The willingness of some in the U.S. to aid a foreign power in an assault on American industry and Americans’ Constitutional rights is sad and disturbing. On January 17, California Attorney General Rob Bonta proclaimed his support for Mexico’s position in the ongoing case Smith & Wesson Brands, Inc, et al. v. Estados Unidos Mexicanos. The case, now at the U.S. Supreme Court, is an attempt by the Mexican government, working with U.S.-based gun control advocates, to undo the Protection of Lawful Commerce in Arms Act (PLCAA), scapegoat the U.S. firearms industry for Mexican lawlessness, and impose billions of dollars in liability on American gun manufacturers for violence perpetrated by violent criminals south of the border.
Readers should know that the PLCAA was enacted in 2005, with broad bipartisan support, to protect the firearms industry from frivolous and politically-motivated lawsuits. In the mid-1990s, gun control advocates, big city politicians, and trial attorneys teamed up to use the courts to bilk the gun industry for millions and force them to agree to gun control measures that gun control supporters were unable to enact in Congress. The suits sought to hold members of the industry liable for the criminal behavior of those who misused their products.
These suits, though without legal merit, posed a grave threat to the industry – and in turn, American gun owners and their ability to exercise their Second Amendment rights. In 1998, the executive director of the anti-gun U.S. Conference of Mayors was quoted by the New York Times as stating, “[t]he lawyers are seeing green on this issue… they think they can bring the gun industry to its knees.” One of those attorneys “seeing green,” John Coale, was quoted in a 2000 Washington Post article remarking, “[t]he legal fees alone are enough to bankrupt the industry.”
The PLCAA merely prohibits lawsuits against the gun industry for the criminal misuse of their products by a third party. Suits against the industry for knowingly unlawful sales, negligent entrustment, and those predicated on traditional products liability grounds are still permitted.
Such a federal law shouldn’t even be necessary.
The PLCAA was enacted to codify a longstanding principle of tort law that gun control advocates sought to erode. U.S. tort law has long held that a person or entity cannot be held responsible for a third party’s criminal acts. Simply put: people are responsible for their own behavior, not the behavior of others. Therefore, if a violent criminal acquires and misuses a firearm to commit a crime, it is the criminal who is liable for the conduct, not the company that produced the firearm. Just like how Chevrolet isn’t responsible for the actions of drunk drivers.
Despite the clear intent of Congress, gun control advocates set to work trying to invent a way around the statute. The most recent effort involves U.S. gun control advocates collaborating with Mexico.
Counsel for Mexico includes longtime Brady (formerly Handgun Control, Inc.) attorney Jonathan Lowy, now of Global Action on Gun Violence. An October 2022 Politico item reported, “Earlier this month, Global Action on Gun Violence quietly filed paperwork with the DOJ under the Foreign Agents Registration Act, with [Jonathan] Lowy and Elizabeth Burke, who was also an attorney at Brady, registering as agents of Mexico.”
In their attempt to undo the PLCAA, Mexico and these gun control advocates have advanced the bizarre theory, as NRA’s amicus brief summarizes, that members of the U.S. gun industry “intend to appeal to Mexican cartels by depicting their firearms in patriotic advertisements featuring the American military, law enforcement, and American flags.” Aside from being an attack on the Americans’ ability to access firearms to exercise their Second Amendment rights, the argument imperils the First Amendment right of companies to communicate with legitimate customers.
Mexico also contends that gun industry members are liable for cartel violence because they may be aware that unknown bad actors could use the lawful stream of commerce to criminally divert their firearms. To Mexico and their collaborators, it doesn’t matter that the companies haven’t been shown to have violated the mountain of federal regulations concerning firearm distribution.
To show their support for the foreign government, California joined 15 other states in filing an amicus curiae brief at the Supreme Court advocating to undo the PLCAA. Bonta’s press release accompanying the announcement of the brief was explicit that joining the document was about backing Mexico against a U.S. industry, stating,
California Attorney General Rob Bonta today joined a coalition of 17 state attorneys general in filing an amicus brief in the U.S. Supreme Court, supporting the Mexican government’s lawsuit against gun manufacturers to hold them accountable for their contributions to gun violence in Mexico.
While California’s assistance to Mexico may surprise some, the attempt to undermine Americans’ Second Amendment rights shouldn’t. In 2021, California joined an amicus curiae brief supporting New York’s position in New York State Rifle & Pistol Association v. Bruen, in which the Supreme Court made clear that the Second Amendment protects the right to carry a firearm outside the home for self-defense. One of Bonta’s predecessors as California Attorney General, Kamala Harris, has denied that the Second Amendment protects an individual right.
Those seeking a robust defense of the PLCAA and America’s Second Amendment tradition, and a repudiation of Mexico and its collaborators’ arguments, are encouraged to read NRA’s amicus curiae brief to the U.S. Supreme Court here. Oral arguments before the Court have been set for March 4.
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