Supreme Court seems ready to block Mexican government's lawsuit against U.S. gunmakers
Washington — The Supreme Court on Tuesday appeared poised to block the Mexican government's effort to hold U.S. gun companies accountable for the havoc and violence the country has experienced at the hands of drug cartels armed with firearms trafficked across the southern border.
The legal battle marks the first time that the Supreme Court will consider a federal law known as the Protection of Lawful Commerce in Arms Act, or PLCAA. Enacted with bipartisan support from Congress in 2005, the law provides a legal shield for gun companies from civil suits seeking to hold them liable for harms stemming from the criminal misuse of their products by another person.
But the case, known as Smith & Wesson Brands v. Estados Unidos Mexicanos, also lands before the high court as it has emerged as a bargaining tool in negotiations between President Trump and Mexican President Claudia Sheinbaum. The Trump administration has designated Mexican drug cartels as terrorist groups and imposed 25% tariffs on goods imported from Mexico. Sheinbaum warned last month that if the U.S. declared the cartels as terrorists, her government would expand its lawsuit against the American gunmakers.
Between 200,000 to 500,000 American-made guns are trafficked into Mexico each year, a pipeline that's been called the "iron river." Nearly half of all guns recovered at Mexican crime scenes are manufactured in the U.S., according to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Following more than an hour of arguments, the high court appeared skeptical of Mexico's argument that its lawsuit against the gunmakers should move forward because it satisfied an exception to PLCAA's liability shield. Under that exception, gun manufacturers and sellers can be sued if they knowingly broke the law and if that violation led directly to Mexico's injuries — the millions of dollars in damage to its military and police property as a result of cartel violence.
The Mexican government has said that the manufacturers are aiding and abetting the unlawful sale of their firearms to straw purchasers, which are then trafficked across the southern border for the cartels.
But several of the justices were wary of Mexico's theory of liability.
Justice Brett Kavanaugh said a "real concern" for him was the impact to other industries selling lawful products if the Supreme Court were to accept the Mexican government's position that the gunmakers were aiding and abetting the illegal sale of their weapons to traffickers.
He pointed to concerns raised in friend-of-the-court briefs about the "destructive effects" to the U.S. economy, as many manufacturers of ordinary products know that they're going to be misused by a subset of people.
Justice Elena Kagan said the Mexican government is alleging that the gun manufacturers are aiding and abetting some so-called red-flag dealers who then sell firearms to straw purchasers, but "who are they aiding and abetting in this complaint?"
That point was echoed by Justice Amy Coney Barrett, who noted that the lawsuit doesn't identify specific red-flag dealers. She said that the Mexican government hasn't sued any of the retailers that were the most direct cause of the harm to Mexico.
Justices Ketanji Brown Jackson said the accusations Mexico raises in its lawsuit aren't allegations that the gun manufacturers knowingly violated the law.
"Those statements go to whether or not the defendants had knowledge that at the end of the day, some dealers might be doing something wrong, those guns that they're selling are ending up in the wrong hands," she said. "I took the statutory language here to be requiring more in terms of violation of the defendants in this case."
Mexico's lawsuit
Mexico, which has stringent firearms laws and a single gun store in the entire country, filed its lawsuit against seven of the nation's biggest gun manufacturers and one wholesaler in 2021. The country is seeking $10 billion in damages from the industry, as well as other forms of relief.
A federal district court in Massachusetts dismissed the suit in September 2022, finding that PLCAA "unequivocally" bars lawsuits seeking to hold gunmakers responsible for the actions of people using their firearms. The court also found that while PLCAA contains narrow exceptions, none applied to its case.
But in January 2024, a panel of three judges on the U.S. Court of Appeals for the 1st Circuit reversed the district court's decision and revived Mexico's lawsuit.
The 1st Circuit found that Mexico's suit fell under one of PLCAA's exceptions, known as the predicate exception, which allows gun manufacturers or sellers to be sued if they knowingly broke the law, and if that violation led directly to Mexico's injuries. That determination pierced PLCAA's liability shield, allowing Mexico's suit to proceed.
The 1st Circuit found that the firearms manufacturers have been "aiding and abetting" the illegal sale of guns to traffickers for cartels in Mexico, and that the trafficking of firearms has foreseeably forced the Mexican government to incur significant costs as a result of increased threats and violence wrought by armed drug cartels.
The case remains in the early stages. While the gunmakers' appeal was pending, and before the Supreme Court agreed to step into the dispute, the district court dismissed six of the eight manufacturers from the case. The two remaining companies are Smith & Wesson and Interstate Arms, a wholesaler.
Noel Francisco, who argued on behalf of the gun companies, led by Smith & Wesson, argued that Mexico relies on an multi-step chain to tie the lawful production and sale of their guns within the U.S. to the chaos in Mexico incited by drug cartels criminally misusing their weapons. That chain starts with the federally licensed manufacturers, flows to wholesalers who sell to licensed dealers, who then engage in unlawful sales of guns that are trafficked into Mexico and land with the cartels. The final links are the guns being used to commit crimes that injure property and people, and the Mexican government being forced to spend money to respond to that fallout.
