Tell Attorney General Merrick Garland: Stop Defending Gun Industry Immunity

Right now, President Biden and his DOJ are defending in court a controversial law known as the Protection of Lawful Commerce in Arms Act, or PLCAA for short. This measure provides immunity for gun manufacturers, distributors, and dealers by protecting them from most negligence and product liability claims in state and federal court. As a result, the gun industry has no incentive to ensure they produce and sell safe products and it can turn a blind eye to straw purchasers or traffickers.

Tell Attorney General Garland to reconsider DOJ's decision to defend the constitutionality of this dangerous law.

In our country, if a corporation or industry causes someone harm, they can be held accountable in a court of law. Unless, of course, it is the gun industry. In 2005, the NRA and gun industry used their influence over Congress to ensure they would be virtually immune from all lawsuits and avoid any responsibility when their products are used to commit mass murder.

This means families who lost a loved one to gun violence victims have no options to hold gunmakers accountable. We spoke with gun violence survivors Sandy and Lonnie Phillips and Congressman Adam Schiff about this sad reality in the panel discussion below.

Families who experience loss from gun violence deserve the opportunity to hold the gun industry accountable. No one person, corporation, or industry should be able to avoid liability for dangerous products. It’s up to us to make sure this applies to every industry.

Several weeks ago, Attorney General Merrick Garland publicly doubled down on his choice to support PLCAA. Over the last several months, DOJ has repeatedly intervened in lawsuits against the gun industry across the country, urging judges to dismiss those claims.

Here are 4 things you must know about PLCAA and AG Garland’s decision.

  1. The NRA convinced President George W. Bush to champion and sign PLCAA into law after the gun industry began losing lawsuits.
    PLCAA came out of a slew of legal challenges in the 1990s and the early 2000s that culminated in an effort to sue gunmakers for continuing to knowingly sell guns to dealers who regularly funneled weapons to criminals and for failing to include safety features that could have saved lives. A study of the effects of undercover police stings and civil lawsuits on gun dealers concluded that these techniques significantly reduced their willingness to sell guns to criminals. But the lawsuits posed a real financial threat to the gun industry and it pushed PLCAA into law in 2005.
  2. Under PLCAA, the gun industry cannot be held liable for marketing firearms in a way that feeds an illegal market and allows guns to be used by criminal syndicates or for failing to implement basic safety features.
    This is a unique protection that few other industries enjoy. Consumers can sue General Motors, for instance, if it makes cars that can’t withstand a minor crash. The person who crashes the car is partly responsible for the accident—she may be driving recklessly or under the influence—but we as a society have agreed that General Motors is liable for producing steering wheels that hurt drivers when they get into collisions or developing brakes that don’t work properly in stress situations. Manufacturers of a product must prepare for the worst, for reality, not for best-case scenarios. PLCAA exempts the gun industry from this very basic principle that defines the relationship between corporations and governmental oversight.
  3. During the fall of 2020, a court in Pennsylvania ruled that PLCAA is unconstitutional and is in violation of the 10th amendment of the U.S. Constitution.
    “If we accept the federal government’s theory that filing a state action, in a state court, is within Congress’s reach, then the 50 states must forfeit all their sovereignty to the federal government,” wrote Judge Kunselman in an exhaustive 63-page opinion in Gustafson v. Springfield Armory. “This is definitely not the vision that Hamilton, Madison, and the other Founders had in mind when they authored the Constitution,” he added. Indeed, not only is PLCAA a clear violation of the 10th amendment, the law also undercuts Attorney General Merrick Garland’s stated policy of combating illicit firearms trafficking and distribution, and takes away the rights of victims of gun violence to seek redress.
  4. President Biden has pledged to repeal PLCAA, yet his Department of Justice continues to intervene in cases across the country to defend its constitutionality.
    The Department of Justice generally has the obligation to defend the constitutionality of statutes. However, there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional. Presidents of both parties have engaged in such activity. In 2011, President Barack Obama chose not to defend Section 3 of the Defense of Marriage Act because he believed it to be unconstitutional. Presidents George H. W. Bush and Donald Trump have made similar decisions. In light of the Pennsylvania ruling late last year, Attorney General Garland must, at the very least, re-consider his Department’s strategy of aggressively defending the constitutionality of PLCAA in court.