By John Fritze
(CNN) — A majority of the Supreme Court appeared prepared Tuesday to shut down a lawsuit from the Mexican government alleging American gun manufacturers should be held responsible for cartel violence on the Southwest border.
The justices debated the high-profile case in their quiet, ornate courtroom as relations between Washington and Mexico City were fraying in real time. President Donald Trump allowed a 25% tariff on Mexican goods to take effect and the president of Mexico vowed to impose retaliatory duties within days.
Mexico sued Smith & Wesson and six other major US gun makers in 2021 for $10 billion in damages, alleging that the companies design and market their guns specifically to drug cartels that then use them in the “killing and maiming of children, judges, journalists, police, and ordinary citizens throughout Mexico.”
But the Supreme Court – both conservatives and at least some of the liberal justices – peppered the lawyer for Mexico with questions indicating they were concerned with the prospects of allowing the lawsuit to go forward. And the broader diplomatic context was clearly on the mind of several members of the court.
“Mexico says that US gun manufacturers are contributing to illegal conduct in Mexico,” Justice Samuel Alito, a conservative, said at one point. “There are Americans who think that Mexican government officials are contributing to a lot of illegal conduct here.”
Suppose, Alito pondered, a US state decided to sue Mexico for what it viewed as aiding and abetting crime in the United States. Would Mexico, he asked, “be willing to litigate that case in the courts of the United States?”
Part of Mexico’s argument is that American gunmakers are manufacturing and marketing guns that appeal to cartels and that they’re selling them to distributors that are known to deal with organized crime.
But Chief Justice John Roberts questioned whether Mexico had cleared the legal bar it needs to by pointing to products like the Super “El Jefe” pistol.
“Those are all things that are not illegal in any way,” said Roberts, a conservative. “There some people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a bb gun.”
Not a Second Amendment fight
The case does not center on the Second Amendment, but gun-control and gun rights groups are nevertheless closely engaged in the fight.
“The gun industry defendants are trying to use this case to rewrite the law and dramatically expand their immunity to include actions that break the law,” David Pucino, legal director with the Giffords Law Center to Prevent Gun Violence told CNN. “The Supreme Court should reject that dangerous invitation to shut the courthouse door on victims of gun violence.”
The Mexican government argues that between 70% and 90% of guns recovered at crime scenes in its country are made in the United States. There is only one gun store in all of Mexico, its lawyers said, and “yet the nation is awash in guns.”
“The Supreme Court is facing a choice: Hold the American gun industry accountable for fueling organized crime at the southern border or give American manufacturers near total immunity,” Hudson Munoz, executive director of Guns Down America, told CNN.
But even some of the Supreme Court’s liberals, who have tended to side with gun control groups in the past, said they were concerned about Mexico’s position.
What Mexico is asking for, Justice Ketanji Brown Jackson said, appeared to “amount to different kinds of regulatory constraints that I’m thinking Congress didn’t want the courts to be the ones to impose.”
NRA slams Mexico’s suit
Gun rights groups, including the National Rifle Association, say that the lawsuit is an effort to “destroy” the American firearms industry by making it easier to sue for huge sums, despite a 2005 law meant to protect gun makers from an increasing number of lawsuits filed by Democratic governors and mayors nationwide.
The Protection of Lawful Commerce in Arms Act generally shields gunmakers from liability for crimes committed with their products. An exception permits those suits when there’s a close connection between the harm – in this case, the use of guns in Mexico – and the companies’ actions.
“Mexico has extinguished its constitutional arms right,” the NRA told the Supreme Court in a brief. “Now (it) seeks to extinguish America’s.”
Justice Brett Kavanaugh, a member of the court’s conservative wing, picked up on that position during the arguments, questioning what would stop all sorts of lawsuits against companies that make products that wind up being used illegally.
“That’s a real concern, I think, for me about accepting your theory,” he told the lawyer for Mexico.
Mexico also argues the gunmakers have resisted design changes to their products – such as making serial numbers harder to tamper with – that would make the guns less appealing to gangs because the weapons could more easily be traced.
The manufacturers, Mexico said in court documents, advertise the guns as “military-grade” and design special-edition products like the Super “El Jefe” pistol the country says are targeted for sale to gangs.
A federal district court backed the gun makers, but the Boston-based 1st US Circuit Court of Appeals concluded Mexico’s suit could go forward. The gun companies appealed to the Supreme Court in April.
Guns, cartels and social media
Some of the argument Tuesday focused on a decision it handed down just two years ago in a case dealing with the social media company now known as X.
In Twitter v. Taamneh, the family of a victim killed in a 2017 terrorist attack in Turkey tried to sue the social media giant for contributing to the attack because it hosted content helping ISIS recruit followers and raise money. In a unanimous decision, the court said the connection between the content at issue and the attack wasn’t closely related enough to allow the family to sue.
It’s a point the gun manufacturers are quick to highlight in their written arguments. The short version, according to the companies, is that they have no control over what people do with the guns they make.
“This court has repeatedly held that it requires a direct connection between a defendant’s conduct and the plaintiff’s injury,” the gun manufacturers told the high court in their appeal. “In its zeal to attack the firearms industry, Mexico seeks to raze bedrock principles of American law that safeguard the whole economy.”
But the appeals court ruling in favor of Mexico, which was also unanimous, said that the gunmakers’ conduct may have been something more than what was alleged against X. All three appeals court judges who reviewed Mexico’s case were appointed by Democratic presidents.
“They are not mere passive observers of the buyer’s illegal activity,” the three-judge panel wrote, “but more akin to a calculated and willing participant in the supply chain that ends with a profitable illegal firearm market in Mexico.”
This story has been updated following oral arguments.
The-CNN-Wire
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