Mexican marines escort five alleged drug traffickers of the Zetas drug cartel in front of hand grenades, firearms, cocaine, and military uniforms. | Yuri Cortez/AFP via Getty Images
The nation of Mexico’s lawsuit against several major US gun manufacturers, known as Smith & Wesson Brands v. Estados Unidos Mexicanos, was cursed long before it reached the Supreme Court.
Tuesday’s oral argument in the case only confirmed that. It appears that at least seven, and possibly as many as all nine, of the justices will reject Mexico’s argument that gun companies are liable for crimes committed with their products across the US-Mexico border.
Mexico sued seven gun companies plus a company that distributes firearms, claiming that these companies knowingly and unlawfully supply guns to drug cartels. According to a federal appeals court, the defendants in this case “produce more than sixty-eight percent of the U.S. guns trafficked into Mexico, which comes out to between 342,000 and 597,000 guns each year.”
Though the appeals court determined that this case could move forward, at least for now, Mexico’s lawsuit seemed to hit a wall during Tuesday’s argument. All six of the Court’s Republicans plus Biden-appointee Justice Ketanji Brown Jackson sounded highly skeptical of Mexico’s claims, and all nine justices asked questions suggesting that they may not buy Mexico’s legal theory.
One reason why this case is cursed is a 2005 federal law, known as the Protection of Lawful Commerce in Arms Act (“PLCAA”), which gives gun companies an unusual level of immunity from lawsuits. Under PLCAA, gun manufacturers are immune from most suits “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”
PLCAA does allow gun companies to be sued when they “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.” In Smith & Wesson, Mexico claims gun companies aided and abetted violations of federal law by knowingly distributing guns to traffickers who provide them to drug cartels.
While few, if any of the justices seemed to buy that argument, they seemed quite unsure about how they would rule that the gun companies are immune from this lawsuit. It was clear, however, that Mexico is unlikely to prevail in this lawsuit. The open question is how the justices will get to that result.
The many ways that Mexico could lose this case, briefly explained
PLCAA’s core provision prohibits lawsuits arising out of “the criminal or unlawful misuse” of a gun by a “third party,” thus cutting off most lawsuits against gun companies if someone uses their product to commit a crime. The law does contain an exception, but only when the gun company “knowingly violated a State or Federal statute,” and only when that violation was “a proximate cause of the harm for which relief is sought.” (I will explain what “proximate cause” is down below.)
Right out the gate, Justice Clarence Thomas questioned whether Mexico had even identified a statute that the gun companies had allegedly violated. Justice Neil Gorsuch suggested that Mexico would have to prove that the gun companies intended to violate a particular law, although he did point to two federal laws prohibiting unlicensed dealers from selling guns, which may have been violated by these traffickers.
But Mexico does not actually argue that the gun companies, which presumably are licensed to sell their core product, directly sold any guns without a license. Instead, it argues that, by knowingly distributing their product to these traffickers, the gun companies aid and abet a legal violation.
The Court’s cases governing when someone can be held liable for aiding or abetting someone else’s illegal activity are vague, and the Court’s most recent case considering this question includes some prominent language that cuts against Mexico’s legal theory.
In Twitter v. Taamneh (2023), a unanimous Supreme Court rejected the idea that social media companies can be liable for aiding and abetting terrorism, simply because some terrorist groups may use their platform for recruitment. That case warned that “if aiding-and-abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.”
Justice Brett Kavanaugh seemed to latch onto this concern as a good reason to rule against Mexico. He noted that lots of products — ranging from knives, to baseball bats, to prescription drugs — can be used to commit crimes. He was concerned that, under Mexico’s legal theory, a baseball bat manufacturer might be held liable for aiding and abetting a beating if it sold its product in an area where assaults with baseball bats are statistically higher than in other areas.
Jackson, meanwhile, argued that the statute permits suits alleging a statutory violation to move forward, but not suits rooted in the “common law,” a body of judge-made law that often governs personal injury lawsuits. Congress, she claimed, was concerned that judges applying common law rules might displace the legislature’s power to decide when gun manufacturers should face liability, so it tried to cut off common law suits when it enacted PLCAA.
The reason why this distinction between common and statutory law matters, at least to Jackson, is because the concept of aiding and abetting arises out of the common law.
Justice Samuel Alito, at one point, took a completely different approach, claiming that many Americans believe that Mexico is harming Americans — as if that’s somehow relevant to the narrow legal question of whether PLCAA immunizes gun companies from this particular lawsuit.
In any event, the Court never seemed to coalesce around a single theory, so it is difficult to predict how the justices will ultimately decide to rule against Mexico. But it seems safe to say that Mexico is likely to lose this case.
The justices did seem to reject the gun companies’ most disruptive argument
All of this said, the gun companies did make one argument that several of the justices seemed to firmly reject early in the argument, which could have disrupted significant swaths of US law had the justices accepted it.
Recall that PLCAA requires Mexico to show not only that the gun companies knowingly violated a statute, but that this violation was “a proximate cause of the harm for which relief is sought.” Proximate cause is a foundational legal concept, which refers to when someone can legally be held responsible for causing another person to be injured.
Suppose that Denise hits someone with her car while driving home, causing them to break their arm. Any number of acts could be said to have caused this accident, including the car maker’s decision to make the car, the car dealer’s decision to sell it to Denise, a steel company’s decision to refine steel that was used to make the car, and a mining company’s decision to mine the iron that was used to make this steel. But, absent unusual circumstances, the law only holds Denise liable for her own negligent driving, rather than imposing liability on literally anyone who made it possible for this accident to happen.
Though the concept of proximate cause can be slippery, the general rule is that a defendant can be held liable for injuries that are the reasonably foreseeable result of their illegal actions.
The gun companies, however, spend much of their brief arguing for a different definition of “proximate cause.” Under their proposal, when a chain of events leads to a bad outcome, the legal cause of that outcome is generally “limited to the ‘first step’ in a causal chain.” This is especially true, they argue, when that chain of events involves “separate actions carried out by separate parties” — that is, when multiple independent actions by multiple people led to the bad outcome.
Thus, if a gun company sells hundreds of firearms to the International Brotherhood of Hitmen and Contract Murders, fully intending that these guns be used to kill innocent people, the gun company still could not be held legally responsible for doing so — because an individual hitman’s decision to use one of these guns to kill someone is a “separate action” committed by someone other than the gun company itself.
In any event, none of the justices seemed to buy this redefinition of proximate cause. And a few of them, including Chief Justice John Roberts and Justices Sonia Sotomayor and Amy Coney Barrett, appeared quite dubious of this legal argument.
That’s a small silver lining for anyone hoping that gun manufacturers may someday face legal consequences for the harms caused by their products. But the overall thrust of Tuesday’s argument still suggests that the gun companies are likely to win this case.
