On Tuesday, attorneys for Mexico took to the Supreme Court to argue their assertion that U.S. gun makers should be held liable for the violence committed in Mexico by drug cartels using guns that had illegally flowed to Mexico via an “iron river” of smuggling. Their argument says that because gun makers know that some percentage of their products will likely be used illegally, the gun makers are guilty of “aiding and abetting” the Mexican criminal elements.
As you can imagine, attorneys for Smith & Wesson Brands disagreed arguing a basic flaw in the argument -an inability to show a “chain of causation”- along with the provisions of the Protections in Lawful Commerce in Arms Act invalidates the Mexican assertion.
The suit alleged that the gun companies originally named (Smith & Wesson, Barrett, Beretta, Century Arms, Colt, Glock, Ruger and Interstate Arms) unlawfully designed and marketed their products with the aim of driving up demand with the cartels. As “evidence” the suit said a “majority of the 180,000 homicides involving guns in Mexico” between 2007 to 2019 were committed with weapons trafficked from the United States.
The “proximate cause” argument to counter seemed simple on the surface, but opened considerable conjecture from the Justices. It also pointed out the fact that despite their deep knowledge of the law, they had little knowledge of how the gun industry actually operated. Consequently, the idea of a federally licensed manufacturer selling products to a federally licensed distributor who then sold to a federally licensed dealer who then sold to a consumer -following a federal background check- seemed to surprise the Justices.
But that didn’t keep them from rigorously questioning both sides of the argument about the legal foundations of their opposing arguments. That points to the fact that what might seem an open and shut case to gun owners might not be so apparent to jurists concerned only with the interpretation of the law.
In other words, “the Court’s gonna do what the Court’s gonna do.” They’re expected to “do” that by the end of June. And we’ll keep you posted.
With Smith & Wesson Brands v. Estados Unidos Mexicanos arguments in the rear view mirror, it’s likely another Second Amendment case is headed for the high chambers.
Last year, the Tenth Circuit Court of Appeals upheld a restriction forbidding people under 21 years of age from buying a handgun last year. In January of this year, the Fifth Circuit Court of Appeals in New Orleans struck down that same restriction. Those contrary rulings should give the Supreme Court no choice but to take on this 2A case.
Since issuing the Bruen decision that put many of the firearms restrictions across the country in question, the Supreme Court appeared to have developed an aversion to 2A cases.
One of the primary jobs of the high court is to decide issues where lower courts have reached contradictory conclusions. When one Circuit says “no” and another says “yes” the Supreme Court has no option but to intervene to decide the matter.
As Second Amendment Foundation founder Alan Gottlieb puts it, “whenever decisions cross each other, you have a much better chance of getting a writ of certiorari.”
Key to the argument is the universality. Federal laws are supposed to be the same everywhere in the country.
The 21-year old age restriction on handgun purchases went into effect in 1968 as part of the Gun Control Act passed that year. In 2022, however, the Bruen decision invalidated New York State law that had served as models for many other states’ restrictions. Today, as many as 1,600 suits are now challenging state and local laws based on the flawed NY regulations.
Bruen removed the scrutiny framework -or level of balancing law versus other interests - used by lower courts to decide gun laws. The Supreme Court said Second Amendment matters should be decided via historical tradition and text of the Second Amendment.
That takes “balancing” via the levels of scrutiny out of the equation. Or, as the NSSF’s Larry Keane explained to me last week, removal of the “balancing” equation removed the option to “decide who gets to put their thumb” on the scales of justice. The Court ruled that previously
applied levels of legal scrutiny: rational basis, intermediate scrutiny and strict scrutiny, no longer matter.
“What the Supreme Court’s Bruen ruling did,” Gottlieb told Fox News, was say “you have to look at the text and the history. That’s what counts.”
“When the Bill of Rights was put together,” Gottlieb says, “there was nothing that prohibited 18-20 year old young adults from being able to own or carry a firearm.”
Gottlieb’s Second Amendment Foundation has sued in a number of states to reverse the bans. Some suits have already been decided -against the states. Where that has already happened, states have filed appeals with the high court.
All signs point to the Supreme Court really having no option but to hear -and decide- the argument once and for all.
We’ll keep an eye on this one.
News last weekend that Texas-based Watchtower Firearms had filed bankruptcy kicked off the usual industry chatter. Rather than wonder what was up, I talked to Watchtower’s Jason Kolosky to get the straight version of just what’s up with Watchtower.
Without violating a confidence, I can say that the reason behind their Chapter 11 reorganization filing- not a Chapter 7 liquidation filing- was for internal business reasons, not financial difficulties. Their filing says, “operational challenges, tax obligations, and significant vendor and service provider debt” led to the decision to seek Chapter 11 protections.
Under a Chapter 11 bankruptcy, Watchtower gets the opportunity for a breathing space while continuing operations and formulating their plan to emerge from the protections.
If/when debtors accept the plan and the bankruptcy court approves it, the plan becomes the operating contract between the company and its debtors.
Only if the plan isn’t approved, or approved and the obligations not met, can a Chapter 11 filing convert into a Chapter 7 bankruptcy. At that point, operations cease, and a company’s assets are liquidated to satisfy credit obligations.
I’ve been told financing is already in place and only some “legal/business issues” remain to be resolved. In fact, liquidation wasn’t even mentioned in our conversations. .
According to Kolosky, the company’s operating at near capacity, orders are being filled and they’ll be “coming out of it (Chapter 11) comfortably.” Debtors are being paid, and Watchtower has never missed either a bank payment or a payroll. That would point to a Chapter 11 filing that is meant to address internal, not external issues.
As always, we’ll keep you posted.
— Jim Shepherd