Hillary: Impose Gun Control by Judicial Fiat

It’s no news that Hillary Clinton is against guns (except those in the hands of people who protect the high and mighty) and enthusiastically in favor of restricting gun owners. When it gets down to specifics, her position does become vague, with some exceptions. One of those exceptions stands out only because of its obscurity.

Hillary really, really, wants to repeal the Protection of Lawful Commerce in Arms Act. The PLCAA essentially protects gun manufacturers and gun dealers from being sued unless, well, they have done something wrong. It’s a perfectly simple standard that would apply in any other field of human endeavor.

The reason for the PLCAA’s enactment was simple. As law professor Timothy Lytton wrote, before PLCAA was enacted: “By 2000 gun litigation was regularly front-page news, and manufacturers faced potentially bankrupting industrywide liability exposure as a result of suits by dozens of individual victims, over thirty cities, and the State of New York.” These suits were based upon various elaborations of the argument that “guns are used in crime, and so gun manufacturers should pay for what criminals have done.” Some sought to impose liability even where no one could prove what gun criminals had used: the theory was that all gun makers should pay for all gun crime, in proportion to their annual production level.

Hillary’s focus on repealing the PLCAA seems strange: it’s been on the books for eleven years, it was passed by 2-1 bipartisan majorities (65-31 Senate, 283-144 House), and every suit it has blocked is one that should never have been filed. Yet oppose it Hillary does. Her campaign webpage proposes to “Take on the gun lobby by removing the industry’s sweeping legal protection for illegal and irresponsible actions (which makes it almost impossible for people to hold them accountable), and revoking licenses from dealers who break the law.” She told the Bridgeport News that “as president, I would lead the charge to repeal this law.” In Iowa, she called the PLCAA “one of the most egregious, wrong, pieces of legislation that ever passed the Congress.”

But, even given her anti-gun beliefs, why does Hillary place so high a priority on repealing some eleven-year-old statute?

The papers found in her husband’s presidential archives in Little Rock show why the lawsuits that the PLCAA stopped were so important to his anti-gun plans. A January 2000 question and answer document, probably meant to prepare Bill Clinton for a press conference, asks about his involvement in the lawsuits against the gun industry. It suggests as an answer that he “intends to engage the gun industry in negotiations” to “achieve meaningful reforms to the way the gun industry does business.” The memo suggests he close with “We want real reforms that will improve the public safety and save lives.”

This is noteworthy: the Clinton White House did not see the lawsuits’ purpose as winning money, but as a means to pressure the gun industry into adopting the Clinton “reforms.” What might those reforms have been?

The Clinton Presidential Archives answered that question, too. In December 1999, the “Office of the Deputy Secretary” (presumably of Treasury) had sent a fax to the fax line for Clinton’s White House Domestic Policy Council. The fax laid out a proposed settlement of the legal cases. The terms were very well designed. They would have given the antigun movements all the victories that it had been unable to win in Congress over the past twenty years! Moreover, the terms would be imposed by a court order, not by a statute. That meant that any violation could be prosecuted as a contempt of court, by the parties to the lawsuit rather than by the government. A future Congress could not repeal the judgment, and a future White House could not block its enforcement. The settlement would have a permanent existence outside the democratic process.

The terms were extensive and drastic:

Gun manufacturers must stop producing firearms (rifle, pistol, or shotguns) that could accept detachable magazines holding more than ten rounds. In practice, since there is no way to design a detachable-magazine firearm that cannot take larger magazines, this would mean ceasing production of all firearms with detachable magazines. No more semiauto handguns.

The manufacturers would be required to stop production of magazines holding more than ten rounds.

Manufacturers must also stop production of firearms with polymer frames. All handguns made must meet importation standards (long barrels, target sights, etc.).

After five years, manufacturers must produce nothing but “smart guns” (that is, using “authorized user technology”).

But those conditions were just the beginning. The next requirement was the key to regulating all licensed firearms dealers, as well. The manufacturers must agree to sell only to distributors and dealers who agreed to comply with the standards set for distributors and dealers. Thus dealers would were not parties to the lawsuits would be forced to comply, upon pain of being unable to buy inventory.

The dealers in turn must agree:

They’d make no sales at gun shows, and no sales over internet.

They’d hold their customers to one-gun-a-month, for all types of guns, not just handguns.

They would not sell used or new magazines holding more than ten rounds.

They would not sell any firearm that fell within the definitions of the 1994 “assault weapon ban,” even if the ban expired.

