A 2005 law protects gun companies from liability suits, making it difficult for victims of gun violence to challenge the industry. Diane and her guests explore how gun makers got special protection, and new attempts to change the federal law.

Guests

  • Andrew Arulanandam director of public affairs at NRA.
  • Richard Feldman president of the Independent Firearm Owners Association.
  • Josh Horwitz executive director of the Coalition to Stop Gun Violence.
  • Peter Wallsten national politics reporter at The Washington Post.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. In 2005, Congress passed a law protecting gun companies from liability suits. Gun companies praised the law, arguing the industry should not be held responsible for criminals' actions. Gun control advocates were outraged saying other consumer product manufacturers are not granted such immunity.

  • 10:07:23

    MS. DIANE REHMHere to discuss the history of the law and new calls to challenge it: Josh Horwitz of the Coalition to Stop Gun Violence, Peter Wallsten of The Washington Post, and joining us from a studio at Emerson College in Boston, Richard Feldman of the Independent Firearm Owners Association. I hope you'll weigh in. Give us a call, 800-433-8850. Send us you email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning to all of you.

  • 10:08:03

    MR. JOSH HORWITZGood morning.

  • 10:08:03

    MR. PETER WALLSTENGood morning, Diane.

  • 10:08:05

    REHMGood to have you with us.

  • 10:08:05

    MR. RICHARD FELDMANGood morning from Boston.

  • 10:08:07

    REHMThank you. And, Peter, if you would begin by explaining to us the Protection of Lawful Commerce in Arms Act.

  • 10:08:19

    WALLSTENWell, I can try my best. It's a long and confusing sometimes law. But in 2005, after several years of trying, the National Rifle Association and its allies in the firearms industry successfully got Congress to pass this law. The background is that a lot of cities at the time were filing lawsuits, New Orleans, New York, Chicago. Cities were viewing guns as a public nuisance, and they decided that one of their -- one of the best ways to try to cut back on violence was to sue the industry because as they said, the industry was saturating.

  • 10:08:56

    WALLSTENThe saturate in the market and guns were flowing into cities. So this was their goal, and the NRA went to Congress and said that this was going to destroy the industry and, therefore, destroy the second amendment. And they got Congress to pass it. And the law gives very broad immunity against liability suits. There are some narrow exemptions there that others here can explain as well. But basically, if a gun is used in a crime, the victims or their families cannot be allowed to sue the industry or the gun dealer.

  • 10:09:40

    REHMAnd that seems rather interesting today considering the number of shootings that are taking place. Josh Horwitz, there are other consumer products where manufacturers do not have this kind of liability protection.

  • 10:10:06

    HORWITZWell, look, there's almost no other product that has similar protections. It's a very, I think, a very interesting place. One of the things that makes this law so, I think, egregious is that there's no alternative dispute resolution at all. So, for instance, Congress has limited lawsuits against vaccine manufacturers, but they created a vaccine court for those specific cases. We have medical malpractice caps in certain states where you can go forward. In this situation, your case gets immediately dismissed. There's no discovery.

  • 10:10:37

    HORWITZAnd when you sort of think -- you think about it, the natural misuse of a firearm would be a criminal result, and that's -- that often happens. And so what you want to mind is how the manufacturers and the dealers and the distributors are complicit in that. And now it's almost impossible to do that which is very -- it's a very sad situation.

  • 10:10:58

    REHMRichard Feldman, as president of the Independent Firearm Owners Association, tell us from your prospective why you think the gun industry should be protected from liability lawsuits when, for example, the auto industry is not.

  • 10:11:26

    FELDMANWell, there's a number of reasons, and I think your other guests have already hit on them. The municipal lawsuits against the firearm industry in the 1990s was a true threat to the future of the gun industry. The firearm manufacturers make products for law enforcement, they make products for our military, and if they had been put out of business, we would be left with buying firearms from foreign sources. Now, let's be real clear about what the law does and what it doesn't do.

  • 10:12:02

    FELDMANIt doesn't protect a manufacturer from a defective product. I'd be the first one suing if a defective gun were put into the stream of commerce and it injured someone. We're talking about guns that are specifically non-defective, work exactly as the manufacturer states they work and unfortunately, end up in the hands of someone whom misuses them. It would be like suing Ford or General Motors every time an inebriated driver gets behind the wheel of one of their cars and causes grievous injury.

  • 10:12:45

    FELDMANWe don't sue the car manufacturers for that, and they were suing the gun manufacturers for the illegal criminal misuse of that product. Guns are an unusual instrumentality in that in order for them to be effective, they have the great potential to cause grievous bodily damage in the hands of a police officer or a citizen using that gun to protect themselves in the community, we applaud it. The same firearm in the hands of a deranged person or a criminal can cause horrible injuries. But we must focus in this country as adults on the problem, which is always in whose hands are the guns.

