The Death of the Manufacturer’s Protection Bill

S.1805, the U.S. Senate rendering of the long-awaited bill to provide protection from frivolous liability lawsuits for firearms manufacturers, went down to defeat on March 2. The end came following a bitter battle not only between pro- and anti-gun forces, but within the firearms rights community itself. Having been involved in the battle to the extent that I helped to coordinate Pennsylvania grassroots efforts with the efforts of similar groups in other states, one thing that I can say for certain is that the battle was not as reported by the mainstream media, the anti-gun forces, the NRA, or most of the “establishment” gun-rights forces. My summary is that ultimately it was the independent, hard-core groups around the nation that took over and killed a bill that had become so bad that it needed killing.

The defeat of the so-called “Protection of Lawful Commerce in Arms Act” was ultimately predictable, and in fact weeks earlier Gun Owners of America had predicted its defeat, if the tactics pursued by the dominant pro-gun forces were continued. For all practical purposes the end came as soon as the bill, which had passed as a “clean” bill in the House of Representatives, came under consideration by the Senate. The Senate, including the bill’s sponsor Larry Craig, immediately voted to accept a “unanimous consent agreement” to allow “germane” amendments to be tacked onto the bill. This allegedly was done to prevent the anti-gun senators from launching a filibuster and potentially blocking the bill indefinitely or permanently. Most hard-core gun-rights leaders I communicated with would have preferred seeing a straight-up partisan battle over a pure bill, which we could have engaged in with a clear conscience. Instead, even the supposedly pro-gun forces in the Senate, including NRA Director Larry Craig, chose to gamble that whatever anti-gun amendments might be tacked onto the bill, would either be “acceptable” levels of gun control, that would be offset by the value of defending the gun industry, or would be things that could be removed once the bill was passed and returned to the House Conference Committee.

As soon as the very first anti-gun amendment was passed, a battle began within the pro-gun community. As one pro-gun commentator labeled the factions, on one side were the “Gamers,” who believed the battle could be won by political trickery, compromise and maneuver. On the other side were the “Principles” who took the pure position of “no more gun control,” and who wanted a straight-up battle that would show who in the Senate was on our side and who wasn’t, with no ambiguities. The Principles’ viewpoint was that the Gamers’ pretense at secret strategies allowed Senators to vote anti-gun, later claim doing so was really a pro-gun tactic, and not suffer the political consequences of their votes. Many also remembered that it was the Gamers’ tactic of allowing a bad bill to go to conference committee that had resurrected the Clinton Assault Weapons Ban from near-death to successful passage, ten years ago.

If it was a pro-gun tactic to vote anti-gun, then we certainly have a lot of pro-gun Senators. Among anti-gun amendments successfully tacked on to S.1805 were a federal mandatory trigger-lock requirement, a ban on armor-piercing ammunition, reauthorization of the federal “assault weapons” ban, and “closing the gun show loophole.” Some of these amendments began as absolutely horrible amendments that failed, but were reconstituted to “slightly better” -- but still anti-gun – amendments to the amendments, that passed easily with the support of Senators who style themselves as “pro-gun.” This was conducted in such a way that it provides some cover for anti-gun votes; for example, Pennsylvania’s Rick Santorum voted for the Boxer/Kohl trigger-lock amendment, that started life as “very bad” as introduced by Senator Boxer, but was amended to “just bad” by Senator Kohl. I’m sure Senator Santorum will say he was voting to “improve” a bad amendment.

The behind the scenes battle that started following the very first anti-gun amendment was between the NRA and independent pro-gun groups around the country. To generalize, independent pro-gun groups took the position that the bill had to be defeated if it contained any new gun controls whatsoever. The NRA took the Gamer position of “We have everything under control; trust us; wait and see.” To further generalize, independent groups didn’t accept that, because of bad experiences with Gamer tactics in their own states, which in some cases had been the reason for creation of their organizations. The attacks by the Gamer factions became downright nasty, with anyone not toeing the NRA line labeled “friends of Feinstein and Schumer.” This went on long after the amendments had become clearly unacceptable. NRA email alerts underwent subtle changes from, saying they would oppose the bill if it contained any “anti-gun” amendments, to saying they would oppose it if it contained any “poison pill” amendments; signaling intent to accept some anti-gun amendments Contacts in other state’s organizations reported that even as they watched Senator Craig on C-SPAN asking for defeat of his own bill, they were talking on the phone to NRA representatives in Washington who were insisting they still supported it.

To provide some of my own perspective, I am glad that the bill failed. While I certainly support the concept of protection for firearms manufacturers, I also happen to believe that for the federal government to provide for it is unconstitutional. Limiting civil suits is not among the few powers granted to congress in Article I, Section 8 of the U.S. Constitution. Many people have told me it is foolish to even think about that, because by that standard, probably more than half the things congress does are unconstitutional. I think that’s true, but in this case, with hungry trial lawyers prepared to argue for their own bread and butter, I think it would be distinctly possible for the question to go to the Supreme Court, where the protections would be overturned, and we’d be left with all of the anti-gun provisions that had been tacked on, that had made it through the House Conference Committee. Given the high rate of legal successes against frivolous suits by manufacturers to date, I’ll gladly pay a few extra dollars for a gun so that the manufacturers can defend themselves in court. I’d rather not risk the crap-shoot of trying to balance the bad against the good in flawed legislation.

The good news to come out of the recent battle was that an independent grassroots has begun to flex its muscle around the country. It was plain that as the battle progressed, NRA Directors and other spokesmen were working harder at trying to quell what they perceived as “rebellions” in the ranks of gun owners, than they were at trying to stop bad legislation from passing. Ultimately it was the force applied by members and supporters of independent groups that defeated the badly flawed Senate bill, when their calls, faxes and emails were totally at odds with the NRA/Gamers’ position. In my opinion, this can only be to our benefit, if powerful centralized organizations can no longer make back room deals while promising they can deliver the unqualified support of gun owners. Perhaps legislators will have to begin worrying about us as independent voters again.