They must prove they have a minimum inventory of each manufacturers’ product, and that they derive a majority of their revenue from firearms or sporting equipment sales. No more small town hardware store dealers, and no more WalMarts with gun sections.

The manufacturers would be required to pay for a “monitor,” a person to make sure the settlement was enforced. The monitor would create a “sales data clearinghouse,” to which the manufacturers, distributors, and dealers must report each gun sale, thus creating a registration system, outside of the government and thus not covered by the Privacy Act.

The monitor would have the authority to hire investigators, inspect dealer records without notice, and to “conduct undercover sting operations.” The monitor would thus serve as a private BATFE, without the legal restrictions that bind that agency, and paid for by the gun industry itself.

The manufacturers must cut off any dealer who failed to comply, and whenever BATFE traced a gun to a dealer, the dealer would be presumed guilty unless he could prove himself innocent. (BATFE encourages police departments to trace every firearm that comes into their hands, including firearms turned in, lost and found, and recovered from thieves. As a result, it performs over 300,000 traces a year. Thus, this term would lead to many dealers being cut off and forced to prove their innocence on a regular basis).

Gun registration, one gun a month, magazines limited to ten rounds, no Glocks, no guns with detachable magazines (in effect, no semiauto handguns), no dealers at gun shows, an “assault weapon ban” in perpetuity, no internet sales. In short, the movement to restrict gun owners would have achieved, in one stroke, every objective it had labored for over the years -- indeed, it would have achieved some that (a ban on semiauto handguns) that were so bold it had never dared to propose them. All this would be achieved without the messy necessity of winning a majority vote in Congress.

Bill Clinton knew he had the gun manufacturers on the ropes: the legal costs merely of defending the lawsuits were enormous. If, in addition, just one of the suits succeeded (and many suits had carefully been brought before known anti-gun judges), manufacturers would be filing for bankruptcy. Then came the Protection of Lawful Commerce in Arms Act, and Clinton could no longer dictate the terms of surrender to the firearms industry and to gun owners.

That tells us why Hillary Clinton now considers repeal of a seemingly obscure, eleven-year-old statute a major objective of her campaign. She’s picking up where Bill left off, in an effort to impose draconian standards on gun owners, without engaging in the democratic process.

David T. Hardy is a pro-gun lawyer and author, who blogs at www.armsandthelaw.com.

It’s no news that Hillary Clinton is against guns (except those in the hands of people who protect the high and mighty) and enthusiastically in favor of restricting gun owners. When it gets down to specifics, her position does become vague, with some exceptions. One of those exceptions stands out only because of its obscurity.

Hillary really, really, wants to repeal the Protection of Lawful Commerce in Arms Act. The PLCAA essentially protects gun manufacturers and gun dealers from being sued unless, well, they have done something wrong. It’s a perfectly simple standard that would apply in any other field of human endeavor.

The reason for the PLCAA’s enactment was simple. As law professor Timothy Lytton wrote, before PLCAA was enacted: “By 2000 gun litigation was regularly front-page news, and manufacturers faced potentially bankrupting industrywide liability exposure as a result of suits by dozens of individual victims, over thirty cities, and the State of New York.” These suits were based upon various elaborations of the argument that “guns are used in crime, and so gun manufacturers should pay for what criminals have done.” Some sought to impose liability even where no one could prove what gun criminals had used: the theory was that all gun makers should pay for all gun crime, in proportion to their annual production level.

Hillary’s focus on repealing the PLCAA seems strange: it’s been on the books for eleven years, it was passed by 2-1 bipartisan majorities (65-31 Senate, 283-144 House), and every suit it has blocked is one that should never have been filed. Yet oppose it Hillary does. Her campaign webpage proposes to “Take on the gun lobby by removing the industry’s sweeping legal protection for illegal and irresponsible actions (which makes it almost impossible for people to hold them accountable), and revoking licenses from dealers who break the law.” She told the Bridgeport News that “as president, I would lead the charge to repeal this law.” In Iowa, she called the PLCAA “one of the most egregious, wrong, pieces of legislation that ever passed the Congress.”

But, even given her anti-gun beliefs, why does Hillary place so high a priority on repealing some eleven-year-old statute?

The papers found in her husband’s presidential archives in Little Rock show why the lawsuits that the PLCAA stopped were so important to his anti-gun plans. A January 2000 question and answer document, probably meant to prepare Bill Clinton for a press conference, asks about his involvement in the lawsuits against the gun industry. It suggests as an answer that he “intends to engage the gun industry in negotiations” to “achieve meaningful reforms to the way the gun industry does business.” The memo suggests he close with “We want real reforms that will improve the public safety and save lives.”