  • 10:13:37

    REHMRichard Feldman, he's president of the Independent Firearm Owners Association. You are welcome to join us. Give us a call, 800-433-8850. Josh Horwitz, supporters of the law say, why should they be sued for making a legal product that is clearly in such a demand?

  • 10:14:08

    HORWITZWell, I think Richard really hit on something when he said firearms can be used for different ways by different people. And the structure of the suits that I've been involved with and I think the city suits and my private suits are that you're trying to look at how -- exactly how the firearms are marketed. And Richard hit on the fact that there are places, times when firearms end up in the hands of people, we all agree that they shouldn't have them.

  • 10:14:31

    HORWITZAnd, really, the question is, what's the role of a dealer or a manufacturer in putting those firearms in the hands that shouldn't have them? These lawsuits mine that. If you're a responsible marketer, you create channels. And when you want to get products wide open to everybody, you open the channels. And when you don't, you close the channels. And what we're looking at in these cases is the negligent distribution, or the distribution is in a nuisance manner. And manufacturers can control those things. I'll give you an example.

  • 10:15:00

    HORWITZDrug manufacturer Purdue Pharma had a huge problem with OxyContin. They were sued many times for the illegal use of that drug. And they were sued by huge amounts of fines to the federal government. And if there was no liability, Purdue Pharma wouldn't change their ways. And what they did to narrow that channel is they actually paid bounties to their sales reps to say when you see someone overprescribing this, you come back and tell us. The firearms industry is willfully blind.

  • 10:15:27

    HORWITZThey get trace reports from their dealers, saying, you know, from the federal government that says, this gun was used in crime, can you tell us who you sold it to? That's a treasure trove of information to mine. You get that if you have a dealer who's selling a lot of guns that end up in crime. How about training that dealer better? How about putting restrictions on that dealer? How about maybe not selling to that dealer? And so I think that the firearms industry has some culpability here, and those lawsuits want to mine what was happening, what they knew and how they could narrow that channel.

  • 10:15:56

    REHMPeter Wallsten, give us some of the background as to when and how this law came into place, the idea of cigarettes and tobacco. That was around at kind of the same time, wasn't it?

  • 10:16:16

    WALLSTENIt was. The -- some folks, I think, saw the tobacco litigation as kind of a model. I mean, there are different situations and different arguments in some respects, but the idea of going after this industry that in the eyes of cities of mayors was affecting their cities and affecting the livelihoods of the residents of those cities, this was seen, again, as a public nuisance, to use the term of art, and they -- and so these cities started to go after the industry. And that's why the NRA and the gun manufacturers did get together and make a very strong case.

  • 10:16:52

    WALLSTENAnd as -- Richard mentioned the arguments about the military weapons, the providers to the U.S. military. Well, interestingly, the Bush administration supported this legislation. In fact, the top lawyer at the Pentagon wrote a memo to Congress, making the argument that Richard just laid out, and the White House did a memo. So there was a lot of pressure brought to bear on Congress. And by the way, this was a bipartisan bill that was passed overwhelmingly by partisan Democrats and Republicans.

  • 10:17:18

    REHMIt actually started at the state level, didn't it?

  • 10:17:22

    WALLSTENYes, there were some state laws pushed. And that's, by the way, a model that the NRA has had great success with on a range of gun laws. They go to the state legislatures and they -- whether it's the laws that allow for concealed carry or even a few laws now that are starting to be debated where they would -- states want to limit the ability of doctors to ask their patients about gun use at home and gun ownership at home, these are -- state legislatures are used as a model, and sometimes they bring these to Congress and that did happen in this case.

  • 10:17:54

    REHMAnd what about the Tiahrt amendment, how does that play in?

  • 10:17:59

    WALLSTENWell, that's interesting because -- so that's the name of an amendment that was passed two years earlier. I think it was 2003. This -- the law we're -- the liability law was passed in 2005. It was kind of a second punch of a one-two punch.

  • 10:18:13

    WALLSTENThe Tiahrt amendment in 2003 limited -- seriously limited the ability of plaintiffs in these lawsuits to bring lawsuits because what it did is -- the ATF develops a database, a tracing database when crimes are committed where they can trace guns back to the dealers that sold them. So this eliminated public access to that data, and therefore lawyers couldn't get the data to bring their suits.

  • 10:18:37

    REHMPeter Wallsten, he's national politics reporter at The Washington Post. We'll take a short break. When we come back, we'll go back to Richard Feldman and talk about comparisons to the tobacco industry.

