The U.S. Supreme Court heard oral argument in Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., et al., the case in which the Mexican government is suing several U.S. firearm manufacturers for $10 billion in damages. Mexico alleges their lawful and heavily regulated business practices are “aiding and abetting” the illegal straw purchase of firearms that are then illegally smuggled by transnational narco-terrorist drug cartels south into Mexico. Those illegally-smuggled firearms are then provided to the cartels and then criminally misused in Mexico which causes Mexico to spend money. The justices wrestled with Mexico’s lawyers’ theory that U.S. manufacturers “aided and abetted,” noting that if that were so, law enforcement, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, missed what would otherwise be considered the crime of the century.
NSSF filed an amicus brief supporting Smith & Wesson Brands, Inc., et al., in its petition.
“If Mexico is right, then every law enforcement organization in America has missed the largest criminal conspiracy in history operating right under their nose, and Budweiser is liable for every accident caused by underage drinkers since it knows that teenagers will buy beer, drive drunk and crash,” said Noel Francisco, lawyer for the plaintiffs Smith & Wesson Brands, Inc., et al., who petitioned the case to the Supreme Court.
PLCAA at SCOTUS
Mexico filed their claim in a U.S. District Court in Boston in 2021, which was dismissed by that district court based on the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA) that prohibits frivolous lawsuits against the firearm industry for the criminal misuse by remote third parties.
Mexico appealed to the U.S. Court of Appeals for the First Circuit, which revived the lawsuit holding that Mexico’s “aiding and abetting” theory fit within one of the PLCAA’s narrow exceptions. Smith & Wesson Brands, Inc., et al., successfully petitioned the Supreme Court last year and the nine justices took turns asking lawyers for both parties why this case should be dismissed or allowed to proceed.
Francisco explained in his rebuttal, “… if they’re right under PLCAA this would, in fact, revive the exact same lawsuits that PLCAA was meant to prohibit.” He later added, “At the end of the day, PLCAA is about protecting Second Amendment rights. It’s not just about protecting the manufacturers, the distributors and the retailers, but it’s protecting the right of every American to exercise their right of – under the Second Amendment to possess and bear firearms. That right is meaningless if there are no manufacturers, retailers and distributors that provide them in the first place.”
While it might be a fool’s errand to predict how the Supreme Court might decide a pending case, the questions posed by justices indicated their doubts about Mexico’s allegations. Particularly, several of the Court’s justices grappled with the allegation that U.S. firearm manufacturers “aided and abetted” criminal misuse of firearm inside of Mexico by known narco-terrorists.
Zero Evidence
“Needless to say, no case in American history supports that theory, and it’s squarely foreclosed by the Protection of Lawful Commerce in Arms Act,” Francsico argued. “As to proximate cause, this Court has repeatedly said there must be a direct relationship between the defendant’s conduct and the plaintiff’s injury. But no such relationship exists if plaintiff’s injury is caused by multiple intervening, independent crimes committed by foreign criminals on foreign soil to inflict harm on a foreign sovereign.
Francisco added, “As to aiding and abetting, Mexico doesn’t identify a specific crime, criminal, or criminal enterprise that defendants supposedly helped. Instead, it asserts that defendants are liable for every illegal sale by every retailer in America because they know that a small percentage of firearms are sold illegally and don’t do more to stop it. Again, no case in history supports that theory.”
Justice Clarence Thomas noted that in order to have the exception allowed within PLCAA to bring a lawsuit, Mexico’s lawyers must prove that U.S. gun makers knowingly violated the law.
Justice Thomas wasn’t alone. Justice Ketanji Brown Jackson also struggled with Mexico’s allegations that U.S. gun manufacturers knowingly violated U.S. laws, in Mexico’s theory, to funnel guns to criminal drug cartels via known “rogue” firearm retailers.
“I guess what I’m concerned about,” Justice Jackson asked, “…is about Congress protecting its own prerogative to be the one to regulate this industry, that there were concerns and the statute itself says that, you know, we’re worried that tort suits are an attempt to use the judicial branch to circumvent the legislative branch of government.”
She added, “I worry that without that clarity in – in a – in a complaint like yours, where we don’t really see exactly how the manufacturers are violating a particular state or federal law, that we’re running up against the very concerns that motivated this statute to begin with.”
Catherine Stetson, representing the Mexican government, argued that her attenuated legal theory could be borne out if the Supreme Court would just allow the case to proceed.
“As far as finding the violation, I – I think what the district court would do on remand, after discovery, if – provided we get past the other motions to dismiss that are pending after discovery would be to ask the question: Has the evidence pointed to actual violations?” Stetson argued.
