Quote of the Day
As noted above, Mexico here focuses on the manufacturers’ production of “military style” assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles. See supra, at 6; App. to Pet. for Cert. 121a. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country. See T. Gross, How the AR–15 Became the Bestselling Rifle in the U. S., NPR (Apr. 20, 2023.) The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. See supra, at 6. Those guns may be “coveted by the cartels,” as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to “millions of law-abiding Hispanic Americans.”
Elena Kagan
SCOTUS Justice
June 5, 2025
23-1141 Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (06/05/2025)
What Justice Kagan is saying here should strike terror in the hearts of anti-gun people. She says AR-15’s, AK-47’s, and .50 caliber rifles are in common use for legal purposes. That is exactly what the Heller decision says are protected arms.
Justice Kagan is saying that. Should she try to say otherwise when an “assault weapon” comes before the court will likely result in a stern reminder by Justice Thomas and others of this opinion.
And the anti-gunners think there was something worse in this decision. Just wait.
And if you are somewhat persuaded by the argument made in the previous link, you need to read Justice Thomas’ concurring opinion in the Mexico case:
This exception allows otherwise-prohibited suits against gun manufacturers to go forward if, among other requirements, the manufacturer has “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.”” 15 U. S. C. §§7902(a), 7903(5)(A)(iii). I write separately to note that the Court’s opinion does not resolve what a plaintiff must show to establish that the defendant committed a “violation.” §7903(5)(A)(iii). It concludes only that Mexico has not adequately pleaded its theory of the case—that, as a factual matter, the defendant gun manufacturers committed criminal aiding and abetting. See ante, at 10–14.”
…
In future cases, courts should more fully examine the meaning of “violation” under the PLCAA. It seems to me that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the “violation.” Allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding, without the full panoply of protections that we otherwise afford to criminal defendants. And, these defendants might even include ones who were cleared in an earlier proceeding, such as through a noncharging decision or a not-guilty or not-liable verdict. Such collateral adjudication would be at best highly unusual, and would likely raise serious constitutional questions that would counsel in favor of a narrower interpretation.
While technically this is not a 2nd Amendment case, it is a through slap down of the anti-gun movement. It is another brick in the wall to keep them in the dustbin of history.
This post was inspired the following video by constitutional attorney and member of the United States Supreme Court Bar, Mark Smith:
Would seem to have obvious application to Red Flag laws and assorted other precrime legislation. I think perhaps to the Trump campaign finance case in NY where the finding had to be manufactured through a convoluted series of steps. Plus we have it direct from the Governor of New York that it was a Bill of Attainder.
Before you celebrate too had, that’s dicta.
It’s a good sign, but non-binding.
Even knowing it’s a Slate article posted at MSN, they come dangerously close to committing libel against the firearms industry in general, and the named defendants in particular.
Examples:
“…Mexico may not continue its lawsuit seeking to hold firearms manufacturers and a firearms distributor civilly accountable for their role in causing cartel-driven gun violence in Mexico.”
“… their role in causing gun violence….” Not their alleged role.
And later: “… unprecedented interpretations that would make it harder for victims of gun violence to try to hold firearms-makers and sellers responsible for their part in the harms they cause.”
Again, not “the harms they allegedly cause.” The harms they are 100% absolutely proven to cause.
Except none of that has been proven.
Even the cover photo is disingenuous, featuring two revolvers and an old semi-auto handgun, when the lawsuit it discusses mostly involves the sales and marketing of semi-auto rifles.
Finally, it’s MSN and Slate, so of course they don’t allow comments. So I’ll offer this here: Apart from these circumstances, PLCAA bans civil suits against industry members for harms arising from the criminal use of firearms. One ground for a civil action permitted by PLCAA arises when a firearms industry actor knowingly violates a statute applicable to the sale and marketing of firearms. When this happens, victims of a criminal shooting may sue the maker or seller of the firearms used, advancing any cause of action supported by facts of the case.
Let me adjust the last part of that: When this happens, victims of a drunk or criminal driver may sue the maker or seller of the vehicle(s) used, advancing any cause of action supported by facts of the case.
Are Ford and Chevrolet responsible for the criminal misuse of the vehicles they manufacture? No? Then why should Smith & Wesson be held responsible if they are not building or selling their products illegally.
All the griping about Justice Thomas’ concurrence saying that the allegations haven’t been adjudicated in court, is meaningless; Mexico is claiming that the defendants knowingly broke the law by selling to distributors who sold to retailers who sold to straw purchasers. If they broke the law, as alleged, it should not be difficult to prove that at a criminal trial to establish guilt. That hasn’t happened, and won’t happen, because the alleged law-breaking doesn’t happen. Discovery for a civil suit based on those criminal acts wouldn’t be required because police and federal law enforcement would have gathered the facts and evidence already.
(And yes, Justice Thomas’ concurrence is dicta, not the opinion of the court, but it does provide guidance to future legal actions.)
When Justices Thomas and Kagan both say you’re wrong….
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Very difficult to reconcile this holding with the treatment of Remington Arms after the Sandy Hook shootings.
My understanding is that Remington violated a B.S. state advertising law.