The U.S. Supreme Court looked skeptically Tuesday at Mexico’s efforts to hold American gunmakers legally responsible for their weapons being smuggled in and contributing to that country’s drug cartel violence.
In a brisk 90-minute oral argument, the justices debated whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government and its people, by somehow knowingly aiding and abetting illegal sales of guns to traffickers across the border.
The U.S. neighbor to the south, which has strict gun sale restrictions, argues it should be allowed to file a $10 billion civil suit in American courts.
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But weapons manufacturers say their “routine business practices” are being unfairly targeted, and strongly deny being aware their products have been illegally transported into Mexico.
Both sides of the bench asked tough questions.
“We know that a straw seller is going to sell to someone who is going to use the gun illegally, because if they weren’t, they wouldn’t use the straw purchaser, and that illegal conduct is going to cause harm, and harm like this that the gun is going to be used in some way to injure people, correct?” said Justice Sonia Sotomayor, summarizing Mexico’s legal position.
“Your theory of aiding and abetting liability would have destructive effects on the American economy,” said Justice Brett Kavanaugh. “Lots of sellers and manufacturers of ordinary products know that they’re going to be misused by some subset of people. They know that to a certainty, that it’s going to be pharmaceuticals, cars, what you can name, lots of products. So that’s a real concern.”
The case comes to the high court during a delicate time for both countries, politically and diplomatically.
The Trump administration has pushed the Mexican government to better patrol its border to block drugs and migrants from entering the United States, while Mexican officials have demanded the U.S. stop military-style firearms from ending up in Mexico – fueling the very drug crisis both sides seek to end.
The public session arguments provide a high-profile American forum for Mexico and its complaints about its northern neighbor, just as the U.S. on Tuesday launched historic tariffs on Mexican imports.
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The case could also affect the broader national debate over competing rights contained in the Second Amendment.
A 2005 federal law known as the Protection of Lawful Commerce in Arms Act (PLCAA) was designed to shield gunmakers from civil suits when their products were criminally misused by others. But Mexico is relying on exceptions in the law to pursue its claims.
Families of gun violence, like the parents of the 2012 Sandy Hook Elementary School massacre, have since still tried to file such claims, but this will be the first time the Supreme Court will rule on its limits.
Those families reached a $73 million out-of-court settlement with gunmaker Remington.
Supporters of gun control argue a high court ruling against Mexico will make it harder for them to go after U.S. gunmakers when future mass shootings occur, if it can be proved they knowingly and foreseeably broke the law.
Gun rights groups counter that a lawful, heavily regulated industry should not be subject to liability for criminal acts committed by armed gangs in another country.
Known as the “Iron River,” anywhere from 200,000 to 500,000 American-made guns are illegally trafficked into Mexico each year, according to U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives estimates.
More than 70% of illegal guns seized in Mexico between 2013-18 were sold in the U.S., according to the Giffords Center for Violence Intervention, named after former Rep. Gabby Giffords, severely wounded in a Tucson, Arizona-area mass shooting in 2011.
Mexico has only one gun store – managed by the country’s military – with no private shops, gun shows or commercial manufacture of firearms.
Court records show only 3,215 private gun licenses were issued in the country for low-caliber weapons as of the year 2018, and that illegal possession was the third leading cause of criminal imprisonment.
Mexico is usually among the top three countries globally in annual gun deaths.
Two weeks ago, the Trump administration designated six Mexican cartels as foreign terrorist organizations.
Much of the oral arguments centered on whether gunmakers could be sued on the “proximate case” standard, when the complex commerce pipeline goes from them to wholesalers, distributors, rogue retail dealers, straw purchasers, smugglers, and then to Mexican cartels themselves.
“You haven’t sued any of the retailers that were the most proximate cause of the harm,” Justice Amy Coney Barrett told Catherine Stetson, lawyer for Mexico. “And you haven’t identified them that I can tell in the complaint.”
“All of the things that you asked 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,” said Justice Ketanji Brown Jackson, when it came to such remedies as gun distribution and marketing practices.
But some on the court suggested the scope of the problem Mexico alleges has real consequences.
“The complaint says that 2% of the guns manufactured in the United States find their way into Mexico,” asked Chief Justice John Roberts of the gunmakers’ attorney Noel Francisco. “And I know you dispute that, but is there a number where your legal analysis might have to be altered – if it’s 10%, if it’s 20%? At some point, the proximate cause lines that you draw really can’t bear the weight of the ultimate result.”
The case is Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (23-1141). A ruling is expected by late June.
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