Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos

Supreme Court briefDec 3, 2024

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No. 23-1141

In The

Supreme Court of the United States

————♦————

SMITH & WESSON BRANDS, INC., ET AL.,

Petitioners,

ESTADOS UNIDOS MEXICANOS,

Respondent.

————♦————

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

————♦————

BRIEF OF THE NATIONAL RIFLE ASSOCIATION

OF AMERICA, FPC ACTION FOUNDATION, AND

INDEPENDENCE INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————♦————

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 E. 16th Ave.

Denver, CO 80203

GEORGE A. MOCSARY

UNIVERSITY OF WYOMING

COLLEGE OF LAW

1000 E. University Ave.

Laramie, WY 82071

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Rd.

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT .............................................................. 5

The Mexican government seeks to extinguish

the Second Amendment as it extinguished the

Mexican constitutional arms right. ...................... 5

II. This case epitomizes the type of abusive

lawsuit PLCAA was enacted to prohibit. ............. 7

A. Similar abusive suits were brought against

firearms manufacturers in the 1980s and

90s. ..................................................................... 7

B. Congress passed PLCAA to halt the abusive

lawsuits. .......................................................... 12

III. Mexico’s attempt to scapegoat lawful American

companies for its own failures demonstrates

the need for PLCAA. ........................................... 14

A. Mexico’s homicide rates were higher during

the “assault weapons” ban than after its

expiration. ....................................................... 14

B. Few Mexican crime guns are determined to

have come from America................................. 16

C. Mexican criminals obtain guns from around

the world. ......................................................... 21

D. Mexico’s homicide increase is the result of

the Mexican government’s failures. ............... 22

E. Many Mexico citizens have embraced the

right to keep and bear arms because their

government fails to protect them. .................. 25

IV. Military and law enforcement themed

advertising reflects an understanding of the

right to keep and bear arms that has existed

throughout American history. ............................ 26

V. This Court decided N.Y. Times v. Sullivan to

halt abusive suits targeting the First

Amendment. ........................................................ 31

CONCLUSION .......................................................... 37

iii

TABLE OF AUTHORITIES

Page

CASES

Associated Press v. Walker,

388 U.S. 130 (1967) ................................................ 36

Curtis Pub. Co. v. Birdsong,

360 F.2d 344 (5th Cir. 1966) .................................. 36

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................ 27

Gavett v. Alexander,

477 F. Supp. 1035 (D.D.C. 1979) ........................... 30

Henry v. Collins,

380 U.S. 356 (1965) ................................................ 36

Kelley v. R.G. Indus., Inc.,

304 Md. 124 (1985) ................................................... 8

New York Times Co. v. Sullivan,

273 Ala. 656 (1962) ................................................ 35

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................ 5, 31, 33, 36

New York Times v. Connor,

165 F.2d 567 (5th Cir. 1966) .................................. 33

Patterson v. Rohm Gesellschaft,

608 F. Supp. 1206 (N.D. Tex. 1985)......................... 8

South v. State of Maryland for use of Pottle,

59 U.S. 396 (1855) .................................................. 27

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) .................................................. 6

United States v. Miller,

307 U.S. 174 (1939) ................................................ 27

CONSTITUTIONAL PROVISIONS

MEX. CONST. art. 10 ..................................................... 6

U.S. CONST. amend. I ............................................. 5, 31

U.S. CONST. amend. II ........................................... 5, 13

U.S. CONST. amend. XIV ............................................ 13

STATUTES AND REGULATIONS

1 Stat. 271 (1792) ....................................................... 27

32 Stat. 775 (1903) ..................................................... 29

33 Stat. 986 (1905) ..................................................... 29

15 U.S.C. §7901 .......................................................... 12

15 U.S.C. §7901(a)(6) ................................................. 13

15 U.S.C. §7901(a)(7) ................................................. 13

15 U.S.C. §7901(a)(8) ................................................. 14

15 U.S.C. §7902.......................................................... 12

15 U.S.C. §7903 .......................................................... 12

18 U.S.C. §923............................................................ 18

36 U.S.C. §40701 ........................................................ 30

1988 Md. Laws 3489–90 .............................................. 8

GOVERNMENT DOCUMENTS

146 CONG. REC. No. 45, H2017 (Apr. 11, 2000) .. 11, 12

151 CONG. REC. No. 104, S9059 (July 27, 2005) ....... 13

151 CONG. REC. No. 104, S9063 (July 27, 2005) ....... 13

151 CONG. REC. No. 104, S9107 (July 27, 2005) ....... 12

151 CONG. REC. No. 104, S9395 (July 29, 2005) ....... 13

2006 Crime in the United States: Expanded

Homicide Data Table 7, FBI: UCR ........................ 15

2019 Crime in the United States – Expanded

Homicide Data Table 8, FBI: UCR ........................ 16

2019 Section 655 Report 23, U.S. DEP’T OF STATE,

Apr. 23, 2020 .......................................................... 21

Agreement Between Smith & Wesson and the

Departments of the Treasury and Housing and

Urban Development, Local Governments and

States, U.S. DEPARTMENT OF HOUSING AND

DEVELOPMENT, archived Dec. 13, 2009 ............ 10, 11

Crime Gun Trace Analysis Report: The Illegal

Youth Firearms Market in Jersey City, BUREAU

OF ALCOHOL, TOBACCO AND FIREARMS (1999) ........ 20

Firearms Trafficking: U.S. Efforts to Combat Arms

Trafficking to Mexico Face Planning and

Coordination Challenges, U.S. GOV’T

ACCOUNTABILITY OFFICE (2009) ............................. 20

Global Study on Homicide, UNITED NATIONS

OFFICE ON DRUGS AND CRIME (2011)...................... 15

Mérida Initiative for Mexico and Central America:

