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The following Op-Ed on S. 397 (the "Protection of Lawful Commerce in Arms" Act) was published in The Record on November 3, 2005.


By Scott L. Bach

ROBERT Scheer's Op-Ed column on the new gun liability law ("Congress Caves to the Gun Lobby," Oct. 26) presents a biased and disingenuous viewpoint.

For the past decade, gun-ban extremists who could not achieve their political agenda in Congress have misused the courts in an attempt to sue the firearms industry out of existence. Their argument: that firearms manufacturers and sellers should be liable for the criminal acts of third parties over whom they have no control.

When a drunk driver kills someone, the car manufacturer is not responsible. When an arsonist burns a building, the match manufacturer is not at fault. The same is true of firearms manufacturers when a criminal misuses their products.

This legal principle applies to all products - manufacturers are not at fault when a legal, properly functioning product is misused by someone else. It's common sense and established law. Nearly every court in the country that has considered these bogus claims has dismissed them as frivolous, including courts in New Jersey.

But defending against these junk lawsuits has cost the industry more than $200 million and threatened to bankrupt it. This is an industry that supplies our men and women in uniform with tools vital to our national security and their own personal survival. It also supplies law-abiding citizens with firearms for self-defense and recreation, and their right to have firearms is protected by the U.S. Constitution.

Scheer summarily dismisses the Second Amendment as a right guaranteed to individuals, instead perpetuating the myth that the Second Amendment protects only the "collective" right of states to maintain the National Guard - even though the Guard was created more than 100 years after the Constitution was ratified.

He ignores that the Second Amendment is part of the Bill of Rights - an intractable set of basic civil rights guaranteed to every individual citizen. Saying that the Second Amendment applies only to states is as absurd as saying that the First Amendment applies only to the media.

There is much misinformation being spread about S. 397, the "Protection of Lawful Commerce in Arms Act," which was passed with strong bipartisan support and was signed into law by the president late last month.Gun-ban extremists are making phony claims that the new law shields gunmakers and gives them special immunity. They call it a giveaway to the gun lobby that deprives victims of their day in court.

Here's what the law actually does and does not do: It doesn't give gunmakers any more protection than any other industry. It simply ensures that they have the same protection from liability for wrongful acts of third parties that other industries already enjoy. If you can't sue General Motors when a drunk driver plows into a crowd, then you can't sue a firearms maker when a criminal misuses a gun. This is not special treatment; it's equal treatment.

Gun manufacturers and sellers are still liable for defective products or for violating any of the more than 10,000 U.S. laws regulating gun sales. "Straw" sales, failure to account for sales, "missing" firearms, design and function defects, and the like, still subject the wrongdoers - including gun manufacturers and sellers - to civil or criminal liability. Crimes by gunmakers and sellers are still crimes, and those injured by defective or malfunctioning firearms will still have their day in court.

The firearms industry is among the most highly regulated industries in America. The thousands of laws with which the industry must comply are highly detailed and complex, and they carry severe penalties for their violation. This new law does nothing to change that.

The histrionics of the gun-ban movement are based on fear and misunderstanding of the role that firearms play in a free society. Private firearms ownership ensures personal safety when police are delayed or unavailable, as Americans recently witnessed in the aftermath of Hurricane Katrina. The Second Amendment was written for exactly that type of situation.

Firearms makers and sellers play an important role in this dynamic. They should not be forced to perpetually defend against baseless predatory lawsuits simply because some special interest groups cannot comprehend their societal value and want to destroy them.

Criminal acts committed with lawful products - whether a car, a match, or a firearm - cannot and should not be a basis of liability for the manufacturer, and all this law does is reaffirm that principle.

Scott L. Bach, an attorney and auxiliary police lieutenant, is a member of the NRA board of directors and president of the Association of New Jersey Rifle & Pistol Clubs. He is not compensated by either group.
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