PLCAA is the Due Process Issue Congress Should Be Talking About
After the Pulse Nightclub shooting left 49 dead, 53 injured, and a nation mourning, Congressional Democrats said “enough.” Senator Chris Murphy filibustered for almost 15 hours and Representatives Katherine Clark and John Lewis led an unprecedented sit-in—all to demand votes on gun violence prevention measures. Among these were expanded Brady background checks and legislation to block known or suspected terrorists from buying guns, the so-called ‘no-fly, no-buy’ bill. Suddenly everyone was discussing whether suspected terrorists would be denied their due process rights. Entirely absent from the debate was the fact that the corporate gun lobby and its lapdogs in Congress have consistently championed one of the most blatant deprivations of Due Process rights – the Protection of Lawful Commerce in Arms Act (“PLCAA”). PLCAA deprives many gun violence victims of their ability to petition the courts. If the NRA is concerned about potential terrorists having their rights taken away without sufficient access to the courts, then surely gun violence victims should also be able to bring their grievances to the courts.
Due Process 101
Due process means the government cannot deprive someone of a right without certain procedures. The Due Process Clause of the Fifth Amendment to the United States Constitution prohibits Congress from taking “life, liberty, or property, without due process of law.” Some claim that “no-fly, no buy” would do just that because it would allow the government to deny a sale first and face challenge later. In a puzzling turn, some of the same members of Congress who supported such dubious legislation as the PATRIOT ACT, now cry “due process” about gun laws. But for some, due process is important only to the extent that it furthers the gun lobby’s interest. PLCCA is the clearest example.
In Which Due Process Rhymes with NRA
PLCAA, which Congress passed at the corporate gun lobby’s behest, attempts to immunize gun manufacturers and sellers from being held liable in many civil cases. No other retail industry has this protection. Think, for example, about the class action lawsuits against cigarette manufacturers that helped reform the tobacco industry. Consider that a person, injured by an irresponsibly sold toy gun, could sue the toy store for negligence. But, because of PLCAA, the family of a person killed by an irresponsibly sold gun could be denied the right to sue the gun store or manufacturer.
Take Joshua Adames’ family. When Josh was only 13 years old, he was killed when his friend unintentionally shot a gun that he though was unloaded. The manufacturer failed to install an inexpensive, standard safety measure that would have shown the gun was loaded. Under standard product liability law, Josh’s family could have sued the manufacturer. But PLCAA denied them their right to have a court hear the case on the merits.
Those who are concerned about due process for gun sales to potential terrorists should also be concerned about due process for innocent people harmed by irresponsible gun sellers and manufacturers. Because, despite PLCAA, courageous plaintiffs nonetheless seek justice, but they often face immediate dismissal. Many others, seeing the PLCAA barrier, do not bring claims at all. PLCAA is more than just a craven law. It is a due process problem.
The right to petition the courts is a cornerstone of the legal system. But in many cases, PLCAA takes away a victim’s right to seek justice in the courts. By effectively depriving Plaintiffs of their right to access the courts without providing them with alternate remedies, as other immunity statutes provide, PLCAA violates the due process clause.
Interestingly, there was no “due process” outcry when PLCAA passed. And both houses of Congress have failed to pass legislation, introduced earlier this year, to repeal PLCAA. It seems for some in Congress, it’s more important that a terrorist can get a gun, than it is for victims of gun violence to be able to have their day in court.