Funding and Policy Issues, CONG. RSCH. SERV.,

Apr. 19, 2010 .......................................................... 24

Mexico 2022 Human Rights Report, BUREAU OF

DEMOCRACY, HUMAN RIGHTS, AND LABOR (2023) ... 23

BOOKS

Aguilar, Rubén & Castañeda, Jorge G., EL NARCO:

LA GUERRA FALLIDA (2009) .................................... 20

Cottrol, Robert J. & Denning, Brannon P., TO

TRUST THE PEOPLE WITH ARMS (2023).................... 28

Edmondson, Aimee, IN SULLIVAN’S SHADOW: THE

USE AND ABUSE OF LIBEL LAW ARISING FROM

THE CIVIL RIGHTS MOVEMENT (2019) ... 32, 33, 34, 36

Hall, Kermit L. & Urofsky, Melvin I., NEW

YORK TIMES V. SULLIVAN (2011) ....................... 34, 35

Harsanyi, David, FIRST FREEDOM: A RIDE

THROUGH AMERICA’S ENDURING HISTORY WITH

THE GUN (2018) ....................................................... 29

Johnson, Nicholas J., Kopel, David B., Mocsary,

George A., Wallace, E. Gregory, Kilmer, Donald,

FIREARMS LAW AND THE SECOND AMENDMENT

(3d ed. 2022) ..................................................... 25, 29

Lewis, Anthony, MAKE NO LAW: THE SULLIVAN

CASE AND THE FIRST AMENDMENT (1992) ......... 34, 35

Olson, Walter, THE RULE OF LAWYERS (2003) ..... 11, 12

Shields, Joseph W., FROM FLINTLOCK TO M1

(1954) ...................................................................... 29

Smolla, Rodney, SUING THE PRESS (1986) ................. 35

STATE PAPERS AND ADDRESSES OF GOVERNOR

HERBERT R. O’CONOR, vol. 3 (1947) ........................ 28

Stentiford, Barry M., THE AMERICAN HOME GUARD

(2002) ...................................................................... 28

Sword, Wiley, THE HISTORIC HENRY RIFLE (2006) .... 29

vii

Villanueva, Ernesto & Valenzuela, Karla,

SEGURIDAD, ARMAS DE FUEGO Y TRANSPARENCIA:

MITO Y REALIDAD SOBRE EL DERECHO DE POSESIÓN

Y PORTACIÓN DE ARMAS DE FUEGO EN MÉXICO

(2012) ...................................................................... 25

Villanueva, Ernesto, EL DERECHO DE ARMARSE: LO

QUE TODO MEXICANO DEBE SABER SOBRE LA

POSESIÓN Y PORTACIÓN LEGALES DE ARMAS DE

FUEGO (2017) .......................................................... 25

Wallace, David J., MASSIVE RESISTANCE AND

MEDIA SUPPRESSION: THE SEGREGATIONIST

RESPONSE TO THE DISSENT DURING THE

CIVIL RIGHTS MOVEMENT (2013) .... 32, 33, 34, 35, 36

OTHER AUTHORITIES

Administrative Record, Nat’l Shooting Sports

Found. v. Melson, No. 1:11-cv-01401 (D.D.C.

Sept. 12, 2011), ECF No. 22-4................................ 20

Allen, Mike, Colt’s to Curtail Sale of Handguns,

N.Y. TIMES, Oct. 11, 1999....................................... 10

Arthur D. Little, Inc., A Study of the Activities

and Missions of the NBPRP, report to The

Department of the Army (Jan. 1966) ..................... 30

At Mexico’s Lone Gun Shop, Army Oversees Sales,

NPR, June 24, 2009................................................ 19

Barrett, Paul, Lawsuits Trigger Gun Firms’

Bankruptcy, WALL ST. J., Sept. 13, 1999 ............... 10

Boyer, Peter, Big Guns, NEW YORKER, May 17,

1999........................................................................... 9

viii

Butterfield, Fox, Lawsuits Lead Gun Maker To

File for Bankruptcy, N.Y. TIMES, June 24,

1999..................................................................... 9, 10

Goodman, Colby, Update on U.S. Firearms

Trafficking to Mexico Report, WILSON CTR.

(2011) ...................................................................... 18

Gore, D’Angelo, Counting Mexico’s Guns,

FACTCHECK.ORG, Apr. 17, 2009 ............................. 17

Hall, Grover, State Finds Formidable Legal Club

to Swing at Out-of-State Press, MONTGOMERY

ADVERT., May 22, 1960 .......................................... 34

Kloppe-Santamaria, Gema, Behind Mexico’s

Spiraling Violence, WILSON CTR.,

Feb. 2018 .................................................... 22, 23, 24

Kopel, David B. & Gardiner, Richard E., The

Sullivan Principles: Protecting the Second

Amendment from Civil Abuse, 19 SETON HALL

LEGIS. J. 737 (1995) .................................................. 7

Kopel, David B. & Greenlee, Joseph G.S., The

Second Amendment Rights of Young Adults,

43 S. ILL. U. L.J. (2019) ........................................ 27

Kopel, David B., Greenlee, Joseph G.S., & Singh,

Bhav Nindar, The Social Cost of Nullifying the

Right to Arms: The Case of Mexico, 64 S. TEX. L.

REV. (forthcoming 2025)......................................... 26

Kopel, David B., Mexico’s Gun-Control Laws: A

Model for the United States?, 18 TEX. REV. L.