  • 10:20:05

    REHMAnd we're talking about a 2005 law that Congress passed, protecting gun companies from liability suits. Here in the studio: Josh Horwitz, he's executive director of the Coalition to Stop Gun Violence, and Peter Wallsten, national politics reporter at The Washington Post. Joining us from a studio at Emerson College in Boston: Richard Feldman, president of the Independent Firearm Owners Association.

  • 10:20:45

    REHMAnd we are going to open the phone shortly and take your calls, 800-433-8850. Richard Feldman, I know you represented the gun industry against suits from cities. Why do you see the gun industry as being different from the tobacco industry?

  • 10:21:12

    FELDMANA good question. And the point is that when you use tobacco products as intended to be used by the tobacco manufacturers, they are harmful to your health. Ultimately, they will kill you. When you use firearm products as they are intended to be used by firearm manufacturers, they can save your life. They can protect your community. They can protect our country. It always goes back to the question of in whose hands are the guns.

  • 10:21:49

    FELDMANThe very same scary-looking black guns that we see on television in the hands of local law enforcement or civilian using that gun lawfully to quell a disturbance or a situation, it's great. And the very same gun in a criminal's hands is terrible. So it's not the product like tobacco, but the question of who possesses the gun and for what purpose they're using it.

  • 10:22:22

    REHMJosh, do you agree?

  • 10:22:23

    HORWITZWell, I think -- I mean, the heart of what Richard is saying is right. But what we're saying is that the industry is complicit in putting them in the hands of the folks who shouldn't have them and the idea that we can stop discovery about that, that we can cover up the data about that. The, you know, tort system is there as an adjunct to the criminal law to get to the -- to when private individuals or cities have damages to get to the very issue of how these guns transfer in time.

  • 10:22:51

    HORWITZI'm involved in a case, Ileto v. Glock, where these, you know, the guns that were used in the case that I represent were sold to someone who is a prohibited purchaser because he's a felon. He was a neo-Nazi. He was able to buy a firearm without a background check at a gun show in Washington and then take those weapons to California and kill innocent children in a Jewish community center in California, in Los Angeles.

  • 10:23:17

    HORWITZAnd what we've always maintained in that case is that the industry and the dealers involved were complicit in arming those folks. And we believe that we should be able to go to trial on that issue. Now, Glock, after this law -- one of the guns was a Glock -- was thrown out of the case because they're an American manufacturer. We believe we should get to discovery. We believe that we should be able to get to trial. The other gun in the case is a Chinese-made weapon.

  • 10:23:42

    HORWITZThe people who were shot with the Chinese-made weapon were going to trial in the fall. The people who were shot with the Glock are out of the case. So we just got through some re-judgment. A judge has said you have a right to go to trial. This law cuts us off with an ease and closes the courthouse door to a bunch of plaintiff -- a plaintiff just because of where the gun was made.

  • 10:24:01

    REHMPeter Wallsten.

  • 10:24:02

    WALLSTENWell, it's interesting 'cause we're talking about crimes here and shooting sprees like the one at the Jewish Community Center. This law has also affected cases where accidents happen and some people feel that the weapons could've been made safer. And remember that it's litigation of the threat of litigation that led the auto industry to make a lot of safety improvements, airbags and so forth.

  • 10:24:22

    WALLSTENThere was a 2009 case in Illinois where a 13-year-old kid was playing with a gun with his friend and accidentally shot and killed his friend. The victim's family sued because they said that the gun, which had an indicator on it showing when ammunition was in the chamber, that the indicator was not good enough and that the kid didn't realize. In fact, he thought that he had emptied out the chamber, and he was playing with it and putting ammunition in and taking it out.

  • 10:24:51

    WALLSTENHe thought he'd emptied it out. He didn't notice that the -- what the indicator said, and he shot his friend. Now, that's not a crime per se, but he was -- that 13-year old was, by the way, adjudicated guilty of manslaughter. And so based on that, the gun company was able to get the case thrown out based on this law.

  • 10:25:10

    REHMHmm. Interesting. Here's an email from Eric, who says, "If someone deliberately runs over and kills 10 people with an automobile, Ford or GM is not liable. I also know sarin gas is illegal to release in Japan, but that didn't keep it out of the subway. Why don't we talk about how to change a culture that doesn't value human life?" Josh.

  • 10:25:45

    HORWITZWell, I think the cultural aspects here are giant, and I think we should not diminish those things. And there are lots of people who are dealing with that. The thing that I'm focusing on is that if the sarin gas manufacturer marketed to people who wanted to use that in the subway, they would be held responsible. If, you know, if you look at premises liability, you have landlords who don't take enough responsibility and criminals come on their property, and they get sued for that.

