The United States Supreme Court appears set to rule in favor of two American gun companies in their bid to have a Mexican government lawsuit against them dismissed.
In 2021, the Mexican government sued a number of United States-based gun manufacturers and distributors, accusing them of negligent business practices that have led to illegal arms trafficking and deaths in Mexico, where U.S.-sourced firearms are used in a majority of high-impact crimes.
Firearms from US used in 7 out of 10 high-impact crimes and rising
On Tuesday, Supreme Court justices heard arguments in an appeal by gunmaker Smith & Wesson and firearm distributor Interstate Arms.
They are opposed to an appeal court’s ruling in January 2024 that the Mexican government’s US $10 billion lawsuit could proceed on the grounds that “Mexico’s complaint plausibly alleges a type of claim that is statutorily exempt from the … general prohibition” of the Protection of Lawful Commerce in Arms Act (PLCAA).
The Mexican government wants the opportunity to prosecute its case against Smith & Wesson and Interstate Arms in a U.S. court of law.
Other gun companies sued by the Mexican government have already succeeded in having the accusations against them thrown out.
NBC News reported that during oral arguments on Tuesday, “both conservative and liberal justices seemed skeptical of the arguments made by Mexico that its claims could move forward despite a federal law” — the PLCAA — being “intended to shield gun companies from liability.”
The Hill reported that the case “has become a major battle over the scope of the” PLCAA, “which has provided broad immunity to gunmakers for two decades despite gun control activists’ attempt to repeal it.”
In a statement, Mexico’s Foreign Affairs Ministry said that “Mexico respects the right of the American people to self-govern and reiterates that this case is not about the Second Amendment or Americans’ right to bear arms.”
“The lawsuit focuses on the illicit trafficking of weapons to Mexico as a consequence of the manufacturers’ irresponsible practices,” the ministry said.
A ruling in the case is expected by the end of June, Reuters reported.
Key aspects of Mexico’s lawsuit
- In its 2021 lawsuit, the Mexican government accused Smith & Wesson, Colt and other U.S. gunmakers of deliberately selling guns to dealers who supply the firearms to criminals in Mexico.
- Mexico accused the companies of “aiding and abetting” violations of United States law.
- Mexico accused gunmakers of designing and manufacturing weapons that appeal to cartel members. Colt, for example, has manufactured a pistol embellished with an image of Emiliano Zapata, a hero of the Mexican revolution.
- Mexico also accused gun companies of “unlawfully designing and marketing their guns as military-grade weapons to drive up demand among the cartels,” Reuters reported.
- The Mexican government claimed that gun violence fueled by firearms smuggled into Mexico from the United States has resulted in a decline in investment and economic activity in Mexico. It also said that it has had to incur unusually high costs on services such as health care and law enforcement due to gun violence in Mexico.
- In addition to monetary damages, Mexico is seeking a court order requiring Smith & Wesson and Interstate Arms to take steps to “abate and remedy the public nuisance they have created in Mexico.”
- Mexico’s legal team, NBC News reported, “is focusing on a narrow exception to the [PLCAA] liability shield, which allows a lawsuit to go forward if a company has ‘knowingly violated’ a gun law and if that violation was a cause of the harm alleged in a lawsuit.”
“At issue,” Reuters reported, “is whether Mexico’s suit should be dismissed under a 2005 federal law called the Protection of Lawful Commerce in Arms Act that broadly shields gun companies from liability for crimes committed with their products — or whether the alleged conduct of the companies falls outside these protections, as the lower court found.”
“… The gun companies have argued that they have done nothing more than make and sell lawful products,” the news agency said.
What did the lawyers argue on Tuesday?
Catherine Stetson, lawyer for the Mexican government, told the Supreme Court that “Mexico’s complaint pleads that Petitioners aided and abetted violations of specific federal gun laws and that those violations proximately caused Mexico’s harm.”
“That satisfies PLCAA’s predicate exception,” she said.
“First, the complaint details that Petitioners deliberately supplied the illegal Mexican market by selling guns through the small number of dealers that they know sell a large number of crime guns and who repeatedly sell in bulk to the cartel traffickers. Petitioners’ arguments ignore these allegations,” Stetson said.
She also said that the Supreme Court “need not vouch for Mexico’s allegations, but it must assume they are true.”
“Mexico should be given a chance to prove its case,” she said.
Noel Francisco, lawyer for Smith & Wesson and Interstate Arms, said that Mexico’s “theory is that federally licensed manufacturers sell firearms to licensed distributors, who sell to licensed retailers, a small percentage of whom sell to straw purchasers, some of whom transfer to smugglers, who then smuggle them into Mexico, hand them over to cartels, who in turn use them to commit murder and mayhem, all of which requires the government of Mexico to spend money.”