& POL. 27 (2013) ................................................. 6, 21

Kopel, David B., The Posse Comitatus and the

Office of Sheriff: Armed Citizens Summoned to

the Aid of Law Enforcement, 104 J. CRIM. L. &

CRIMINOLOGY 761 (2014) ........................................ 31

La Jeunesse, William & Lott, Maxim, The

Myth of 90 Percent: Only a Small Fraction

of Guns in Mexico Come From U.S., FOX

NEWS, Apr. 2, 2009 ..................................... 17, 21, 22

Llana, Sara Miller, Escalating drug war grips

Mexico, CHRISTIAN SCIENCE MONITOR, May 23,

2007......................................................................... 24

Mexico President Calderon Address to Joint

Meeting of Congress, C-SPAN, May 20, 2010........ 17

Musante, Fred, After Tobacco, Handgun Lawsuits,

N.Y. TIMES, Jan. 31, 1999 ........................................ 9

Olson, Walter, Plaintiffs Lawyers Take Aim at

Democracy, WALL ST. J., Mar. 21, 2000 ................... 8

Parra, Luz Paula, Why Has There Been Such an

Increase in Homicides in 2017?, WILSON CTR.,

Feb. 2018 ................................................................ 25

Ramirez, Gabriela Capó, Why did homicides

increase so much in 2017? What should the

Mexican government do about it?, WILSON

CTR., Feb. 2018 ................................................. 22, 23

Reynolds, Glenn H., Permissible Negligence and

Campaigns to Suppress Rights, 68 FLA. L. REV.

FORUM 51 (2016)..................................................... 14

Salisbury, Harrison, Fear and Terror Grip

Birmingham, N.Y. TIMES, Apr. 8, 1960 ................. 33

Stewart, Scott, Mexico’s Gun Supply and the 90

Percent Myth, STRATFOR, Feb. 10, 2011 ................ 19

The HUD Gun Suit, WASH. POST, Dec. 17, 1999 ........ 8

Tobar, Hector, A Cartel Army’s War Within,

L.A. TIMES, May 20, 2007................................. 22, 25

Walsh, Sharon, Gun Industry Views Pact as Threat

to Its Unity, WASH. POST, Mar. 18, 2000 ................. 9

Weisman, Jonathan, Gun maker, U.S. reach

agreement, BALT. SUN, Mar. 18, 2000 .................... 11

INTEREST OF AMICI CURIAE1

The National Rifle Association of America

(NRA) is America’s oldest civil rights organization and

foremost defender of Second Amendment rights. It was

founded in 1871 by Union generals who, based on their

Civil War experiences, sought to promote firearms

marksmanship and expertise amongst the citizenry.

Today, the NRA is America’s leading provider of

firearms marksmanship and safety training for both

civilians and law enforcement. The NRA has

approximately four million members, and its programs

reach millions more.

FPC Action Foundation (FPCAF) is a

nonprofit organization focusing on research,

education, and legal efforts dedicated to preserving the

natural, fundamental rights and liberties protected by

the U.S. Constitution—particularly the right to keep

and bear arms. FPCAF’s research and amicus curiae

briefs have been relied on by judges and advocates

across the nation.

Founded in 1985 on the eternal truths of the

Declaration of Independence, the Independence

Institute is a 501(c)(3) public policy research

organization based in Colorado. The briefs and

scholarship of Research Director David Kopel have

been cited in seven opinions of this Court, including

Bruen, McDonald (under the name of lead amicus Int’l

Law Enforcement Educators & Trainers Association

1 No counsel for any party authored this brief in any part. No

person or entity other than amici funded its preparation or

submission.

(ILEETA)), and Heller (same), and in over one

hundred opinions of lower courts.

Amici are interested in this case because the

decision below will enable abusive litigation that

devastates the firearms industry—and consequently

the right to keep and bear arms.

————♦————

SUMMARY OF ARGUMENT

Mexico has extinguished its constitutional arms

right and now seeks to extinguish America’s. To that

end, Mexico aims to destroy the American firearms

industry financially.

Mexico seeks to bankrupt the American firearms

industry by making American firearms manufacturers

liable for violence perpetrated by Mexican drug cartels

in Mexico—despite failing to allege that the

manufacturers violated any law, were aware of any

unlawful sale, or took any affirmative act intended to

further a crime. If Mexico can overcome a motion to

dismiss on such a weak foundation, the proliferation of

meritless Mexico-style cases could destroy the

firearms industry solely through litigation costs.

In the 1980s and 90s, anti-gun lobbies and some

governments weaponized baseless lawsuits to

bankrupt firearms manufacturers or coerce them to

self-impose extreme gun controls. Defending against

the suits bankrupted several manufacturers and drove

others to the brink. Congress halted the abusive

litigation by enacting the Protection of Lawful

Commerce in Arms Act (PLCAA), citing the threat the

suits posed to the Second Amendment, Fourteenth

Amendment, separation of powers, and national

security.

This case exemplifies why PLCAA was enacted.

Mexico seeks billions in damages and the imposition of

extensive gun controls in America while relying on

shoddy data and false allegations to exaggerate the

impact of Petitioners’ firearms on Mexican homicides.

The complaint alleges that Mexican homicides

increased due to Petitioners manufacturing so-called

“assault weapons” after the 2004 sunset of the U.S.

ban. In fact, Mexico’s homicide rate was higher during

the ban than after its expiration. And more Mexican

homicides were committed with firearms during the

ban than after its expiration.

Mexico’s claim that 70% to 90% of firearms seized

in Mexico are trafficked from the U.S. refers only to

firearms successfully traced by the ATF—a small,

skewed sample. Of the total crime guns seized in

Mexico, only a small fraction conclusively come from

the U.S. And the average age of those firearms is 15

years, indicating that many were stolen from their

lawful owners before becoming crime guns.

Mexico’s homicides increased not when the U.S.

statute sunset in 2004, but when President Calderón

deployed 30,000 soldiers and federal police to battle

cartels, creating military confrontations and turf wars

among cartels. The Mexican military’s harsh domestic

law enforcement techniques, the government’s failure

to prosecute violent criminals, and the government’s

human rights violations have also fueled violence. The

Mexican government seeks to hold Petitioners

responsible for its own domestic failings.

