“Mexico has extinguished its constitutional arms right and now seeks to extinguish America’s,” stated the NRA’s amicus brief in the U.S. Supreme Court case Smith & Wesson v. Estados Unidos Mexicanos. The oral argument took place on March 4, and the Court’s decision is expected by the end of June. Based on the Justices’ questions during oral argument, there is reason for cautious optimism that the Court will enforce the federal statute that prohibits abusive lawsuits designed to destroy American firearms businesses.
The roots of the current Mexico case go back to 1998, when the gun-ban group Handgun Control, Inc., orchestrated meritless lawsuits by big-city mayors to attempt to bankrupt American firearms companies through the sheer cost of litigation. Handgun Control, Inc., later changed its name twice, and now calls itself Brady United.
In response, two-thirds of the states enacted legislation to forbid such abusive suits. Then in 2005, a bipartisan Congress passed and President George W. Bush (R) signed a federal statute called the Protection of Lawful Commerce in Arms Act (PLCAA) to stop the frivolous suits. Given the new law, most judges promptly dismissed the abusive suits.
Yet two decades later, the Mexican government is in American courts attempting to accomplish what the previous lawsuits did not, namely bankrupting the American firearms industry—and thereby making the exercise of Second Amendment rights impossible.
The allegations in the Mexico case are updated versions of the same bogus allegations from the earlier suits: American firearms businesses that obey all of the many laws about firearms commerce should be held financially liable for criminal gun misuse. Mexico wants $10 billion from American firearms businesses, plus court-ordered, drastic restrictions on the firearms industry.
Far-left, anti-American Mexican President Andrés Manuel López Obrador started the lawsuits, and his successor, the even more extreme Claudia Sheinbaum, is continuing them. While one case, in Arizona, is still in preliminary stages, the case filed in federal district court in Boston has made it to the U.S. Supreme Court. The U.S. District Court for the Eastern District of Massachusetts obeyed the PLCAA and dismissed the Mexican suit. But Mexico appealed to the U.S. First Circuit Court of Appeals, which is notoriously hostile to the Second Amendment. In January 2024, after the First Circuit allowed the Mexican case to proceed, Smith & Wesson filed a petition for certiorari with the U.S. Supreme Court, and the Court granted cert. to hear S&W’s appeal.
In May 2024, the NRA wrote an amicus brief in support of the U.S. Supreme Court cert. petition, and then another amicus brief in December 2024 in support of S&W at the merits stage. The briefs were coauthored by NRA Litigation Counsel Joseph Greenlee, and by me, on behalf of the Independence Institute, the Denver think tank where I work. Professor George Mocsary, of the University of Wyoming College of Law, also coauthored the brief.
According to the lawyers for the Mexican Presidents López Obrador and Sheinbaum, the PLCAA has a loophole that allows the Mexican government to pillage American firearms manufacturers.
The PLCAA outlaws lawsuits against firearms businesses for “the criminal or unlawful misuse” of firearms or ammunition by a “person or a third party.”
There is an exception for businesses that willfully violate gun-control laws, such as an FFL retailer who makes false entries in the inventory book that he is required to keep. Likewise, if “a manufacturer or seller of a qualified product [firearms or ammunition] 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.” Per the PLCAA statute, an example of such a violation would be if “the manufacturer or seller aided, abetted ... any other person to sell or otherwise dispose of a qualified product, knowing or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition.”
“Aiding and abetting” means assisting a crime without directly participating in it; for example, person A says, “I’m really drunk and angry and I want to stab someone on the sidewalk at random.” Person B says, “Oh good, I’d like to watch that. You can borrow my kitchen knife; here it is.” Person B is not guilty of the stabbing itself, but is guilty of aiding and abetting the stabbing.
Likewise, “proximate cause” is also a well-established legal term that there must be a reasonable chain of causation between the action and the injury; for example, the driver of car one negligently collides with car two. After the collision, a woman passenger from car two is standing by the side of the road, and a third car stops to render aid. A fourth car, blinded by the headlights of the third car, hits the woman and seriously injures her. The driver of car one is not liable for the injury caused by car four, because there is not proximate cause (Wallace v. Jones, Virginia, 1937).
These were the key issues on which the U.S. Supreme Court focused during the oral argument. Based on what the justices said, the most likely outcome is a ruling against Mexico on “aiding and abetting,” perhaps unanimously. The ruling may not address the proximate-cause issue.
While most justices asked tough questions to both sides, what Court-watchers found most notable was the skepticism of even the three justices appointed by Presidents Barack Obama (D) and Joe Biden (D).
Justice Ketanji Brown Jackson got to the heart of the case: “Congress enacted the [PLCAA] to shut down de facto gun-control policies by the courts,” yet the “government of a foreign country is effectively going to impose gun-control policies.”
