Yesterday, the U.S. Supreme Court heard oral arguments in a case in which the Mexican government is attempting to hold members of the U.S. gun industry financially liable for drug cartel violence south of the border. The case, Smith & Wesson Brands v. Estados Unidos Mexicanos, had originally been dismissed by the district court under the Protection of Lawful Commerce in Arms Act (PLCAA). It was then revived by the First Circuit Court of Appeals under an exception to the PLCAA, and the industry defendants appealed that decision to the Supreme Court.
Unsurprisingly, the justices appeared skeptical about the Mexican government’s self-serving claims that it’s the firearms industry in the U.S. that is the cause of Mexico’s woes, as opposed to, say, that government’s own corruption and mismanagement. But it was unclear if there was a majority theory about the most egregious flaw in Mexico’s case. The Supreme Court’s decision has potentially serious ramifications for the PLCAA, which since 2005 has protected the gun industry from frivolous lawsuits and has recently been under an all-out assault by the gun control movement.
The purpose of the PLCAA, as set forth in the act’s own findings and purposes section, is to protect the Second Amendment rights of all Americans by protecting the industries that lawfully make and distribute firearms. Those industries had been subject to a lawfare campaign that sought to hold its members responsible, not for what they did, but for what criminals later did with their lawfully sold products. The PLCAA was a response to this misuse of the legal system and states:
The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
At the same time, however, Congress did not want to encourage or excuse whatever bad behavior might exist within the industry itself. It therefore exempted from the PLCAA’s protection “an action in which a manufacturer or seller … 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[.]” The act then gives examples of the sorts of violations Congress had in mind, which make clear the relevant laws were those passed specifically to regulate the gun industry itself. This has become known as the “predicate exception.”
The predicate exception has now become the focus of a new generation of activist lawfare against the gun industry. These activists are hoping to use the exception to create broad theories of liability that will swallow the rule of the PLCAA’s protection. Their big breakthrough came in the case of Soto v. Bushmaster, which validated the use of a Connecticut statute aimed at “unscrupulous” advertising (and which had never been used against a gun company) as a predicate exception. That case set the stage for the bankruptcy of Remington firearms and provided a road map for anti-gun activists to find (or even create) new predicate exceptions.
As in the original lawfare that prompted the PLCAA, the ultimate validity of these legal theories was irrelevant. The cases merely needed to drag on long enough to financially ruin the companies involved or force them to adopt business practices that mirrored failed gun control legislation. If anything, the legal claims of the new generation of anti-gun litigants are even wilder and more far-fetched than their predecessors, who almost always lost when their lawsuits reached a decision on the merits.
In Mexico’s case, the predicate exception was apparently a federal statute that prohibits aiding or abetting a federal crime. This statute was not specifically enacted with the gun industry in mind and indeed applies to the entire federal criminal code. The crimes the industry supposedly aided and abetted were those involved with illegal firearms trafficking, including straw sales, illegal export, and transfers to prohibited people or for prohibited purposes.
Yet in explaining how this theory worked in practice, the plaintiffs did not cite specific illegal actions by the industry defendants but the fact they made guns that, while legal, were supposedly meant to be especially attractive to cartel members. Then they allowed those guns to be sold by dealers who, while federally licensed and subject to ATF oversight, sometimes made straw sales that resulted in the guns winding up in Mexico in the hands of cartel members.
Moreover, the plaintiffs argued, the U.S. government had informed the industry members that this was happening (although those officials did not actually take enforcement actions to stop it, because they could not establish actual violations of the law). But it was the legal responsibility of the industry defendants, Mexico argued, to go beyond the laws specifically regulating their industry to stop what was happening. This meant adopting as corporate policy the same sorts of measures that were present in failed gun control legislation.
Essentially, what Mexico was claiming was that the only way for the U.S. gun industry to manufacture and distribute guns legally was to do so in a way that not only complied with U.S. gun laws but was acceptable to U.S. gun control activists and Mexico’s government.