Mexico, he told the justices, doesn't identify a specific crime, criminal or criminal enterprise that the gun companies are supposedly helping. Instead, Francisco said it claims that the manufactures are "liable for every illegal sale by every retailer in America because they know that a small percentage of firearms are sold illegally and don't do more to stop it."
"No case in history supports that theory," Francisco said. "Indeed, if Mexico is right, then every law enforcement organization in America has missed the largest criminal conspiracy in history operating right under its nose."
Francisco said Mexico's lawsuit rests on routine business practices and likened the gunmakers to Budweiser selling beer to a college-town bar that serves underage drinkers.
But lawyers for the Mexican government claim that the gun manufacturers deliberately sell large quantities of their products through so-called red-flag dealers, who are known to disproportionately sell guns recovered at crime scenes in Mexico. One such dealer sold more than 650 guns to straw purchasers who were recruited by a drug cartel, the Mexican government alleged in a filing.
Catherine Stetson, who argued on behalf of the Mexican government, told the justices that the gunmakers "deliberately" supply the firearms market in Mexico by selling to these "rogue" dealers and said the harms to the Mexican government are foreseeable.
Mexico also claims the companies design and market certain firearms to cater to cartels, like Colt's Super "El Jefe" pistol, a reference to the crime bosses, and the Emiliano Zapata 1911 pistol, which is engraved with the Mexican revolutionary's declaration that "it is better to die standing than to live on your knees."
These firearms, Stetson said, are "coveted" by the cartels.
Citing the killings of Mexican police and military by weapons trafficked across the U.S.-Mexico border, as well as its efforts to combat gun trafficking, the Mexican government said in filings it has "tried to stem this relentless tidal wave."
"But its after-the-fact efforts to find and recover guns from the cartels are small-scale remedies given [the gun manufacturers'] systemic conduct in getting the guns into the trafficker[s]' hands in the first instance," they wrote.
The Supreme Court's arguments
Addressing the design and marketing of the firearms, Chief Justice John Roberts said these decisions are not illegal.
"There are some people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a BB gun, and I wonder exactly what the defendant, the manufacturer, is supposed to do in that situation," he said. "Do you say no, he shouldn't be marketing a particular legal firearm because they're going to go into Mexico at a higher percentage than others?"
Jackson, meanwhile, noted Congress' role in enacting PLCAA and said she is concerned that because it's not clear how the manufacturers are violating a particular law, the Supreme Court is "running up against the very concerns that motivated this statute to begin with."
She also took issue with the scope of relief Mexico is seeking, which called for changes to distribution practices and firearms safety. These "would amount to different kinds of regulatory constraints that I'm thinking Congress didn't want the courts to be the ones to impose."
"PLCAA is telling us that we don't want the courts to be the ones to be crafting remedies that amount to regulation on this industry," Jackson said. "To the extent that we're now reading an exception to allow the very thing that the statute seems to preclude, I'm concerned about that."
If the court sides with the gunmakers, the impact would depend on the contours of its opinion. Andrew Willinger, executive director of the Duke Center for Firearms Law, said that the Supreme Court could issue a narrow decision that focuses on some of the unique aspects of the case: the cross-border context and fact that it was brought by a foreign government.
A group of gun violence prevention organizations warned the Supreme Court that accepting the gun manufacturers' argument would have devastating consequences.
"It would be a signal that our law doesn't appropriately contemplate or even respect the suffering of victims of gun violence, the harm they suffered, the lives lost, the lives changed forever," said David Pucino, deputy chief counsel and legal director at Giffords Law Center. "And it would further suggest an impunity for one particular industry in our country."
Giffords is one of several gun violence prevention groups that submitted a friend-of-the-court brief backing Mexico in the case.
"They're trying to take the existing federal immunity statute and dramatically expand its reach because the statute was written and passed with an exception that prevents law-breakers from claiming immunity," he said. "The restrictions do not apply when the plaintiffs can trace the harm they suffered to a violation of state or federal law."
Some lawsuits brought against gun manufacturers in state courts have been successful at getting through PLCAA's liability shield — notably a historic $73 million settlement the families of the victims of the 2012 Sandy Hook elementary school shooting reached with Remington Arms, which made the rifle used in the massacre.
And since 2021, at least nine states have enacted laws that authorize civil lawsuits against the gun industry.
Willinger said that if Mexico prevails before the Supreme Court, it "would be a stamp of approval for some of these state firearm nuisance laws and some of these efforts that have been happening at the state level to essentially make it easier to bring cases under the predicate exception."
While the case does not involve the Second Amendment, it comes on the heels of a June 2022 Supreme Court decision that expanded gun rights. The high court is also considering the legality of a rule that regulates unserialized firearms called ghost guns, though that case involves whether the Bureau of Alcohol, Tobacco and Firearms exceeded its authority.