The Mexican government claims that Petitioners

intend to appeal to Mexican cartels by depicting their

firearms in patriotic advertisements featuring the

American military, law enforcement, and American

flags. But in America, the right to keep and bear arms

has always been aligned with military and law

enforcement firearms use. Historically, ordinary

citizens were obliged to keep and bear combat weapons

to participate in the militia, the “hue and cry,” “watch

and ward,” and posse comitatus. During World Wars I

and II, home guards consisting of armed ordinary

citizens assumed law enforcement and militaryrelated duties. Today, many law enforcement agencies

rely on trained volunteers; and the military benefits

from a citizenry familiar with the civilian,

semiautomatic versions of the firearms it uses.

This Court halted similar lawsuits threatening the

First Amendment in New York Times v. Sullivan.

Before and during the Civil Rights movement, abusive

tort actions were used to silence newspapers that

exposed abuses in the Jim Crow South. The black

press in the South had been targeted for decades and

could not afford to litigate. When the national media

began significant coverage of Southern civil rights

abuses, it too was targeted. This Court had to quell

such strike suits, starting with Sullivan. The Sullivan

petitioners asked much of this Court: the invention of

major restrictions on tort law. Petitioners here ask for

much less: the fair construction of a federal statute.

————♦————

ARGUMENT

The

Mexican

government

seeks

extinguish the Second Amendment as it

extinguished the Mexican constitutional

arms right.

Mexico’s

constitution

guarantees:

“The

inhabitants of the United Mexican States have the

right to keep arms at home, for their protection and

legitimate defense[.]”2 Mexico’s federal firearms law

creates a permitting system for citizens to acquire and

own handguns, rifles, and shotguns.3 Yet Mexico’s

executive boasts that “Mexico has one gun store in the

entire nation and issues fewer than 50 gun permits per

year.” Pet.App.8a. The Mexican executive has thus

obliterated citizens’ right to keep arms in defiance of

the Mexican Constitution and of the permitting

statute enacted by Mexico’s Congress. Through the

instant litigation, the Mexican executive now aims to

extinguish the American right.

Mexico seeks to bankrupt the American firearms

industry by holding American firearms manufacturers

liable for violence perpetrated by Mexican drug cartels

in Mexico—despite failing to allege that the

manufacturers violated any law, were aware of any

unlawful sale, or took any affirmative act intended to

further a crime. See Twitter, Inc. v. Taamneh, 598 U.S.

471, 490 (2023) (aiding and abetting requires “some

‘affirmative act’ ‘with the intent of facilitating the

2 The full text provides:

The inhabitants of the United Mexican States have the

right to keep arms at home, for their protection and

legitimate defense, with the exception of those

prohibited by the Federal Law and those reserved for

the exclusive use of the Army, Navy, Air Force and

National Guard. Federal Law will state the cases,

conditions, requirements and places where inhabitants

can be authorized to carry weapons.

MEX. CONST. art. 10.

3 The system is described in David Kopel, Mexico’s GunControl Laws: A Model for the United States?, 18 TEX. REV. L. &

POL. 27, 35–41 (2013). For a full English translation of the

statute, see id. at 65–95.

offense’s

commission’”)

(citation

omitted);

Pet.App.305a (First Circuit acknowledging that “the

complaint does not allege defendants’ awareness of

any particular unlawful sale”). If Mexico’s feeble

foundation can overcome a motion to dismiss, the

proliferation of meritless Mexico-style cases could

destroy the American firearms industry solely through

litigation costs.

The same tactic was weaponized by gun control

activists in the late 20th century. Congress halted the

abusive suits by enacting the Protection of Lawful

Commerce in Arms Act (PLCAA). This is precisely the

type of abusive suit PLCAA was enacted to prohibit.

II.

This case epitomizes the type of abusive

lawsuit PLCAA was enacted to prohibit.

A. Similar abusive suits were brought

against firearms manufacturers in the

1980s and 90s.

Frustrated by insufficient progress in legislatures,

gun control advocates in the 1980s brought product

liability suits against firearms manufacturers and

retailers. See David Kopel & Richard Gardiner, The

Sullivan Principles: Protecting the Second Amendment

from Civil Abuse, 19 SETON HALL LEGIS. J. 737, 750

n.43 (1995) (listing 26 cases from 1983 to 1990, plus

one from 1973). The cases involved many novel

theories. For example, guns well-suited for selfdefense were said to be “defective” because criminals

also used them. And the mere manufacture of a

handgun was alleged to be “ultrahazardous activity,”

like blasting with dynamite. As one court observed,

“the plaintiff’s attorneys simply want[ed] to eliminate

handguns.” Patterson v. Rohm Gesellschaft, 608 F.

Supp. 1206, 1212 (N.D. Tex. 1985). Although plaintiffs

prevailed only once,4 every case generated attorney

fees and a threat of financial doom for the

manufacturers and retailers.

In the 1990s, suits against firearms businesses

were based on still more inventive grounds: public

nuisance, recovery of government medical expenses for

crime victims, unfair trade practices, deceptive

advertising, and so on. Starting in 1998, a coordinated

series of such lawsuits were filed by dozens of local

governments. Secretary of Housing and Urban

Development Andrew Cuomo organized federally

funded housing authorities to bring additional suits.

The HUD Gun Suit, WASH. POST, Dec. 17, 1999. Filed

in as many jurisdictions as possible and designed to

resist consolidation, these suits were organized to

destroy, even if they could never win a verdict.

Secretary Cuomo expressly threatened manufacturers

with “death by a thousand cuts.” Walter Olson,

Plaintiffs Lawyers Take Aim at Democracy, WALL ST.

J., Mar. 21, 2000.

