Gun cases are never far from the docket of the U.S. Supreme Court, but on March 4, the justices will take up an unusual gun challenge that could have domestic and international repercussions.
In recent tariff discussions between President Donald Trump and Mexico, our border neighbor agreed to send more troops to slow illegal immigration. In return, Mexico sought help to stem the flood of illegal weapons from the United States into its country.
Mexico is now asking for similar help from the Supreme Court.
On Tuesday, the justices will hear arguments in Smith & Wesson et al v. Estados Unidos Mexicanos. The case stems from a 2021 lawsuit by the Mexican government against seven gun manufacturers and one wholesaler.
The lawsuit alleges that the companies named in the suit were responsible for injuries suffered by the government, its military, law enforcement and citizens, as a result of Mexican drug cartels committing crimes with illegal firearms. Those firearms were supplied to a small number of dealers by gun manufacturers who allegedly knew the dealers were trafficking the weapons to cartels, according to the Mexican government’s complaint.
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The problem of illegal gun trafficking in Mexico is not illusory. The Mexican government estimates that 200,000 firearms are smuggled into the country from the United States each year. And the volume is growing, according to a 2021 report by the U.S. GovernmentAccountability Office.
Mexico has “a single gun store in the entire nation” and some of the most restrictive gun laws in the world, the government told the justices. “Yet the nation is awash in guns, most of which are in the hands of drug cartels and other criminals.”
The issues before the court
While gun rights groups have come out in force to support Smith & Wesson and other gun manufacturers named in the lawsuit by Mexico, this case is not a constitutional one about the Second Amendment right to bear arms.
The high court case, instead, is about a federal law, the Protection of Lawful Commerce in Arms Act (PLCAA). The law, enacted by Congress in 2005, grants gun manufacturers or sellers almost total immunity from civil liability in any state or federal court for the criminal use of their products by third parties. The justices will be looking at this law for the first time.
The law has a few narrow exceptions from its sweeping grant of immunity. A lower federal appellate court ruled that Mexico’s lawsuit fit within one exception, the so-called predicate exception. Mexico, the court said, could go forward to try to prove its claim that the named gun manufacturers “deliberately and systemically support” the unlawful trade of weapons entering its country.
The issues before the justices involve two well-known, basic legal principles: aiding and abetting, and proximate cause (an event or action that is so closely related to an injury as to constitute liability for the injury).
The justices are asked: Did the manufacturers sued by Mexico aid and abet unlawful firearms sales when they allegedly knew that some of their products were being illegally trafficked, and were those sales a proximate cause of Mexico’s injuries?
The lower appellate court ruled that Mexico had “plausibly” claimed that the manufacturers did aid and abet the illegal trafficking of guns “by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals.”
And it found that Mexico also plausibly alleged proximate cause because some of Mexico’s injuries were the “foreseeable and direct” result of the manufacturers’ conduct.
What does each side argue?
The manufacturers and Mexico are represented in the Supreme Court by two of the top advocates before the nation’s high court. Noel Francisco, former solicitor general of the United States in the first Trump administration, is counsel to the gun companies. Catherine Stetson, partner in Hogan Lovells, is co-director of the firm’s national appellate practice and represents the Mexican government.
Stetson argues in her brief that the named gun manufacturers deliberately sell firearms that cartels prefer to so-called red flag dealers, “designing and marketing those firearms in ways they know cater to the cartels.” For example, Stetson wrote that they include “Colt’s special-edition handguns like the Super ‘El Jefe’ pistol, a term used to refer to cartel bosses, and the ‘Emiliano Zapata 1911’ pistol, which comes engraved with the Mexican revolutionary’s dictum: ‘It is better to die standing than to live on your knees.’”
“The criminal market is ‘a feature, not a bug’ of Petitioners’ sales practices,” Stetson wrote, noting that the annual value of her opponents’ guns trafficked into Mexico is well over $170 million.
But Francisco counters that Mexico’s alleged injuries “all stem from the unlawful acts of foreign criminals” and so the government’s lawsuit is barred by the Protection of Lawful Commerce in Arms Act.
Aiding and abetting, he writes in his brief, requires “an affirmative act taken with intent to help a crime succeed.” Mexico’s aiding and abetting theory fails, he contends, “where a lawful industry does nothing but engage in routine business practices.”
That, he argues, “is not the sort of misconduct that can render its participants accomplices—even if … they are aware their products may be criminally misused downstream. That rule controls here.”
The Mexican government’s theory of proximate cause also fails, he contends, because it “rests upon a medley of independent criminal acts, spanning an international border.”
He goes on to describe the chain of events: Gun manufacturers produce firearms in America, then sell them to licensed distributors who sell them to licensed dealers, some of whom, illegally or negligently, sell them to criminals. Some of these are smuggled into Mexico, a fraction end up with cartels, which use them to commit violent crimes, finally harming Mexico’s government.
“No court,” Francisco writes, “has ever found proximate cause on such a remote theory.”
What to watch
The case comes to the justices on a motion to dismiss – a very early stage in the lawsuit. As seen in the large number of amicus briefs filed for both the gun makers and Mexico, it is being closely watched by the firearms industry, gun rights groups, gun law advocates and others.
Whether the decision is a broad reaffirmation of the gun industry’s immunity under the federal law, or a narrow ruling that Mexico, as the lower appellate court found, had alleged sufficient facts to move forward with its lawsuit, will depend on how the justices define those two critical concepts of proximate cause and aiding and abetting in the federal law.
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