Joe Biden Lied about Gun-Manufacturer Immunity. He Wasn’t Close to the Truth.By Dan McLaughlin
I know this will be hard to believe, but Joe Biden lied in last night’s speech to the nation. Here is one especially egregious example:
We should repeal the liability shield that often protects gun manufacturers from being sued for the death and destruction caused by their weapons. They’re the only industry in this country that has that kind of immunity. Imagine. Imagine if the tobacco industry had been immune from being sued, where we’d be today. The gun industry’s special protections are outrageous. It must end.
Biden has made this claim before, as did Hillary Clinton. Politifact rated it false in 2015. As Biden knows perfectly well, or should know unless his mind is completely shot, there are multiple industries that enjoy federal statutory immunity from lawsuits over the use of their products.
Biden refers to the Protection of Lawful Commerce in Arms Act (PLCAA), passed with overwhelming bipartisan support and signed by President George W. Bush in 2005. (Biden opposed it at the time.) Under the ordinary principles of tort law, product-liability lawsuits are for defective products that malfunction; the manufacturer of a legal product cannot be held responsible for the product working as designed, unless it has somehow failed to warn users of a risk of use. This is why Biden’s analogy to cigarettes is flawed: The theory of many product-liability lawsuits against cigarette manufacturers was either that cigarettes were marketed with false assurances of their safety or that the manufacturers concealed dangers of the product. That is obviously not true of guns: Everybody knows that guns are lethal weapons if used as designed.
The PLCAA serves two main purposes: It protects gunmakers from facing large numbers of legally frivolous lawsuits that are designed to drain their resources and find sympathetic local judges who will drag a case out just to force a settlement, and it prevents states hostile to guns from creating novel legal theories to drive gunmakers out of business. If you buy a defective gun, you can still sue the gunmaker. The PLCAA hasn’t always worked: After Sandy Hook, Remington settled a case for $73 million where the parents tried to evade the statute by attacking Remington’s marketing practices, the Connecticut courts let them, and the U.S. Supreme Court declined to step in.
Biden can argue all he likes that the PLCAA is bad, but it is flatly false that no other manufacturer enjoys statutory immunity from lawsuits when its product is lawfully sold and used as designed. The most famous example, involving a product that has been much in the news during Biden’s presidency, is vaccine manufacturers: Federal law enacted during Biden’s tenure in the Senate provides that “no vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine . . . if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” (Federal law provides a separate compensation fund for those injuries, regardless of any fault by the manufacturer; the fund is financed by a tax on vaccines.) The Supreme Court ruled in Bruesewitz v. Wyeth LLC (2011) that this provided broad immunity from design-defect lawsuits.
Another well-known example has been widely debated in recent years: Section 230 of the Communications Decency Act of 1996, also enacted during Biden’s tenure in the Senate, provides federal statutory immunity for social-media publishers and platforms when they publish the defamatory speech of others or ban content from their platforms.
Biden cannot imagine federal law immunizing the tobacco industry from lawsuits. The Supreme Court can: In Cipollone v. Liggett Group (1992), it held that, while federal law does not preempt all state lawsuits against cigarette manufacturers, it does immunize them from claims that their “advertising or promotions should have included additional, or more clearly stated, warnings” in light of a federal statute passed in 1969 that read, “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.”
In fact, there is an entire field of law governing federal preemption of state law on product-liability lawsuits. Some of the case law in this area is “conflict preemption” — courts finding that state tort law would interfere with the operation of federal law — but it also includes numerous instances where Congress has expressly preempted lawsuits against businesses, including manufacturers of various products. Medical-device manufacturers are immunized under the the Medical Device Amendments of 1976, enacted during Biden’s tenure in the Senate, from state-law product-liability lawsuits against devices that have received premarket approval from the FDA — as the Supreme Court held in Riegel v. Medtronic, Inc. (2008). The Federal Railroad Safety Act of 1970 empowers the secretary of transportation to preempt state-law liability against railroads for the warnings at railroad crossings when a state has used federal funds to install them — an immunity the Supreme Court upheld in Norfolk Southern R. Co. v. Shanklin (2000). The entire field of locomotive safety was preempted from state-law product-liability lawsuits in the Locomotive Inspection Act of 1915 — an immunity the Supreme Court applied in Kurns v. R.R. Friction Prods. Corp. (2012) to immunize a manufacturer from an asbestos-exposure lawsuit by a man who worked on building them.
That’s even before we get to other statutory immunities. The Airline Deregulation Act of 1978, enacted during Biden’s tenure in the Senate, prohibited states from enacting laws “relating to a price, route, or service of an air carrier,” which the Supreme Court found in Morales v. Trans World Airlines, Inc. (1992) to preclude state-law deceptive advertising claims against airlines. Defense contractors are immune from product liability suits as an extension of the government’s sovereign immunity — as the Supreme Court held in Boyle v. United Technologies Corp. (1988).
President Biden didn’t tell the American people the truth; he didn’t tell them anything even close to the truth. And if he now thinks it’s the truth, that says something even worse about his mental condition.
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