Monday, November 2, 2015

Hillary Clinton is Ignorant on Gun Law...

...either that, or she is a liar.

In the debate, Hillary Clinton falsely claimed that Bernie Sanders "was going to give immunity to the only industry in America. Everybody else has to be accountable, but not the gun manufacturers."

She was referring to the 2005 federal statute known as the Protection of Lawful Commerce in Arms Act. But what Hillary Clinton does not know is, the statute only ensures immunity from strict liability, not negligence or willful misconduct, regarding criminal use of the product by a purchaser. Did she not read the legislation that she voted for?

"Has Clinton Ever Actually READ the Protection of Lawful Commerce in Arms Act (the PLCAA)? She Doesn’t Seem to Know What It Says"a post by Beverly Mann on November 2, 2015 at the Angry Bear:

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

Clinton’s full statement was:

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

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

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

The statute begins:

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

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

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

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

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

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

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

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

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

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

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

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

In any event, it will not be true.

[Editor's note: Maybe Bernie Sanders should correct her the next time guns are brought up at a debate.]

* The clause at the end of the sentence, saying “regarding criminal use of the product by a purchaser”, added for clarity after initial posting, to distinguish between criminal use of the product–the only issue that the PLCAA addresses–and traditional products-liability safety issues. 11/2 at 7:05 p.m.

3 comments:

  1. Hillary Clinton criticized Bernie Sanders for voting against the Brady Bill in the 1990s, which required universal background checks for gun sales. Sanders voted repeatedly against the bill, which in its original version, had a 10-day waiting period.

    Clinton specifically pointed to Bernie's vote against closing the "Charleston Loophole", which allowed Dylann Roof to purchase a gun before the South Carolina massacre on June 17, 2015. Some gun-control advocates started calling the three-day waiting period the “Charleston loophole.”

    But where did that three-day window come from? It was in the final version of the Brady Handgun Violence Prevention Act, which was passed by Congress in 1993 — and signed into law by Hillary's husband, President Bill Clinton.

    Clinton’s allies have also pointed out that the National Rifle Association called the 2005 gun liability bill (that Sanders voted for) was what NRA chief Wayne LaPierre called “the most significant piece of pro-gun legislation in twenty years” — but Clinton never reminds voters that the NRA also gave Bernie Sanders a D- grade back then (and now gives him an F).

    At a forum in Iowa, Bernie Sanders was asked by Fusion journalist Jorge Ramos if his 2005 vote for legislation that protected gun makers from lawsuits a mistake? The 2005 gun bill that Sanders supported prohibits lawsuits that result from criminal misuse or legal misuse of firearms, but it does allow lawsuits against dealers who knowingly sell firearms that can be used to commit violence. Sanders had explained that he was concerned about small gun shops in Vermont being frivolously sued because someone they sold a gun to might commit a crime with that weapon.

    But there were limits to his desire to protect gun stores. During the forum with Ramos, Sanders said, “If you are a gun manufacturer who is selling guns into an area and you’re selling a whole lot of guns, and you have reason to believe that a lot of those guns are not meant for people in that area, but are being distributed to criminal elements, should you be prosecuted? Damn right.”

    And after the Sandy Hook shooting Sanders said gun manufacturers should not be held liable for what “a deranged person does."

    If the majority of the people of Vermont didn't agree with Bernie Sanders' position on guns, then the good people of Vermont could have voted for someone else. But if even on this one issue (that Hillary wants to use against Bernie), if Senator Sanders is willing to "evolve" (as Hillary has on many other issues), the why should that be an unreasonable position to have if Bernie becomes the next President of all 50 States?

    (* As an aside: Former Republican Vice President Dan Quayle is one of the top executives of one of America's top gun manufacturers.)

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    1. With Hillary losing ground in the polls, I'm very surprised she isn't blaming Bernie PERSONALLY for the massacre at Sandy Hook.

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    2. The Flip-Flopper-in-Chief just accused Bernie of Flip-Flopping!

      "I am very pleased that he flip-flopped on the immunity legislation," Clinton told CNN's Jake Tapper on State of the Union a day after Sanders, who had been hammered by her campaign for his past position, announced he would change course and back legislation to reverse a 2005 law granting firearm manufacturers legal immunity. She then called on her rival to do the same with the so-called "Charleston loophole," which allows licensed dealers, once they have initiated a federal background check, to complete the gun sale in question if they haven't hears back from authorities after three days.

      http://www.cnn.com/2016/01/17/politics/hillary-clinton-bernie-sanders-fbi-sotu/

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