Jonathan Lowy managed to achieve something almost unprecedented in recent years when he and the Mexican government defended their lawsuit against major U.S. gun makers at the Supreme Court earlier this year; a unanimous 9-0 decision. In Lowy’s case, though it was a 9-0 decision declaring that Mexico’s lawsuit violates the Protection of Lawful Commerce in Arms Act.
The Court held that Mexico and its attorneys failed to make plausible arguments that U.S. gun makers are aiding and abetting cartel violence, and shot down their theory that gunmakers’ designs and marketing decisions are meant to appeal to cartel members and other criminals. As Justice Elena Kagan wrote for the Court:
Mexico focuses on production of “militarystyle” assault weapons, but these products are widely legal and purchased by ordinary consumers. Manufacturers cannot be charged with assisting criminal acts simply because Mexican cartel members also prefer these guns. The same applies to firearms with Spanish language names or graphics alluding to Mexican history—while they may be “coveted by the cartels,” they also may appeal to “millions of law-abiding Hispanic Americans.” Even the failure to make guns with non-defaceable serial numbers cannot show that manufacturers have “joined both mind and hand” with lawbreakers in the manner required for aiding and abetting.
You’d think that being on the receiving end of a SCOTUS scolding like that might have humbled Lowy a bit, or at least caused him to rethink the cockamamie theory he pushed.
Nope. The former Brady litigator, who now runs an outfit called Global Action on Gun Violence, teamed up with an official in the Mexican government for a new column in which they repeat their failed arguments and blame gunmakers for cartel violence; not the cartels themselves, and not the administration of Mexico President Claudia Sheinbaum, who’s continued the “hugs, not bullets” strategy of her predecessor.
The complaint Mexico filed showed the world how the gun industry is part of the gun violence problem, and how it could also be part of the solution by cutting off the flow of illegal guns to criminals. It pointed out that law enforcement and even executives in their own ranks told U.S. gun manufacturers to stop supplying dealers that sell trafficked weapons. Yet an estimated 250,000 to 500,000 guns are still illegally trafficked from the United States into Mexico every year.
Although the case was clearly supported by U.S. and Mexican common law principles, and an appeals court unanimously allowed it, SCOTUS held that the case was barred by the Protection of Lawful Commerce in Arms Act, a law that gives the gun industry unique protection from civil claims that would otherwise be valid in other industries.
That’s some serious revisionist history. The complaint alleged a lot of things, but it showed very little. Again, quoting from the SCOTUS opinion authored by Kagan:
Mexico’s complaint does not plausibly allege that the defendant manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers. To begin, the complaint sets for itself a high bar. It does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted. Instead, it levels a more general accusation: that all the manufacturers assist some number of unidentified rogue dealers in violation of various legal bars. The systemic nature of that charge cannot help but heighten Mexico’s burden. To survive, it must be backed by plausible allegations of pervasive, systemic, and culpable assistance.
Mexico’s lead claim—that the manufacturers elect to sell guns to, among others, known rogue dealers—fails to clear that bar. For one thing, it is far from clear that such behavior, without more, could ever count as aiding and abetting under the Court’s precedents. And in any event, Mexico has not said enough to make its allegations on this point plausible: It does not confront that the manufacturers do not directly supply any dealers, and its complaint does not name alleged bad-apple dealers or provide grounds for thinking that anyone up the supply chain often acquires that information.
Lowy and the Mexican government offered a theory, but couldn’t offer any facts to back it up, which is why the Supreme Court told them to get lost.
The Sheinbaum administration has a vested interest in perpetrating the myth that U.S. gunmakers are willfully aiding and abetting the cartels running rampant in Mexico. If nothing else, it helps to obfuscate the fact that most U.S.-made guns seized south of the border were actually bought by the Mexican government itself and were legally imported into the country before being diverted into cartel hands.
As investigative journalist Sharyl Attkisson reported back in October:
Most of the U.S. firearms recovered from Mexican crime scenes weren’t trafficked or smuggled. The Mexican government legally purchased them. Exact numbers are hard to come by, but a 2023 State Department report confirms the U.S. approved $147.7 million in small– arms sales to Mexico from companies like Sig Sauer and Glock. Still more weapons are supplied through U.S. Foreign Military Sales.
We reviewed data from 2016 to 2023. It confirms the Mexican government was the top buyer of U.S. guns later traced to crime scenes in Mexico. One document shows the Mexican military, listed as “dealer,” purchased more than 2,000 from 2016 through 2021.
A 2023 document sources a year’s worth of U.S. guns from Mexican crime scenes, with 779 of them originally bought by the Mexican government. No other source is anywhere close.
The Mexican government doesn’t want to publicly acknowledge the corruption within the military and police that’s helping to arm the cartels, but as Attkisson’s makes clear, it’s Mexican officials who are aiding and abetting the cartels. And it’s anti-gun activists like Lowy who are providing cover for Mexico’s government by advancing this false narrative that the U.S. firearms industry is willfully arming cartel members.
Personally, I’d love to see every American gun maker refuse to sell to Mexico, but as Attkisson notes, these companies derive a lot of revenue from legal sales south of the border. If Sheinbaum really wants to crack down on the cartels’ illegal acquisition of firearms, though, then her administration should better police the guns bought by government agencies in Mexico to keep them from falling into cartel hands.
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