There were so many things wrong with this argument that the justices seemed to have trouble coalescing around a single theory.
The industry members’ attorney focused on the fact that lawful activity could not be unlawful “aiding and abetting” just because the plaintiffs didn’t like how it was done. And it couldn’t be the “proximate cause” of the plaintiffs’ damages because between the supposedly unlawful industry actions and the harms suffered in Mexico were multiple intervening crimes that were much more closely related to those harms. To state the obvious, the proximate cause of harms suffered by someone shot deliberately by a cartel member was the cartel member. Multiple justices seemed to agree.
But two justices, Amy Coney Barrett and Ketanji Brown Jackson, suggested the plaintiffs had not even cleared the hurdle of identifying a proper predicate exception to the PLCAA, because aiding and abetting is not a crime specific to the gun industry.
As Justice Barrett said, “when we're talking about the statute that was the violation at the beginning, for the predicate, it has to be a statute that was specifically applicable to the sale or marketing of the product, the gun.” After some back and forth with the industry’s lawyer, she continued: “So that seems to me to refer to a specific statute relating to the manufacture, sale, distribution of guns, not the aiding-and-abetting statute, right?”
Justice Jackson then picked up that refrain in her own questioning:
It seems to me this is a statutory interpretation question about the meaning of what the predicate exception says, knowingly violated a state or federal statute. Aiding and abetting is in the examples. It's not even in the actual core statutory statement of what would qualify. … So shouldn’t we be focused more on trying to understand what Congress meant when it was excepting -- you say narrowly -- a certain kind of claim?
To the surprise of many, Justice Jackson – a Biden appointee not known for being pro-gun – expressed mostly clearly and accurately what the PLCAA was meant to accomplish. Justice Jackson noted that Congress wanted to be sure the elected branches of government, not judges, were the ones to regulate firearms. Thus, the predicate exception to the PLCAA requires a plaintiff to identify which of these firearm-related statutes was violated in causing the plaintiffs’ harms. “Congress didn't want … general aiding-and-abetting concerns to be what is imposing duties on these manufacturers,” Justice Jackson stated. And with respect to the sorts of relief the plaintiffs were seeking, she continued: “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.”
In other words, Justice Jackson recognized the plaintiffs were doing the very thing that prompted the PLCAA in the first place: trying to get ideologically aligned judges to regulate firearms on a case-by-case basis. This, in turn, would pose an existential threat to the industry by making compliance with the law a constantly shifting target manipulated by the most ant-gun members of the judiciary, who could not be held politically accountable.
But another line of questioning raised the point that what the plaintiffs in essence wanted the industry to do was profile their customers and refuse to serve customers who were legally eligible but still, in the plaintiffs’ view, suspect or who lived in suspect locales. Justice Kavanaugh asked, “Is that where your theory of aiding and abetting leads, that you have to be kind of chasing -- tracing everything down the chain and make sure we're not selling in these places or it's not ending up in the places where it's more likely to be misused[?]” He amplified this point with a hypothetical about not selling baseball bats in certain neighborhoods. Was the industry, in other words, required to adopt plaintiffs’ own preferred types of discrimination in determining where guns could be sold or to whom?
The lawyer for the industry picked up on this theme in his own closing statements:
[Opposing counsel] also talked about three pistols sold by Colt with Spanish-named firearms. 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. And making those firearms available cannot possibly cross the line into aiding-and-abetting liability.
It would be ironic, although certainly welcome, if Biden appointee Ketanji Brown Jackson were to write a majority opinion strongly reasserting the PLCAA’s protections against activists’ attempts to bypass legislatures to enact gun control through the courts. Biden, after all, endorsed exactly that sort of activism and made elimination of the PLCAA one of the highest priority items on his agenda.
The Supreme Court’s decision and reasoning remain to be determined. But even firearm prohibition advocates glumly admit there does not appear to be a majority for the proposition that Mexico can blame U.S. companies, regulated by the U.S. government, for Mexican crime.
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