criminals. It is protecting the bad apples. It is giving them a green light to go ahead and say I see nothing when they are engaged in sales to wrongdoers.

The proponents of this bill, as we have heard, will tell us it is only intended to stop so-called ``frivolous lawsuits.'' That notion has been soundly rejected by victim advocates across this country, and it is an insult to the victims who seek redress against those dealers who profit from negligently selling to violent predators.

Let us focus for a minute on the victims of gun crimes in our country. Should we not be protecting them? Why do we not have a bill entitled the ``Protection of Gun Violence Victims'' on the floor today? Let us look at some cases. We have talked about the sniper case. I differ strongly with the chairman of the committee, and the bill, as the testimony has made clear, would not have allowed that suit to go forward. I represent that area where so many people lost their lives 3 years ago this month. On many sunny days when the snipers gunned down people who were going about their ordinary business, filling up their gas at gas stations, shopping at grocery stores, cutting their grass, a child who was going to school. Before those snipers were caught, they killed 10 people and wounded three. The snipers have been caught, convicted, and they are behind bars.

The snipers carried out those attacks with a Bushmaster XM-15 semiautomatic .223 caliber rifle. The rifle came from Bull's Eye Shooter Supply in Tacoma, Washington, which had an extensive history of firearms violations and had not reported the rifle as missing as required by Federal law because they said they did not know the rifle was missing. According to the ATF, this store and its owner had a long history of firearms sales and records violations.

On January 16, 2003, the families of many of the victims of the sniper attacks who were killed brought a lawsuit against that gun store for their losses and injuries. The victims of that heinous crime spree received a $2.5 million settlement. Let us be clear. If this law had been in effect at that time, those victims and their families would have received nothing. In fact, this bill was being debated on the floor of this House 3 years ago this month when those killings were going on, and this House realized how bad it would look to victimize those people twice, to have them victimized once by the snipers and again by the United States Congress by denying their day in court, and that is why this House decided to withdraw the bill at that time from consideration from the floor of the House. Here we are 3 years later coming back and passing legislation that would have denied them their right. Shame on us.

Let us talk about another case. In New Jersey, June, 2004, two former New Jersey police officers, Ken McGuire and Dave Lemongello, were shot in the line of duty with a trafficked gun that had been negligently sold by a West Virginia dealer. Those two officers received a $1 million settlement for the negligence of this dealer. The dealer had sold the gun along with 11 other handguns in a cash sale to a straw buyer, a trafficker, someone who got the guns because he could legally obtain them but then turned around and sold them to a criminal who committed the crimes. If this bill had been in effect then, that case would have been dismissed and justice for those police officers would have been denied. And because of that, many law enforcement officers and organizations have written a letter opposing this bill, a copy, Mr. Speaker, which I will insert in the Record.

Should we not be trying to create additional incentives to improve the business practices of these gun dealers, not give them a green light to be negligent? What happened to protecting the victims? This bill does just the opposite. It provides a shield to an industry that should be providing a standard of care at least equal to other industries and businesses. Why do we want to make the gun industry the most protected industry in America?

It is inconceivable that we are here today at the behest of the gun industry to provide immunity that no other industry enjoys and at the expense of the victims of gun violence. This bill will shut the courthouse doors on many victims who have legitimate claims.

In the interest of truth in advertising, the real name of this bill should be the ``Protection of Negligent Gun Dealers Act.''

I urge my colleagues to oppose this.

October 19, 2005.

Re: Law Enforcement Opposition to S. 397.

U.S. Congress,

U.S. Senate,

Washington, DC.

Dear Senator: As active and retired law enforcement

officers, we are writing to urge your strong opposition to

any legislation granting the gun industry special legal

immunity. S. 397 would strip away the legal rights of gun

violence victims, including law enforcement officers and

their families, to seek redress against irresponsible gun

dealers and manufacturers.

The impact of this bill on the law enforcement community is

well illustrated by the lawsuit brought by former Orange, New

Jersey police officers Ken McGuire and David Lemongello. On

January 12, 2001, McGuire and Lemongello were shot in the

line of duty with a trafficked gun negligently sold by a West

Virginia dealer. The dealer had sold the gun, along with 11

other handguns, in a cash sale to a straw buyer for a gun

trafficker. In June 2004, the officers obtained a $1 million

settlement from the dealer. The dealer, as well as two other

area pawnshops, also have implemented safer practices to

prevent sales to traffickers, including a new policy of

ending large-volume sales of handguns. These reforms go

beyond the requirements of current law and are not imposed by

any manufacturers or distributors.

If immunity for the gun industry had been enacted, the

officers' case would have been thrown out of court and

justice would have been denied. Police officers like Ken

McGuire and Dave Lemongello put their lives on the line every

day to protect the public. Instead of honoring them for their

service, legislation granting immunity to the gun industry

would deprive them of their basic rights as American citizens

to prove their case in a court of law. We stand with officers

McGuire and Lemongello in urging you to oppose such

legislation.

Sincerely,

International Brotherhood of Police Officers (AFL-CIO

Police union).

Major Cities Chiefs Association (Represents our nation's

largest police departments).

National Black Police Association (Nationwide organization

with more than 35,000 members).

Hispanic American Police Command Officers Association

(Serving command level staff and federal agents).

National Latino Peace Officers Association.

The Police Foundation (A private, nonprofit research

institution).

Michigan Association of Chiefs of Police.

Rhode Island State Association of Chiefs of Police.

Maine Chiefs of Police Association.

Departments listed for identification purposes only:

Sergeant Moises Agosto, Pompton Lakes Police Dept. (NJ);

Sheriff Drew Alexander, Summit County Sheriff's Office (OH);

Sheriff Thomas L. Altiere, Trumbull County Sheriff's Office

(OH); Director Anthony F. Ambrose III, Newark Police Dept.

(NJ); Chief Jon J. Arcaro, Conneaut Police Dept. (OH);

Officer Robert C. Arnold, Rutherford Police Dept. (NJ); Chief

Ron Atstupenas, Blackstone Police Dept. (MA); Sheriff Kevin

A. Beck, Williams County Sheriff's Office (OH); Detective

Sean Burke, Lawrence Police Dept. (MA); Chief William

Bratton, Los Angeles Police Dept. (CA); Special Agent (Ret)

Ronald J. Brogan, Drug Enforcement Agency; and Chief Thomas

V. Brownell, Amsterdam Police Dept. (NY).

Chief (Ret) John H. Cease, Wilmington Police Dept. (NC);

Chief Michael Chitwood, Portland Police Dept. (ME); Chief

William Citty, Oklahoma Police Dept. (OK); Chief Kenneth V.

Collins, Maplewood Police Dept. (MN); Chief Daniel G.

Davidson, New Franklin Police Dept. (OH); Asst. Director Jim

Deal, US Dept. Homeland Security, Reno/Lake Tahoe Airport

(NV); Chief Gregory A. Duber, Bedford Police Dept. (OH);

Captain George Egbert, Rutherford Police Dept. (NJ); Sterling

Epps, President, Association of Former Customs Agents,

Northwest Chapter (WA); Chief Dean Esserman, Providence

Police Dept. (RI); and Captain Mark Folsom, Kansas City

Police Dept. (MO).

Chief Charles J. Glorioso, Trinidad Police Dept. (CO);

Superintendent Jerry G. Gregory (ret), Radnor Township Police

Dept. (PA); Chief Jack F. Harris, Phoenix Police Dept. (AZ);

Chief (Ret.) Thomas K. Hayselden, Shawnee Police Dept. (KS);

Terry G. Hillard, Retired Superintendent, Chicago Police

Dept. (IL); Steven Higgins, Director (Ret.) ATF; Chief Ken

James, Emeryville Police Dept. (CA); Chief Calvin Johnson,

Dumfries Police Dept. (VA); Chief Gil Kerlikowske, Seattle

Police Dept. (WA); Deputy Chief Jeffrey A. Kumorek, Gary

Police Dept. (IN); Detective John Kotnour, Overland Park

Police Dept. (KS); Detective Curt Lavarello, Sarasota County

Sheriffs Office (FL); Chief Michael T. Lazor, Willowick

Police Dept. (OH); Sheriff Simon L. Leis, Jr., Hamilton

County Sheriffs Dept. (OH); and Sheriff Ralph Lopez, Bexar

County Sheriff (TX).

Chief Cory Lyman, Ketchum Police Dept. (ID); Chief David A.

Maine, Euclid Police Dept. (OH); Chief J. Thomas Manger,

Montgomery County Police Dept. (MD); Chief Burnham E.

Matthews, Alameda Police Dept. (CA); Chief Michael T.

Matulavich, Akron Police Dept. (OH); Chief Randall C. McCoy,

Ravenna Police Dept. (OH); Sergeant Michael McGuire, Essex

County Sheriff's Dept. (NJ); Chief William P. McManus,

Minneapolis Police Dept. (MN); Chief Roy Meisner, Berkley

Police Dept. (CA); Sheriff Al Myers; Delaware County

Sheriff's Office (OH); Chief Albert Najera, Sacramento Police

Dept. (CA); Chief Mark S. Paresi, North Las Vegas Police

Dept. (NV); Sheriff Charles C. Plummer, Alameda County

Sheriffs Department (CA); Chief Edward Reines, Yavapat-

Prescott Tribal Police Dept. (AZ); Chief Cel Rivera, Lorain

Police Dept. (OH).

Officer Kevin J. Scanell, Rutherford Police Dept. (NJ);

Robert M. Schwartz, Executive Director, Maine Police Dept.

(ME); Chief Ronald C. Sloan, Arvada Police Dept. (CO); Chief

William Taylor, Rice University Police Dept. (TX); Asst.

Chief Lee Roy Villareal, Bexar County Sheriffs Dept. (TX);

Chief (Ret) Joseph J. Vince, Jr., Crime Gun Analysis Branch,

ATF (VA); Chief Garnett F. Watson, Jr., Gary Police Dept.

(IN); and Hubert Williams, President, The Police Foundation

(DC).

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I wish my colleague from Virginia would come meet with 10 families from the Washington area who had victims killed during the sniper attacks 3 years ago, as well as the police officers from New Jersey, and tell them that those lawsuits were frivolous lawsuits.

Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Farr).

Mr. Speaker, it seems that the charts that my colleague showed listing all the lawsuits actually make the case for how the system is working because, as he knows, many of those cases have been dismissed by the court. The court looked at them; and those cases that were frivolous, it decided to dismiss.

So why are we trying to change the rules? It is because there are some cases that have merit, like the sniper cases and others, that would continue to go through, and under this legislation, they will not. Why change the rules to deny legitimate victims their day in court?

Mr. Speaker, I yield 3 minutes to my colleague from New York (Mrs. McCarthy) who has been such a leader on this important issue in protecting the victims of gun violence.

Mr. Speaker, I yield 3 minutes to the gentleman from Massachusetts (Mr. Meehan).

Mr. Speaker, I yield myself such time as I may consume.

I want to address an issue we have not covered this morning, which deals with the question of terrorists trying to get their hands on guns in this country. We know from our reports and records that Osama bin Laden and other terrorists have said to their terrorist network that they can easily obtain weapons in the United States, and we know from a government accountability study from January of this year that between February 3 and June 20 of 2004, 35 known or suspected terrorists, those are people who are on the terrorist watch list, purchased guns in the United States, and that from July 1 through October 31 of last year 12 additional people on the terrorist watch list purchased guns in the United States.

Now, I think many Americans would be surprised to know that you can be on the terrorist watch list and you can go to the airport and try and board an airplane, and because you are on the terrorist watch list, we say no, we want to protect the public, we are not going to let you board this airplane and compromise the safety of other passengers on that plane. But that person can then get in their car at the airport, go to their local gun store and buy as many semiautomatic weapons as that terrorist wants. What is more, that person can walk into that gun store and say, hey, guess what? I am on the terrorist watch list, and I want 12 semiautomatic assault weapons, and under this bill, if we pass it today, we could not hold that gun store owner liable in any way for a wrongful sale.