“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,” he said.
Francisco, a former solicitor general of the United States, also told justices that “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 [brewer] Budweiser is liable for every accident caused by underage drinkers since it knows that teenagers will buy beer, drive drunk and crash.”
The lawyer, Reuters reported, “cited a legal principle called proximate cause involving when an action brings about a legal injury.”
Francisco argued that the accused gun companies were not the proximate cause of the harm claimed by the Mexican government.
In its lawsuit, Reuters said, “Mexico must show that the gun companies were the proximate cause of their harms, in addition to showing that the companies aided and abetted illegal gun sales and marketing, to sidestep the 2005 law’s general bar on suits against American gun companies for the criminal misuse of their products.”
What did the Supreme Court justices say?
Conservative Justice Brett Kavanaugh told Stetson that “lots of sellers and manufacturers of ordinary products know that they’re going to be misused by some subset of people.”
“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,” Kavanaugh said.
Liberal Justice Ketanji Brown Jackson told Stetson that “all of the things that you asked for in this lawsuit,” including changes to the U.S. firearm industry’s safety, distribution and marketing practices, “would amount to different kinds of regulatory constraints that I’m thinking Congress didn’t want the courts to be the ones to impose.”
Addressing Stetson, Conservative Justice Samuel Alito said that “there are Americans who think that Mexican government officials are contributing to a lot of illegal conduct here” in the United States.
“So suppose that one of the 50 U.S. states sued for aiding and abetting within the state’s borders that causes the state to incur law enforcement costs, welfare costs, other costs. Would your client be willing to litigate that case in the courts of the United States?” he asked.
Liberal Justice Elena Kagan told Stetson that Mexico’s case lacked specificity.
“What you don’t have is particular dealers, right? Who are [the accused] aiding and abetting in this complaint?” she asked.
Conservative Chief Justice John Roberts appeared to dismiss Mexico’s argument about the deliberate design of firearms to appeal to cartels.
“There are some people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a BB gun,” he said.
Conservative Justice Clarence Thomas asked Stetson how Mexico’s lawsuit was “different from the types of suits that prompted the passage of PLCAA?”
“Our suit is different,” Stetson responded, “because the types of suits that prompted the passage of PLCAA specifically did not allege that the manufacturers had violated any law.”
Thomas was less than satisfied with her response.
Conservative Justice Amy Coney Barrett said to Stetson that Mexico hasn’t sued “any of the retailers that were the most proximate cause of the harm,” even though the Mexican government has filed claims against five gun stores in Arizona.
In contrast to most of her Supreme Court colleagues, liberal Justice Sonia Sotomayor “seemed sympathetic to Mexico’s theory of the role played by the gun companies in causing the legal injury to Mexico’s government,” Reuters reported.
The bigger picture
Tuesday’s Supreme Court hearing took place the same day that the United States government implemented 25% tariffs on all imports from Mexico. The main reason for the Trump administration’s decision to impose the tariffs was due to the entry of large quantities of illicit fentanyl to the U.S. from Mexico.
In a “Trump proceeds with tariffs” fact sheet issued on Monday, the White House once again asserted that “Mexican drug trafficking organizations, the world’s leading fentanyl traffickers, operate unhindered due to an intolerable relationship with the government of Mexico.”
“The government of Mexico has afforded safe havens for the cartels to engage in the manufacturing and transportation of dangerous narcotics,” it said.
Early last month, Mexican President Claudia Sheinbaum and U.S. President Donald Trump reached an agreement to postpone the 25% tariffs for one month. As part of that deal, Sheinbaum said that the United States had committed to “work to avoid the trafficking of high-powered weapons to Mexico.”
However, Trump hasn’t made any public commitment to do so.
Hundreds of thousands of firearms are estimated to be smuggled into Mexico from the United States every year.
Former foreign affairs minister and current Economy Minister Marcelo Ebrard said in 2021 that reducing violence in Mexico would be very difficult if the United States didn’t do more to stop the illegal flow of weapons into the country.
Sheinbaum said in January that what her government is “very interested in is that the entry of weapons from the United States to Mexico stops because 75% of firearms seized [in Mexico] … come from the United States.”
She said last month that Mexico would have to “broaden” its lawsuit against United States-based gun companies if the U.S. government designated Mexican cartels as foreign terrorist organizations as the gunmakers “could be” considered “accomplices” to terrorism.
The U.S. government designated six Mexican Cartels including the Sinaloa Cartel and the Jalisco New Generation Cartels as terrorist organizations on Feb. 20.
