by Gun Owners of America
8001 Forbes Place, Suite 102
Springfield, VA 22151
Seven senators have now withdrawn their cosponsorship from the anti-gun "juvenile justice bill" recently reported by the Senate Judiciary Committee: Wayne Allard (R-CO), Bob Smith (R-NH), Conrad Burns (R-MT), Larry Craig (R-ID), Michael Enzi (R-WY), Rod Grams (R-MN) and Craig Thomas (R-WY). These pro-gun heroes need to be thanked for their courageous and almost unprecedented actions.
Unfortunately, many otherwise conservative senators continue to buy into the rhetoric of the anti-gun advocates pushing this legislation. Because their letters have passed on the misrepresentations which have been made to them, it is necessary to address these misstatements, one by one:
MYTH NUMBER ONE: Senator James Inhofe from Oklahoma states: "I have addressed this issue [of treating gunowners like organized crime figures] to Senator Hatch and have been assured that is not the intent."
FACT: Tragically, it is not Senator Hatch's "intent" which will determine the way this language is interpreted. Rather, it is the liberal judiciary -- the same judiciary which has often refused to recognize that the literal language of the Second Amendment is a legitimate part of the Constitution.
When the statute which is now being applied to guns, the Racketeer Influenced and Corrupt Organizations Act (RICO), was originally passed in 1968, it was presumably not the "intent" of the drafters that the statute be used to persecute abortion protesters or legitimate businesses. And yet, this is the way the courts have interpreted it.
It is extraordinarily foolish to enact over-reaching legislative language with the expectation that the courts will use restraint in interpreting the language which the legislature did not use in writing it.
In fact, statements from Senators who have removed their names as cosponsors indicate that there are very real problems with S. 10. Consider the statement of Senator Conrad Burns:
[S]ections of the bill [S. 10] contain provisions that would infringe on an individual's Second Amendment rights. Although, Senator Hatch has informed me that he intends to review these sections, I do not feel that these modifications are occurring quickly enough and have doubts that the changes will protect our Second Amendment guarantees. For this reason, I have removed my name as a co-sponsor of S. 10.
MYTH NUMBER TWO: Senator Jon Kyl of Arizona states: "The section making firearm offenses subject to organized crime laws has been revised to exclude paperwork offenses. . . . As to increasing the liability of firearm dealers, there is no provision in either bill that would make firearm dealers or manufacturers liable [under RICO] for crimes that are committed with guns they have sold."
FACT: Changes made by the Senate Judiciary Committee did remove SOME of the serious problems from the bill. However, Senator Kyl's statement is still tragically incorrect.
As stated by Joe Phillips, the NRA's Director of Federal Legislation:
[S. 10] is not a perfect bill. There were a number of things that were supposed to have been fixed in the final passage of that bill . . . primarily in regard to violations under the use of RICO offenses that were not taken out. . . . It [S. 10] is not quite as good as portrayed at final passage of that bill.
What does this mean for gun dealers and manufacturers?
Let's assume a firearms manufacturer such as Intertech is sued under the new provisions in S. 10 by two victims of crimes committed with its firearms. Assume, further, that the plaintiffs contend that:
* Intertech "should have known" that its firearms were particularly favored by criminals and thus that it had "reasonable cause to believe" its firearms would be used to commit felonies, in violation of 18 U.S.C. 924(b).
* Intertech's actions in selling this particular type of firearm therefore "knowingly" furthered the Federal serious violent felonies which were committed by the street gangs which Intertech knew particularly favored its products.
* Intertech's violations of 18 U.S.C. 924(b) therefore constituted "racketeering activity" under 18 U.S.C. 1961(1), as amended by section 206 of S. 10.
* Because Intertech sold more than one firearm, its multiple violations of 18 U.S.C. 924(b) constituted a "pattern of racketeering activity" under 18 U.S.C. 1961(5).
* Because Intertech used the proceeds of its "pattern of racketeering activity" to run its business, it therefore committed a violation of RICO under 18 U.S.C. 1962.
* Intertech's officers and directors would therefore be subject to prison sentences of up to 20 years under 18 U.S.C. 1963 and could be required to forfeit its entire business to the federal government under 18 U.S.C. 1963(a)(2).
* Finally, in the suit which initiated the offense against Intertech, the plaintiffs could recover three times their actual damages, plus attorneys' fees -- possibly at a level which would bankrupt the company and/or its insurance carrier even if the government chose not to prosecute.
If this sounds far-fetched, consider the fact that firearms opponents have recently announced that they intend, over the next decade, to use litigation to cripple the firearms industry in exactly the same way that lawsuits have crippled the tobacco industry, forcing an agreement by cigarette companies to pay over $365 billion in reparations. (See "Groups aim lawsuits at gun industry," in the Boston Globe, October 9, 1997.)
