The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Second Amendment Roundup: Supreme Court Grants Cert in Mexico v. Smith & Wesson
A cartel-dominated state blames America’s lawful gun industry for its violence.
On October 4, the Supreme Court granted cert in Smith & Wesson Brands v. Estados Unidos Mexicanos. It involves Mexico's suit against the American firearms industry, which alleges that the industry enables the drug cartels to empower their stranglehold over Mexican society. The First Circuit upheld the claim by reversing the dismissal of the case granted by the District Court in Massachusetts.
The absurdity of Mexico's lawsuit is illuminated by action in another case just days later. On October 16, U.S. District Judge Brian Cogan in Brooklyn sentenced Genaro Garcia Luna to 460 months imprisonment for engaging in a continuing criminal enterprise, international cocaine distribution conspiracy, conspiracy to distribute and possess with intent to distribute cocaine, and conspiracy to import cocaine. But Luna wasn't just another El Chapo, whom Judge Cogan sent to the big house five years ago.
For over a decade, Luna was the head of Mexico's Federal Investigative Agency, and then became Secretary of Public Security. According to the U.S. Department of Justice, Luna "used his official positions to assist the violent Sinaloa Cartel (the Cartel) in exchange for millions of dollars in bribes." That included "facilitating safe passage of the drug shipments, providing sensitive law enforcement information about investigations into the Cartel and helping the Cartel attack rival drug cartels…." He thereby enabled over a million kilograms (over 2.2 million pounds) of cocaine to be imported into the United States.
But corruption-ridden Mexico wants to blame America's lawful gun industry for its status as a failed state. In the cert petition, the petitioners describe the background to the question presented as follows:
The Mexican Government has sued leading members of the American firearms industry, seeking to hold them liable for harms inflicted by Mexican drug cartels. According to Mexico, America's firearms companies have engaged in a series of business practices for decades—from selling semi-automatic rifles, to making magazines that hold over ten rounds, to failing to impose various sales restrictions—that have created a supply of firearms later smuggled across the border and ultimately used by the cartels to commit crimes. Mexico asks for billions of dollars in damages, plus extensive injunctive relief imposing new gun-control measures in the United States.
The district court dismissed the case under the Protection of Lawful Commerce in Arms Act (PLCAA), which generally bars suits against firearms companies based on criminals misusing their products. But the First Circuit reversed. It held that PLCAA does not bar this suit because Mexico stated a claim that defendants' business practices have aided and abetted firearms trafficking to the cartels, proximately harming the Mexican government.
The petition states that the following two legal issues under PLCAA require resolution by the Court:
-
- Whether the production and sale of firearms in the United States is the "proximate cause" of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
- Whether the production and sale of firearms in the United States amounts to "aiding and abetting" illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.
PLCAA was enacted to require dismissal at the inception of lawsuits like this. Other courts have recognized that. The First Circuit's decision creates a circuit split.
Back in the 1980s, unable to convince legislatures to ban handguns, the anti-gun movement began filing lawsuits against the industry for crimes committed by third parties. It didn't matter that the courts disagreed with the theory of liability, because the industry could be bankrupted by legal fees. Over time, municipalities became plaintiffs in such suits, only to be rebuffed by the courts. Congress finally stepped in by passing PLCAA to stop these abusive lawsuits.
The anti-gun movement continues to pursue the same strategy. One of Mexico' lawyers listed on the complaint is Jonathan Lowy, counsel for BRADY (formerly Handgun Control, Inc.). BRADY supports repeal of PLCAA, but resorts to the courts to undermine the law since Congress has not done so.
Mexico's complaint parrots the same kinds of allegations which PLCAA was designed to bar. As summarized by the First Circuit, Mexico alleges that "by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales." As everyone knows, the manufacturers sell to distributors, which sell to dealers. Each of these entities is licensed under the Gun Control Act and is subject to ATF inspection and oversight. The complaint includes no allegation that any of the defendants violated U.S. laws or knew that others with whom they did business did so.
While there is thus no proximate harm from America's lawful firearms industry to Mexico, the First Circuit proposes the following incredible analogy:
Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.
The Mexican government itself, through bad actors such as Genaro Garcia Luna, has facilitated the ability of the cartels to attack people in Mexico. We frequently read stories of Mexican villages that form militias to protect themselves from the drug gangs. The Mexican government has failed at the most fundamental duty of any government: protecting the population under its rule.
While allowing, and being bribed to allow, the cartels to run rampant over the country, the government has only a single gun store in the entire country to allow law-abiding citizens to purchase firearms – and it's run by the military in Mexico City.
As it colludes with American actors to destroy the Second Amendment – after all, that's the point of the whole exercise of bringing its lawsuit – the Mexican government reinforces its own contempt for civil liberties, such as the fundamental human right to defend life.
Mexico's 1857 constitution (Art. 10) provided: "Every man has the right to have and to carry arms for his security and legitimate defense. The law will indicate which arms are prohibited and the penalty for those that will carry prohibited arms." That was whittled down in the same article of its 1917 constitution to say that the inhabitants have "a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the [military]. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants."
In other words, Mexican citizen have a "right" to arms only as granted by the government. For further insights on the topic, see David Kopel's article "Mexico's Gun Control Laws: A Model for the United States?"
After the briefs were filed, Mexico made a last-minute attempt to scuttle the case. Smith & Wesson notified the Supreme Court that, just recently, six manufacturers had been dismissed by the district court for lack of personal jurisdiction. However, the suit remained live against Smith & Wesson and Interstate Arms. Mexico responded that the dismissals undermined the petitioners' arguments about the importance of the case. The Court ignored Mexico's filing and granted cert.
Understanding the issues in Mexico v. S&W requires a deep dive into PLCAA. While not framed as a Second Amendment case, the issues profoundly affect whether that right will be protected. PLCAA itself begins with a reaffirmation of Second Amendment rights and how lawsuits have been brought against the industry for crimes committed by third parties. See 15 U.S.C. § 7901 et seq. It declares that a "qualified civil liability action," defined as an action against a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm, "may not be brought in any Federal or State court."
There is a predicate exception from the ban on such lawsuits if the manufacturer or seller of a firearm "knowingly violated a State or Federal statute applicable to the sale or marketing of the product [firearm], and the violation was a proximate cause of the harm for which relief is sought…." That exception includes false entries in required records and conspiracy to sell a firearm knowing that the actual buyer is a prohibited person. Ignoring that the plain meaning of the exception encompasses violations only of specific firearm statutes, the First Circuit decided that Mexico's common-law claims qualified and that Mexico sufficiently alleged that the defendants' actions were the proximate cause of harm.
The survival of America's gun industry, and thus the Second Amendment, depends on the resolution of those claims. The Supreme Court should dispose of the case with an order pursuant to § 7902 of PLCAA: "A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending."