How do I know that? We offered an amendment in committee. Very simple. Let me read the language of the amendment. We said, we do not want to except from lawsuits and liability a seller who knows that the name of the person appears in the violent gang and terrorist organization file maintained by the Attorney General and the person subsequently used the qualified product, the weapon, in the commission of a crime.

We had a vote in committee on this amendment. Every Republican member of the committee voted no, every Democratic member of the committee voted yes. The gentleman from California (Mr. Waxman) and I tried to get through the Committee on Rules an amendment so the whole House could consider this proposition. What did the Committee on Rules say? No.

It seems to me outrageous that we would pass a bill that would allow someone to walk into that gun store, the gun store owner knows that person is on the terrorist watch list, they sell the person a gun, the person goes out and murders people and, under this legislation, guess what? You can no longer hold them liable. That is a shame.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I will include in the Record the following letters in opposition to S. 397. Letters from the ABA, letters from two former directors of the ATF, a letter from a number of nationally recognized organizations, and letters from a number of law professors.

Mr. Speaker, a moment ago, I raised the scenario of a terrorist getting denied access to an airplane because they are on the terrorist watch list going down to a local gun shop and saying, You know, I am on that watch list, can I get some guns? And under this legislation, that individual would be allowed to purchase those guns.

I have read the bill, and that is why I offered the amendment in committee. And what the bill says very clearly under negligent entrustment is essentially if the gun dealer knows or should know that the person to whom the product is supplied is likely to use the product in a manner involving unreasonable risk of physical injury.

Now, we all might say common sense tells us that that would cover a person on the terrorist watch list. But you know what, that is not what the explanation was in committee. In fact, I have the committee transcript here, and the gentleman from Utah (Mr. Cannon) stated that the reason that

they did not want to adopt the amendment was not because the bill already covered that scenario. The real reason was they have questions about the reliability of the terrorist watch list and whether or not someone who is on the terrorist watch list is legitimately put there.

Well, here is the question. If the terrorist watch list is good enough to deny someone access to an airplane because that will put the public safety at risk, why is it not good enough to deny someone a firearm who goes down to the local gun store?

We have tried to make it a condition that people who are on the terrorist watch list cannot purchase weapons at gun stores. The Attorney General in testimony before our committee said maybe we should think about that. We have not passed that as a Congress.

And so for the chairman of the committee to say that the gun store owner will be assumed to know that person is a danger, when the United States Congress and the Judiciary Committee have refused to make that decision, it is just plain wrong. The Congress has not gone on record saying that someone on the terrorist watch list should not get a gun. Why should we expect a gun dealer and seller to do that?

So this does open a loophole that would allow exactly the scenario I talked about.

It would close the door on lawsuits by the victims of the snipers in this area. The letters I submitted for the Record from law professors and others make it absolutely clear that that is what this does.

Look, we have got a system for bringing lawsuits. We heard from the author of the bill, the gentleman from Florida (Mr. Stearns), a number of cases that were filed that he said were frivolous. Most of those cases were in fact dismissed from the courts.

The system is working. Frivolous lawsuits were dismissed. But what this legislation would do is to change the rules. It does not have to change the rules to protect the ones that were dismissed; they have been dismissed under the existing rules. So why are we changing them? Because we want to deny people who bring legitimate suits today, people like the families of the sniper victims, people like the officers from New Jersey, the police officers, who I must point out, again, and emphasize obtained settlements in those lawsuits.

We want to close the courthouse door on them. I would just ask a very simple question, Mr. Speaker, my colleagues. We have a bill here saying we are going to protect the Lawful Commerce in Arms Act, which in fact changes the rules to make what is today unlawful, lawful.

Why do we not go about the business of passing legislation to protect the victims of gun violence rather than that small handful of bad-apple gun dealers who wrongfully and negligently help put the guns in the hands of killers in this country and allow them to go on the kind of rampage that leads to the death of so many people.

The killers are in jail. Thank God for that. But why should someone who is known to be negligent, who the ATF found to be negligent and later closed the gun shop, why should that person not be liable for their contribution to the negligence and to the deaths and sufferings that were faced by those families? Let us get about protecting the victims.

Mr. Speaker, the material I previously referred to is as follows:

American Bar Association,

Governmental Affairs Office,

Washington, DC, April 4, 2005.

Dear Senator: I am writing on behalf of the American Bar

Association to express our strong opposition to S.397, the

Protection of Lawful Commerce in Arms Act, and to similar

legislation to enact special tort laws for the firearms

industry. The ABA opposes S.397, and has opposed similar

legislation in the past two Congresses, because we believe

the proposed legislation is overbroad and would unwisely and

unnecessarily intrude into an area of traditional state

responsibility.

The responsibility for setting substantive legal standards

for tort actions in each state's courts, including standards

for negligence and product liability actions, has been the

province of state legislatures and an integral function of

state common law since our nation was founded. S.397 would

preempt state substantive law standards for most negligence

and product liability actions for this one industry,

abrogating state law in cases in which the defendant is a gun

manufacturer, gun seller or gun trade association, and would

insulate this new class of protected defendants from almost

all ordinary civil liability actions. In our view, the

legitimate concerns of some about the reach of a number of

suits filed by cities and state governmental units several

years ago have since been answered by the deliberative,

competent action of state courts and within the traditions of

state responsibility for administering tort law.

There is no evidence that federal legislation is needed or

justified. There is no hearing record in Congress or other

evidence to contradict the fact that the state courts are

handling their responsibilities competently in this area of

law. There is no data of any kind to support claims made by

the industry that it is incurring extraordinary costs due to

litigation, that it faces a significant number of suits, or

that current state law is in any way inadequate. The Senate

has not examined the underlying claims of the industry about

state tort cases, choosing not to hold a single hearing on

S.397 or its predecessor bills in the two previous

Congresses. Proponents of this legislation cannot, in fact,

point to a single court decision, final judgment or award

that has been paid out that supports their claims of a

``crisis''. All evidence points to the conclusion that state

legislatures and state courts have been and are actively

exercising their responsibilities in this area of law with

little apparent difficulty.

S. 397 proposes to exempt his one industry from state

negligence law. The proposed federal negligence law standard

will unfairly exempt firearms industry defendants from the

oldest principle of civil liability law: that persons, or

companies who act negligently should be accountable to

victims harmed by this failure of responsibility. Negligence

laws in all 50 states traditionally impose civil liability

when individuals or businesses fail to use reasonable care to

minimize the foreseeable risk that others will be injured and

injury results. But this proposed legislation would preempt

the laws of the 50 states to create a special, higher

standard for negligence actions for this one protected class,

different than for any other industry, protecting them from

liability for their own negligence in all but extremely

narrow specified exceptions. The ABA believes that state law

standards for negligence and its legal bedrock duty of

reasonable care should remain the standard for gun industry

accountability in state civil courts, as these state

standards for the rest of our nation's individuals,

businesses and industries.

The proposed federal product liability standards will

unfairly insulate firearm industry defendants from

accountability in state courts for design defects in their

products. The proposed new federal standard would preempt the

product liability laws in all 50 states with a new, higher

standard that would protect this industry even for failing to

implement safety devices that would prevent common,

foreseeable injuries, so long as any injury or death suffered

by victims resulted when the gun was not ``used as

intended''.

Under existing product liability laws in most states,

manufacturers must adopt feasible safety devices that would

prevent injuries caused when their products are foreseeably

misused, regardless of whether the uses are ``intended'' by

the manufacturer, or whether the product ``fails'' or

``improperly'' functions. Thus automakers have been held

civilly liable for not making cars crashworthy, even though

the ``intended use'' is not to crash the car. Manufacturers

of cigarette lighters must make them childproof, even though

children are not ``intended'' to use them. Under this

proposed legislation, however, state laws would be preempted

so that gun manufacturers would enjoy a special immunity.

Enactment of S. 397 would also undermine responsible

federal oversight of consumer safety. The broad and, we

believe, unprecedented immunity from civil liability that

would result from enactment of S. 397 must be viewed against

the existing legal backdrop of the present, unparalleled

immunity the firearms industry enjoys from any federal safety

regulation. Unlike other consumer products, there is no

federal law or regulatory authority that sets minimum safety

standards for domestically manufactured firearms. This is

because the firearms industry was able to gain an exemption

for firearms from the 1972-enacted Consumer Product Safety

Act, the primary federal law that protects consumers from

products that present unreasonable risk of injury. Over the

last 30 years, an average of 200 children under the age of 14

and over a thousand adults each year have died in gun

accidents which might have been prevented by existing but

unused safety technologies. A 1991 Government Accounting

Office report estimated that 31 percent of U.S. children's

accidental firearm deaths could have been prevented by the

addition of two simple existing devices to firearms: trigger

locks and load-indicator devices. Sadly, these minimal safety

features are still not required.

This bill, if enacted, would insulate the firearms industry

from almost all civil actions, in addition to its existing

protection from any consumer product safety regulations. Such

special status for this single industry raises serious

concerns about its constitutionality; victims of gun violence

have the right--as do persons injured through negligence of

any party--to the equal protection of the law.

The risk that states may at some future date fail to

appropriately resolve their tort

responsibilities in an area of law--where there is no

evidence of any failure to date--cannot justify the

unprecedented federal preemption of state responsibilities

proposed in this legislation. The ABA believes that the

states will continue to sort out these issues capably without

a federal rewriting of state substantive tort law standards.

The wiser course for Congress, we believe, is to respect the

ability of states to continue to administer their historic

responsibility to define the negligence and product liability

standards to be used in their state courts. For these

reasons, we urge you to reject S. 397.

Sincerely,

Robert D. Evans.

Mr. President, I commend Senator Kohl for this amendment. He has worked with so many of our colleagues to ensure that children are adequately protected. There are too many deaths each year of children because the weapons are unsecure. They are able to get access to them, and they are able to discharge them. There are accidental deaths. Sadly, there are too many childhood suicides that result from having access to weapons.

The Kohl amendment is a practical and appropriate response to that by requiring the sale of a child safety lock along with the weapon. There is huge public support for this issue. Over 70 percent of Americans polled think this is an appropriate and necessary proposal. In fact, I believe 6 out of 10 gun owners similarly believe this is a sensible approach to dealing with the issue of the accidental death of children with firearms.

We are here today to move forward on this amendment, to have a vote which is scheduled. I would hope, also, that we can move to other amendments so they could be offered for votes. Several of my colleagues have offered amendments. It is appropriate, since we have begun the process of debate and amendment and vote, to continue that process forward. I hope we can do that.

I certainly commend Senator Kohl for his efforts over many years. As he rightfully points out, there was overwhelming support for this measure last year. More than 70 Senators supported it. I hope we see that same support this year. Certainly, the danger to children has not diminished from the last Congress. The practicality and efficacy of this approach continues to be compelling. I would hope we would have another strong vote in support of the amendment, as we go forward.

I yield the floor.

No. Go ahead.

Mr. President, I will take a moment to talk about the bill.

I would be happy to yield for a question.

Reclaiming my time, I say to my distinguished friend and dear friend from Alabama, I am not perturbed. I just fear for his safety, and I thank him.

Mr. President, we have heard over the course of the last few days numerous homilies about personal responsibility. The irony, of course, is this legislation says everyone is responsible except for gun manufacturers, gun dealers, and gun trade associations.

There has been a discussion about the law. If one breaks a law they should be punished, but such discussions fail to capture the fact that we have essentially two systems with our legal system. There is the system of laws, the statutes, the ordinances that are passed by legislative bodies such as this body, and then there is the civil law: the criminal law and the civil law.

