The Supreme Court heard arguments in Smith & Wesson v. Mexico on Tuesday, March 4. The case appears designed to bankrupt the American firearms manufacturing industry while enriching our southern neighbors and it aligns Mexico with US-based anti-gunners. While court watchers expected to see pushback from conservatarian justices like Clarence Thomas and Neil Gorsuch on such claims, other members of the court also seemed to disfavor the arguments, including Biden appointee Ketanji Brown Jackson. It looks like the eventual ruling will amount to another loss for gun prohibitionists and a win for individual rights.
A popular tactic favored by gun grabbers is to sue gun makers out of existence. The plaintiff’s bar, let loose, would move juries to tears with the experience of gun violence survivors. Then, they demand the gun companies open up their checkbooks and pay damages. Congress ended the practice in 2005 with the passage of the Protection of Lawful Commerce in Arms Act (PLCAA). As the Wall St. Journal reported at the time, “Gun controllers have responded [to legislative defeats] by avoiding legislatures and going to court, teaming with trial lawyers and big city mayors to file lawsuits blaming gun makers for murder.”
Mexico and the Anti-Gunners
That did the trick, mostly, until 2021. That’s when a group of highly motivated anti-gun movement lawyers thought they could poke a hole through the liability shield – via a ten-billion-dollar damage claim. The lawyers are those at the top of Big Anti-Gun – very talented career hoplophobes (people who suffer from an irrational fear of firearms) who have spent their lives trying to disarm their fellow Americans. How? By asserting that gun manufacturers should have known that some of their products would be used to commit crimes and are, therefore, liable.
The district court dismissed the claim as barred by the PLCAA. But then Mexico got a big break from the First Circuit Court of Appeals, which accepted the plaintiff’s theory that, as the defense brief put it, “defendants make firearms available knowing that some will be unlawfully smuggled abroad and put to criminal use and that they could be doing more to stop the problem.” No evidence was provided to back up the claim – no matter that gun manufacturers sell to federally licensed firearm distributors, which sell to federally licensed firearm dealers. It’s akin to a victim of a drunk driver suing Budweiser because they knew some people would drink and drive.
The Wise Latina Strikes Again
Most of the justices’ interactions with the advocates were sufficiently critical to lead many to predict Mexico would lose its case. Justice Sotomayor was a notable exception to an otherwise mostly skeptical reception. She invented the notion that producing flashy-looking weapons was designed to appeal to cartel members. Then, our most progressive justice mistakenly equated correlation with causation:
“You have the manufacturers aiding and abetting, in your theory, by producing guns that are singularly attractive to the cartel because they are designed in a particular way that cartel members like because they’re showy. They’re making erasable serial numbers, which obviously are attractive to criminals because every criminal would like to erase the serial number if they can.”
The guns with erasable serial numbers appear to be fabricated by her imagination. Even still, Sotomayor doesn’t seem to understand how criminals operate. Almost no criminal keeps or carries a firearm without a serial number because mere possession of it is an additional federal crime. And one that’s easy to prove! While proving a drug conspiracy or fraud operation may be quite challenging for police and prosecutors, the same is not true if they encounter anyone with a firearm having an obliterated serial number. 18 U.S.C.§ 922(k) makes mere possession of such a gun a felony punishable by a 5-year term.
Mexico has ultra-strict gun control laws. Only two gun stores serve the needs of its 131 million people. By comparison, Wyoming has 566 licensed gun dealers. Wyoming’s homicide rate is 2.6 per 100,000 people. In Mexico, it’s 23.3. This appeal springs from a pre-trial motion to dismiss the case. Smith and Wesson could lose this appeal and later win their case in a lower court or upon further appeal. The Supreme Court is expected to issue a ruling by summer.