A Challenge to 2A Rights
The justices questioned if this case wasn’t a wholesale attempt to redefine Second Amendment rights altogether, and how Americans might be able to exercise their rights to keep and bear arms. Mexico’s lawsuit, after all, questions how and which firearms are manufactured, marketed and sold to law-abiding gun purchasers in the United States.
Stetson argued that roughly two percent – or between 342,000 and 597,000 firearms are illegally trafficked to Mexico annually. Further, she alleged U.S. firearm manufactures are responsible because, in her arguments, those manufacturers know through firearm trace data which retailers are selling those firearms.
Neither the justices, nor Stetson, questioned the fact that it is the illegal straw purchaser who breaks the law when that individual lies on the ATF Form 4473, the background check form, where the purchaser attests they are the “actual purchaser” of the firearm. That’s not a crime by the retailer, rather it’s a crime committed by the individual lying on the form – the illegal straw purchaser.
The justices asked how Mexico’s claims weren’t impugning U.S. sovereignty by dictating through their lawsuit how many guns, which types of guns and how those guns must be sold. Chief Justice John Roberts asked what the minimum number of illegally-trafficked guns must be for the Court to weigh in favor of Mexico. He also asked if a particular design must be considered.
“You have a number of criteria or examples, you know, the gun says this or it looks like a military weapon and it has an American flag, and, you know, I – Zapata’s quote about better to die on your feet than live on your knees. I mean, those are all things that are not illegal in any way,” Chief Justice Roberts said. “And the idea – I mean, there are some people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a – a BB gun. And I just wonder exactly what the defendant, the manufacturer is supposed to – to do in that situation.”
Stetson pointed to three particular firearms she said were attractive for narco-terrorist crime bosses as examples of how U.S. firearm manufacturers are making firearms sought by the drug cartels. Francisco dismissed that claim as “absurd.”
“The notion that selling a Spanish-named firearm is what gives rise to joint purpose with cartels under the aiding and abetting statute is as wrong as it is offensive,” Francisco said in rebuttal. “There are, after all, millions of perfectly law-abiding Spanish-speaking Americans in this country that find those firearms very attractive. And making those firearms available cannot possibly cross the line into aiding and abetting liability.”
Every Industry is Exposed
Justices Brett Kavanaugh and Samuel Alito questioned how Mexico’s legal theory that U.S. firearm manufacturers are somehow responsible for illegally obtaining and using firearms might not be applied to other manufacturing sectors and how that might open a legal Pandora’s box.
“They know that to a certainty, that it’s going to be pharmaceuticals, cars, what – you can name lots of products. So that’s a real concern, I think, for me about accepting your theory of aiding and abetting liability,” Justice Kavanaugh explained. “You know, we – we manufacture knives, but there are a lot of stabbings in certain neighborhoods. Should we – should we make sure our products aren’t sold there? Or a sporting goods company, and – and baseball bats are used to, you know, storm CVSs or what have you, so we shouldn’t sell in this city? Or prescription drugs are misused in a certain area, so we need to be alert and make sure?”
Justice Alito questioned Mexico’s abuse of the American judicial system, asking if the Mexican government would invoke sovereign immunity in U.S. courts if the tables were turned.
“So the – the argument basically – so, it’s a one-way street?,” Justice Alito asked. “The Government of Mexico can sue U.S. manufacturers here for harm caused in Mexico, but one of the states here can’t sue the government of Mexico for cause – for harm caused in the United States?
The oral arguments lasted just over an hour. A decision is expected at the end of the Supreme Court session in June.
Mark Oliva is the Managing Director of Public Affairs for the National Shooting Sports Foundation.
It’s very sick that a anti-civil rights country like Mexico who confiscated the guns from its population. And then years later. Had its army round up several thousand protesters. Who were never seen again.
And now it’s trying to disarm american citizens using lawfare. And it’s allowed in our court system??
The judges who allowed this case to go forward should be impeached and removed from office.
The judges who allowed this case to go forward should be impeached and removed from office. Then deported to Mexico permanently sans U.S. citizenship.
See Chris T and Darkman’s comment for my comment for I am in total agreement.
“Catherine Stetson, representing the Mexican government, argued that her attenuated legal theory could be borne out if the Supreme Court would just allow the case to proceed.”
And if the courts would just go ahead and decide in plaintiff’s favor, that also would speed things up quite a bit.
I don’t understand how Mexico would have standing to sue anyone in the USA