Kamala Outmaneuvers PLCAA
Can one idea change the gun industry?
By Corey Ciorciari, Molly Voigt, Jack Craven, and Lucas Burgard
GEORGIA ON OUR MIND
Another tragedy, another reminder of how dangerous Trump is on guns. Flashback to 2017: At the behest of the gun lobby, Trump froze two rules that would have required gun stores to sell child safety locks. Seems relevant.
DANIEL’S (PLCAA) DEFENSE
Georgia is also home to Daniel Defense, the gun maufacterer currently being sued by Uvalde families for…marketing assault weapons to children. Daniel Defense’s motion to block the suit relies entirely on one law: PLCAA.
Flashback to 2019: then-Senator Kamala Harris posed a question — What if there was a way to get around PLCAA without Congress overturning the law? Also seems relevant. Let’s dive in.
NOT THE NEXT TOBACCO
Passed in 2005, PLCAA – or the artfully named “Protection of Lawful Commerce in Arms Act” – provides near-blanket civil immunity to gun makers and sellers. When the NRA made PLCAA their top legislative priority, they claimed it would shield gun sellers from liability for crimes that others committed with the guns they sold.
But that was never the intent. After watching the courts reign in Big Tobacco in the ‘90s, the NRA wanted to shut the door on all legal accountability for gun makers and dealers, including for crimes they committed.
And so they wrote PLCAA to do exactly that. Now, gun makers can avoid liability for negligent supply chain practices, for creating deadly public nuisances by “losing” guns, and for marketing Barbie AK-47s to kids – escaping the types of legal accountability that brought Big Tobacco to its knees.
3 vs. 5,000
The result: Over the last 20 years, only a handful of cases against gun makers and dealers have successfully cracked PLCAA’s liability shield. In less than half that time, the e-cigarette company Juul has been forced to settle over 5,000 cases.
KAMALA’S IDEA
Against that backdrop, Kamala proposed an idea: What if instead of individual victims trying to sidestep PLCAA, the federal government did instead? To understand why that’s a potential game-changer, you need to understand three things:
First, while PLCAA blocks most private lawsuits against law-breaking gun dealers, it doesn’t prevent the government from revoking their licenses for federal violations. That’s why, in 2019, Kamala called for a “zero tolerance” policy for gun dealers that violate federal law. As VP, she put the proposal into practice and now more licenses are being revoked from lawbreaking gun dealers than ever before.
Second, the federal government can even revoke licenses from dealers that violate state and local laws. This was Kamala’s new insight: In addition to revoking a license for violating federal law, the ATF can police local gun laws too. Why? Because the Gun Control Act makes it a federal crime for a dealer to violate a local law (essentially “federalizing” local law), any local law violation can be grounds for revoking a gun dealer's license. That’s a big deal! It means the ATF can enforce the local laws that PLCAA tried to undercut.
Third, the federal government can go further by bringing criminal charges against gun dealers that violate state or local laws. One of the six narrow exceptions to PLCCA’s otherwise blanket immunity shield applies to the Attorney General: DOJ can bring criminal charges against gun dealers that violate federal law. That makes Kamala’s insight important here as well: Because the Gun Control Act “federalizes” local law, DOJ can do more than strip licenses, it can bring criminal charges against gun dealers that violate local or state laws.
All that adds up to the federal government sidestepping PLCAA by using state and local laws to finally hold criminal gun dealers accountable.
TOUGH ON GUN CRIME
Taking on PLCAA wasn’t Kamala’s only new idea. She detailed other executive actions to hold the gun industry accountable:
Require websites that facilitate gun sales – like ArmsList.com – to perform background checks. Under federal law, only gun “dealers” must perform background checks, a legal designation that doesn’t apply to millions of “private” gun sales each year. Websites that facilitate gun sales between private sellers are also not considered “dealers.” This loophole allows ArmsList.com to post ads for millions of gun sales each year that explicitly say a background check is not required. Kamala proposed taking executive action to clarify that “dealing in firearms” also means “facilitating private gun sales for profit” – requiring sites like ArmsList.com to perform background checks.
Ban the importation of assault weapons. The Gun Control Act allows the Attorney General to ban the importation of guns not “suitable for or readily adaptable to sporting purposes.” Both Presidents Clinton and George H. W. Bush used the authority to ban over 100 types of guns from being imported into the U.S. However, according to a 2011 report by Sen. Feinstein, gun manufacturers adapted over time to exploit the technical language in the bans. In 2019, Kamala proposed updating and broadening the bans to cover all AR-15-style assault weapon imports.
Close the dating partner loophole. While the Bipartisan Safer Communities Act was designed to narrow the so-called “dating partner loophole,” we found strong evidence that it isn’t working as intended: Last year, fewer gun sales were denied on the basis of “misdemeanor crimes of domestic violence” – the provision at the heart of the loophole – than in the two years before the BSCA became law. In part, that’s because the definition of “serious dating relationship” remains unclear. In 2019, Kamala proposed a fix that’s still applicable today: Create a list of factors that prove a sufficiently serious relationship exists, like cohabitation, relationships lasting six months or more, or marital engagement (read more about it here).
EVERGREEN PARTNER SPOTLIGHT
Optimizing Gun Crime Intelligence
Featuring the Joyce Foundation
Community Violence Intervention Action Plan
Featuring Community Justice, the HAVI, NICJR, CBPS Collective, and the Urban Peace Institute
Featuring Brady: United Against Gun Violence
Featuring the Northwell Health Center for Gun Violence Prevention