  • 10:26:11

    HORWITZSo the mere act that someone's involved in a crime should not insulate the entire industry. It's the culpability of the person. It's what they did to promote that activity or to restrict that activity. And our idea is that not everybody, but in many instances, there are dealers, distributors and manufacturers who aid and abet criminals. And maybe it's not -- maybe it doesn't amount to a crime. We all know that we have weak gun laws in this country. But it does -- it is unreasonable behavior. And that unreasonable behavior is the center of what makes a tort claim.

  • 10:26:41

    REHMRichard Feldman, unreasonable behavior?

  • 10:26:47

    FELDMANWell, as Josh and Peter know, I'm the guy that negotiated the child safety lock arrangement and made that announcement in the Rose Garden with Bill Clinton. I did it on behalf of the handgun industry because it made sense. Our organization, the Independent Firearm Owners, enthusiastically supports mandatory background checks at gun shows. We think it's just the height of craziness that we allow people in the same position as a dealer to sell guns without those background checks at those shows.

  • 10:27:24

    FELDMANThe problem when you talk about tracing guns back to a dealer, that dealer could well and normally has sold the gun through the next background check. The gun is subsequently been sold to other people or stolen from a lawful owner. But when you do that check, the -- and run that, it comes back to that gun shop. That gun dealer has no responsibility unless, and then he's not protected, he somehow violated the law in the first sale of that gun to the person who bought it.

  • 10:28:03

    FELDMANBut if that person passes the background check -- and let's use a real-life example, the shooter in Columbine, Cho. Cho had a civil commitment before he bought those guns, but the commonwealth of Virginia never reported it into the next system. So the gun dealer who sold those guns to Cho was never sued. Had he been sued, he would've been able to bring in the Commonwealth of Virginia.

  • 10:28:32

    FELDMANIf he did anything wrong, it was because the commonwealth of Virginia authorized that sale of those guns to Cho. So we have to be very careful in the language we use and not throw around terms like crime guns. And because it gets traces -- traced back to a dealer, that doesn't necessarily mean the dealer was even knowledgeable about the ultimate user or misuser of the gun. We have to be very careful as adults in this debate and delineate our terminology, our language so that we can have clarity and focus in on the problem.

  • 10:29:14

    REHMJosh, are there any legal ways around this shield?

  • 10:29:22

    HORWITZWell, there are some exceptions to it. If there's -- if the dealer or the manufacturer has committed a crime, there's a ways around it. If the individual is called -- has been found to be negligently entrusted, like I gave a gun to you and I knew that you were mentally disabled, for instance, the product liability exception is very, very narrow. I work with the American Association of Justice and I work with some of the attorneys there who have brought cases for years.

  • 10:29:49

    HORWITZWe had a group at one time, a modest group, 15, 20 people who did firearms litigation. There's nobody left because it's almost impossible to bring a case now. And the risks of litigating -- you have a great case in the Lawful Commerce Act -- can get rid of your case, you know, at any time. And so it's just a huge risk, and it really chills people's rights from going forward.

  • 10:30:09

    REHMPeter, I gather you spoke with families of victims in the Newtown shooting and from Aurora. What is their reaction to the shield law?

  • 10:30:23

    WALLSTENSo, yeah, my colleague, Tom Hamburger, spoke with a mother, Veronique Pozner, whose 6-year-old son was killed in Newtown. You know, she's become very familiar with this law. Her lawyer -- they -- she has a lawyer working with several of the families there. They're very concerned. They would -- they are considering a lot of options.

  • 10:30:41

    WALLSTENOne of them that they -- that they're thinking about is, is there a way to go after Bushmaster, the maker of this weapon that was used, because there was no device on it, no biometric device that could have prevented Adam Lanza from using that, because his mother was the licensed owner of the weapon. That technology does exist. They would like to be able to sue for Bushmaster not having adopted that device, which, they would argue, is readily available, which the victims' families would argue is readily available.

  • 10:31:13

    WALLSTENThey feel like that may not be possible with this law. In Aurora, I spoke with the lawyer representing a bunch of families there. They're suing the movie theater company. Even though the families would like to go after the online company that sold the ammunition or the companies that might have helped the shooter get his weapons, they feel that they can't. They're going after the movie theater company for a variety -- on a variety of claims, but not the firearms industry at all. They just feel like that door is shut.

  • 10:31:46

    REHMDoes that make sense to you, Peter, that they would go for the -- sorry, Josh -- that they would go for the movie theater, that they would go for some other entity?