The Senator from Alabama went on at length about how we can enforce criminal laws more effectively; we can do good things with respect to criminal law enforcement. But I think we are ignoring the sense that there is also this civil law, where people can go to court if they have been injured and seek redress.

What this legislation would do is prevent many Americans who have been injured from going to court and seeking redress, either some type of compensation or some type of equitable remedy.

It is important that we recognize this bill will deny a voice to many people, modest people, who have been injured and who seek redress.

I was trying to think of a somewhat mundane example about these different systems. Since so much of this legislation talks about, well, if a particular statute is violated, one will be liable, but there is this intersection of obligations both under the criminal law and statutes and under the general principles of civil law.

The example I think of is there are some jurisdictions that make it a violation of the law to operate a cell phone in one's hand while they drive, and if one had an accident in that circumstance and someone is injured, the person could be prosecuted for violating the law, but they also could be sued because they have an obligation and duty to pay full attention as they drive. In other jurisdictions without this law, one could not be criminally charged but, of course, they could be sued.

Here is what essentially this legislation does in lots of respects. It says we are disregarding those instances where one has a duty to someone under the civil law. We will let them proceed with their suit if there is a criminal violation or a statutory violation, a violation of regulations, but for the vast number of other responsibilities we owe to each other, that are defined for the civil law, one will not have the opportunity to go to court.

Essentially, what we have said is we all have these obligations and responsibilities, except this now special, privileged class of gun manufacturers, gun dealers, and gun associations.

There is the presumption that has been persistent throughout that the law of the United States in general does not recognize any type of obligation if there is a criminal intervention, if a criminal gets involved in proximity to the injury. As I mentioned before, the black letter law of this country that is established in the restatement of torts clearly says if there is a criminal intervention, one can still be held liable for negligence if they fail to perform their duty, even if in the chain of action of causation there is a criminal act. So this notion that we are charging these gun dealers and gun manufacturers with the crimes of another, a bad person or criminal, is without substance.

What Senator Levin said so eloquently and others said so eloquently talking about his amendment, is this is about the responsibility of the manufacturer, the gun dealer, and the gun associations to fulfill their duties to the general public and to specific individuals who have been harmed: the duty to secure weapons, the duty to act reasonably, the duty to look beyond the superficial aspects of someone coming into a store.

We have seen classic examples: The fellow who walks in with the girlfriend and picks out 12 weapons, gives her

cash, she pays for it. It is so suspicious that the operator of the gun store calls ATF and says, well, I got the money, they got the guns, but watch out for them. That was the circumstance that led to a chain of causation to the serious wounding of two New Jersey police officers. That gun dealer had an obligation to avoid straw purchases. He did not even follow the standards of the industry in terms of being careful of selling multiple guns to some person under those circumstances.

So it is not about the crimes of others being attributed to gun dealers and gun manufacturers. It is not about social conditions that are being excused by these suits. It is about whether an individual had a duty to another person who was injured and failed to carry out that duty.

One of the major reasons we are here, taking very radical action to change 200 years of legal history in the United States, taking the radical action of going into 50 States and saying, We don't care about your laws--the General Assembly of Rhode Island, the General Assembly of North Carolina, of Alabama--we don't care about your laws, we don't care that for 200 years, you specified the standards for negligence in your State, we are changing them for these special people. We don't care that your courts should have the right to take the claims of your citizens who have been harmed. We don't care about that. And we are doing it for a very narrow, defined group of individuals. This is a radical departure from the standards we have adopted and abided by for 200 years.

The pretext for all of this is that there is this huge crisis with respect to manufacturers that threatens their existence, that they are financially on the ropes, that these suits are numerous and literally driving them to bankruptcy.

Where are the facts? The facts that we can establish from the public filings of certain companies suggest that there is no crisis. There is no crisis at all. This is a manufactured crisis. This is a pretext to do the bidding, I believe, of the gun lobby. If you look at the facts as reported, there is no financial crisis that is apparent.

Yesterday, my colleague, the Senator from Idaho, read a letter from the president and chief executive officer of Smith & Wesson that talked about or tried to explain their filings with the Securities and Exchange Commission, their 10-Q filing, and concluded with a stirring passage about the necessity, the criticality of this legislation to Smith & Wesson. It gave the suggestion, of course, that my discussion of their financial reports was somehow inaccurate or incomplete. So I went back and I got their 10-Q report, which was filed on March 10, 2005, for the period January 31 to March 10. It was filed, let me say, March 10, 2005.

They go on to describe these suits, as generally is done. They conclude:

We monitor the status of known claims and the product

liability accrual, which includes amounts for defense costs

for asserted and unasserted claims. While it is difficult to

forecast the outcome of these claims, we believe, after

consultation with litigation counsel, it is uncertain whether

the outcome of these claims will have a material adverse

effect on our financial position, results of operations, or

cash flows.

They are not quite certain whether those cases will cripple them. They go on to say:

We believe that we have provided adequate reserves for

defense costs.

They go on and say further:

We do not anticipate material adverse judgments and intend

to vigorously defend ourselves.

In a sworn statement to the Securities and Exchange Commission, they say: We don't know if this is going to be critical to our financial status. In fact, we don't anticipate material adverse judgments. We don't think any of these cases will be resolved in a way that will negatively affect our position, and we will vigorously defend ourselves.

They went on to say, and we said this before on the Senate floor:

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

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

insurance carriers, relative to product liability and

municipal litigation.

That is $4,500, basically, out-of-pocket costs they have received from reimbursements from insurance companies. That is the nature of insurance: You pay the premium; if something happens, you get reimbursed.

During this period, we paid no settlement fees relative to

product liability cases. As a result of our regular review of

our product liability claims----

looking at these claims we talked about here as strangling their ability to be competitive and to survive----

we were able to reduce our reserves by $286,022 for the nine

months ended January 31, 2005.

This is such a perilous threat to a company like Smith & Wesson that they are actually reducing the reserves they have on hand to handle these claims.

Again, this is not a crisis. Again, their own data suggest--this from their Web site. This is 2001. These are the industry municipal cases pending or on appeal: 32 and 10 in 2001; in 2002, 26 and 8; 2003, 20 and 5; 2004, 13 and 4; 2005, 4 industry municipal cases pending and 2 product liability cases pending against Smith & Wesson.

The curve is going the wrong way for a crisis. It is going down: four, and two pending cases. It suggests that the courts are doing their job, that the present system we have in place is actually handling these cases pretty well. There is no flood of cases coming over the transom. In fact, this is exactly consistent with their reduction of the reserves for liability because it appears that these cases are dwindling, not increasing. It appears that the system is working pretty well right now. Yet we are here today debating legislation that will deny the rights of individual citizens to go to court, rights they have enjoyed for 200 years in this country, rights that stem not from the actions of criminal third parties but from the failure of the individual defendants to take appropriate action in their duty with respect to the general public and specific individuals.

It is the same with respect to other companies for which we have public records. Many of these companies are privately held. Beretta USA is domiciled in the United States, but it is a subsidiary of an Italian corporation which is privately held, and they are not publicly reporting. But all of this suggests again--not only with Smith & Wesson but with Sturm, Ruger--that there is no material adverse impact reflected by these individuals in their reporting under the pain of penalty for perjury under the Securities and Exchange Commission.

Also, there is a general record of claims and legal cases which goes to suggest that these suits are not an epidemic. As we have indicated before, from 1993 to 2003, 57 suits were filed against gun industry defendants out of an estimated 10 million tort suits. I am not good at math, but that is way below 1 percent. This is not an epidemic. This is not a crisis. Certainly this is not a crisis that is going to threaten our national security.

We have heard claims that the gun industry is being forced to spend hundreds of millions of dollars. The alleged litigation costs have risen in $25 million increments. In fact, I think they have risen since we started this debate, from what I have heard, without any kind of factual data to support them. They are just claims that they are spending all of this money. In fact, if you look at these SEC reports, it hardly adds up to $200 million. Indeed, it seems, based on Smith & Wesson, that reflecting the declining cases they are actually reducing their reserves and potentially, hopefully, reducing what they have to pay out of pocket. But these estimates grow and grow and grow. In 2004, it was $150 million in July. In November 2004, other estimates, $175 million. Now it is up to $200 million. I think I heard in this debate $250 million. No substantiation, no documents, no data.

This is not a crisis. Yet we have displaced the Defense bill to take up this legislation. We have displaced other legislation that could be extremely valuable in order to take up this legislation. Because there is no crisis----

I am happy to yield.

I thank the Senator from Illinois for his question. There were a series of extraordinarily important questions with respect to the quality of life for our soldiers and their families: childcare amendments, amendments with respect to veterans health care, amendments that applied not only to active-duty personnel but their dependents. We had passed legislation already, an amendment that would increase the number of up-armored HMMWVs we are providing to our soldiers. That stands in abeyance until we finish the legislation.

There were important inducements for additional service and enlistment that are necessary to meet the growing and real crisis in recruiting military personnel. If you want to talk about a crisis, it is a crisis, the fact that our Army, despite efforts, has fallen short of the recruiting goal at a time when we need every person to fill out the demand for operations in Iraq and Afghanistan and around the world. It is extraordinarily serious.

I don't know if I can find it, but I saw an editorial cartoon in a magazine, a newspaper, which had a picture of a humvee and three soldiers. The caption, if I recall it, is:

Why don't we just take a 4-week recess during this

difficult time and then return to this operation afterwards?

Essentially, I think it captured the dilemma the soldiers are feeling right now. What are we doing?

As the Senator previously indicated, in the Army Times, they wrote of this:

Senate delays action on the defense bill.

I ask unanimous consent to have two articles printed in the Record, one from the Hill and the other from the Army Times, which talk about this issue of leaving the Defense bill and also the impact on procurement of weapons because of this legislation.

I think at a minimum it puzzles them why we would shift from their concerns, which are so central to our national security and so central to the families of America, to move to a bill that is so narrowly focused on a special interest group and does not help them one bit in terms of anything we might do on this bill.

Perhaps it is summed up. I have located the cartoon. It is as I described before--a group of soldiers in a humvee, and the caption is:

I move we adjourn for 5 weeks and take up this contentious

issue after the summer recess.

Frankly, no one in our military has the option of adjourning for 5 weeks to take up contentious issues after that time.

The legislation generally bars all suits involving negligence and restricts the exemption to some categories of specific violations of Federal law which arguably, in your hypothetical, it would not reach. The only exception, to be fair to the legislation, that might allow someone to go to court under the concept of negligent entrustment, which as drafted in the legislation would say you have to suspect, know that the person would use the weapon illegally, and that person has to use the weapon. But most commonly what happens is there is a straw purchaser, so the negligent entrustment argument doesn't work because that weapon is not being used by that person; it is given to a third party.

But I think the Senator's comment is exactly right. There are so many cases where this legislation has been carefully crafted to prevent people going to court, and the best examples are the ones of which we are already aware. The sniper case in Washington, DC, where a young teenager walked into a shop, shoplifted apparently a 3-foot assault weapon which was used to murder too many people here in the District of Columbia. That suit would be prevented by this legislation; in addition, the case of the straw purchaser and the police officer in New Jersey, prevented by this legislation. We have a case pending now where an individual, a young man, was killed by a weapon that was taken out of a factory, and the gun manufacturer would be exempt, immune from liability, even though he had no background checks on his workers who were criminals and drug addicts, he had no security devices and, in fact, missed any rudimentary standard of care that most reasonable people would say is associated with running a gun factory.