This is noteworthy: the Clinton White House did not see the lawsuits’ purpose as winning money, but as a means to pressure the gun industry into adopting the Clinton “reforms.” What might those reforms have been?

The Clinton Presidential Archives answered that question, too. In December 1999, the “Office of the Deputy Secretary” (presumably of Treasury) had sent a fax to the fax line for Clinton’s White House Domestic Policy Council. The fax laid out a proposed settlement of the legal cases. The terms were very well designed. They would have given the antigun movements all the victories that it had been unable to win in Congress over the past twenty years! Moreover, the terms would be imposed by a court order, not by a statute. That meant that any violation could be prosecuted as a contempt of court, by the parties to the lawsuit rather than by the government. A future Congress could not repeal the judgment, and a future White House could not block its enforcement. The settlement would have a permanent existence outside the democratic process.

The terms were extensive and drastic:

Gun manufacturers must stop producing firearms (rifle, pistol, or shotguns) that could accept detachable magazines holding more than ten rounds. In practice, since there is no way to design a detachable-magazine firearm that cannot take larger magazines, this would mean ceasing production of all firearms with detachable magazines. No more semiauto handguns.

The manufacturers would be required to stop production of magazines holding more than ten rounds.

Manufacturers must also stop production of firearms with polymer frames. All handguns made must meet importation standards (long barrels, target sights, etc.).

After five years, manufacturers must produce nothing but “smart guns” (that is, using “authorized user technology”).

But those conditions were just the beginning. The next requirement was the key to regulating all licensed firearms dealers, as well. The manufacturers must agree to sell only to distributors and dealers who agreed to comply with the standards set for distributors and dealers. Thus dealers would were not parties to the lawsuits would be forced to comply, upon pain of being unable to buy inventory.

The dealers in turn must agree:

They’d make no sales at gun shows, and no sales over internet.

They’d hold their customers to one-gun-a-month, for all types of guns, not just handguns.

They would not sell used or new magazines holding more than ten rounds.

They would not sell any firearm that fell within the definitions of the 1994 “assault weapon ban,” even if the ban expired.

They must prove they have a minimum inventory of each manufacturers’ product, and that they derive a majority of their revenue from firearms or sporting equipment sales. No more small town hardware store dealers, and no more WalMarts with gun sections.

The manufacturers would be required to pay for a “monitor,” a person to make sure the settlement was enforced. The monitor would create a “sales data clearinghouse,” to which the manufacturers, distributors, and dealers must report each gun sale, thus creating a registration system, outside of the government and thus not covered by the Privacy Act.

The monitor would have the authority to hire investigators, inspect dealer records without notice, and to “conduct undercover sting operations.” The monitor would thus serve as a private BATFE, without the legal restrictions that bind that agency, and paid for by the gun industry itself.

The manufacturers must cut off any dealer who failed to comply, and whenever BATFE traced a gun to a dealer, the dealer would be presumed guilty unless he could prove himself innocent. (BATFE encourages police departments to trace every firearm that comes into their hands, including firearms turned in, lost and found, and recovered from thieves. As a result, it performs over 300,000 traces a year. Thus, this term would lead to many dealers being cut off and forced to prove their innocence on a regular basis).

Gun registration, one gun a month, magazines limited to ten rounds, no Glocks, no guns with detachable magazines (in effect, no semiauto handguns), no dealers at gun shows, an “assault weapon ban” in perpetuity, no internet sales. In short, the movement to restrict gun owners would have achieved, in one stroke, every objective it had labored for over the years -- indeed, it would have achieved some that (a ban on semiauto handguns) that were so bold it had never dared to propose them. All this would be achieved without the messy necessity of winning a majority vote in Congress.

Bill Clinton knew he had the gun manufacturers on the ropes: the legal costs merely of defending the lawsuits were enormous. If, in addition, just one of the suits succeeded (and many suits had carefully been brought before known anti-gun judges), manufacturers would be filing for bankruptcy. Then came the Protection of Lawful Commerce in Arms Act, and Clinton could no longer dictate the terms of surrender to the firearms industry and to gun owners.

That tells us why Hillary Clinton now considers repeal of a seemingly obscure, eleven-year-old statute a major objective of her campaign. She’s picking up where Bill left off, in an effort to impose draconian standards on gun owners, without engaging in the democratic process.

David T. Hardy is a pro-gun lawyer and author, who blogs at www.armsandthelaw.com.