U. S. Supreme Court Justice Joseph Story once explained that “[o]ne of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms.” Recognizing that truth, the Founding Fathers enshrined the right to keep and bear arms in our Constitution. But in recent years, corrupt foreign governments have become jealous of our rights and the prosperity they bring. Rather than trying to emulate our freedoms, they have instead availed themselves of our own court system in an effort to undermine our rights and drag us down with them.
In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the Mexican government has taken the unprecedented step of asking the U.S. Supreme Court to allow it to continue with a lawsuit designed to accomplish just that: regulating the firearm industry into oblivion based on an attenuated theory of liability for the lawless actions of narco-terrorist cartels within its own borders. In 2021, Mexico sued Smith & Wesson, Inc., and other industry members in federal court in Boston, claiming that these entities are responsible for the harms the Mexican government has incurred because of Mexican drug cartels illegally smuggling firearms into their country and committing crimes within Mexico’s borders. As if that theory was not crazy enough, Mexico upped the ante and is seeking $10 billion in damages (yes, you read that right) and an injunction that would, among other things, ban so-called “assault rifles,” limit the size of magazines, and regulate the sale of firearms in the U.S.
The audacity of Mexico’s gambit would be laughable except for the fact that its aims are sincerely sinister. It is clear from Mexico’s theory of liability and its requested remedies that it has disdain for Americans’ right to bear arms. Mexico’s lawsuit is a thinly veiled attempt to impose its own policy preferences on law-abiding Americans and an industry that is not only highly regulated under current U.S. law but also essential to the preservation of Second Amendment rights.
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Those who have not been following the case likely wonder how Mexico has gotten this far. Indeed, Congress passed the bipartisan Protection of Lawful Commerce in Arms Act (“PLCAA”) in 2005 for the very purpose of stopping frivolous lawsuits just like this one. In the 1990s and 2000s, several dozen municipalities brought a flurry of lawsuits distorting well-settled tort law to hold industry members responsible for the unlawful, independent actions of third parties. Congress soon recognized those lawsuits were part of a coordinated campaign to destroy the firearm industry by saddling its members with crushing liability. As a result, Congress enacted the PLCAA to put a stop to these noxious tort theories—which were without foundation in the common law—by prohibiting civil actions against firearm industry members seeking to hold them responsible for the criminal or unlawful misuse of their products by third parties.
Considering this background, Mexico’s lawsuit should have been an open-and-shut case. The District Court of Massachusetts agreed, holding that Mexico’s gambit was exactly the type of action the PLCAA was enacted to prevent and, therefore, should be immediately dismissed.
Unfortunately, the U.S. Court of Appeals for the First Circuit reversed the district court’s decision and concluded that Mexico’s lawsuit could go forward because it claimed its case falls within an exception to the PLCAA. That exception is exceedingly narrow, as it provides that the PLCAA’s grant of immunity from suit does not extend to claims that an industry member knowingly violated a specific firearm law and that the violation was the proximate (i.e., direct) cause of the plaintiff’s injuries. Despite these clear limitations, the First Circuit determined that Mexico had plausibly alleged that the industry defendants’ longstanding, legal business practices somehow aided and abetted downstream, illegal straw purchases of their products.
Likewise, the First Circuit held that Mexico’s complaint had satisfied the PLCAA exception’s proximate cause requirement. But simply listing the steps in Mexico’s daisy chain of causation is exhausting. By Mexico’s lights, licensed manufacturers are liable for the crimes committed by cartels in Mexico because (1) they lawfully sell firearms to federally licensed distributors, (2) those distributors sell to licensed retailers, (3) those retailers will occasionally sell to customers who—after passing a federally-mandated background check and unbeknownst to the retailer—are acting as illegal straw purchasers, (4) some of those criminal straw purchasers illegally smuggle arms into Mexico, (5) cartel members illegally obtain some of those arms, (6) cartels use those arms to commit violent crimes in Mexico, (7) those violent crimes injure people and property in Mexico, and (8) the Mexican government suffers fiscal injury due to that violent crime. The First Circuit reasoned liability could attach merely because the remote downstream criminal misuse was “foreseeable” to the manufacturer. But according to this theory, it is also “foreseeable” to Budweiser, for example, that some of its customers will drive drunk and harm others. Yet no one would suggest that Budweiser should be held liable for those independent, criminal actions.
Smith & Wesson, Inc., and the other industry defendants filed a cert petition with the Supreme Court, arguing that the First Circuit’s decision flouts the PLCAA and settled tort law. Thankfully, the Supreme Court granted review, and—after hearing oral argument on March 4—will have the opportunity to correct the First Circuit’s egregious error.
Make no mistake, in addition to distorting well-settled legal principles, Mexico’s lawsuit is also an affront to U.S. sovereignty. It attempts to undermine the constitutional rights of American citizens and impose Mexico’s failed policy agenda through judicial fiat on our own soil. The First Circuit’s decision opens a gaping hole in the PLCAA and would allow any foreign government—and here, one with no counterpart to the Second Amendment—to inject itself into hotly-debated domestic issues where both the Framers and Congress have already spoken.
Mexico’s novel theory of tort liability comes from the same tired playbook that gun control activists used in the myriad municipal lawsuits that gave rise to the PLCAA. Then, Congress took action to stop the efforts to bankrupt a lawful industry that is vital to the exercise of a fundamental constitutional right. Now, the Supreme Court can end this type of ill-conceived litigation once and for all. Doing so would send a clear message to every foreign power seeking to undermine American sovereignty: our cherished freedoms are not open for negotiation.
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