That is exactly right, in my reading of the legislation. There are certain jurisdictions that have specific laws with respect to background checks on daycare centers. The gun industry is virtually unregulated, which is a very important point here. There is very little regulation deliberately on the manufactured weapons, the standards. As you point out so often with respect to product safety, toy guns are regulated by the Consumer Product Safety Commission, real guns are unregulated in terms of their safety. So there is no legal--very little legal statutory requirement. So it depends upon claims of negligence to get at this harm and to redress the harm caused, and this bill essentially wipes out that civil liability under our court system.

Virtually no other. Comments were made on the floor with respect to legislation passed back in 1994 with respect to general aviation. I think it is important at this juncture to clarify that. There was very limited legislation that applied to general aviation aircraft, 18 years or older, in terms of liability because of the concern about the manufacturing base. But there is a distinct difference between this legislation and the General Aviation Revitalization Act of 1994, and it goes to the point we just discussed. There is no more highly regulated industry than the aviation industry. Every time an engine is worked

on, there has to be a log entry made which is subject to the jurisdiction of the Federal Aviation Administration. It is the most detailed legislative scheme we have in place perhaps because the safety of the passengers, all of us, depends upon it. So giving a limited grant of immunity to an industry that is so highly regulated is quite different than telling an unregulated industry you have no liability. That is essentially what this bill does, with very minor exceptions; clearly, I think exceptions which were artfully crafted to avoid the cases that exist today.

I think the Senator is right. The only exception that could be argued would, I believe, be the exception with respect to negligent entrustment. As I pointed out, that has been defined to mean that the individual who receives the weapon--you have to have also the suspicion that that person is going to use the firearm. In the classic case of a straw purchaser, they are the conduit to someone else----

Middleman. So that the argument made by lawyers would say negligent entrustment, saying they gave it to inflict harm. Therefore, this very narrowly defined exception would not apply. Generally, the case I believe would be thrown out of court.

The Senator asks an important question. According to Federal data from the year 2000, 1.2 percent of dealers accounted for 57 percent of all guns recovered in criminal investigations--1.2 percent of dealers, 57 percent of the guns recovered from criminal investigation. In fact, the national crime tracing data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco and Firearms and Explosives has a virtual scorecard on these egregious offerings.

Badger Outdoors, Inc., in West Milwaukee, WI, the dealer sold more than 554 guns traced to crimes, 475 of these guns had a ``short time to crime,'' as defined by ATF; that is, almost immediately they were in the hands of someone and had some type of criminal activity.

I could go on.

Well, for the benefit of the Senator, Realco Guns in Forestville, MD; Southern Police Equipment in Richmond, VA; Atlanta Gun and Tackle in Bedford Heights, OH; Colosimo's Inc, in Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN.

Elmwood Park, IL; Breit & Johnson Sporting Goods in Elmwood Park, IL.

The Senator's point is extremely well taken. I think there should be at least that exception. I would argue, frankly, that the bill could be further modified to essentially allow individuals who have been harmed--move away from the issue of municipal suits but that is exactly the political implication--to let those suits survive. In fact, as Senator Levin urged, increase the standard from negligence to gross negligence, so further undercutting the argument about frivolous junk lawsuits.

That would be a broader remedy, but your proposal is very wise.

Let me give you an example of that store in Elmwood Park, IL, which I presume is close to Chicago.

This dealer has sold more than 347 guns traced to crime; 271 of those guns had a short time to crime as defined by ATF--again short transit from the time it was sold to the crime scene. The guns were involved in at least 27 homicides, 46 assaults, 23 robberies, and 271 additional gun crimes. The dealer also sold at least 5,429 handguns in multiple sales. That is another possible important remedy, the issue of multiple sales.

Anthony Garner was arrested for gunrunning after he bought 16 handguns from Breit & Johnson that were then sold to Chicago gang members. At least one of those guns was used in a gang-related killing. Andrew Young, age 19, was killed by Mario Ramos, a gang member with a gun from Breit & Johnson.

The list goes on and on. We have these statistics. These are collected by the ATF. We know what's going on.

The Senator raises an excellent point. I phrase it slightly differently, but I reach the same conclusion.

If gun dealers--who now have the threat of a civil suit if there has been negligence--are so cavalier in their attitude about guns, selling them to criminals, to straw purchasers, what happens when they are fully immunized or virtually immunized from any type of liability? What happens when they know that no family is going to come in and say, My son or daughter died because of your negligence, and we are going to see if we can take you to court and get something back--we will never get the child back--but something back.

What about the surviving spouse or children who need something to maintain the quality of their life because they have lost their breadwinner?

There is the case of Conrad Johnson, killed by one of the DC snipers. Those cases would be barred by this legislation.

It is not that the individuals, families, and the survivors are denied their day in court, but any incentive to be responsible, to be scrupulous, to look harder to determine whether that person is buying the weapon at the direction of another, as a straw purchaser, is virtually eliminated. The consequences are going to be much worse. These dealers will be more flagrant, more blatant, less restrained. It is hard to see how they could be more blatant than they are today.

The Senator is again accurate. Unless Senator Kennedy's amendment is allowed to be voted upon, there is no prohibition against looking at the person's picture on the FBI's Most Wanted list, looking at the person and saying: Have a nice day. Take the gun.

Again, one could argue that if that person actually uses the weapon, it might be negligence, but if he or she is a straw purchaser or buying lots of weapons to pass out, they would escape liability.

I don't see that. In fact, I don't see that as the purpose of this legislation. This is not about preventing criminals from getting weapons. It is preventing victims of gun violence from getting their day in court.

I thank the Senator for his questions.

The line of questioning that the Senator from Illinois has opened raises the issue: What are the exceptions? How can someone get to court if they have been harmed?

Since we have had a robust discussion, and I see the Senator from Ohio in the Senate, I yield the floor.

Will the Senator yield?

Mr. President, I appreciate the cooperation and collaboration. I am pleased also that you are looking closely at these amendments. My position is simple. I believe the amendments are relevant. I hope we can have votes on all of them. I particularly think Senator Warner's amendment is relevant, pertinent, and important. I hope he can offer that. But it is my hope that we can bring all

of the pertinent amendments up, with appropriate timing, and conclude.

As we stand now, as the rules require, there will be a cloture vote sometime tomorrow. I think I understand also that after that cloture vote, moving from the gun liability bill to any of the other provisions--energy or the Transportation bill--would require unanimous consent. That is another factor that should be considered. So I hope we can resolve this this evening.

If I may say, my understanding is that once cloture is invoked, to move off the 30 hours of cloture cannot be done by a privileged motion, but by unanimous consent.

I say to the Senator from Virginia, we think his amendment is very commendable, and we would like to see it brought forward for debate and a vote. I have made that point privately, and I make it now publicly. We think it is, as the Senator says, germane and relevant. I think the Senator is owed a vote, and I would like to see it happen.

Unfortunately, we are having difficulties clearing any amendments, including the Senator's, for voting on the floor.

I have asked that that amendment be considered. We are waiting. We were not impatient, but there is a limit to patience. I would point out, too, that there will be an attempt this evening to move to other matters such as CAFTA and the Energy bill which will take away time to debate a vote on the pending gun liability bill. I just think we have wasted too much time, that we should establish some rules with respect to the amendments, vote on those amendments and move forward towards a cloture vote.

Mr. President, we are back on this very important piece of legislation, S. 397, the Protection of Lawful Commerce in Arms Act.

Under a unanimous consent agreement entered into last evening, we are on the Kohl trigger lock amendment. I understand there is an hour equally divided, and we hope we can get to a vote on this before 12:30. This is an important amendment, which I am confident Senator Kohl will be here in a few moments to discuss.

In the short term, let me visit the broader issue of the bill itself. We now have 62 cosponsors. I am pleased Senator Conrad has joined us in support of this important piece of legislation to limit predatory and junk lawsuits from attempting to destroy the capability of the private sector to produce legal, effective firearms for our Nation's citizens and for our police and military. Unlike most nations, we are a nation that does not have a government company or a government manufacturer of firearms. It has always been the responsibility of the private sector. They have done extremely well. Innovation and creativity has always allowed the latest and best firearm capability, not only for our private citizens but for the military and police departments and the armed services that contract with these private sector companies to produce not only the firearms but the effective ammunition for them.

Some years ago, we saw a frustration growing in the gun control community that the public and the Congress collectively would not bend to their wishes. The public, in its inevitable wisdom, recognized that guns were not an issue in deaths caused by guns or in the commission of crimes, but the criminal element was the issue and that we ought to get at the business of law enforcement and taking those off the streets who used a gun in the commission of a crime. That is exactly what this administration has done in the last 5\1/2\ years. The use of a firearm or criminal activities in which a firearm is used has rapidly dropped in the last

6 years because this Justice Department has said, clearly, they will enforce the law.

The law is basically if you use a gun in the commission of a crime, you do the time. You don't get to plea bargain it away and go back to the streets to reengage as a criminal to once again misuse your rights as a citizen in a violent or criminal activity.

Because the anti-gun community didn't get it their way, they, over the years, have determined that they could use the legal system, the court system, to bypass and suggest that the third party, or the manufacturer, even though he or she was a law-abiding company and produced under the auspices of the Federal laws in responsible ways in that those products were sold through federally licensed firearms dealers, that wasn't good enough. Somehow you had to pass through and say that the crime and the fallout of crime was going to get paid for in some way by these responsible citizens who were building a legal and responsible product. That is the game--I say that--that has been played.

As a result, these legal, law-abiding manufacturers and citizens have increasingly had to pay higher and higher legal costs to defend themselves in lawsuit after lawsuit that have, in almost every instance, been denied and thrown out of court by the judges when filed largely by municipalities who, obviously frustrated by gun violence in their communities, chose this route. Instead of insisting that their communities and prosecutors and law enforcement go after the criminal element, they, in large part, in their frustration, looked for an easy way out. That has brought this legislation to the floor to limit the ability of junk or abusive kinds of lawsuits in a very narrow and defined way, but in no way--and I have said it very clearly--denying the recognition that if a gun dealer or a manufacturer acted in an illegal or irresponsible way or produced a product that was faulty and caused harm or damage, this bill would not preempt or in any way protect them or immune them from the appropriate and necessary legal sentence.

That is what we are about. I see that the sponsor of the trigger lock amendment is on the Senate floor.

Before I relinquish the floor, I ask unanimous consent to print in the Record a letter from the Department of Defense as to the importance of this issue, the Acting General Counsel of the Department of Defense speaking to the importance of S. 397 in safeguarding and protecting these gun manufacturers that produce a large amount of our firearms and weapons for all of our men and women who serve in harm's way in defense of our freedoms.

In the last few days, I have found interesting editorials in the Wall Street Journal. They get it. They understand it. They have put it very clearly as to the reality of this bill, that is not just for the protection of law-abiding citizens but recognizing that tort reform is necessary. When the Congress can't do it in sweeping ways, we have chosen targeted ways to get at the misuse of our court system in large part by the trial bar.

I ask unanimous consent to print those in the Record as well.

I yield the floor.

Mr. President, a trigger lock does not a safe weapon make. A trigger lock can lay right beside a firearm. Unless it is inserted and locked, the firearm is still accessible. You can sell a firearm. You can demand that there be a trigger lock. Yet still someone who is irresponsible in the storage and/or use of a firearm can cause that firearm, by the absence of a trigger lock or the absence of a safe storage place, to be harmful to a child. That is reality.

Sometimes we stand on the floor of the Senate and think we can fix the world by simply writing a law. I am not, by that statement, questioning the sincerity of Senator Kohl. Last year, his amendment got 70 votes in the Senate. At the same time, it is a mandate. In that mandate, have you created a safer world? I am not sure.

I do know this: I do know what creates a safer world. That is an awareness, an understanding of and an educational process of how you, in fact, create a safer world. Gun manufacturers know that. Licensed and responsible firearms dealers know that. Today, more than 90 percent of the new handguns already sold in the United States have a safety device attached to them or that comes with it that is part of the sales package.

