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When it comes to guns, federal agencies have no recall power

KANSAS CITY, Mo. -- Jim Welch of Harrisonville remembers the moment well. About 1995, hunting elk in the Colorado Rockies with a friend, and his trusty Remington 700 series rifle. Or so he thought.

"I just sat down, and it barely tapped the ground and it went off."

It, is that trusty Remington, and Welch had one hand on the barrel, the other to his side. In other words, the trigger was untouched he insists. The gun fired anyway, thankfully harmlessly into the sky.

It happened to his then wife nearly a decade later, with the same gun.

"Deer came up, she reached over and flipped the safety off and discharged it," Welch remembers. Again, no finger on the trigger. Again, thankfully, no one hurt. But hundreds of others haven't been so lucky, and not just with Remington rifles.

Manufacturing or design flaws happen in any product, in this case, the trigger mechanism on a rifle in production since 1947.

Kansas City attorney Tim Monsees says documents uncovered in litigation involving Remington reveal the company knew about the trigger design problem back before the rifle ever hit the market.

"You can adjust for inflation but at the time it was a nickel," Monsees says about the minor fix needed to make the trigger safe.

He adds a now federal class action lawsuit to force the rifle maker to fix more than 6 million rifles in circulation before 2006 wouldn't have been needed had Remington voluntarily recalled and retrofitted the guns. And lives would have been saved.

But under federal law, consumer agencies were powerless to order a recall. A consumer protection act passed in 1972 specifically exempts firearms and ammo from government recall's. At the heart of the exception: The Second Amendment.

Attorney and outdoor enthusiast Keith Mark says car seats and toys are different.

"There is not a constitutional right to car seats."

But he argues there is a constitutional right to guns, and that individual right can't be infringed. He calls it a slippery slope if the government is allowed to regulate guns, even for safety. He believes lawsuits like the federal class action against Remington, are a better way to handle it:

"And then the gun manufacturers know that ultimately, that if they should have recalled, they didn't recall, people are injured, they're going to face monetary damages."

But Monsees, who is a hunter himself, argues the gun industry is essentially policing itself, and that it's not about the Second Amendment.

"I think sometimes what we're doing is perceived and wrongfully so, as being anti-firearm. No," he added emphatically. "I'm anti-unsafe firearm."

A federal judge in Kansas City is set to review the proposed class action settlement with Remiington on Feb. 14.

But Jim Welch won't send his gun in for a free trigger retrofit if the court okays the deal. He's retired his rifle long ago, thankful it did no harm to anyone.

"Even if the gun is defective, it still would mess me up for life."