Looking For Bernie's America: Why His Gun Vote Mattered

[Content Note: Guns.]

Six months ago I wrote Looking for Bernie, a four-part series exploring Bernie Sanders’ record in historical context, analyzing it through the lens of intersectional feminism. With limited resources and time (this was done in between summer teaching gigs), I combed through online archives of every primary source I could lay my hands on. Because I'm a historian, and the historical context of what was happening when, and against what larger backdrop, is important to me. If Bernie was going to (in the words of [CN: video autoplays] his campaign’s latest advertisement) attract voters “looking for America,” then it seemed fair to look for Bernie’s history, and investigate from a left-minded perspective, exactly what kind of America he’s been working for in Vermont and in Washington.

And yesterday I read a fantastic piece in Mother Jones, by Pema Levy, that does just that. The article focuses specifically on the historical context around Sanders’ vote to insulate gun manufacturers from lawsuits. It outlines something that is almost never brought up today when discussing this vote: the fact that such lawsuits were starting to really make a difference. In fact, a lawsuit was pending at that time from New York City, showing that gun manufacturers were flagrantly ignoring information about the criminal gun market—information that could have helped keep guns out of manufacturer’s hands:

The Bureau of Alcohol, Tobacco, and Firearms informed gun manufacturers every time a gun used in a crime was traced to their companies, information that would have made it easy for manufacturers to determine which of their distributors and dealers were supplying the black market, yet manufacturers continued to sell guns to those "bad apple" dealers.

As the trial neared, the city had marketing experts, dealers, and former gun industry officials ready to testify that the gun manufacturers' lack of oversight of their dealers and distributors could only be attributed to a willful blindness that allowed them to profit off the criminal gun market. The city's lawyers were prepared to argue that in Southern states with lax gun laws, manufacturers supplied dealers with more handguns than the legal market could consume, knowing the excess guns would be trafficked north up the I-95 corridor and sold illegally in cities like New York…

But that trial never came. Why? In large part, it was the Protection of Lawful Commerce in Arms Act (PLCAA), which gave “sweeping legal immunity” to the gun industry.

And that’s what Bernie Sanders voted for.

I really urge you to read the whole article, because it does such an excellent job of explaining the historical context for the law, and how close the Unted States was to a genuine breakthrough on gun issues. Sanders has represented this vote as as one undertaken against frivolous lawsuits, the kind that put “mom and pop” businesses at risk. He has said that gun manufacturers should be no more at fault than the manufacturers of hammers, which can be used as fatal weapons too.

Except that analogy doesn’t quite work:

To Lowy, Sanders' hammer analogy is misleading. "The idea he's getting at is, if all you did is make or sell a product that's used in a crime, you shouldn't be liable," says Lowy, who has litigated cases for the Brady Center for 18 years. "And he's exactly right. But the lawsuits that I was involved in aren't premised on that theory. Our theory is that the gun companies did something wrong: They didn't use reasonable care." Some of the suits focused on manufactures' failure to incorporate safety systems into their weapons. But others, like New York's, argued that gun manufacturers facilitated the illegal gun market through lax oversight of their distributors. These suits were based on the legal principle of negligence, the idea that an individual or company is liable if it fails to exercise reasonable care. In many industries, manufacturers monitor their products from the factory to the distributors to the market. For example, due to the risk of food-borne illness, the food industry has developed its own set of food safety protocols, beyond what federal regulators require, to manage its downstream distributors. But the gun industry engages in remarkably little oversight. So the lawsuits sought to establish through the courts what gun control advocates couldn't accomplish through state legislatures or in Washington: liability for gun manufacturers who don't oversee their supply chain.

"What the gun industry chose to do was, at best, put their heads in the sand and ignore the reality that they were utilizing these bad-apple gun dealers," says Lowy. "They knew that if they acted reasonably and put some reasonable oversight and conditions on the downstream sellers they would end up losing profits from the criminal gun market."

This is a really, really important piece of context. The lawsuits of the early 2000s were predicated on tying the problems of gun violence to the problem of gun manufacturers not giving a good goddamn about their supply chain. Sting operations were getting press attention. It was a crucial moment:

… Again and again, dealers happily sold their guns to the undercover cops. In one Detroit-area sting in which one officer posed as an illegal buyer and another as a straw purchaser, the gun seller gave instructions to the undercover officer acting as the straw buyer: "When the manager comes over to check this, it's your gun. You're not purchasing it for him, it's your gun…This is called a straw purchase. It's highly illegal." The sting was videotaped and later aired on NBC's Dateline. "Lawsuits frame issues often differently than the popular culture does," says Timothy Lytton, a professor at Georgia State University College of Law. "Gun violence up until the 1980s was thought of as a problem of bad apples—criminals who were shooting people—and that it was a crime problem. The tort lawsuits basically reframed this and said, 'No, the real problem here isn't criminals. The real problem is industry practices, and…the real focus needs to be placed on the carelessness of industry distribution practices and the responsibility of the industry to police its own supply chain.'"

I encourage you to read the whole article.

I don’t expect Bernie Sanders to have been a psychic and figure out where his vote might have led. But I do expect an honest discussion of a fair criticisms from the left, especially this one.

I’ve felt many things about Bernie Sanders and his campaign in the months since I wrote about his history. Sometimes it’s been positive, and sometimes it’s been anger. But when reading about how the gun immunity laws took away what was an increasingly successful tool for fighting gun violence, what I feel is sadness. Sadness, and regret for a United States that lost one of his best hopes for reducing its epidemic of gun violence.

The music that the Sanders campaign has chosen for its Iowa campaign ad is a truncated version of Simon and Garfunkel’s “America.” It’s a story of a couple walking, hitchhiking, and finally taking a bus ride to New Jersey from Michigan. It has sweeping chords and a chorus that sounds like optimism, when heard in the proper mindset.

But when I hear it, I’m thinking about that vote. About what might have been. About the tragedies that might NOT have been. So what I hear is the last verse, a confession of confusion and melancholy that comes in the midst of this journey looking for America:

"Kathy, I’m lost,” I said, though I knew she was sleeping

“I’m empty and aching and I don’t know why”

Counting the cars on the New Jersey Turnpike

They’ve all gone to look for America…