Like this case, the lawsuits aimed to bankrupt

firearms manufacturers, or at least coerce them into

imposing gun controls that legislatures would not.

Bridgeport, Connecticut, mayor Joseph Ganim

described his lawsuit as “creating law with litigation.”

Fred Musante, After Tobacco, Handgun Lawsuits,

4 Kelley v. R.G. Indus., Inc., 304 Md. 124 (1985). The novel

legal theory was later overturned by statute. 1988 Md. Laws

3489–90.

N.Y. TIMES, Jan. 31, 1999.5 “The Bridgeport suit

named 12 American firearms manufacturers, three

handgun trade associations, and a dozen southwestern

Connecticut gun dealers, and asked for damages in

excess of $100 million.” Id. (quotation marks omitted).

“If twenty cities” bring such suits, a reporter

noted, “defending against them, according to some

estimates, could cost the gun manufacturers as much

as a million dollars a day.” Peter Boyer, Big Guns, NEW

YORKER, May 17, 1999.6 Plaintiffs’ attorney John

Coale thus aimed for “critical mass…where the costs

alone of defending these suits are going to eat up the

gun companies.” Fox Butterfield, Lawsuits Lead Gun

Maker To File for Bankruptcy, N.Y. TIMES, June 24,

1999.7 The plaintiffs did not need to win their cases

because as Coale boasted, “the legal fees alone are

enough to bankrupt the industry[.]” Sharon Walsh,

Gun Industry Views Pact as Threat to Its Unity, WASH.

POST, Mar. 18, 2000.8

Some manufacturers indeed went bankrupt,

including Sundance Industries, Lorcin Engineering,

and Davis Industries. Paul Barrett, Lawsuits Trigger

5 https://www.nytimes.com/1999/01/31/nyregion/after-

tobacco-handgun-lawsuits.html.

6 https://www.newyorker.com/magazine/1999/05/17/big-

guns.

7 https://www.nytimes.com/1999/06/24/us/lawsuits-lead-

gun-maker-to-file-for-bankruptcy.html#:~:text=''If%20New%20Y

ork%20comes%20into,other%20cities%20that%20have%20sued.

8 https://www.washingtonpost.com/archive/politics/2000/03/

18/gun-industry-views-pact-as-threat-to-its-unity/b18b920f-afdf44d1-a252-68b12863a032/.

Gun Firms’ Bankruptcy, WALL ST. J., Sept. 13, 1999.

Davis Industries was “one of the 10 largest makers of

handguns.” Butterfield, supra.

The most venerable manufacturers were driven to

the brink. Colt’s Manufacturing Company stopped

producing handguns for the public. Facing “28

lawsuits from cities and counties hoping to punish gun

makers,” “the company could no longer get loans to

finance manufacturing because the lawsuits ‘could be

worth zero, or a trillion dollars.’” Mike Allen, Colt’s to

Curtail Sale of Handguns, N.Y. TIMES, Oct. 11, 1999.9

Then British-owned, Smith & Wesson (S&W) was

ordered to accept Cuomo’s demands in exchange for

immunity from some of the litigation. See Agreement

Between Smith & Wesson and the Departments of the

Treasury and Housing and Urban Development, Local

Governments and States, U.S. DEPARTMENT OF

HOUSING AND DEVELOPMENT, archived Dec. 13, 2009

(summary).10 The slew of demands included some of

the same gun controls that Mexico seeks to impose

through this case. For example, S&W was required to

“not sell large capacity magazines or semiautomatic

assault weapons,” restrict “[m]ultiple handgun sales,”

add “[s]econd ‘hidden’ serial numbers” on handguns,

impose extra restrictions to prevent “straw

purchasers,” and develop “Smart Gun” technology.

Compare id., with Pet.App.39a–40a, 83a–84a, 131a;

see also Pet.App.134a (arguing that “The Smith &

Wesson 2000 Agreement was an acknowledgement

9 https://www.nytimes.com/1999/10/11/nyregion/colt-s-to-

curtail-sale-of-handguns.html.

10 https://archives.hud.gov/news/2000/gunagree.html.

that gun manufacturers can and should sell, market,

distribute, and design guns to prevent their trafficking

to criminal markets”). Additionally, the company’s

practices would be perpetually controlled by a fivemember Oversight Commission—with four of the

members being selected by the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) or the states

and localities that joined the litigation. Agreement

Between Smith & Wesson, supra; Walter Olson, THE

RULE OF LAWYERS 125–26 (2003). In effect, corporate

control would be removed from the stockholders and

given to the new gun control committee.

“Smith & Wesson made it clear…that the company

was driven to the agreement by the lawsuits. The

settlement would ensure ‘the viability of Smith &

Wesson as an ongoing business entity in the face of the

crippling cost of litigation,’ the company said in a

statement.” Jonathan Weisman, Gun maker, U.S.

reach agreement, BALT. SUN, Mar. 18, 2000.

“[T]he litigants vowed to press on until all the

manufacturers joined”—indeed, “to get more

aggressive.” Id. Alex Panelas, mayor of Miami-Dade

County, Florida, warned that the S&W deal would be

“‘a floor, not a ceiling’ for any other gun maker that

wants to sign on.” Id.

No other company joined. Glock came closest. As it

wavered, New York Attorney General Eliot Spitzer

warned a Glock executive: “if you do not sign, your

bankruptcy lawyers will be knocking at your door.” 146

CONG. REC. No. 45, H2017 (Apr. 11, 2000). Spitzer and

Connecticut Attorney General Richard Blumenthal

announced they would sue other manufacturers for

shunning S&W—for instance, by no longer sharing

joint legal defense with S&W. Olson, at 127. This

would have been “the first antitrust action in history

aimed at punishing smaller companies for not

cooperating with the largest company in the market in

an agreement restraining trade.” Id. Like Mexico,

Blumenthal had no evidence of illegal behavior; “the

point was sheer intimidation.” Id.