  • 10:32:00

    HORWITZThe problem with the Lawful Commerce Act is it makes the risk of suing gun manufacturers untenable. So, for instance, I've been -- my case -- in my case, we filed in 1999 after the Jewish Community Center was shot -- that's where the big shooting was -- we didn't -- we're just now back at the trial court because we spent five years litigating this issue. So the chilling effect is just dramatic.

  • 10:32:22

    HORWITZAnd if you're a lawyer and you represent young people, you'd like to get to a place where you can get that case to trial and not spend, you know, two, three years in the court of appeals. That's what the Lawful Commerce Act guarantees, and so the chilling effect is just dramatic.

  • 10:32:35

    REHMJosh Horwitz, he is executive director of the Coalition to Stop Gun Violence, and you're listening to "The Diane Rehm Show." And joining us now is Andrew Arulanandam. He's director of public affairs for the National Rifle Association. Good morning to you.

  • 10:33:01

    MR. ANDREW ARULANANDAMGood morning to you, Diane.

  • 10:33:03

    REHMHelp us to understand why the NRA believes that the gun industry should be treated differently than every other consumer product industry. Why should guns be exempt from the civil justice system?

  • 10:33:24

    ARULANANDAMThe genesis for this law was due to the fact that there was political effort in the '90s, in the 1990s, to go after the gun industry and try to bankrupt them. This was basically a political move that was being shepherded through our legal system. This law does not shield any manufacturer or retailer who knowingly violates any law for this law to -- for them to receive protection, under the protection of Lawful Commerce in Arms Act. They must come to the table with clean hands. So for anyone to say that this bill provides blanket immunity, that is a gross misstatement.

  • 10:34:12

    REHMYou know, Andrew, it's interesting to me that the NRA advocates for gun ownership rights, but this law helps the industry, not necessarily owner. So why is the NRA so in support?

  • 10:34:33

    ARULANANDAMWell, because what would have happened is the industry could have been put out of business, and thereby it would have affected the consumers. These were -- these aren't cash-rich industries like the tobacco industry, but the lawsuits were pretty much modeled after the tobacco lawsuits. What they were trying to do was to hold law-abiding manufacturers and retailers responsible for the actions of criminals when these retailers and manufactures have not violated any law. We think that's wrong.

  • 10:35:09

    ARULANANDAMIf there's anyone who should be held responsible, it's the criminal himself. Go after the criminal with full gusto. That's where the burden of a judicial system and the laws ought to be.

  • 10:35:22

    REHMNow, on another subject relating to guns, talk about why the NRA is opposing background checks. Why did Wayne LaPierre claim background checks could become a national registry after having earlier said he would support background checks in 1999?

  • 10:35:52

    ARULANANDAMDiane, the National Rifle Association has always maintained that those who are adjudicated as mentally defective or deemed to be a danger to others, a danger to themselves and those criminals and other disqualified people ought to have their names in the National Instant Check System. That's the right thing to do. The problem is the National Instant Check System is woefully inadequate as we speak.

  • 10:36:19

    ARULANANDAMThere are 23 states that don't send one bit of information on mental health data into the NICS system. Therefore, it does not make sense to expand something when the basic foundation isn't there. That's the basic premise. When Wayne LaPierre testified in 1999, you know, that was about 15 years ago, and in that 15 years, we still have an incomplete National Instant Check System. That's the problem. The focus ought to be on fixing that, not on expanding something when the basic foundation isn't there.

  • 10:37:05

    REHMThe basic foundation isn't there, Josh Horwitz?

  • 10:37:09

    HORWITZWell, I'm sort of fascinated because actually the felony records are really up to date in that system, so if you're trying to keep guns away from felons, it's a great system, and we should be using it today. I think what Andrew is referring to is that some states don't report mental health issues to that. And we can do a better job with that, but we should be checking for felons nationwide on every sale right now.

  • 10:37:29

    REHMAll right. We'll take a short break here. Andrew, I hope you can stay on the line with us as we take some calls after a short break.

  • 10:40:05

    REHMAnd we're talking about laws in place protecting the gun manufacturers from any liability. With me here in the studio, Josh Horwitz of the Coalition to Stop Gun Violence, Peter Wallsten of The Washington Post. Joining us, from a studio at Emerson College in Boston, Richard Feldman of the Independent Firearm Owners Association, and just briefly, Andrew Arulanandam, director of public affairs for the National Rifle Association. Peter Wallsten, you had a question for Andrew.

