Mexico’s Lawfare Attack On American Gun Makers Got a Rough Ride in the Supreme Court

During oral arguments in Smith & Wesson Brands v. Estados Unidos Mexicanos on March 4, a majority of the court expressed doubts that the Mexican government had offered specific enough evidence to move forward to a trial. Several justices — including Clarence Thomas and Brett Kavanaugh — seemed sympathetic toward the gun companies’ argument that the connection between their sales practices and Mexican cartel violence was tenuous at best.  

“Would your theory of aiding and abetting suggest that manufacturers should be concerned if their products, their lawful products, are sold in certain communities or certain neighborhoods where they’re more likely to be misused?” Kavanaugh asked the attorney representing Mexico at one point. “We manufacture knives, but there are a lot of stabbings in certain neighborhoods. Should we make sure our products aren’t sold there?” …

The main issue before the Supreme Court is whether the Mexican government’s claims fit a narrow exception in PLCAA. The law permits lawsuits against gun companies that violate state or federal laws related to the sale or marketing of firearms. In its lawsuit, the Mexican government accused the companies of doing business with retailers who they knew were engaging in illegal sales. …

In one notable exchange, Justice Ketanji Brown Jackson — one of the most left-leaning justices on the bench — repeatedly pressed the Mexican government’s attorney, Catherine Stetson, about whether PLCAA was intended to bar lawsuits like Mexico’s.

“I worry that we’re running up against the very concerns that motivated this statute to begin with,” Jackson said at one point. “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.” 

Jackson’s comments spell almost certain doom for the Mexican government’s case, which must secure the votes of all of the court’s liberal justices as well as at least two of its more conservative members in order to prevail.

Stetson argued that the Mexican government’s lawsuit should be exempt from PLCAA because the gun manufacturers had facilitated gun sales at “bad apple” dealers and that trafficking was a “foreseeable” result.

But the justices repeatedly poked holes in Stetson’s argument, questioning whether it was plausible to accuse gun manufacturers of complicity in illegal sales without naming specific dealers or the specific sales in which they had allegedly participated.

— Champe Barton in SCOTUS Appears Ready to Sink Mexico’s Lawsuit Against U.S. Gunmakers