Ultimately, as Mexico laments, Pet.App.134a–

35a, the S&W consent decree never went into force.

But the lawsuits continued. Although most cases were

eventually dismissed, litigation costs mounted ever

higher.

B. Congress passed PLCAA to halt the

abusive lawsuits.

Representative Cliff Stearns (R-Fla.) denounced

“the government lawyers and private lawyers

conspiring, conspiring to coerce private industry into

adopting public policy changes through the threat of

abusive litigation. The option? Adopt our proposals or

you will go bankrupt.” 146 CONG. REC., at H2017.

Stearns thus cosponsored PLCAA to protect the

firearms industry from the abusive litigation. Pub. L.

No. 109-92, 119 Stat. 2095 (2005) (codified at 15 U.S.C.

§§7901–03).

According to cosponsor Senator Max Baucus (DMont.), PLCAA was “intended to protect law-abiding

members of the firearms industry” from suits “that are

only intended to regulate the industry or harass the

industry or put it out of business.” 151 CONG. REC. No.

104, S9107 (July 27, 2005). Senator Thomas Coburn

(R-Okla.) called PLCAA necessary “to put a stop to the

unmeritorious litigation that threatens to bankrupt a

vital industry in this country.” Id. at S9059. The suits,

he recognized, were designed “to constrict the right to

bear arms and attack the Bill of Rights and attack the

Constitution.” Id.

As Senator Jeff Sessions (R-Ala.) observed, “the

ultimate goal of these suits” was “the elimination of

th[e] arms industry.” He noted that by the time

PLCAA was enacted in 2005, “33 State legislatures

have acted to block similar lawsuits….However, it only

takes one lawsuit in one State to bankrupt the entire

industry, making all those State laws inconsequential.

That is why it is essential that we pass Federal

legislation.” Id. at S9063.

The attempt to bankrupt the gun industry via

litigation had—and continues to have—national

security implications. The Department of Defense

“strongly support[ed]” PLCAA to “safeguard our

national security by limiting unnecessary lawsuits

against an industry that plays a critical role in

meeting the procurement needs of our men and women

in uniform.” 151 CONG. REC., at S9395 (July 29, 2005).

The bipartisan filibuster-proof majority enacting

PLCAA found that imposing liability on the firearms

industry for third-party crimes violates the Second

Amendment and “the rights, privileges, and

immunities

guaranteed”

the

Fourteenth

Amendment. 15 U.S.C. §7901(a)(6),(7).

PLCAA also protects the legislative branch,

because “The liability actions…attempt to use the

judicial branch to circumvent the Legislative branch of

government…thereby threatening the Separation of

Powers doctrine.” Id. §7901(a)(8); see also Glenn

Reynolds, Permissible Negligence and Campaigns to

Suppress Rights, 68 FLA. L. REV. FORUM 51, 57 (2016).

III. Mexico’s attempt to scapegoat lawful

American companies for its own failures

demonstrates the need for PLCAA.

This case exemplifies why PLCAA was enacted.

Mexico seeks billions of dollars in damages and the

imposition of extensive gun controls in America while

relying on shoddy data and false allegations to

exaggerate the impact of Petitioners’ firearms on

Mexican homicides.

A. Mexico’s homicide rates were higher

during the “assault weapons” ban than

after its expiration.

Mexico argues that Petitioners “exploited” the

September 2004 sunset of the federal ban on sales of

so-called “assault weapons” “to vastly increase

production, particularly of the military-style assault

weapons favored by the drug cartels.” Pet.App.10a.

Consequently, Mexico argues, Mexican homicides

“increased dramatically beginning in 2004 exactly

contemporaneously with [Petitioners’] increased

production, distribution, and marketing of their

military-grade weapons.” Id. In fact, Mexico’s

homicide rate was lower during each of the first three

years after the ban’s expiration (2005–2007) than

during any year in which the ban was in effect (1995–

2003).11 Global Study on Homicide, UNITED NATIONS

OFFICE ON DRUGS AND CRIME 107 (2011).12

Mexico further contends, “The increased

percentage of homicides by gun was contemporaneous

with the increased gun production in the U.S.

beginning in 2005 with the expiration of the U.S.

assault-weapons ban.” Pet.App.162a. Rather, from

1995–2010, the year with the highest percentage of

Mexican homicides by gun was 1999 (60.1%), when the

“assault weapons” ban was in full force. Global Study

on Homicide, at 115.

If so-called “assault weapons” cause homicide

increases, then the U.S. should have experienced more

homicides after the ban’s 2004 expiration. It did not.

The U.S. homicide rate in the six years following the

ban (2005–2010) never exceeded the rate from the last

full year that the ban was in effect (2003). Id. at 107.

The four highest homicide rates from 1995–2010 came

during years that the ban was in place. Id. The lowest

rate was in 2010. Id. As for murders perpetrated with

all rifles (not only “assault rifles”), there were 488 in

2002 and 392 in 2003—the last two full years of the

ban—compared to 445 in 2005 and 436 in 2006. 2006

Crime in the United States: Expanded Homicide Data

Table 7, FBI: UCR.13 Over the years, while the number

of “assault weapons” in America increased, the

11 Because the ban took effect on September 13, 1994, and

expired on September 13, 2004, both 1994 and 2004 are omitted

from this analysis.

12 https://www.unodc.org/documents/data-and-analysis/stati

stics/Homicide/Globa_study_on_homicide_2011_web.pdf.

13 https://ucr.fbi.gov/crime-in-the-u.s/2006.

number of murders committed with rifles declined.

