Second Amendment Roundup: S&W Sí, Mexico No

“The AR–15 is the most popular rifle in the country.”

On June 5, in an unanimous decision by Justice Elena Kagan, the Supreme Court ruled in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos that Mexico failed plausibly to plead that the American firearm industry aided and abetted unlawful sales routing guns to Mexican drug cartels.  The decision not only adds teeth to the Protection of Lawful Commerce in Arms Act (PLCAA), it also recognizes that semiautomatic rifles like the AR-15 are in wide use by Americans, verifying that they meet Heller's common-use test.

While the Court does not expressly mention that PLCAA reaffirms Second Amendment rights, it does reference the preamble of the law, which explicitly set forth one primary purpose of PLCAA is to protect the Second Amendment rights of Americans.  The Court then explained how the law protects the firearm industry from civil lawsuits blaming the industry for crimes and torts committed by third parties.  It provides that "a qualified civil liability action" – defined as a civil suit against a manufacturer or seller of a firearm or firearm part (called a "qualified product") – may not be brought in any federal or state court.

Excluded from PLCAA is the "predicate exception," defined as "an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought…."  That includes acts in which a dealer or manufacturer knowingly makes false entries in records or conspires to sell a firearm to a prohibited person.  If such violation is the proximate cause of harm, then liability arises from a third party's misuse of a gun.

Mexico claimed that Smith & Wesson and other manufacturers aided and abetted the third-party misuse of guns in Mexico.  First, they supplied guns to dealers who sold guns to traffickers.  Second, they allegedly failed to impose extra-legal controls on their distribution networks.  And third, they supposedly make "design and marketing decisions" to stimulate cartel demand, such as production of "'military-style' assault weapons" and use of inscriptions that appeal to cartel members (like the "Emiliano Zapata 1911" pistol).

But Mexico's complaint failed to allege any specific criminal transactions by the manufacturers.  Its claim that they sell guns to "known rogue dealers" (which it did not even identify) did not count as aiding and abetting.  That claim could not be taken at face value, as "Mexico never confronts that the manufacturers do not directly supply any dealers, bad-apple or otherwise. They instead sell firearms to middlemen distributors, whom Mexico has never claimed lack independence."

Mexico further claimed that manufacturers did not regulate dealer practices, such as banning bulk sales or sales from homes.  But federal law imposes no such requirement.

Finally, in the Court's view, Mexico's claims about the "design and marketing decisions" of manufacturers were of no consequence.  The Court explained:

Mexico here focuses on the manufacturers' production of "military style" assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles…. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country….)

For that last proposition, the Court cites T. Gross, How the AR–15 Became the Bestselling Rifle in the U.S., NPR (Apr. 20, 2023).  Although that article is filled with inaccuracies, it states that the AR-15 "now pretty much dominates the rifle market in the U.S. and is one of the most popular … guns, period, sold…."  It adds that, "using industry estimates and production estimates, … about 20 million AR-15s have been sold in … the last couple of decades in the U.S."  And it has "market dominance … 1-in-4 guns manufactured these days – it's unmistakable."

So now we have all nine Justices agreeing that the AR-15 is "widely legal and bought by many ordinary consumers" and "is the most popular rifle in the country."  That comes on the heels, as we discussed here, of the Court denying cert in Snope v. Brown, in which Justice Kavanaugh stated that "Americans today possess an estimated 20 to 30 million AR–15s," strongly implied that the Fourth Circuit "erred by holding that Maryland's ban on AR–15s complies with the Second Amendment," and predicted that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."  And don't forget Justice Sotomayor stating in Garland v. Cargill that AR-15s are "commonly available, semiautomatic rifles."

On a personal note, I'm grateful for the Justices buttressing the validity of the title of my latest book, America's Rifle: The Case for the AR-15.

While one cannot predict how every Justice would rule on a ban on semiauto rifles, the Court held in Heller that the Second Amendment protects arms that are "in common use at the time" for "lawful purposes like self-defense" or are "typically possessed by law-abiding citizens for lawful purposes."  And because the "in common use" test arises from the history portion of the Court's "text first, history second" interpretative methodology, the burden actually lies with the government to demonstrate that the subject arm is not in common use. Unfortunately, in upholding bans, lower courts are pretending not to understand the common-use test, if not ridiculing and obstructing it.

As Justice Kagan continued in Smith & Wesson, "The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history."  Even if desired by cartel members, "they also may appeal, as the manufacturers rejoin, to 'millions of law-abiding Hispanic Americans.'"  (As I pointed out here after oral argument, it turns out that the engravings were put on the pistols by a distributor, not by Colt.)

Accordingly, Mexico failed adequately to allege the predicate exception under PLCAA, the purpose of which was "to halt a flurry of lawsuits attempting to make gun manufacturers pay for the downstream harms resulting from misuse of their products."  Mexico's claims "would swallow most of the rule," which requires that a manufacturer violate a gun law and seek to have an unlawful act succeed.

Since Mexico failed to make a plausible claim for aiding-and-abetting liability, "We need not address the proximate cause question…."  It would have been helpful had the Court resolved that issue as well, because many anti-industry suits don't involve aiding-and-abetting liability but are based on theories that are antithetical to traditional concepts of proximate cause.  Despite that, the tone of the decision in recalling the purpose of PLCAA will be helpful in other cases.

Concurring, Justice Thomas noted that the decision did not resolve what would be required to show a "violation" of a gun law under the predicate exception.  That would arguably require not just an allegation, but an actual finding of guilt or liability in an earlier adjudication.  "Allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding, without the full panoply of protections that we otherwise afford to criminal defendants."

Justice Jackson also concurred, noting the complaint's failure to allege any nonconclusory statutory violation.  But "PLCAA reflects Congress's view that the democratic process, not litigation, should set the terms of gun control."  Mexico faulted the industry for practices that are lawful and sought to have the courts become the regulators, despite that "Congress passed PLCAA to preserve the primacy of the political branches—both state and federal—in deciding which duties to impose on the firearms industry."

From the beginning, Mexico's suit against the American firearms industry was not a sincere PLCAA claim brought to remedy cartel violence.  It was instigated and lawyered by the anti-gun political movement that PLCAA was enacted to curtail.  The Supreme Court's 9-0 decision is a refreshing reaffirmation that the Supreme Court can get it right.