  • 10:40:54

    WALLSTENWell, Andrew, you -- we've -- you were talking about the exceptions and that it's not blanket immunity, this liability law. It's certainly not. I mean, there are exceptions in the lobby you laid out. But I was wondering if you could talk about cases that have preceded, where those exceptions have been -- those exemptions have been accepted, and where the lawsuits have gone forward and the manufacturers have been held accountable in court.

  • 10:41:22

    ARULANANDAMWell, there have been numerous lawsuit filed following the passage of the law. However, you know, the basic premise of these lawsuits were basically to hold manufacturers and retailers who, in the eyes of the law, had not broken or violated any statute. As a result, a vast majority of these cases were thrown out of court.

  • 10:41:50

    ARULANANDAMI'm not a lawyer, so I don't track these things with as much care as a lawyer would. But to the best of my knowledge, there has not been any case that move forward for the simple reason that the courts found that the retailers and manufacturers had not violated any local state or federal statute.

  • 10:42:16

    REHMAll right. And one last question for you. I know you have to get to the airport. Senate Democrats are introducing legislation. President Obama is taking his case on the road. He currently has some 60 percent approval rating. I wonder if you might think that the NRA is on the wrong side of history.

  • 10:42:49

    ARULANANDAMDiane, I think we're on the right side of history. We are on the side of law-abiding gun owners. Our premise is very simple, and it's supported by a vast majority of Americans, enforce existing gun laws. We have enough gun laws on the books that aren't enforced. I think there's universal agreement on that. And until we start enforcing these laws, we shouldn't put any additional laws in the books because it does not make sense.

  • 10:43:17

    ARULANANDAMAnything illegal that anyone can do with a firearm is already illegal on the current law. The problem is there is woeful act of enforcement. There are not enough arrest, prosecutions and punishment. And we also need to fix a broken mental health system that seems to be the root to a lot of violence in this country.

  • 10:43:38

    REHMAndrew Arulanandam, director of public affairs for the NRA. Thanks for joining us.

  • 10:43:47

    ARULANANDAMThank you so much, Diane. Take care.

  • 10:43:48

    REHMAnd we'll go now to the phones, 800-433-8850. Send us your email, to drshow@wamu.org. Let's go first to Eugene, Ore. Good morning, Bob.

  • 10:44:08

    BOBGood morning and thank you for allowing me to call in.

  • 10:44:11

    REHMCertainly.

  • 10:44:12

    BOBI wanted to thank Richard for making some very good, logical connections and defenses for the ownership of legal weapons, and I thought he made a good case for why we should be allowed to. And I'm very concerned about Josh trying to take my legal right away from me in owning a weapon. I don't believe you can blame the manufacturer. And how can you legislate or judicialize against stupid? When people are doing these types of things and are on psychotropic drugs and mental illness, how can you legislate against that? You never ever can.

  • 10:44:51

    REHMAll right. Josh.

  • 10:44:52

    HORWITZWell, look, I've never say about -- anything about taking firearms away from anybody. I think what were talking about here is whether the manufacturers have a responsibility in the distribution of their product. The tort system is expressly -- and civil justice system is expressly there to augment the criminal justice system. In here, we're talking about the distribution by manufacturers. This discussion has nothing to do with whether -- about lawful firearms ownership. It assumes lawful firearms ownership.

  • 10:45:18

    HORWITZWhat we're saying is our manufacturers complicit in getting guns to criminals. That's -- we all want guns -- less guns to criminals, and this is how you would normally do it, by looking at the civil justice system and seeing if manufacturers and distributors are culpable. We're not allowed to do that now and that's the problem.

  • 10:45:34

    REHMAll right. To Plano, Texas. Good morning, Dick.

  • 10:45:39

    DICKHey, Diane. Loving your show.

  • 10:45:40

    REHMThanks.

  • 10:45:40

    DICKThank you very much for the topic. I just have a comment. Maybe I can get a feedback from your guests, any of them, that dating back to the 1990s when big city mayors and police chiefs claim that these firearms were public nuances, these same cities, on one hand, were saying this. And on the other hand, we're going to the exact same manufacturer and soliciting this in contract to supply their police agencies with the same public instances.

  • 10:46:10

    REHMPeter.

  • 10:46:12

    WALLSTENI don't have any -- I don't know about that. I guess, what he's talking about for firearms for police departments and so forth, and maybe that was happening. I don't know the background on the issue.

  • 10:46:22

    REHMJosh.

  • 10:46:22

    HORWITZBut you got to realize it's not about the gun itself. It's about how they were distributed.

  • 10:46:26

    WALLSTENRight.

  • 10:46:27

    HORWITZSo when guns go to law enforcement, that's fine. The question is with manufacturers using mechanisms. Why open marketing channels to get guns to criminals? So it's not the gun that we're going after. It's the manufacturers' practices.

