A More Educated Look at Mexico’s Chances Before Supreme Court

A week ago, I noted that I didn’t think Mexico’s chances before the Supreme Court were very good after oral arguments in the nation’s lawsuit against Smith & Wesson. That was based on the questions being asked by the various justices.

But I’m not an attorney. I might be better versed in law than your average person, but that’s not saying much.

Suffice it to say that when an attorney contradicts me on anything involving the law or legal system, listen to them over me.

Luckily, at least one lawyer seemed more or less to agree with me about Mexico’s chances.

Mexico claims that S&W and other manufacturers violated Federal criminal statutes by aiding and abetting the unlawful sale of guns and ammo by dealers to straw purchasers, who unlawfully transferred the firearms to others, who then (also unlawfully) exported them without a license from the Department of Commerce to Mexico, who transferred them to the cartels, which used them to harm others, which proximately causes harm to Mexico.

From the oral argument, it appears likely that the Supreme Court will rule narrowly in the defendants’ favor on aiding and abetting liability. There seemed to be at least six or seven votes for holding that Mexico’s complaint does not allege sufficient facts to trigger aiding and abetting liability for the defendant firearms manufacturers whose products are allegedly diverted to Mexican cartels by rogue gun dealers.

Author Stephen Halbrook notes that the aiding and abetting isn’t a particularly common approach in these cases, though. Many of the lawsuits we currently see are using state consumer protection laws, for one thing.

When they are in the federal court, they use an argument called proximate cause, which Halbrook addresses:

The First Circuit ruled in favor of Mexico on the proximate cause issue with the following bizarre analogy:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

This departs sharply from decisions of most other courts that have confronted this issue and black letter principles of tort law. An opinion joined by then-Judge Alito, City of Philadelphia v. Beretta USA (3d Cir. 2002) held that the causal chain “from the manufacturer to Philadelphia streets” was too “long and tortuous.”  With limited exceptions, a third party’s criminal conduct ordinarily breaks the causal chain for purposes of proximate cause.

If not corrected, the First Circuit’s reasoning will be embraced by anti-gun activists in lawsuits going forward. This decision has already created disarray on the issue of proximate cause in the lower courts, and it is certain to metastasize and spread until the Supreme Court intervenes.

And really, the First Circuit’s “reasoning” in that quoted section is absolutely insane. 

It’s quite different for a company to hire mercenaries to attack a sovereign nation than to sell a product that is then illegally traded multiple times after the initial lawful sale by that company, only to end up in the hands of dangerous people. Alito, in that particular decision, was right about the “long and tortuous” path from the factor to the criminal.

Since Alito is now on the Supreme Court itself, we kind of know where he’s going to go with this and I suspect at least most of the justices will go along with him and other pro-gun justices.

I’m not a huge fan of the argument that a law should be upheld simply because not upholding it would be bad for a given side, but the truth of the matter is that striking down the PLCAA would be terrible for the firearm industry and, by extension, our right to keep and bear arms.

But that’s not why it should be upheld.

The law should be upheld simply because it’s idiotic to blame a company for something they didn’t have anything to do with. That’s why the PLCAA was put in place to begin with. While anti-gunners take issue with the fact that no other industry has quite the same protection the gun industry does–that’s not entirely true; just look at the pharmaceutical industry some time–the truth is that few industries have ever needed that kind of protection.

The courts have better things to do than be bogged down with lawsuits blaming a company for what a completely different part did with their product well after the sale of said product occurred.