On Tuesday, the United States House of Representatives told the Supreme Court of the United States (SCOTUS) that siding with Mexico in its liability suit against American gun makers would violate the separation of powers.
In an amicus brief, the House argued federal regulation of the gun industry is squarely within its purview. It said granting the relief sought by Mexico in its battle with Smith & Wesson, which aims to hold the American gun industry liable for Mexican cartel violence, would be tantamount to SCOTUS usurping new powers for the federal courts. The House urged the Court to reverse the lower court holding and dismiss the case as incompatible with the Protection of Lawful Commerce in Arms Act (PLCAA).
“Indeed, the Mexican government’s suit here urges the lower court to impose all sorts of far-reaching regulations on the firearms industry, restrictions that Congress itself has considered and declined to adopt,” lawyers with the House Office of General Counsel wrote in Smith & Wesson v. Mexico. “This suit thus attempts to use the Judicial Branch to seize legislative power.”
The House’s intervention provides backup to Smith & Wesson’s defense. It also brings in a new argument outside of those previously employed by the gunmakers in the case. While they had zeroed in on the lengthy chain of actors and actions between Mexico’s claimed harms and the American gun industry’s acts as well as the potential for the country’s proposed remedies to infringe on Second Amendment guarantees, the House is the first to raise separation of powers concerns with a potential ruling in Mexico’s favor.
Smith & Wesson asked SCOTUS to intervene after a three-judge panel on the First Circuit Court of Appeals gave the $10 billion civil liability suit the go-ahead. They did so after reversing a lower court’s ruling that the PLCAA blocked Mexico’s claims. The panel argued Mexico’s suit could take advantage of one of the carveouts Congress included in the PLCAA’s liability shield.
“We agree that the PLCAA’s limitations on the types of lawsuits that may be maintained in the United States apply to lawsuits initiated by foreign governments for harm suffered outside the United States,” Judge William J. Kayatta wrote. “However, we also hold that Mexico’s complaint plausibly alleges a type of claim that is statutorily exempt from the PLCAA’s general prohibition.”
Judge Kayatta, a Barack Obama appointee, ruled the argument that American gun makers are “aiding and abetting” illegal firearm sales into Mexico is allowed despite the law.
“Fairly read, the complaint alleges that defendants are aware of the significant demand for their guns among the Mexican drug cartels, that they can identify which of their dealers are responsible for the illegal sales that give the cartels the guns, and that they know the unlawful sales practices those dealers engage in to get the guns to the cartels,” he wrote. “It is therefore not implausible that, as the complaint alleges, defendants engage in all this conduct in order to maintain the unlawful market in Mexico, and not merely in spite of it.”
In its petition for SCOTUS to hear the case, Smith & Wesson argued the ruling “brazenly defies” established precedent and “threatens severe consequences.”
“Absent this Court’s intervention, Mexico’s multi-billion-dollar suit will hang over the American firearms industry for years, inflicting costly and intrusive discovery at the hands of a foreign sovereign that is trying to bully the industry into adopting a host of gun-control measures that have been repeatedly rejected by American voters,” the company wrote. “Worse, so long as the decision below remains good law, scores of similar suits are destined to follow from other governments, both foreign and domestic—all seeking to distract from their own political failings by laying the blame for criminal violence at the feet of the American firearms industry.”
In October, the Supreme Court agreed to hear the case. Now, after a party-line vote among leaders, the House has decided to take a position on the dispute.
It looked at the remedies Mexico has proposed as part of its claims against American gun makers. Those included ending the sale of certain semi-automatic firearms, such as the popular AR-15, and the magazines that often come standard with them, requiring the integration of biometric or other locking technologies into all guns, and using industry influence to try and mandate background checks on private gun sales. The House noted Congress has long debated adopting all of those policies and argued it has the sole purview over whether they ought to be mandated by the government.
“This ruse violates the separation of powers: the legislative power that would be effectively exercised here is vested in Congress, not courts,” the House brief said. “At bottom, a foreign government is asking the Judicial Branch to impose firearms restrictions that, so far, Congress has specifically elected not to adopt.”
Ultimately, the House said SCOTUS should dismiss Mexico’s suit and leave gun policy up to Congress.
“As all these examples show, if affirmed, the decision below would short-circuit the legislative process and usurp Congressional authority,” the brief said. “The Constitution assigns firearms-related policy decisions to the American people’s elected representatives, subject to the constraints of the Second Amendment. The Mexican government’s radical request for injunctive relief would instead allow federal courts to make those important decisions. Such a result would turn our constitutional structure on its head, and the Court should not permit it.”
The Supreme Court has scheduled oral arguments in the case for March 4th, 2025.
UPDATE 12-3-2024 4:19 PM EASTERN: This piece has been corrected with the date of oral arguments in Smith & Wesson v. Mexico.