  • 10:46:42

    WALLSTENOne other point that's interesting here is that part of the law, again, protects gun dealers, not just manufacturers. It also, by the way, protects trade associations. But the dealers, before this data, before the Tiahrt Amendment that we're talking about earlier, made it impossible for reporters and lawyers to see the tracing data. You were able to see where the dealers were.

  • 10:47:04

    REHMI see.

  • 10:47:05

    WALLSTENAnd there was actually -- the vast, vast majority of gun dealers were perfectly fine. They had -- they really didn't have a problem. The -- what wasn't found -- and there was a study at the time that showed that it was a very small number of dealers who were selling the guns that were used in the vast majority of the crimes. And now, that public scrutiny isn't allowed on the dealers.

  • 10:47:26

    REHMRichard Feldman.

  • 10:47:28

    FELDMANWell, as Josh certainly knows, in the gun industry, manufacturers ship guns to wholesalers, their licensed wholesalers. Licensed wholesalers ship guns to licensed dealers. The first place that a dealer sells a gun to a consumer is at a gun shop, and they go through the Brady background check, the NICS check, and then the 2473.

  • 10:47:55

    FELDMANSo assuming system is up to snuff, that first transfer is always a lawful transfer. It's after it leaves the hands of the industry that things can happen, in resale, at gun shows. And we're not even talking here on the show about the biggest problem of all, which is the 500,000 thefts of guns every year in this country.

  • 10:48:21

    FELDMANThis evening, here at Emerson College, we're going to be having a forum on gun violence and what we can do to move this agenda forward. I look forward to this evening and to taking a new approach to the problem. It's really time that we grow up in this country and the adults come to the table, and we stop the silliness and the bumper stickers and focus in on the problem because we can do things about the problem, but we -- yes?

  • 10:48:53

    REHMAnd, Richard Feldman, what would you say is the problem?

  • 10:49:02

    FELDMANThe single biggest problem is the fact that criminal steal 500,000 guns every year in this country. I believe we can fix the problem at gun shows with minimal effort. I support what Wayne LaPierre said 15 years ago in his testimony. He was right then, he's wrong now. But that fix won't have a great impact on criminals who steal 500,000 guns. There are things we can do to make the theft of guns less attractive to criminals.

  • 10:49:34

    REHMAll right. Let's take a caller in Sag Harbor, N.Y. Good morning, Geraldine.

  • 10:49:41

    GERALDINEGood morning, Diane. Thank you so much for having such wonderful people on this discussion. It's a long time coming.

  • 10:49:47

    REHMGood.

  • 10:49:48

    GERALDINEMy question is, what is the impediments to licensing gun owners the same way they got FAA licenses pilots? If you want a basic pilot's license, you go through minimal training, you meet minimum standards, you can fly a private pilot or -- you can private pilot an aircraft. If you want to fly a multi-engine aircraft, you need to earn it. You need to earn better flight skills. If -- the same would go for weapons.

  • 10:50:13

    GERALDINEIf you want to own something basic for home protection, it should be relatively simple, a full background check, and you should prove that you could -- you've been through gun safety, and you know where to store it and how to handle the gun. If you want something high performance, you should go through an MMPI, and it's like a background check and proof to the public that you are safe, that you are -- can be trusted with public safety.

  • 10:50:37

    GERALDINEAnd these licenses should be carried on person so that they must be presented at the time of purchase in order to buy a gun in each specific classification. I just think we should start licensing people and not guns. It's...

  • 10:50:52

    REHMWhat do you think about that, Richard Feldman?

  • 10:50:56

    FELDMANUnlike flying an airplane, owning a firearm is a right guaranteed by the Second Amendment and stated as such by the Supreme Court of the United States. You don't need to go through background checks to vote. This is a right as an American. I do draw a line, and I have some sympathy with that your caller said. When carrying on the public streets, not in your home, not on your property, I think it's reasonable to require some training in the use of the gun and something we don't do in any state require some information and training on the law on the use of deadly force.

  • 10:51:42

    REHMJosh.

  • 10:51:42

    FELDMANWe don't do that.

  • 10:51:44

    HORWITZWell, look, I think license in the states that have this type of system that the caller talked about have a far lower rate of crime guns originating in that state, New Jersey, New York, California. Those states have a wonderful job of keeping guns out of the hands of criminals, so I think that process works. I think its also worth noting, when you think about the Second Amendment, that the Heller decision, which is the decision that found the right to have a handgun in your home for self-defense not -- require the District of Columbia to license and register that gun.