So already, clearly, the educational process has gone forward. There are several national private organizations out there who have constantly and repetitively taught young people about the misuse of firearms. The Eddie Eagle program of the National Rifle Association educates thousands and thousands of young people each year to stay away from a firearm if they see one, to report it if they see one and, obviously, to seek an adult's knowledge about it.

Still, tragically enough, a child's curiosity in a misplaced firearm can cause accidents; it always has and, even with the passage, tragically enough, of the Kohl amendment, if it becomes law, it always will. You cannot create the perfect world. It is simply an impossibility to do. We try, and we try to at least shape that world in a way that makes it safer. But there is a reality I think all of us clearly understand. The statistics, though, while alarming if it is even one child, are dramatically improving. I think it is important to say on the record what the facts are. Unintentional firearm deaths-- this is from the National Safety Council records. In 2001, there were 802 total; 15 of those 802 were under the age of 5 years; 57 were from 5 years old to 14 years old. That is that phenomenal time of curiosity among young children. No question about it, if that trigger lock was in place, a life might have been saved. I don't question that either. But then again, you have to get the adult who has the responsibility with that firearm to put the trigger lock in place. It is not automatically attached or automatically activated. It has to be humanly attached and humanly activated. There were 110 of the 802 deaths from age 15 to age 19. My guess is, unintentional, yes, by statistical fact it was. But again, that is an age when young people ought to know, ought to have been trained, ought to have had some level of education about the understanding of the safe use of a firearm. From age 20 to 24, there were 96 of the 802. Age 25 to 45, there were 268 accidental, unintentional deaths of the 802 total in 2001; and age 45 to 64--these are, without question, mature adults who clearly ought to understand and, yet, unintentional, accidental firearm deaths numbered 177. That was out of the 802 total in 2001. In 2002, it was 800. In 2003, it dropped to 700.

The point is this: From 1992 to 2003, there has been a 54-percent decline in accidental, unintentional deaths caused by firearms. Something is beginning to work out there, because gun ownership continues to go up in our country. So there is, without doubt, an educational process underway about the importance of handling a firearm appropriately and correctly, using safety devices when that firearm is in storage or nonuse, and in a way that is protecting. The 90-percent sales of trigger locks today on new weapons, new firearms, may be a contributing factor to that. That number continues to go up. So there was a 54-percent increase from 1992 to 2003 in the reduction--54 percent down--of accidental, unintentional firearms deaths. From 2001 to 2003, that figure was a 13-percent decline. Those are very important statistics.

Once again, in no way should my statement on the floor be taken as someone who doesn't care or recognize that one child's death is one too many. We will not talk about safety belts and about safety seats and about any of the other kinds of deaths of children in that 5-year-old and under age group. Those are so dramatically higher than firearms that one could argue something ought to be done about those. Clearly, some things are being done about those. If you have a child in a safety seat or not in a safety seat and it is a State law and you have a law enforcement officer out there, you can, in many instances, note that and cause the adult to be more responsible than you can in the privacy of a home, where most of our firearms are today.

My point in arguing or discussing this issue is not to suggest we ought not to be concerned, but to clearly recognize that we will not, by this, in any way create a perfect world. Safe storage devices are no substitute for common sense and a clear understanding that a firearm misuse can become, as we all know, a lethal device. A firearm irresponsibly used can become a lethal device. While I know this is a popular thing to do, the point is--and I hope it is made clear by what I have said--the world better understands today than ever before, and unintentional deaths, accidental deaths by firearms have dramatically dropped in this country, and they are continuing to drop.

Nothing replaces the responsible action of an adult in his or her exercising of their constitutional rights to provide safe storage away from that casual curiosity of a small child about the uniqueness of a mom or dad's firearm, owned and held in the homes of America.

So I am certainly going to suggest to my colleagues that they vote their will on this, but it is important we shape it in the right context. I have always appreciated working with Senator Kohl and his sincerity on these kinds of issues. I think what he suggests today, as it relates to fines, or revocation of license, or failing to sell, is an appropriate fashion to go. But again, it is a mandate that I think today's reality in the marketplace would suggest is in part an unnecessary thing to do.

I yield the floor and retain the remainder of our time.

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

I ask that the time be charged equally on both sides.

Mr. President, the other side has asked if we would consider yielding back time. I will certainly work with the floor leader. We are checking to see if there is anyone else on our side who would want to come for the purpose of debating the Kohl amendment. If there is not, we will yield back time and accommodate as much as we can.

While we work out our time here, 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 ask unanimous consent that, while we are working out the time situation to see if anyone else wants to debate, the time under the quorum call be charged equally to both sides.

Mr. President, it is my understanding that we are ready to vote on the Kohl amendment. So I ask unanimous consent that all time be yielded back on both sides.

Mr. President, I ask for the yeas and nays.

Mr. President, I move to reconsider the vote and move to lay that motion on the table.

The motion to lay on the table was agreed to.

Modifications to Amendments Nos. 1605 and 1606

Mr. President, for those who are interested and watching, at this moment we are attempting to look at all the amendments that have been offered, and we are close to proceeding on another meeting. We are requesting unanimous consent now which will allow Members to debate that between 2 and 3, with votes, and then we will attempt in all sincerity to move forward on the process that takes us through to a cloture vote at some time late afternoon, evening, or early tomorrow morning on this important issue. There is progress being made as we move through this process.

With that, until the unanimous consent is ready, I suggest the absence of a quorum.

Mr. President, I think the floor leader has seen the UC, has he not?

Mr. President, I ask unanimous consent that at 2 o'clock today, the pending amendments be temporarily set aside and Senator Levin be recognized in order to offer amendment No. 1623; provided further that there then be 1 hour for debate equally divided in the usual form, with no amendments in order to the amendment prior to the vote.

Mr. President, I thank Senator Reed.

I suggest the absence of a quorum.

Mr. President, under a previously proffered unanimous consent agreement, we will spend 1 hour, from 2 p.m. to 3 p.m., on the Levin amendment, with the time equally divided. We anticipate a vote at or around 3 o'clock.

I see the Senator from Michigan is now on the floor and ready to offer his amendment.

Mr. President, I yield 10 minutes of the opposition time to the Senator from Texas.

Mr. President, I yield 6 minutes to the Senator from Arizona.

How much time remains for the proponents?

The Senator from Idaho has how much time remaining?

I thank the Chair. I thank the Senator from Arizona for his statement.

I yield 10 minutes to the Senator from South Carolina.

Mr. President, might I inquire how much time remains on both sides?

Mr. President, we have heard some of the most fascinating arguments in relation to the Levin amendment on both sides. I think it is clear if the Levin amendment were to become part of this legislation and this legislation were to become law, it would be relatively meaningless as to where we are in relation to the kind of junk or dilatory lawsuits that are currently being filed against gun manufacturers and gun dealers who not only produce a legal product to the market but sell it in the legal context.

It is important that we understand the arguments about gross negligence and reckless conduct. The idea that has been expressed by the Senator from Arizona, the Senator from Texas, and certainly the Senator from South Carolina, is that once you argue that, then obviously as an attorney the process must prove you are either right or wrong. In so arguing it, and in the effort of making proof, you have in large part destroyed the intent, of the legislation.

I am more than happy to yield to the Senator from South Carolina.

I will allow the Senator to take as much time as he desires.

Mr. President, over the last good number of years, law- abiding gun manufacturers in this country producing a legal product to the market, law-abiding gun dealers performing within the confines of the Federal firearms licensing process, have spent over $225 million defending themselves from the very arguments the Senator from Michigan would like to have continued.

The Senator from South Carolina has well spelled out that there is a duty and there is a responsibility. But if that duty is taken beyond your ability to know it, to understand it, to be able to act against it, then you ought not be responsible.

We have gotten ourselves into a very litigious society. So in a way it has cost our society more than almost any other society in the developed world today. Why? Because we would like to shove blame off onto someone else. When society wrongs society, it has to be somebody else's fault besides the one who perpetrated the wrong. So we have attempted to reach back through law, time and time again. As a result-- we have heard it, whether it is the cost of an automobile or whether it is the cost of a firearm today or whether it is the cost of almost any consumer product--it is going to cost you more because somewhere the producers have to mount large amounts of money to pay their legal fees to fend off someone looking for an excuse to blame someone else for the action of someone who should have been responsible for themselves.

That is the essence or the underlying construction of what has brought us to the floor today. This argument will not be argued in behalf of gun manufacturers. Over the course of the next several years it will be argued in behalf of a lot of law-abiding, producing Americans who have simply grown tired and fed up with the idea that they always have to be sued although what they are doing is legal, even though they are within the law. That is because somehow somebody used what they have made illegally, and as a result they should have known and they are responsible because surely the person who perpetrated the crime cannot be held responsible because society either produced them or the environment in which they became irresponsible was a societal responsibility.

Oh, my goodness, where do we rest the blame? I think many of our parents suggested that we were responsible for our actions and we would have to pay the price. But the argument here is quite the opposite, that someone who might have a deep pocket somewhere down the road, because what they produced is a legal product for the market which was then used in a criminal act, should pay that price. And the criminal-- not suggesting they would go free, but certainly suggesting they can't afford to pay, so someone else ought to pay, and the argument goes on and on.

You have heard my arguments over the course of the last 48 hours. We are the only nation who doesn't have a government-owned weapons factory. It has always been a product of the private market. If we choose to run them out of our country, then all of the firearms our men and women in the military use, our law enforcement community uses, our law-abiding citizens own, will be made in some other country.

I do not believe that is where our country wants to go, and it is clear that is not where a majority of the Senate wants to go. I do believe the Senate, as reflected by its vote on the cloture motion to proceed and ultimately get us to this bill, is reflective of society as a whole.

I hope a majority of the Senate will oppose the Levin amendment. I do not believe you can suggest you are going to correct a problem in one instance and then open another door and allow a death by a thousand cuts, as obviously would occur here, if that case were the one we are arguing.

Mr. President, may I inquire as to the time remaining?

Mr. President, I yield the next 5 minutes to the Senator from Utah.

I am prepared to yield back the balance of our time if the Senator from Michigan is.

I am prepared to yield back the remainder of my time.

I move to table the motion and I ask for the yeas and nays.

Mr. President, I move to reconsider the vote and to lay that motion on the table.

The motion to lay on the table was agreed to.

Will the Senator yield on that point?

Project Exile in Richmond, which the Senator referenced, in Richmond was a fascinating demonstration, as I think the Senator is pointing out. In the testimony of a person arrested for holding up a 7- Eleven--he went in with a baseball bat; this is true evidence--when he was being questioned as to why he used a bat instead of a gun in the commission of a crime, he said, Because if I use a gun in the commission of a crime, I do time in a Federal jail, just as the Senator has spoken to. So he chose the baseball bat as his weapon and not the firearm. That happened in Richmond under Project Exile.

Mr. President, for my fellow Senators, let me try to bring us up to speed on where we are. We now have all of the amendments filed and are looking at them and have studied a good number of them over the last hour and a half to determine how we might dispose of them. We are hoping we can put something together.

Senator Warner from Virginia is here to talk a bit more about his legislation. I see my colleague, the floor manager from the Democrat side, also here. I do want Members to know we are working to see if we cannot bring some finality to this process in a precloture environment or resolve that issue so we can complete our work on not only this but clear the issue of an energy conference which is privileged, a CAFTA recognition of the House bill versus the Senate vehicle, which is privileged, and that can come before us so that we can complete our work in a timely fashion tomorrow and not spill ourselves into Saturday, as could be the case strictly under the rules of the Senate. We hope we may be able to avoid that.

I hope that within a little while, we may be able to look at a package and offer it to our colleagues for their consideration.

Yes.

