For the second year in a row, gun control advocates have lost a unanimous decision at the U.S. Supreme Court. This time the issue was whether Mexico, aided by anti-gun activists stateside, could sue American gun manufacturers for the violence Mexican drug cartels have committed with illegally obtained firearms. The Court shot down Mexico’s complaint in a rare 9-0 ruling, written by Barack Obama appointee Justice Elena Kagan. The opinion reinforced the continued vitality of the Protection of Lawful Commerce in Arms Act (PLCAA), a statute Congress passed to block suits like this that seek to use the courts to impose gun control rejected by elected legislatures.
The case, Smith & Wesson Brands v. Estados Unidos Mexicanos, was decided June 5.
We have been reporting on Mexico’s lawsuit since its inception. The NRA has also participated in the case by filing friend of the court briefs at critical points in its progression. Essentially, Mexico accused various U.S. firearm makers of “aiding and abetting” cartel violence in Mexico through their business practices. These included, so the plaintiff claimed, selling guns to dealers who they know illegally supply traffickers; failing to impose extra legal safeguards in conducting business; and designing and marketing guns that, while perfectly legal in the U.S., happen to appeal to cartel members.
The question before the Court was whether these allegations established a plausible claim that the manufacturers “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[.]” Such violations are an exception to the PLCAA’s general rule that firearms manufacturers and sellers are not liable for harms arising from third party crimes committed with their products.
The justices found that Mexico had not articulated any valid claims of a knowing violation of law on the gunmakers’ part.
Justice Kagan’s opinion succinctly disposed of each of Mexico’s theories. While the Court recognized that plaintiffs theoretically could use the federal aiding and abetting statute to get around the PLCAA, it held Mexico’s broadly conceived claims were too vague and insubstantial to allege the defendants knowingly participated in violations of gun laws. In other words, according to the Court, “Mexico has not adequately pleaded what it needs to: that the manufacturers participate in those [illegal] sales as in something that they wish to bring about and seek by their action to make succeed” (internal punctuation and formatting omitted).
First, the Court held that mere knowledge that legal gun sales sometimes contribute to downstream illegal activity does not, without more, establish culpability. Indifference, wrote the Court, is not the same thing as assistance. The plaintiffs, moreover, did not cite any specific transactions they claimed violated the law, nor did they account for the fact that manufacturers were supplying guns to distributors, not directly to dealers. “Mexico’s allegations on this score,” the Court wrote, are “all speculation.”
The Court also rebuffed the claim that the manufacturers had a duty to regulate dealers of their products beyond the requirements of the law. “Such omissions and inactions, especially in an already highly regulated industry, are rarely the stuff of aiding-and-abetting liability,” the Court observed (internal quotations and formatting omitted). “A manufacturer of goods is not an accomplice to every unaffiliated retailer whom it fails to make follow the law.”
Finally, the justices dismissed Mexico’s claims that making and advertising high performance firearms like the AR-15 and pistols with names and graphics alluding to Mexican folk heroes somehow count as aiding and abetting criminal activity. As the Court correctly noted, “those products are both widely legal and bought by many ordinary consumers.” Indeed, the justices recognized, “[t]he AR–15 is the most popular rifle in the country.” Echoing language NRA-ILA itself used in writing about the case, the Court held: “The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too.” Meanwhile, the pistols mentioned by the plaintiff are also likely appealing to “millions of law-abiding Hispanic Americans.” Brushing off a claim that manufacturers “have not attempted to make guns with non-defaceable serial numbers,” the Court held, “the failure to improve gun design in that way (which federal law does not require) cannot in the end show that the manufacturers have joined both mind and hand with lawbreakers in the way needed to aid and abet.”
Justice Thomas filed a concurring opinion pointing out the need for the Court to consider, in an appropriate case, what counts as a “violation” that could establish an exception to the PLCAA. He noted that Mexico had not identified any collateral criminal convictions supporting the alleged violations and that their attempt to establish these supposed crimes under the lower standard of a civil case raised due process concerns.
Justice Jackson also filed a concurrence, underscoring how Mexico’s theory of the case struck at the heart of what Congress was trying to prevent with the PLCAA. She noted, “Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required.” And the “PLCAA embodies Congress’s express rejection of such efforts—stymying those who, as Congress put it, sought ‘to accomplish through litigation that which they have been unable to achieve by legislation.’” Mexico’s essential failure, she emphasized, was to fault “the industry writ large for engaging in practices that legislatures and voters have declined to prohibit.”
The Supreme Court’s decision comes at a crucial time, as gun control activists backed by billionaire donors have revived lawfare against the firearms industry, and anti-gun states – encouraged by the former Biden-Harris administration – sought to create statutory loopholes to the PLCAA’s coverage to facilitate these suits. Those dubious efforts now have even bigger obstacles to overcome, thanks to the Court’s unified affirmation of the federal protections.
As the Court summarized:
Mexico’s suit closely resembles the ones Congress had in mind: It seeks to recover from American firearms manufacturers for the downstream damage Mexican cartel members wreak with their guns. Of course, the law Congress wrote includes the predicate exception, which allows some suits falling within PLCAA’s general ban to proceed. But that exception, if Mexico’s suit fell within it, would swallow most of the rule. We doubt Congress intended to draft such a capacious way out of PLCAA, and in fact it did not.
Two unanimous Supreme Court losses in consecutive years should provide a clue to the firearm prohibition lobby (and their funders) that they’re losing the plot. For now, at least, it’s adios to Mexico and to the hope of the American gun lobby to gut the PLCAA.
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