Will Mexico succeed in muzzling America’s gun industry? That’s the question set to be weighed at the Supreme Court on Tuesday. The stakes are high: If the court agrees with Mexico, it could “bankrupt the American firearms industry,” the gunmakers say in a plea to the high court. That’s because America’s neighbor to the south wants “to hold them liable for harms inflicted by Mexican drug cartels,” the gun manufacturers warn.

The gunmakers, for their part, are relying on a proverbial silver bullet — what they call “an express statutory command laid down by Congress.” That’s a federal law that, for the most part, shields gunmakers from legal liability from the kinds of suits filed by Mexico. It’s called the Protection of Lawful Commerce in Arms Act, passed in 2005. At the time, gun control activists were looking to use the courts to subvert the Second Amendment.

Lawsuits were filed by the victims of gun violence, along with cities with high rates of crime in states with strict gun control laws, looking to hold “out-of-state manufacturers and sellers of firearms” liable as a tactic to keep guns out of their states, the Congressional Research Service explains. Congress stepped in to pass the liability shield, calling the suits trying to hold liable “an entire industry for harm that is solely caused by others” an “abuse of the legal system.”

After all, the solons reckoned, what would be the logic in holding gunmakers responsible for the illegal use of their products? The federal law put a stop to the wave of litigation, for a time. Yet the Democrats regrouped. Governor Cuomo of New York in 2021 signed into law a first-in-the-nation measure trying to saddle the gun industry with liability as a “public nuisance.” That set up a collision course with the federal shield law. 

Mexico, too, is trying to test the law protecting gunmakers. The foreign country is blaming the companies for, say, “selling semi-automatic rifles,” and “making magazines that hold over ten rounds,” the gunmakers note. This, in turn, “created a supply of firearms” that was “later smuggled across the border” and later “used by the cartels to commit crimes.” Mexico is asking for billions of dollars in damages — and court-ordered gun control measures.

This is precisely the overreach that Congress sought to pre-empt by passing the liability shield law. A district judge dismissed the case, but the riders of the First Circuit revived it, claiming that the gunmakers’ “business practices have aided and abetted firearms trafficking to the cartels.” That points to a potential vulnerability in the shield law — negligence by gunmakers — that was exploited by the parents of the victims in the Sandy Hook school shooting.

Based on that exception in the law, the Supreme Court in 2019 declined to protect America’s oldest gunmaker, Remington, from the Sandy Hook litigation. The families of the slain pupils argued that Remington’s negligent marketing of its guns had helped lead to the shooting. Faced with the prospect of millions in liability claims, the company filed for bankruptcy. That case is an ominous precedent for the gunmakers whose future is on the line today.

The stakes in Smith & Wesson v. Estados Unidos Mexicanos underscore why legal sages like St. George Tucker described the Second Amendment as “the true palladium of liberty.” Meaning that the right to keep and bear arms is the freedom that ensures that it will remain possible to preserve all the other liberties vouchsafed in the Constitution. The high court’s failure to protect domestic gunmakers would undermine the freedom of all Americans.