I thank my colleague for that concern. We will be diligent in it. As you know, in the current environment, these conference reports are privileged and they can take us off the floor by the action of leadership for that consideration. That might occur later in the evening tonight. I am not sure that is the case, but that could occur.

I don't dispute that.

I yield the floor.

Mr. President, reserving the right to object. Under the current environment, I will object.

I do so with this concern in mind. I don't question the sincerity of the Senator from Virginia for the offering of his amendment. I will say that it is similar to but not exactly like the Levin amendment that we have just disposed of. It deals with the issue of negligence or reckless conduct.

There are differences, and the Senator from Virginia may wish to point those out. But it is important for the Senate to know that in their similarities, the Senate rejected overwhelmingly, by the largest vote yet, the issue of negligence and reckless conduct, for it is clearly recognized now by a majority of the Senate that this would drive a major loophole through this legislation and deny the very legislation and its intent. I certainly would not want that to happen. For that purpose, I will object to laying aside the pending amendment and bringing the Warner amendment to the Senate floor at this time.

I do not. I was only going to respond briefly to the Senator.

Mr. President, again, I don't question the sincerity or how the Senator from Virginia feels about this issue and the amendment he has offered. But I think it is important to recognize how the current law works.

It does not mean it is perfect, and it does not mean it is always effective. But the Bull's Eye arms dealership in the State of Washington, from which John Muhammad and Lee Malvo, the two snipers who terrorized Washington, Northern Virginia, and Maryland for a time, stole their firearm, had a record of repeated recordkeeping violations and, as a result of that, their license was pulled. The owner of that dealership no longer has his license.

I don't know if the Bull's Eye is still in business, but if it is, it is under a new dealer. Why? Here is the reason why. If you are a licensed firearms manufacturer in the United States--and all are under the Federal firearms licensing--whether you are a manufacturer or a licensed dealer, you must report within 48 hours missing weapons. If they have been stolen or misinventoried, they have to be reported. They have to be reported to the ATF, and they have to be reported to local law enforcement officers in the area as a possible theft, meaning that those guns are out there in the market. So there already is a Federal law and a mechanism that is at work to attempt to accomplish this.

If, by that reporting, negligence can be demonstrated, this bill does not protect in any sense of the word negligent entrustment. That is very clear.

It was argued by a variety of our colleagues earlier in the day as it related to the Levin amendment--and that is the connective thread I spoke about earlier--it is important to understand that we are not without very strict laws today as it relates to the control of inventories of firearms in federally licensed firearms dealers' business locations and manufacturers. If there is a demonstration of negligence, licenses can be pulled and those people can be taken out of business, and they are.

Of course, in the case of the DC snipers--the tragedy we all lived through here--we know the end result tragically enough--people lost their lives. One of those men will be executed and the other is now in prison for life, and the dealership, or at least the owner of that dealership at the time, is out of business and will not get another license. That is the situation.

It appeared at least that they made mistakes in their recordkeeping. As a result of that, they lost their license. If that is the case--I cannot argue, I am not an attorney--that is a clear case of negligent entrustment, but it appears it may have been--if that is the case, I am quite sure that prosecution will move forward. If it is not, so on. Now, in the case of the West Virginia incident that we all know well, the lemon jello case, a straw dealer or a straw purchaser, the firearms dealer was wise to it, and as a result reported it. So I think it is important to suggest that the law is out there and the law is clear and the ATF enforces the law. The law says firearms stolen, report it; inventory off, report it; 48 or you run the risk of losing your license and being put out of business, manufacturer or dealer.

So I do not want any of our colleagues to assume that this is an open area of the law. It is not. By the level of enforcement that the Federal Government and the Justice Department can deliver, it is a clearly enforceable and an enforced section of firearms law in this country. I think that is important for the record to demonstrate.

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

Mr. President, I believe the legislation before us today is a good tort reform bill. It deals with a discrete area of abuse in our legal system. We in this Congress have the responsibility to monitor our legal system. If it is not functioning well, we ought to deal with it. It is a practical act to protect manufacturers and sellers of a lawful item, and it has constitutional implications because the destruction of our firearms industry in America indeed would implicate and undermine the constitutional right Americans have of keeping and bearing arms. It is good for jobs.

We know American manufacturers are under siege from lawsuits, and we could end up losing an entire industry, which is a pretty big industry. It is good for our police and national defense; that is where they get their firearms. The Secretary of Defense wrote us a letter indicating-- actually, the legal counsel wrote the letter to say they support it because they are concerned about the manufacturing capability of firearms used by our military. The same companies fighting these suits are also the companies that produce firearms for the military and our police forces.

It is good because it restores the historic principles of what liability should be in our country. Where and how should one be liable? What acts can justify someone coming and taking your property? What kind of acts of wrongdoing do you have to commit before that is possible? Also, we might ask ourselves, what industry might be next? If we erode the classical defenses and principles that protect legitimate businesses in this case, what business might be next? I was pleased to hear that we achieved a bipartisan consensus, it seems, with 61 cosponsors for the legislation. I had hoped we would move it through rather rapidly. I knew a good number of Senators cared deeply about it and did not approve of it, and they wanted to speak about it. But the truth of the matter is, this is taking quite a long time. We have had a filibuster even on a motion to proceed to the bill, which included 30 hours of post-cloture debate on that, and 66 Senators voted to have cloture and bring this bill up on the floor for debate. So we have good, strong, bipartisan support for moving forward with this legislation.

I know the majority leader is committed. We can complete it, even if we have to go into the weekend. Hopefully, that won't happen, but I am prepared to be here and I think most Senators are. After this amount of effort, let's complete this. We can see the end in sight. I urge that the discussions going on allow us to proceed more rapidly. I hope we will have good success on that.

I believe the opposition to this legislation spins out of a hostility to firearms by some. If you look at it, it is mostly in the big cities where they are not familiar with hunting, outdoors, and recreational shooting. The emotional fervor for radically limiting the historic American right to keep and bear arms arises out of a fear of crime and a desire to be safe and, I think, a misunderstanding of the nature and character of decent, law-abiding citizens in this country who possess firearms and use them to hunt and for recreational purposes on a regular basis. But I understand crime is a big part of the objection to firearms. It is out of that fear and concern that we have mayors and cities passing laws that create strict liability, such as the District of Columbia. In a recent case that ruled against the Beretta Company, Beretta wrote us that if this law remains in effect, they could become liable for every murder using a Beretta handgun that may occur in Washington, DC, even though they may have lawfully sold the gun through a dealer in Alabama, Minnesota, Maine, or California. But if it ended up here some way by some criminal and somebody got shot, they have the ability to hold the manufacturer or the dealer liable for that. They become an insurer against criminal activity by criminals.

It is not a sound principle of law. It cannot be defended on principle. That is what we are trying to curtail here--this utilization of the legal system, the court system, the lawsuit system, to effect a public policy end that has not been supported by the people and actually could threaten the ability to keep and bear arms and threaten an entire industry in our country. I understand what is bringing this up.

I want to share some important things. What is causing crime? We don't know for sure. We know some of the causes. What can we do to deal with it? How can we utilize gun laws to reduce crime and violence and make

our communities safer, do the right thing? Does passing more and more burdensome laws and regulations that fall on lawful gun owners help reduce crime? I submit to you it does not.

There are dramatic numbers that I think indicate the effectiveness of gun law prosecutions to reduce crime. When I came to the Senate in 1997, I had been a U.S. attorney and, as such, prosecuted criminals who utilized guns and violated Federal gun law. I know the Presiding Officer has done that, too; he has been a prosecutor. He dealt with these Federal gun laws. What we did was focus on the law that dealt with criminal behavior, and we were aggressive about it. I remember coming up with a name for our project. We called it Project Triggerlock in, I guess, the late 1980s. We had a newsletter and we talked with all our sheriffs and local police about the new, tough Federal gun laws that crack down on the utilization of a gun during a criminal act, and the 5-year mandatory penalty without parole if you carry a firearm during a drug offense, or if you possess a firearm after having been convicted of a felony, you would go to jail and it would be without parole.

I thought it was an effective thing and we worked hard to prosecute those cases. Then I was elected Alabama attorney general and then I came to the Senate. When I came here, there was one new gun law after another that attempted to restrict gun ownership and the ability to get guns. We were voting on them all the time. I began to say, what are we doing prosecutionwise with the laws we have? I began to inquire in the Judiciary Committee, of which I am a member. In 1997 when Attorney General Janet Reno or the division chief, or the head of the ATF came up, I began to ask questions.

If you can see this chart, you begin to see where my concerns came from. Going along in the 1990s, in 1992 and 1993, there were 3,700 and 3,800 gun prosecutions per year. They began to drop off 20 percent. By 1996, they had fallen 20 percent, and by 1997, 20 percent. We began to ask questions about that and push this issue with the Attorney General. I raised it every time she came before the committee with her staff people. I think maybe that or other things happened that began to show a trend change. We started moving up a little bit. By 2000, we were back up to 6,000 gun prosecutions.

President Bush campaigned on it. When John Ashcroft came up for his confirmation, I reminded him of the promise the President had made. I asked Attorney General Ashcroft: Will you make prosecution of gun crimes a high priority by the U.S. Department of Justice? He said: Yes, sir, I will. Now we have Attorney General Gonzales. Look at these numbers; they have doubled since 2000. We have 11,000 prosecutions per year now. Many of those carry significant time in jail. If a person carries a fully automatic weapon--a MAC-11 or a machine gun of some kind--during a drug trafficking offense, the penalty they suffer is 30 years in jail without parole. We saw that happen all over Miami. People were shooting. There were gang wars, with machine guns that were used to shoot people down.

These tough laws that were passed in the early 1980s cracked down. Now you don't see machine guns among drug dealers. In fact, because of these prosecutions you are seeing fewer and fewer drug dealers carrying guns and fewer other criminals carry guns because they know if they get caught, they will be sent to Federal jail without parole for a long time.

I want to talk about that. Somewhere along in 1998, 1999, or 2000, we had before the Judiciary Committee the testimony of a very impressive U.S. attorney from Richmond, appointed by the Clinton administration. He was an African American. He had developed what he called Project Exile. I called it ``Project Trigger Lock with Steroids.'' It was a better plan than I had developed. He believed if you utilize these laws aggressively, you could save lives. He saw people in his community dying in shootouts and criminal fights, he believed, unnecessarily. So he started this project.

He put up billboards that said: You use a gun, we will send you off for a long period of time. You will be exiled. You will go off to a Federal jail. You don't get to go to the county jail. You will go off to the Federal jail, 10 years without parole, 20 years without parole, depending on the offense. He had some dramatic results from that project.

I will be pleased, I say to the Senator from Idaho.

I could not agree more. The U.S. attorney in Philadelphia was aggressive on some of these cases, and they would make a big bust with State and local law enforcement and Federal officers. The criminals did not want to go to the Federal court. They were afraid they would go there and sort them out, and the ones who had the guns would be the ones sent to Federal court, and they would get tough time.

Here are some of the numbers that occurred on Project Exile. From 2000 to 2003, Federal gun crime prosecutions nationally increased 68 percent. There is this perception that Republican administrations, because they are dubious and concerned about encroaching controls on the right of lawful Americans to have guns, that they are somehow soft on gun crime, that they do not care about people being victimized by crime.

Nothing could be further from the truth, as these numbers will show. From 2000 to 2003, Federal gun prosecutions increased 68 percent. Between the year 2002 and fiscal year 2003, the number of Federal firearms prosecutions nationally increased nearly 24 percent. In Colorado, for example, under their Project Exile program, Federal firearm charges between 1999 and 2003 were brought against more than 600 defendants, and in 365 of those cases that were completed, prison sentences were handed down totaling 18,671 months or 1,600 years.