Moreover, the anti-gun lobby has ALREADY started bringing these types of lawsuits against the gun industry -- even before getting any help from RICO provisions in S. 10 (with its treble damages afforded to activist lawyers).
The New Gun Week (June 20, 1996) reported how the anti-gun lobby dealt a crushing blow to a Nevada pawnshop:
In a move that could have a bearing on future product liability suits directed at firearms manufacturers or makers and sellers of gun-related products, a Nevada pawnshop has admitted its role in selling one of two TEC-DC9 semi-auto pistols used by Gian Luggi Ferri in the 1993 shooting of the San Francisco law firms of Pettit & Martin where eight died.
According to news reports . . . Camco Inc., parent company of Superpawn, the Las Vegan pawnshop, has agreed to pay victim's survivors of the 1993 shooting an estimated $150,000 in damages to settle a suit lodged against the retailer.
Phillip Emmons, an attorney for the pawnshop, said the settlement was "basically an economic decision."
Authorities were never able to determine where Ferri had purchased the second pistol.
In announcing the settlement, Dennis Hennigan, director of the Washington, DC-based Center to Prevent handgun Violence, a sister organization of Handgun Control Inc. (HCI), said that, "Comco's willingness to settle the suit sends a message to other gun sellers that there is a cost associated with the sale of 'assault weapons' to the general public."
The tragic thing about this settlement is that the Nevada pawn shop probably could have won in court. Navegar, the other defendant in the suit which refused to settle out of court, later beat the charges. (See "Suit Dismissed Against Maker of Murder Gun," in The New Gun Week, May 20, 1997).
But the pawnshop owners could not afford to pay the potential damages that might be inflicted against them. Even though they were no more guilty than the hardware store that sells a tire iron to someone who uses it to commit a murder, the pawnshop felt it was an "economic decision" to give up some cash now, instead of giving up a bunch of cash during a long, protracted suit.
With the tremendously enhanced booty available in S. 10, one can expect two things will happen. First, more anti-gun lawyers will be willing to "roll the dice" and bring trumped-up charges against the gun dealers and manufacturers using the RICO provisions of S. 10. Moreover, the victims of this onslaught will be forced to settle out of court (like the pawn shop above) to avoid the tremendous treble damages that could be inflicted against them.
Could firearms manufacture and sales in America survive a comparable demand for reparations? It is unlikely.
Once the "plaintiffs' bar" (that is, lawyers who specialize in bringing lawsuits) realizes that it can reap huge profits by bringing lawsuits against gun dealers and manufacturers under the RICO provisions of S. 10, the gun industry might eventually have to buckle under.
MYTH NUMBER THREE: Senator Jon Kyl (R-AZ) states: "...neither bill would prohibit parents from taking a child to a range to learn how to operate a firearm.... The exemption in the handgun-safety laws for target shooting would not be affected."
FACT: Senator Kyl misstates GOA's assertion.
Section 207 of S. 10 increases to five years' imprisonment the potential penalties for parents who take their child pistol shooting, IN VIOLATION OF 18 U.S.C. 922(x).
And, while 18 U.S.C. 922(x) provides a convoluted procedure whereby children could legally go pistol shooting, any tiny deviation from that procedure would subject the parents to five years' imprisonment. For instance, if the children, although fully supervised by the parents at all times, failed to possess a WRITTEN permission slip required by 18 U.S.C. 922(x), the parents would be felons. If the gun were transported incorrectly to and from the pistol range, the parents would be felons.
In addition, sections 203 and 206 of S. 10 would add these tiny transgressions to the list of crimes which would subject the parents to lawsuits and prosecution under RICO and the analogous "Son of RICO" (a RICO-type prosecution newly created by S. 10).
News reports have backed up GOA's analysis. As stated by The New Gun Week in its August 20, 1997 issue:
While Sen. Orrin Hatch (R-UT), chairman of the Senate Judiciary Committee, has made some changes to S. 10, there are other provisions which are of concern to gunowners. . . . As written, however, S. 10, which was reported out of the Judiciary Committee by a 12-6 vote, would impose a 20-year sentence for minor mistakes involving . . . supervised handgun use by young people. (Emphasis added.)
If your senator has given you the run-a-round on Hatch's Horror Bill, then use the above ammo to defuse their arguments. Send a copy of your senator's letter to Gun Owners of America, as well. GOA will contact him and send him a Fact Sheet that, if he reads it, should set him straight on what Hatch's anti-gun crime bill actually does.