By Addison Wieseler

Abstract

This Article examines the current state of a Supreme Court case and its potential implications for gun regulation and manufacturer liability in the U.S. and Mexico. It analyzes key aspects of Mexico’s lawsuit against major American gun makers, the applicability of protection of gun manufacturers, and the case’s progression through the courts. Indeed, Supreme Court’s impending decision will inexorably impact gun violence in both countries and re-shape the landscape of firearm manufacturer accountability.

I. Introduction to Partisanship

As the Supreme Court’s Justices prepared to return to their benches for a new term this October, their new docket holds several interesting and crucial cases. One such case is Smith & Wesson Brands v. Estados Unidos Mexicanos, No. 23-11411: This case is the first to legitimately challenge gun manufacturers and break past barriers, such as the Protection of Lawful Commerce in Arms Act that has shielded gun makers from the consequences of their directed marketing towards cartels in Mexico. This case is extremely important because it could help to hold gun manufacturers accountable after they have been shielded for decades. In a time and country where mass shootings are unfortunately commonplace, this case could help to regulate the way that gun manufacturers are able to sell guns. Hopefully, this will help to curb the proliferation of gun violence in both the United States and Mexico by stopping the arming of cartels responsible for most gun violence in Mexico, and bringing awareness to the current lack of gun regulations in the United States.

II. Mexico’s Lawsuit

In August 2021,2 the Mexican government filed a lawsuit against seven American gun makers and one gun distributor, including huge brands such as Smith & Wesson, Sturm, Ruger and Co., and Colt and Glock. The lawsuit, which aims to recover $10 billion in damages,3 accuses American gun manufacturers of aiding and abetting cartels in Mexico, contributing to the epidemic of gun violence against citizens and the Mexican government. The lawsuit was originally dismissed by a Massachusetts federal trial judge, citing the 2005 Protection of Lawful Commerce in Arms Act (PLCAA),4 which protects gun manufacturers from liability if their products are misused by customers, particularly if they are used in criminal activities.

III. Appeals Court Overturns Dismissal

However, the case was appealed by Mexico, prompting the First Circuit Court of Appeals5 to overturn the lower court’s decision. As stated by First Circuit Judge William Kayatta Jr in the court’s opinion: “We think it clear that by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales. This scenario, in substance, is fairly analogous to what Mexico alleges.”6 In a time and country where shootings are so frequent and gun regulations are always a topic of conversation, such a statement from the Court of Appeals garners much attention and gives validity to Mexico’s claims.

IV. The Supreme Court’s Role

The question remains whether the right-leaning Supreme Court will heed the lower court’s decision – as their previous rulings might suggest – or if they will follow the First Circuit Court of Appeals’ decision. If the former, they will be claiming the PLCAA shields gun manufacturers from lawsuits by foreign governments for harms and misuses that occur abroad, even considering their marketing tactics that, as the lawsuit says, “design, market, distribute and sell guns in ways” that aim to arm drug cartels.7

A primary component of the Supreme Court’s job, in this case, is to rule on whether Mexico is allowed to sue gun manufacturers in the first place: Specifically, they will do this by assessing if the PLCAA applies to the case or if Mexico qualifies for an exemption to the act. Ruling that Mexico is not allowed to sue the gun makers would be a huge step backward for gun regulation advocates, as well as the rest of the country. It is a way for the Supreme Court to continue to shield gun makers without taking responsibility for the lives lost at the hands of gun violence in both the United States and Mexico.

V. Expiration of Assault Rifle Ban and Increased Gun Violence

In 2004,8 a 10-year federal ban on assault rifles expired in the United States, quickly followed by the PLCAA and its entailing protection of gun manufacturers. Mexico’s lawsuit9 states that between 1999 and 2004 (during the implementation of the federal ban on assault rifles), the number of homicides in Mexico decreased significantly. However, after the United States federal ban on assault rifles expired in 2004, manufacturing and distribution from gunmakers in the United States increased; as a direct result, the number of homicides in Mexico also significantly increased.

The lawsuit additionally states that they estimate 597,000 guns are illegally trafficked into Mexico every year. This is supported by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),10 which found that seventy percent of guns and other firearms recovered in Mexico from cartels in a four-year period were originally made in the United States11. Alternatively, Mexico only has one gun shop that issues less than fifty permits per year. The influx of gun violence in Mexico does not correlate with the amount of guns issued within Mexico by Mexico.

VI. Potential Inapplicability of the PLCAA

Furthermore, a brief12 released by the attorney general of the state says that the PLCAA, even if it is still cited in this case, does not apply,13 as Mexico is not seeking direct blame for the deaths produced by these guns. They are arguing, rather, that gun manufacturers are deliberately marketing to cartels. In this case, the PLCAA would not apply, and the companies would be held accountable on different grounds.

VII. Gun Manufacturers’ Appeal and Cited Precedent

The lawyers of gunmakers, such as Smith and Wesson Brands, cite the precedent Twitter, Inc. v. Taamneh14 for their appeal of the First Circuit Court of Appeals ruling: That Supreme Court ruling from 2023 holds that Twitter was not liable for aiding and abetting terrorist activities by hosting ISIS-related content on the app. However, Twitter was not deliberately advocating and marketing towards terrorist actions or terrorist groups. A platform from which to do something is different from actively seeking out groups (cartels) and advertising directly to them, knowing the negative effects of such actions.

VIII. Conclusion

All pieces of evidence will be reviewed by the Supreme Court with a decision by July 2025. While it may appear clear that the conservative Supreme Court will rule in favor of the gunmakers, the court recently upheld a federal law banning domestic abusers from owning a firearm, contradicting their previous stances on firearms. Either outcome for the case provides the country a reason to revisit old gun laws and provides United States gun violence prevention organizations more ground on which to uphold their positions on the importance of gun regulations in response to the proliferation of mass shootings in the United States.