As these prosecutions have increased, the number of crimes where a gun is used has decreased. Surprise. Between 1999 and 2000 and between 2001 and 2002, the violent crime victimization rate plunged 21 percent. Approximately 130,000 fewer Americans were victims of gun crime in 2001 and 2002 than in 1999 and 2000.

Project Exile began as a coordinated approach to fighting gun violence in the Richmond metropolitan area. That is where it started. It began in 1997 by a group of Federal prosecutors. They did a communitywide effort. In 1997, there were 140 homicides in Richmond. Just one year after the project was initiated, the overall murder rate dropped 36 percent, the number of firearm homicides dropped 41 percent, and robberies dropped by one-third.

In 2000, 3 years after Project Exile was implemented in Richmond, there were only 72 homicides during the year 2000, close to a 50- percent reduction. In its first year, Project Exile achieved the following: 372 persons were indicted for Federal gun violations, 440 guns were seized, and 196 persons sentenced to an average of 55 months of imprisonment.

There are three essential elements: Federal prosecution; integrated and coordinated partnership among local, State, and Federal law agencies; outreach for community involvement; and increased public awareness where we make sure the people in the community know in advance that if they carry a gun around while they are carrying on their criminal activities, they are in big trouble.

One of the main reasons that Project Exile has been so successful is the campaign to educate citizens about the lengthy terms they would be facing. Billboards all over Richmond broadcast it: An illegal gun gets you 5 years in Federal prison. It resonated throughout the community. Police and criminals knew the stories of what was happening on the streets. The criminals would throw away guns when officers

approached. They would confess to almost anything, but they would not confess to having a gun, and they specifically referred to Project Exile. So we know it was having an impact.

There are a number of important laws that are bread-and-butter laws that allow proper focus on criminal use of firearms. What I want to say is real simple. I don't want to overstate all of this, but it is significant. The simple fact is, it is not how many laws we pass, it is not whether we pass some convoluted law about this, that, or the other in Federal laws. It is whether we are allowing the gun prosecutions to drop 20 percent or whether they have gone up from under 4,000 to almost 12,000, three times.

If we maintain aggressive, systematic prosecution of dangerous criminals who carry firearms and they are sent to jail for long periods of time, we will protect the public. That is what I am saying. These other things make life more difficult for lawful gun owners and implicate, sometimes improperly, the constitutional right to keep and bear arms. But the real power of reducing crime, making our streets safer, resides in effective prosecution of these cases.

I could not be more pleased to see some of the good numbers we are getting in terms of reducing crime.

Look what is happening in States. It further amplifies what I have said. The overall homicide rate in jurisdictions that have the most severe restrictions on firearms purchases and ownership--let's look at this. Let's look at the homicide rate on the States that have the toughest firearm purchase laws, States that make it the hardest to buy a firearm: California, Illinois, Maryland, New Jersey, New York, and Washington, DC. Their homicide rate is 23 percent higher than the rest of the country.

The Federal Gun Control Act of 1968 imposed unprecedented restrictions on gun manufacturers, dealers, and owners. However, in the 5 years after its enactment, the national homicide rate averaged 50 percent higher than in the 5 years before the bill was enacted. The national homicide rate was 75 percent higher 10 years after the enactment of the Federal Gun Control Act, and 81 percent higher after 15 years. So passing a law that is not effectively prosecuted--not aggressively, systematically prosecuted, to the extent the criminals know you mean business--does not mean anything. You end up with just restrictions, regulations, costs, and burdens on honest Americans.

I have offered legislation--I am having a hard time getting any cosponsors on the Democratic side, but I think the Federal crack cocaine laws tend to be too tough, and they tend to fall disproportionately on African Americans. I think we ought to fix it and do something about it. I have proposed and written legislation and offered it more than once to do just that.

I am not here as one who believes locking people up and throwing away the key is the answer to fighting crime, but it is a big part of fighting crime that people receive substantial punishment if they represent a danger to the community or if they commit a serious crime.

Look at the incarceration rates: From 1980 to 1994, the 10 States with the greatest increase in prison population averaged a decrease of 13 percent in violent crime, while the 10 States with the smallest increase in prison population averaged a 55-percent increase in violent crime.

They say lock everybody up. Everybody does not shoot someone. There is only a small number of people in this country who have the maliciousness, the violent nature, or the hostility or meanness to go around shooting somebody. The more of those you can identify, the more of those you lock up, you can reduce the violent crime rate. You can make our communities safer and protect innocent Americans from that kind of activity. It is just as plain as night and day.

If you put violent criminals behind bars and keep them there, good things can happen. In 1991, 162,000 criminals who were placed on probation committed 44,000 violent crimes during their probation. A fourth of them committed a violent crime while they were out on probation. Twenty-one percent of the persons involved in the felonious killing of law enforcement officers during the last decade were on probation or parole at the time they murdered a police officer.

Some say if you really like police officers, you will vote against this bill because somehow this bill has something to do with protecting police officers from being murdered. Police officers are not telling me if one of their brothers or sisters is killed by a criminal that they want to sue Smith & Wesson. They are saying they want the criminal convicted and prosecuted. They believe if more criminals were prosecuted aggressively and fewer were given parole and probation early, then more police officers would be alive and healthy today. This is what we need to do.

I want to share this story on this general subject. It came to my attention recently, in June of this year. Leura Canary, a fine U.S. attorney in Montgomery, AL, the Middle District of Alabama, presides over 23 counties in the southwestern part of the State as a Federal law officer, and she works with others. She was presented a national award for most improved gun violence program.

I saved this release and would like to share it with you because it is emblematic of what we can do to save lives, protect the innocent, and reduce crime in America.

She calls their program Alabama ICE. It emphasizes cooperation among Federal, State, and local law agencies. They developed in the region an effective task force, a task force to combat gun crimes. The task force developed a training program and a case preparation technique plan. It produced significant results. Look at this. Federal gun prosecutions in the middle district of Alabama tripled in fiscal year 2003 over fiscal year 2002. Three times as many were prosecuted. And the number of gun crime matters referred for prosecutions increased 257 percent in that same period. Between 2000 and 2003, the number of gun prosecutions in the middle district has increased 513 percent.

She obviously took Attorney General Ashcroft's injunctions and directions to heart, a fact mentioned by Attorney General Ashcroft in his keynote address.

According to local officials, these efforts--local officials, not the U.S. attorney--have had a measurable effect on violent crime. In calendar year 2003, there was a 42-percent reduction in criminal homicides in the city of Montgomery over the previous year, 2002, a 42- percent reduction in the number of people murdered in the city of Montgomery.

Montgomery Police Chief John Wilson, whom I have known for quite a number of years, and who has been a professional in his career, who was an early partner in this effort, Alabama ICE task force, said:

Alabama ICE is the only new program we implemented during

this time period which targets violent crime in our city. I

believe that ICE is a major factor in these reductions in the

number of violent offenses. Without this program, these

criminals would still be in our community committing crimes.

And, I would add, murdering people.

Local Alabama ICE task force members also expressed their reactions to the program and the award. Chief Anthony Everage of the city of Troy, a midsized or smaller city, said this:

I think this is an excellent example of what can be

accomplished through a joint effort by the United States

Attorney's Office of the Middle District and law enforcement.

Ms. Canary presented this very effective program along with a

plan of action to our agency and the implementation has and

will continue to make Troy a safer place.

``When Alabama ICE was implemented in Dothan, it was as though someone threw a large rock into still waters. The ripple effect shuddered through the criminal culture almost overnight. The word is out, get caught committing a crime while holding a gun and you're done. Even Johnny Cochran can't get you off,'' said Dothan Police Chief John White.

Actually, Johnny Cochran supported this effort and warned that people who commit crimes with guns suffer serious Federal time, because he knew innocent people's lives are at stake.

District Attorney Randall Houston of the 19th Judicial Circuit of Autauga, Elmore, and Chilton Counties, stated:

Working with Federal prosecutors has expanded our charging

options and our ability to lock up the most dangerous

criminals in our community. We received this award because of

the effectiveness of our partnership in combating crime.

Sheriff Jay Jones of Lee County said:

This award represents the positive result of criminal

justice agencies on Federal, State, and local levels working

in concert to confront and effectively reduce the incidents

of gun violence in our community.

Is that not what it is all about, reducing gun violence?

Actual, measurable reductions in violent gun crimes have

occurred in all of the fine programs implemented throughout

the United States, and of those the program in the Middle

District, administered under the direction of U.S. Attorney

Leura Canary, was chosen as one of the best. It puts an

exclamation point on the statement of hard work that so many

law enforcement agencies in central Alabama do each day to

provide for the safety of the public.

Sheriff Jimmy Abbett of Tallapoosa County said:

Alabama ICE has been very beneficial to our department in

the successful arrest and convictions of persons in our area.

The U.S. attorney has provided a willingness to work with

local agencies. . . . The program . . . has provided local

law enforcement agencies another tool to take the habitual

criminals off the street.

That is what it is all about. Violent crime rates have reached the lowest level in 30 years, almost to the level of 1950. The crime rate went up steadily beginning in the 1950s into the early 1960s to the mid-1970s. In 15 years the murder rate doubled in this country. President Reagan came in and we saw about a 20-percent reduction. Then that flattened out during the crack cocaine years and then in the 1990s we began to see this go down.

One of the reasons is the Project Exile program that began in 1997 and is now spreading all over the country, which focuses on the criminal use of firearms. Whereas I am proud to review any legislation anybody wants to offer, I would note this, that I am willing to bet--I do not have the numbers on it, but I am willing to bet that perhaps 90 percent of the cases prosecuted in Federal court under these Project Exile type programs, the main ones are prosecuting any criminal in America who carries a firearm or possesses a firearm after having been convicted of a felony. If one is a felon, they are no longer able to possess a firearm. If firearms are kept out of the hands of felons, we are going to have less murders.

The next one is very close and very significant. It is carrying a firearm during the commission of a crime. It can be a crime of violence, a drug crime, a burglary, or a robbery. If someone is carrying a gun during criminal activity, they have a mandatory 5 years, 60 months, without parole, if they are convicted, in addition to what time they get for the underlying crime. That information is getting out there. The word is out there. Fewer and fewer criminals are carrying guns because of that.

Then there is carrying a sawed-off shotgun, possessing a firearm where the serial number has been erased or erasing a serial number. Those are the kinds of activities that form the bread and butter of the criminal prosecutions I mentioned today. That is what will break the back of crime. That is what can hold out hope that if we effectively and professionally maintain the pressure on the criminal gun element through these prosecutions, we can reduce crime, make our communities safer, and save innocent lives.

I do not think suing gun manufacturers is the right approach. That is not the way we are going to deal with it. We have the right approach. It was proven by the U.S. attorney in Richmond. It is being replicated all over America today. The Attorney General is driving this as one of his highest priorities, and if we stay on it, we are going to continue to see the murder rate in this country go down. Who knows, the murder rate could actually reach the level of the 1950s. We are not far from that today.

I yield the floor.

Mr. President, would the Senator yield for a question?

I hope the Senator is not too disturbed with me. I noticed in the New York Times today they had my picture in there and they described it as that of Senator Reed. It probably will cost him 50,000 votes in his home State. But it was not my fault and if the Senator sues anybody, sue the New York Times.

Mr. President, when this bill was before the Senate in the last Congress, I came to the Senate to oppose it. I opposed it because it denied certain gun crime victims, certain individuals who were victims of crimes committed with guns, their day in court. It singled out a particular group of weapon victims that it treated differently than we treat any other victims in the whole country. It set them apart.

Unfortunately, the bill before the Senate is no better than the one we had last year. In fact, it is worse. Not only does it grant immunity to the gun industry, the bill also prevents Federal, State, and local government agencies from shutting down gun dealers who violate the law. Local and State governments are responsible for ensuring that restaurants are clean, that doctors are properly licensed, stores do not sell alcohol and cigarettes to our children. Why can't they also ensure that gun dealers and manufacturers operate responsibly? Why do we want to take that right away from them? Yet the current language of the bill before the Senate would do that.

