Washington — The Supreme Court is set to consider Tuesday whether to block the Mexican government’s effort to hold U.S. gun companies accountable for the havoc and violence the country has experienced at the hands of drug cartels armed with firearms trafficked across the southern border.
The legal battle marks the first time that the Supreme Court will consider a federal law known as the Protection of Lawful Commerce in Arms Act, or PLCAA. Enacted with bipartisan support from Congress in 2005, the law provides a legal shield for gun companies from civil suits seeking to hold them liable for harms stemming from the criminal misuse of their products by another person.
But the case, known as Smith & Wesson Brands v. Estados Unidos Mexicanos, also lands before the high court as it has emerged as a bargaining tool in negotiations between President Trump and Mexican President Claudia Sheinbaum. The Trump administration has designated Mexican drug cartels as terrorist groups and threatened 25% tariffs on goods imported from Mexico. Sheinbaum warned last month that if the U.S. declared the cartels as terrorists, her government would expand its lawsuit against the American gunmakers.
Between 200,000 to 500,000 American-made guns are trafficked into Mexico each year, a pipeline that’s been called the “iron river.” Nearly half of all guns recovered at Mexican crime scenes are manufactured in the U.S., according to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Mexico’s lawsuit
Mexico, which has stringent firearms laws and a single gun store in the entire country, filed its lawsuit against seven of the nation’s biggest gun manufacturers and one wholesaler in 2021. The country is seeking $10 billion in damages from the industry, as well as other forms of relief.
A federal district court in Massachusetts dismissed the suit in September 2022, finding that PLCAA “unequivocally” bars lawsuits seeking to hold gunmakers responsible for the actions of people using their firearms. The court also found that while PLCAA contains narrow exceptions, none applied to its case.
But in January 2024, a panel of three judges on the U.S. Court of Appeals for the 1st Circuit reversed the district court’s decision and revived Mexico’s lawsuit.
The 1st Circuit found that Mexico’s suit fell under one of PLCAA’s exceptions, known as the predicate exception, which allows gun manufacturers or sellers to be sued if they knowingly broke the law, and if that violation led directly to Mexico’s injuries. That determination pierced PLCAA’s liability shield, allowing Mexico’s suit to proceed.
The 1st Circuit found that the firearms manufacturers have been “aiding and abetting” the illegal sale of guns to traffickers for cartels in Mexico, and that the trafficking of firearms has foreseeably forced the Mexican government to incur significant costs as a result of increased threats and violence wrought by armed drug cartels.
The case remains in the early stages. While the gunmakers’ appeal was pending, and before the Supreme Court agreed to step into the dispute, the district court dismissed six of the eight manufacturers from the case. The two remaining companies are Smith & Wesson and Interstate Arms, a wholesaler.
A key focus for the justices is likely to be the whether Mexico can draw a direct link from the manufacturers’ lawful production of firearms to the illegal trafficking of those guns and crimes committed by armed cartels.
“It’s where Mexico might be the most vulnerable because however you lay this out, there are certainly a number of intervening actors and things that have to occur before the firearms could actually be used to cause harm in the country of Mexico,” said Andrew Willinger, executive director of the Duke Center for Firearms Law.
Lawyers for the gun companies, led by Smith & Wesson, argued that Mexico relies on an multi-step chain to tie the lawful production and sale of their guns within the U.S. to the chaos in Mexico incited by drug cartels criminally misusing their weapons. That chain starts with the federally licensed manufacturers, flows to wholesalers who sell to licensed dealers, who then engage in unlawful sales of guns that are trafficked into Mexico and land with the cartels. The final links are the guns being used to commit crimes that injure property and people, and the Mexican government being forced to spend money to respond to that fallout.
“In its zeal to attack the firearms industry, Mexico seeks to raze bedrock principles of American law that safeguard the whole economy,” they wrote in a Supreme Court brief. “Indeed, [i]n Mexico’s view, any manufacturer or supplier of a lawful good could face liability over the predictable criminal misuse of its products by downstream consumers. But that is not the law.”
The industry’s lawyers said Mexico’s lawsuit rests on routine business practices and likened the gunmakers to Budweiser selling beer to a college-town bar that serves underage drinkers.
“When the manufacturer or supplier of a lawful product simply puts its product in the general stream of commerce, the aiding-and-abetting statute does not charge that business with broadly policing every bad actor who may pick up its products downstream,” they wrote.
But lawyers for the Mexican government claim that the gun manufacturers deliberately sell large quantities of their products through so-called red-flag dealers, who are known to disproportionately sell guns recovered at crime scenes in Mexico. One such dealer sold more than 650 guns to straw purchasers who were recruited by a drug cartel, the Mexican government alleged in a filing.
Mexico claims the companies also design and market certain firearms to cater to cartels, like Colt’s Super “El Jefe” pistol, a reference to the crime bosses, and the Emiliano Zapata 1911 pistol, which is engraved with the Mexican revolutionary’s declaration that “it is better to die standing than to live on your knees.”
Citing the killings of Mexican police and military by weapons trafficked across the U.S.-Mexico border, as well as its efforts to combat gun trafficking, the Mexican government said it has “tried to stem this relentless tidal wave.”
“But its after-the-fact efforts to find and recover guns from the cartels are small-scale remedies given [the gun manufacturers’] systemic conduct in getting the guns into the trafficker[s]’ hands in the first instance,” they wrote.
The impact of the Supreme Court’s ruling
If the court sides with the gunmakers, the impact would depend on the contours of its opinion. Willinger said that the Supreme Court could issue a narrow decision that focuses on some of the unique aspects of the case: the cross-border context and fact that it was brought by a foreign government.
A group of gun violence prevention organizations warned the Supreme Court that accepting the gun manufacturers’ argument would have devastating consequences.
“It would be a signal that our law doesn’t appropriately contemplate or even respect the suffering of victims of gun violence, the harm they suffered, the lives lost, the lives changed forever,” said David Pucino, deputy chief counsel and legal director at Giffords Law Center. “And it would further suggest an impunity for one particular industry in our country.”
Giffords is one of several gun violence prevention groups that submitted a friend-of-the-court brief backing Mexico in the case.
“They’re trying to take the existing federal immunity statute and dramatically expand its reach because the statute was written and passed with an exception that prevents law-breakers from claiming immunity,” he said. “The restrictions do not apply when the plaintiffs can trace the harm they suffered to a violation of state or federal law.”
Some lawsuits brought against gun manufacturers in state courts have been successful at getting through PLCAA’s liability shield — notably a historic $73 million settlement the families of the victims of the 2012 Sandy Hook elementary school shooting reached with Remington Arms, which made the rifle used in the massacre.
And since 2021, at least nine states have enacted laws that authorize civil lawsuits against the gun industry.
Willinger said that if Mexico prevails before the Supreme Court, it “would be a stamp of approval for some of these state firearm nuisance laws and some of these efforts that have been happening at the state level to essentially make it easier to bring cases under the predicate exception.”
While the case does not involve the Second Amendment, it comes on the heels of a June 2022 Supreme Court decision that expanded gun rights. The high court is also considering the legality of a rule that regulates unserialized firearms called ghost guns, though that case involves whether the Bureau of Alcohol, Tobacco and Firearms exceeded its authority.