Americans own approximately 28.1 million so-called

“assault weapons” today,14 yet in the five most recent

years for which data are available, the number of

murders committed with rifles were 215 (2015), 300

(2016), 389 (2017), 305 (2018), and 364 (2019). FBI:

Uniform Crime Reports, 2019 Crime in the United

States – Expanded Homicide Data Table 8.15 Neither

the popularity of common arms falsely dubbed “assault

weapons” nor Petitioners’ marketing of them has

caused an increase in U.S. homicide rates.

B. Few Mexican crime guns are determined

to have come from America.

Mexico claims that “Almost all guns recovered at

crime scenes in Mexico—70% to 90% of them—were

trafficked from the U.S.” Pet.App.7a. On November 26,

2024, Mexican President Claudia Sheinbaum wrote an

open letter to President-elect Trump claiming that 70

percent of illegal guns seized from criminals come from

the U.S.16 Likewise, then-President Felipe Calderón

14 NSSF Releases Most Recent Firearm Production Figures,

NSSF, Jan. 11, 2024, https://www.nssf.org/articles/nssf-releasesmost-recent-firearm-production-figures-2024/.

15 https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-

2019/tables/expanded-homicide-data-table-8.xls.

16 Presidenta Claudia Sheinbaum, No es con amenazas ni con

aranceles como se va a atender el fenómeno migratorio ni el

consumo de drogas en EUA, GOBIERNO DE MÉXICO, Nov. 24, 2024,

https://www.gob.mx/presidencia/prensa/no-es-con-amenazas-nicon-aranceles-como-se-va-a-atender-el-fenomeno-migratorio-niel-consumo-de-drogas-en-eua-presidenta-claudiasheinbaum?idiom=es (“Además, informó al presidente electo

Donald Trump, que el 70 por ciento de las armas ilegales

told Congress in 2010, “more than 80 percent of [seized

firearms] we have been able to trace came from the

United States.” Mexico President Calderon Address to

Joint Meeting of Congress, C-SPAN, May 20, 2010, at

24:54.17 Many U.S. politicians, gun control

organizations, and media have claimed that around

90% of Mexican crime guns come from the U.S. See,

e.g., William La Jeunesse & Maxim Lott, The Myth of

90 Percent: Only a Small Fraction of Guns in Mexico

Come From U.S., FOX NEWS, Apr. 2, 2009;18 D’Angelo

Gore, Counting Mexico’s Guns, FACTCHECK.ORG, Apr.

17, 2009.19 The claims are misleading. They are based

on trace data from the ATF. While traces of individual

firearms are accurate, traces as a whole do not provide

a picture of how criminals in general obtain firearms.

Every ATF tracing report includes the following

congressionally mandated disclaimer:

Firearms selected for tracing are not

chosen for purposes of determining which

types, makes or models of firearms are used

for illicit purposes. The firearms selected do

not constitute a random sample and should

not be considered representative of the larger

universe of all firearms used by criminals, or

any subset of that universe. Firearms are

incautadas a delincuentes en México, proviene de Estados

Unidos.”) (Mex. Pres. website).

17 https://www.c-span.org/video/?293616-2/mexicopresident-calderon-address-joint-meeting-congress.

18 https://perma.cc/0LCWsseGAdV.

19 https://www.factcheck.org/2009/04/counting-mexicos-

guns.

normally traced to the first retail seller, and

sources reported for firearms traced do not

necessarily represent the sources or methods

by which firearms in general are acquired for

use in crime.20

As Mexico concedes, “traces reflect only a tiny

fraction of guns that are trafficked into Mexico.”

Pet.App.68a. Because it would be futile to trace

firearms that are clearly not from America, the

firearms submitted for tracing are only those likely

enough to be from America to justify requesting a

trace.

Some seized firearms are traced several times. For

example, from 2007 to 2010, tens of thousands of

traces were duplicates, with trace requests sometimes

being submitted for the same firearm five times. Colby

Goodman, Update on U.S. Firearms Trafficking to

Mexico Report, WILSON CTR. 7 (2011).21

Additionally, a successful trace reveals only where

the firearm originated. A successful trace does not

mean that the firearm was sold in the U.S. civilian

market. For example, a successfully traced firearm

might have been lawfully sold to Mexican police and

then stolen by or sold to a cartel.

Moreover, the “70% to 90%” figure is based only on

“the number of weapons submitted by the Mexican

government to the ATF that could be successfully

20 Consolidated Appropriations Act of 2008, 18 U.S.C. §923;

Pub. L. No. 110-161 §518.

21 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/update_us_firearms_trafficking_to_mex.pdf.

traced and not [on] the total number of weapons seized

by Mexican authorities or even [on] the total number

of weapons submitted to the ATF for tracing.” Scott

Stewart, Mexico’s Gun Supply and the 90 Percent

Myth, STRATFOR, Feb. 10, 2011 (emphasis added).22

An analysis of traces from 2008—the origin of the

claim that 87% of Mexican crime guns originate in the

U.S.23—illustrates the uselessness of trace data for

determining how many Mexican crime guns come from

America. Of the 30,000 total crime guns seized by

Mexican officials, only 7,200 were submitted for

tracing. Of those 7,200, only 4,000 were successfully

traced. (Traces fail for many reasons, including

absence of a legible serial number.) Of those 4,000

successful traces, 3,480 were positively traced to the

U.S. So while 3,480 of 4,000 (87%) successfully traced

firearms came from the U.S., “the 3,480 guns

positively traced to the United States equals less than

12 percent of the total arms seized in Mexico in 2008

and less than 48 percent of all those submitted by the

Mexican government to the ATF for tracing. This

means that almost 90 percent of the guns seized in

Mexico in 2008 were not traced back to the United

States.” Stewart, supra.

The U.S. Government Accountability Office

concluded,

“the

percent

statistic

misleading.…Numerous problems with the data

collection and sample population render this assertion

as unreliable.” Firearms Trafficking: U.S. Efforts to

22 https://perma.cc/0RhQPNX9SiV.