I have great respect for the many firearms dealers and manufacturers around this country who are legitimate, honest and hard working. The vast majority of dealers have no tolerance for buyers who circumvent gun laws. These dealers are also responsible, ensuring that they have adequate inventory control systems in place so that guns do not get lost or become missing.

This bill would not help them. The responsible dealers don't need this bill. Cases filed against responsible dealers and manufacturers who have done nothing wrong can already be tossed out if they have no merit, as any frivolous lawsuit will be tossed out in a court of law if they are filed against any manufacturer of any product or against any wholesaler or retailer of any product.

Who, then, will benefit by the passage of this bill? The people who will benefit are the irresponsible dealers and the irresponsible manufacturers.

Let me describe some cases. Everyone remembers all too well the tragedies of the DC sniper cases. Some of the victims of the DC snipers sued Bull's Eye Shooter Supply, the gun dealer that negligently allowed a Bushmaster rifle to reach the hands of John Allen Mohammed and Lee Boyd Malvo. That suit was successful. In the settlement, the negligent dealer--we could have assumed he would have been found negligent in a court of law--agreed to pay the victim and their families $2.5 million.

If this bill had been in effect a few years ago, these victims would have had no recourse in court.

Or perhaps we remember Danny Guzman, from Worcester, MA. On December 24, 1999, Danny Guzman was shot and killed by a gun that was taken from a factory run by Kahr Arms. Unfortunately, Kahr Arms hired Mark Cronin, an individual with a history of crack cocaine addiction and theft. Cronin was given unfettered access to the untraceable, unstamped guns in the factory. He bragged, in fact, that it was so easy to remove guns that he ``does it all the time and he could just walk out with them.''

Cronin removed one of these guns from the factory. That gun ended up on

the streets, and tragically it was used to kill Danny Guzman. Those are the essential facts.

Danny Guzman's estate, on behalf of his widow and two young daughters, sued Kahr Arms, alleging that it operated its plant in a grossly negligent manner, and in the spring of 2003, a State judge allowed that case to proceed. If this bill passes, however, the widow and children of Danny Guzman would be out of court.

As we can see, this bill cuts to the core of civil liability law and guts it. As my colleagues know, now, under current law throughout this country, the victim needs to prove the defendant acted in an unreasonable manner--basic negligence law, the law those who are lawyers learn about in the first and second year of law school. It is the law of negligence that prevails in courts of law in every type of civil case. It is not unusual. It is what it is.

Under negligence law, if the defendant fails to meet his or her duty to act in a responsible fashion, they are liable for negligence as long as that failure leads to harm to the victim. That is what is required. It is negligence. It is as simple as that. That is the standard. It is a standard we have developed over 200 years in this country, a standard we inherited from the British system. So we have hundreds and hundreds of years of experience in how to apply the rules of law, the common law negligence.

This bill says that those rules will no longer apply for one set of victims. These rules that we have taken hundreds of years to develop will no longer apply to one set of victims and to one set of defendants.

When we study law, one of the first things we learn is the difference between civil and criminal law. Someone who did not commit a crime can still be held liable in civil law to someone else and have to pay monetary damages. That is a basic concept.

This bill, however, changes that fundamental idea of civil law because under this bill a victim cannot sue a gun dealer for damages resulting from illegal actions of a third party without also showing that a dealer is guilty of a violation of the law, even--even--when the dealer has been negligent. Again, that is a fundamental change in our law with one group of civil defendants.

If this bill were to become law, a plaintiff would not only have to demonstrate that a gun dealer acted negligently, but also that the gun dealer broke the law--broke the criminal law. In other words, the plaintiff would--with one lone exception that has already been talked about on the floor a few moments ago--have to prove the gun dealer violated a statute or is guilty of a crime.

We do not require this in any other place in our law. Why do we want to do it in this case? If those who come to the floor in favor of this bill think it is such a great idea to do it in this case, if they think it is such a great idea to require that they have to violate a criminal law before you can sue them, then why not just pass that law for everybody? Why not make it the law of the land that in any civil suit in this country you have to have violated a criminal law? Why not change our civil law, turn it upside down, in all 50 States of the Union, if it is such a great idea?

I do not see anybody coming to the floor who is in favor of this bill saying it is such a great idea to do that. I do not see anybody proposing to do that. Yet they want to do it for one set of victims. They want to single out one set of victims. If you are a victim of guns--and it could be that somebody, a manufacturer, a gun dealer, has been negligent--we are going to require, for you to get inside the courthouse door, for you to even enter the courthouse door, before you can get what every American has the right to have--and that is a trial by jury, a trial, the opportunity to have your case heard by a judge and a jury--we are going to require you to prove there has been a crime committed.

We do not require that for any other group of people. So if they think it is such a great idea, let them come to the floor and propose that, to make it a universal law for every civil suit in the country.

I would like to talk for a moment about the language in this bill that might well prevent the Government from enforcing our gun laws against irresponsible gun dealers. This provision goes well beyond barring civil suits by private citizens who have been wronged. This provision is a new provision. It was not in last year's bill. This provision potentially curtails the ability of the Bureau of Alcohol, Tobacco, and Firearms, the ATF, from enforcing the gun laws that are currently on the books.

Two former ATF Directors recognize the potential harm that comes from this provision. According to Stephen Higgins, ATF Director from 1982 to 1995, and Rex Davis, ATF Director from 1970 to 1978, this broad, new language contained in this legislation in front of us today would likely prohibit the ATF from initiating proceedings to revoke a gun dealer's license, even when that dealer supplies guns to criminals.

Let me repeat that. According to both of these former ATF Directors, this broad, new language would likely prohibit the ATF from initiating proceedings to revoke a gun dealer's license, even when that dealer supplies guns to criminals.

So not only are we shielding these bad apples, bad actors, people who ought to not be doing business, not only are we shielding them from civil liability, now we are coming along and saying the ATF cannot enforce the law against them. What in the world are we thinking?

I think that everyone in this body can agree it is important for us to enforce gun laws that we have on the books. Why in the world is there attached a provision to this bill that would make it harder for ATF to enforce our laws and shut down wayward and dangerous gun dealers? Why in the world would we want to do this? I don't know.

Why would we want to strip away the opportunity of a gun victim to get into court? Why do we want to do either one of those things? I guess the answer is pretty simple. This bill ties the ATF's hands, ties the hands of private citizens, ties the hands of State and local agencies. It shields a certain group of defendants--gun manufacturers and dealers--from liability. This bill grants immunity. It overturns well over 200 years of civil law, 200 years of tort law, 200 years of common law.

If it passes, this bill would fundamentally change our justice system. It would do this by denying one group of citizens access to the court system in order to protect another group.

Why in the world are we about to do this? The only reason I can think of is because there are the votes here to do it. There is the power to do it. It can be done. One group in the country can get it done.

Now, Mr. President, I can count. I know how this vote is going to turn out. But that still does not make it right. Just because there are votes to pass this legislation does not mean it is the right bill for our country, for the victims, or for the American people.

I said this last year, and I will say it again. I will make a prediction about this bill. I will make a prediction about the effect it will have on this group of victims. Yes, the passage of this bill will get rid of some frivolous lawsuits. There is no doubt about that. We could get rid of a lot of frivolous lawsuits in this country by prohibiting access to the courthouse. There will be lawsuits that will never be filed because of this bill. That is true. There is no doubt about that.

But, Mr. President and Members of the Senate, mark my words: If this bill passes, in the future there will be a case, or cases, that will be so egregious, so bad, that it will sicken your stomach, and Members of this Senate will read about it, and Members of this Senate will look up from their paper, or will look up from the evening news, and will say: I didn't intend to do that. I didn't intend for that victim not to be able to go into court. I didn't intend for that child, that man, that woman not to be able to sue that defendant. Oh, I never intended that.

There will be that case, and that day will come. And whether it is a terrorist who is the defendant or whether it is some horrible criminal or whether it is some horribly negligent gun dealer--whoever it is-- there will be some case, and we will see it, and we will live to regret this day. You cannot arbitrarily close the door to the courthouse and say, ``You cannot come in, victim, if you are of a certain class,'' and not

have injustice done. You cannot do it. That day will occur, and we will regret what we are about to do.

There is an additional aspect of this bill that has not been talked a lot about; and that is the fact that it is retroactive. It would actually kick existing cases out of court. How dare we do that. How dare we have the audacity to do that. How dare we in this Congress come to the Senate floor and wipe out every lawsuit that has been filed in this country that would come within the parameters of this bill. How arrogant are we to do that? Did we really get elected to the Senate to tell crime victims that their case is frivolous, without ever even knowing the facts of that particular case?

We will have in front of us, in a few weeks, a Supreme Court nominee. There will be a lot of talk, as there already has been, about the separation of powers. There will be a lot of talk about judicial restraint, as well there should be. I probably will be talking about it as well.

What about legislative restraint? We do not talk much about that. We get mad here on Capitol Hill when we pass a bill and the Supreme Court says we did not have the power to pass that bill. I think we should remember what our role is. I do not think anyone elected us to the Senate to bar their ability to go into court--not to completely bar the door. I think it is one thing to set standards and parameters and maybe limits. You can talk about that. But to totally say, ``You can't go into court,'' I think we ought to think long and hard before we do this.

If passed, this bill would kick people out of court retroactively. It would not just bar people from coming to the courthouse. Apparently, that is not enough. No. What this bill does is kick people out who are already in court. It kicks people out who have already survived motions to dismiss and motions for summary judgment. It likely even tosses out victims who have won at trial and are defending their cases on appeal. To me, that is just plain wrong.

The courts are supposed to decide these cases. Juries are supposed to decide them. People are supposed to have their day in court. That is how our system is supposed to work. I do not think it is my job or the job of other Members of the Senate to judge these cases. It is not our job to determine whether these cases should or should not proceed. It is not my job to determine whether someone is negligent or is not negligent.

I also think it is not my job to tell a victim that he or she does not have the right to go to court and present a case to a judge or a jury. People in this country are supposed to have their day in court. That is fundamentally the American way. This bill creates two classes of victims in this country. If you are injured by any industry in America, you can file a lawsuit in State court in an attempt to redress your injury. After the passage of this bill, however, if you are injured by the gun industry, you are likely out of luck.

Other industries face legal challenges. Other industries, other defendants, have had lawsuits filed against them they do not like. Other defendants, every single day in this country, face suits that in their eyes, many times, are frivolous, that they cannot stand, that they do not think are fair. But they are not here petitioning us, telling us we should pass a law that blocks the ability of someone to sue them. Other industries are involved in cases where many people die. We understand that. We do not grant to them this kind of immunity from civil liability.

I support the second amendment. I support individuals' rights to own guns. I support gun manufacturers. I support legitimate gun dealers. And I support responsible tort reform. I certainly understand there are some abuses in the system, and that sometimes Congress needs to act to prevent these abuses. For example, just recently, I voted in favor of class action reform, and we passed that legislation to modify certain class action procedures.

But what we are about to do in this Congress, in this Senate, is wrong. This bill keeps victims out of court altogether. This bill is unfair to victims. But more important than that, it is a horrible precedent. If we do this, this time, what is to stop a future Congress--where there are the votes, maybe configured differently--from saying: ``Oh, there is another group of victims, and we need to protect them, another group of victims that we are not going to protect, another group of defendants that we are going to protect, another group of victims to whom we are going to say, you can't sue them, you can't get your day in court''?

If we deny this group of victims in front of us today their rights, what is to stop a future Congress from denying another group of victims their rights?

We need to think about this long and hard before we cast this vote.

I yield the floor.