Will the Supreme Court Shield the Gunmakers?

America’s gunmakers appeared to dodge a proverbial bullet if the tenor of Tuesday’s questioning in a case argued before the Nine is any indication. Mexico had brought the lawsuit against American gunmakers, blaming them for the rampant criminality committed by cartels south of the border. The gunmakers had warned that, if successful, the case could “bankrupt the American firearms industry” — in defiance of a federal shield law.Mexico appeared, at least to us, to miss the mark in its arguments before the Nine. Our neighbor to the south contended that the gunmakers should be punished for in effect aiding and abetting the drug cartels. The gunmakers, Catherine Stetson argued for Mexico, “supplied the illegal” market there “by selling guns through the small number of dealers that they know sell a large number of crime guns and who repeatedly sell in bulk to the cartel traffickers.”This argument, though, appeared to cut little ice with the justices. That reflects the larger challenge of explaining how, or why, any manufacturer can be punished for the illegal use of its products. In part for that reason, Congress in 2005 passed the Protection of Lawful Commerce in Arms Act. It was a response to the efforts of gun control activists who had turned to the courts as a means of subverting the second article of the Bill of Rights.In cases that would be echoed by Mexico’s lawsuit, victims of gun violence and cities plagued by crime sued “out-of-state manufacturers and sellers of firearms,” the Congressional Research Service reports, to try to punish the gunmakers and keep guns out of citizens’ hands. The solons called it an “abuse of the legal system” to try to punish “an entire industry for harm that is solely caused by others.” Yet Mexico plunged ahead with its lawsuit anyway.The gunmakers pointed to the liability shield law to challenge Mexico’s arguments. “If Mexico is right,” Noel Francisco averred, “then Budweiser is liable for every accident caused by underage drinkers since it knows that teenagers will buy beer, drive drunk, and crash.” Justice Brett Kavanaugh appeared to grasp that point and its larger implications for the economy if Mexico were to be vindicated in its case against the gunmakers.Justice Kavanaugh said that “lots of sellers and manufacturers of ordinary products know that they’re going to be misused by some subset of people.” Feature, he said, “pharmaceuticals, cars, what — you can name lots of products.” Exposing so many companies to potential legal risk was, he suggested, “a real concern” as far as accepting Mexico’s theory of liability. Ms. Stetson raised a counterfactual about a brewery that catered to underage drinkers.What if Budweiser, she posited, “was alleged to have a practice, of selling bulk quantities of Bud Light to liquor stores that were arranged next to high schools and it was selling more and more into those high schools”? Further, she asked, what if the brewery “put out a new can that says ‘Best Prom Ever’ and sold it right into that high school”? Yet Justice Kavanaugh’s questioning underscores the challenge, if not futility, of so closely scrutinizing corporate actions.Even a liberal justice like Sonia Sotomayor had concerns about whether Mexico had proven a valid link, or “proximate cause,” between the cartels’ criminality and the actions of the gunmakers. Lower court precedents “are a mess on proximate cause,” she said, “and you’re asking us in this case to choose among a variety of different explanations of it.” She cautioned that probing this question “opens up a Pandora’s box.”The justices’ skepticism in this case is an encouraging turn, and reminds why Congress passed the law shielding gunmakers: To bolster the Second Amendment. The law reflects Justice Joseph Story’s insight that “the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.” It is the freedom that ensures that all the others can be preserved. If we read the court right, the freedom will be preserved.

Will the Supreme Court Shield the Gunmakers?

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