  • 10:52:13

    HORWITZThe Supreme Court at -- in D.C., there's license and registering. If you do that, you can have a firearm in your home. It's hard for me to believe that Justice Scalia is telling someone to license and register and then would find that unconstitutional. I think those are the things that are completely reasonable under the Second Amendment.

  • 10:52:29

    REHMAll right. And to Jonesborough, Tennessee. Good morning, Phil.

  • 10:52:35

    PHILGood morning. I'm sorry that the gentleman from the NRA has left because I disagree with him about gun shows and not doing background checks and registration. As way of background, I was raised in a family -- we have always had guns in our house and grew up, got married. I have guns in my house now. I have absolutely no problem with registering guns at gun shows. I see it as the giant loophole. Now, I think Mr. Feldman stated that they support registration and background checks, and I'd like to confirm that and if that's true, if they're actively lobbying Congress on that particular subject.

  • 10:53:25

    REHMRichard.

  • 10:53:27

    FELDMANYes, it's true, and we call our legislation the Gun Show Preservation and Protection Act of 2013. We think that non-licensees ought to be putting background checks through the sale to people they don't know at gun shows. You heard me correctly the first time. I have several chiefs of police on my board of directors. They trust the citizens with guns.

  • 10:53:56

    FELDMANBut when you don't know who it is you're selling a gun to, you can innocently sell it to someone who would be banned and on the next check. That's why the next check, although it needs some upgrading, it does work. Gun shops don't sell guns to criminals directly because they put them through the next background check.

  • 10:54:15

    REHMAnd you're...

  • 10:54:16

    FELDMANBut the real problem is those 500,000 stolen guns.

  • 10:54:19

    REHMAnd you're listening to "The Diane Rehm Show." Richard Feldman has mentioned stolen guns many, many times. I wonder whether he is correct that those stolen guns are the ones being used in these criminal attacks, Josh.

  • 10:54:42

    HORWITZWell, it's -- there's certainly a problem with stolen guns, there's no doubt about that.

  • 10:54:44

    REHMSure.

  • 10:54:45

    HORWITZBut the big issue is how many of them are really stolen because what we see is that people who are trafficking firearms will say, oh, my gun was stolen. Oh, my gun was lost. We saw that recently in the shooting in New York where someone had purchased a gun in Virginia, gun ended up shooting a police officer in New York. When they went back to the person in Virginia, he said, I lost my gun -- never reported it.

  • 10:55:06

    HORWITZYou know, it was probably stolen during a move he said. So I think you can -- if that's the case, then we should have lost and stolen reporting to make sure that, in fact, people are reporting those things and so that we know that they're not gun runners, and they're actually law-abiding citizens.

  • 10:55:18

    REHMSo, Peter, at this point, there is some attempts in Congress to somehow tweak, change, move this issue forward. What's there?

  • 10:55:32

    WALLSTENOn the liability law?

  • 10:55:33

    REHMYeah.

  • 10:55:33

    WALLSTENYes. So Congressman Schiff, Adam Schiff from California, a Democrat, is from the suburban -- from the L.A. suburbs is -- has a bill that he's put together. He's got about a dozen co-sponsors that would make it easier for lawsuits to proceed. It's not clear how much of a chance it has. That, you know, the Democrats -- the House Republicans run the show in the House, and there doesn't seem to be any action in the Senate at the moment.

  • 10:55:59

    REHMAnd on the identification question, what about Mayor Bloomberg and his efforts? Is that going to bring similar kinds of money to the table that the NRA has?

  • 10:56:14

    WALLSTENWell, it's interesting because the NRA has spent -- has a large budget, couple $100 million a year, and they are able to use it, not just for, you know, the power of the NRA is not just in campaign contributions, which are spread pretty far and wide but not in huge amounts per race. It's really in the energy and the mobilization of their base, 4 million members. So -- but they also spend money in lobbying in the state and federal level.

  • 10:56:40

    WALLSTENThe Bloomberg operation, Mayors Against Illegal Guns, they're going to start spending money not only in races to try even out the influence of the NRA but also in state and federal level lobbying. And there's a lot of money there. And the question is whether now, for the first time, there's going to be a real competitor on the financial level that the NRA is able to achieve.

  • 10:57:01

    REHMPeter Wallsten of The Washington Post, Josh Horwitz of the Coalition to Stop Gun Violence and Richard Feldman, president of the Independent Firearm Owners Association. Thank you all.

  • 10:57:19

    WALLSTENThank you.

  • 10:57:19

    HORWITZThank you.

  • 10:57:21

    FELDMANBye.

  • 10:57:22

    REHMAnd thanks for listening. I'm Diane Rehm.

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