Further, “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 … . All of the things that you ask for in this lawsuit would amount to different kinds of regulatory constraints that I’m thinking Congress didn’t want the courts to be the ones to impose.”
Justice Sonia Sotomayor rejected Mexico’s argument that American manufacturers are liable because they know that, inevitably, some of their guns will end up in the hands of cartels (just as brewers know that some of their products will be consumed by drunk drivers): “We have repeatedly said mere knowledge is not enough.” Rather, “You have to aid and abet in some way. You have to intend and take affirmative action to ... participate in what they’re doing.”
Likewise, Justice Elena Kagan said, “There are lots of dealers. And you’re just saying they [the manufacturers] know that some of them [retailers] do [illegally sell to known straw purchasers]. But which some of them? I mean, who are they aiding and abetting in this complaint?”
The more the argument focused on what exactly Smith & Wesson and other companies had done wrong, the worse it got for Mexico.
Presenting the argument for S&W was Noel J. Francisco, one of the top appellate lawyers in the nation. He also represents the NRA in its ongoing lawsuit against the New York state government for unlawfully attempting to debank the NRA in 2017. The U.S. Supreme Court in 2024 ruled unanimously that NRA’s lawsuit was legally legitimate and could proceed.
Francisco pointed to a 2010 article in The Washington Post that Mexico had included in its complaint. (The complaint is the legal document in which plaintiffs open their case by describing their allegations against the defendants.) The Washington Post article identified a particular gun store as the leading retailer for firearms later found at Mexican crime scenes. In that article, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stated that there is no evidence that the store was doing anything unlawful.
“Well, if the government doesn’t know, how are we supposed to know?” asked Francisco. “If Mexico is right, then every law-enforcement organization in America has missed the largest criminal conspiracy in history operating right under their nose.”
Mexico’s attorney said that there were only a few rogue dealers, such as the “eight or ten” listed in The Washington Post article whom American manufacturers should have cut off. According to the attorney, the reason the ATF hasn’t revoked the licenses of the (supposed) rogues is that the ATF doesn’t have enough resources.
Nonsense. The annual ATF budget is over $1.6 billion and the Bureau has over 5,000 employees. During the last fiscal year of the Biden administration, the ATF revoked over 500 FFLs, setting an annual record. So, the ATF has plenty of resources to revoke licenses. Simply put, the Bureau has not revoked the licenses of southern border state FFLs because these stores are complying with all gun-control laws.
Mexico’s attorney claimed that American manufacturers are intentionally targeting the Mexican market because three models of American-made firearms have Spanish names: “the Super El Jefe, the Super El Grito and the Emiliano Zapata 1911.” The first is a not quite accurate name for a popular series of Colt 1911s in .38 Super. The second was a one-time limited run of 300 pistols. “Jefe” means “boss” in Spanish, and “Grito” refers to the “Cry of Independence” that led Mexico’s war of independence from Spain. The Zapata is also a .38 Super, a 500-unit limited production from 2019 commemorating the 100th anniversary of the death of Emiliano Zapata, a populist revolutionary who fought the despotic Mexican federal government in the early 20th century.
In rebuttal argument, Francisco stated, “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. There are, after all, millions of perfectly law-abiding Spanish-speaking Americans in this country that find those firearms very attractive.”
Chief Justice Roberts was dubious about Mexican claims that manufacturers market to Mexican cartels by engraving American flags on their guns. And about claims based on a gun having “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.”
Unfortunately, the false notion that American manufacturers deliberately market to cartels appeared to have gained some traction with Justices Kagan and Sotomayor. The former asked about guns for which one can “easily scrape off serial numbers.” The latter said that American manufacturers produced guns with “erasable serial numbers.”
In fact, as pointed out in an amicus brief by Ohio’s Buckeye Institute, the ATF’s regulations specify that firearms serial numbers be marked on the receiver to a minimum depth of 0.003 inches and the number be at least 1/16th inch in size. Mexico did not claim, and could not claim, that any of the defendant manufacturers have ever violated this regulation.
As for the U.S. Supreme Court justices appointed by Republican presidents, they asked challenging questions to both sides about the technical legal issues of “aiding and abetting” and “proximate cause,” but none of them appeared particularly persuaded by Mexico’s claims.
Justice Alito pointed out that if Mexico prevailed in the current case, then American states might want to turn around and sue the Mexican government for harms the Mexican government has inflicted in the United States. He didn’t specify the particular harms, but these might include the Mexican government’s encouragement of illegal entry into the United States and the government’s complicity in drug trafficking into the U.S.
In rebuttal, Francisco effectively summarized the core of the case: The PLCAA is “not just about protecting the manufacturers, the distributors and the retailers, but it’s about protecting the right of every American to exercise their right 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.”
