In Sunday night’s CNN Debate, former Vice President Joe Biden and Vermont Sen. Bernie Sanders took the stage alone for the first time this campaign. Strategically positioned six feet apart in a Washington, D.C., studio, the two addressed each other’s voting record and political history, in an effort to highlight their differences in approach should they make it to the White House.
Among the critiques hurled, Biden said, “this man is one of the few Democrats I know who voted to exempt the gun industry from being able to be sued. Talk about a special special interest … We cannot sue the gun manufacturers because he voted for that years ago.”
Biden also noted Sanders’ lack of support for the Brady Bill during his time in Congress.
Watch: CNN-Univision Democratic Debate
You’ll find the full exchange starting at the 17:39 mark.
Both candidates encouraged the audience at home to check their claims, so Guns & America went looking for the receipts.
Suing The Gun Industry
When Biden says Sanders is the reason “we cannot sue gun manufacturers,” he may be referring to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA).
PLCAA protects gun sellers and manufacturers from most lawsuits that seek to hold them liable for crimes committed with their firearm products. The law does not, however, confer blanket immunity from litigation: consumers can still sue over product defects and other specific outcomes that arise from using firearms. Consumers can also sue gun stores for knowingly selling their products to persons with criminal records or who intend to use the product to cause harm to themselves or others.
Congress passed the bill in October 2005 and then-President George W. Bush signed it into law. PLCAA was intended to shield gun companies from the mounting number of lawsuits, mostly from cities and towns, that alleged that guns were a public nuisance.
In the years since, judges have cited PLCAA in dismissing similar claims from moving forward in hundreds of suits against gun manufacturers, including one following the 2012 Aurora, Colorado, mass shooting. In that case, a court ruled that the family of a victim couldn’t sue websites that sold ammunition and equipment to the shooter, who killed 12 people in a movie theater.
The NRA argues that the law protects small gun companies from bankruptcy.
There does seem to be a shift in recent years, however. Survivors and victims of the Sandy Hook Elementary School shooting in Newtown, Connecticut, are suing Remington Arms, the maker of one of the guns used in the shooting. The Connecticut State Supreme Court allowed the wrongful death lawsuit to continue, ruling that Remington Arms could be sued under a Connecticut state law even though the PLCAA federal law would bar the suit.
During his time as Vermont’s sole congressman, Bernie Sanders voted for passage of the law, joining 58 other Democrats.
At the time, he did not comment publicly on why he voted for the legislation. But in 2015, he defended his vote, saying, “If somebody sells you a baseball bat and you hit somebody over the head, you’re not going to sue the baseball bat manufacturer. I don’t apologize for that vote.”
But Sanders later expressed regret over his support for PLCAA, saying most recently, in a February 2020 Democratic debate, “That was a bad vote.”
The Brady Bill
On Sunday, Biden also criticized Sanders for voting against the 1993 Brady Handgun Violence Prevention Act, often referred to as the “Brady Bill”, saying, “This man voted against the Brady Bill five times, background checks, … five times, number one.”
The 1993 Brady Act imposed a five-day waiting period for purchasing a handgun and mandated background checks for all handgun sales by licensed dealers. In 1997, the Supreme Court struck down the part of the Brady Bill that mandated five-day waiting periods.
But in 1998, the National Instant Criminal Background Check System (NICS) began conducting federal firearms background checks for all gun purchases from federally licensed dealers. Per the Brady Act, the FBI has three business days to make its decision to approve or deny the transfer. If the federally licensed dealer has not received the decision within that time it may proceed with the sale.
PolitiFact looked at Sanders’ voting record on the Brady Act and concluded that he had, in fact, voted against it — in various forms — five times.
Today, Sanders says he supports universal background checks, “red flag” laws and banning so-called “assault weapons.” His stances now appear to closely align with the gun control positions advocated by Biden, his remaining rival for the Democratic nomination.
In the last week, Biden has received a wave of endorsements from gun control organizations, including Brady, a chief supporter of the 1993 “Brady Bill” Biden referenced during the debate.
Biden also won the support of Giffords and Everytown for Gun Safety. While not directly tying the endorsement to Sanders’ voting record, there’s indication it’s playing a role in whom the groups are choosing to support.
“You can’t confine yourself to just what somebody says they’ll do in the future,” Everytown’s president John Feinblatt told the Associated Press. “You have to look at what they’ve done in the past.”
So, is Joe Biden right that Bernie Sanders is the reason consumers and victims of crimes can’t sue gun manufacturers?
Sanders did indeed vote for key legislation that grants immunity to gun makers, but that immunity is not absolute. Firearm sellers and manufacturers can still be held liable for several kinds of negligence with respect to their products, including design defects and other circumstances, like knowingly selling a gun to someone with a criminal record. And Sanders wasn’t the only Democrat who voted for passage of PLCAA in 2005 — 58 other Democrats did as well.
However, it’s clear that the kind of broad immunity granted to gun dealers and sellers by the law is more expansive than protections made available for most other consumer products. And some scholars have noted that this protection from litigation, coupled with a lack of product safety rules for guns, creates notable public health challenges.
Guns & America is a public media reporting project on the role of guns in American life.