23 See, e.g., At Mexico’s Lone Gun Shop, Army Oversees Sales,

NPR, June 24, 2009, https://www.npr.org/transcripts/105848207.

Combat Arms Trafficking to Mexico Face Planning and

Coordination Challenges, U.S. GOV’T ACCOUNTABILITY

OFFICE 69 (2009).24

Jorge Castañeda, former Foreign Minister of

Mexico, and Rubén Aguilar, former Press Secretary for

the President of Mexico, estimate that only 18% of

Mexican crime guns can be conclusively determined to

have come from the United States. Rubén Aguilar &

Jorge Castañeda, EL NARCO: LA GUERRA FALLIDA 68

(2009).

What is more, the average age of successfully

traced American firearms in Mexico is 15 years.

Administrative Record at 0222, Nat’l Shooting Sports

Found. v. Melson, No. 1:11-cv-01401 (D.D.C. Sept. 12,

2011), ECF No. 22-4 (ATF report identifying average

time-to-crime rate for U.S.-sourced firearms recovered

and traced in Mexico between December 1, 2006, and

August 31, 2010). Under the “time-to-crime” theory,

the shorter the time from the retail sale of a firearm to

its seizure at a crime scene, the greater the probability

that the gun was originally sold to someone acting on

behalf of a criminal. The longer the “time-to-crime,”

the greater the probability that the gun was stolen

from its lawful owner and sold into the black market.

See Crime Gun Trace Analysis Report: The Illegal

Youth Firearms Market in Jersey City, BUREAU OF

ALCOHOL, TOBACCO AND FIREARMS 38 (1999).25 The 15year average age for traced firearms indicates that

24 https://www.gao.gov/assets/gao-09-709.pdf.

25 https://www.atf.gov/file/57291/download.

most were lawfully purchased and owned, stolen years

later, and then sold into the black market.

C. Mexican criminals obtain guns from

around the world.

Mexican criminals acquire countless firearms

from around the globe. Mexico’s black market has been

called “a virtual arms bazaar, with fragmentation

grenades from South Korea, AK-47s from China, and

shoulder-fired rocket launchers from Spain, Israel and

former Soviet bloc manufacturers.” Jeunesse & Lott,

supra. Many firearms come from “Russian crime

organizations,” who “are actively trafficking drugs and

arms in Mexico.” Id. “Testifying before the U.S. House

Subcommittee on Border, Maritime, and Global

Counterterrorism on July 16, 2009, ATF stated that

the grenades and other military-grade weaponry were

coming into Mexico via the southern border with

Guatemala.” Kopel, Mexico’s Gun-Control Laws, at 53.

And in “the late 1990s, the Revolutionary Armed

Forces of Colombia established a clandestine arms

smuggling and drug trafficking partnership with the

Tijuana cartel[.]” Jeunesse & Lott, supra.

Deserters from the Mexican military are another

source of American- and foreign-made crime guns. The

U.S. sells large quantities of firearms to Mexican

governments. See 2019 Section 655 Report 23, U.S.

DEP’T OF STATE, Apr. 23, 2020.26 In the Mexican army,

“one in eight soldiers deserts every year.” Hector

Tobar, A Cartel Army’s War Within, L.A. TIMES, May

26 Available at https://www.pmddtc.state.gov/ddtc_public/dd

tc_public?id=ddtc_public_portal_news_and_events&cat=Report.

20, 2007.27 “Many [take] their weapons with them,”

Jeunesse & Lott, supra, finding higher-paying work

with cartels—for example, the Zetas, “Mexico’s first

drug cartel Army,” founded by Mexican Special Forces

deserters. Tobar, supra.

D. Mexico’s homicide increase is the result of

the Mexican government’s failures.

The Mexican government’s failures are largely

responsible for Mexico’s homicide increase.

Mexico’s failure to prosecute violent criminals has

fostered violent crime: “the violence Mexico faces today

is the cumulative effect of the state’s clear failures,”

including “the state’s incapacity and unwillingness to

prevent, investigate, prosecute, and punish criminal

conduct.” Gema Kloppe-Santamaria, Behind Mexico’s

Spiraling Violence, WILSON CTR., Feb. 2018.28 Gabriela

Capó Ramirez, executive director at the Institute for

Security and Democracy, determined that the “main

enabler” that drove “the continuous increase in

homicides in Mexico” was “the lack of judicial

accountability” that “has permeated Mexico for

decades and provides fertile ground where criminal

behaviour can flourish.” Gabriela Capó Ramirez, Why

did homicides increase so much in 2017? What should

the Mexican government do about it?, WILSON CTR.,

Feb. 2018.29 “Widespread impunity,” she asserted,

27 http://articles.latimes.com/2007/may/20/world/fg-zetas20.

28 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/behind_mexicos_spiraling_violence.pdf.

29 https://www.wilsoncenter.org/sites/default/files/media/doc

uments/publication/why_did_homicides_increase_so_much_in_2

017_what_should_the_mexican_government_do_about_it.pdf.

“basically represents a blank check and a perverse

incentive which encourages criminals to engage in

illicit activities (that in many cases result in

homicides).” Id. Or in the words of the U.S. Bureau of

Democracy, Human Rights, and Labor, “Impunity and

extremely low rates of prosecution remained a problem

for all crimes,” including for “government agents” who

“were complicit with international criminal gangs.”

Mexico 2022 Human Rights Report, BUREAU OF

DEMOCRACY, HUMAN RIGHTS, AND LABOR (2023).30 The

U.S. Bureau accuses the Mexican government of

human rights violations, including:

unlawful or arbitrary killings by police,

military, and other governmental officials;

forced disappearance by government agents;

torture or cruel, inhuman, degrading treatment

or punishment by security forces; harsh and

life-threatening prison conditions; arbitrary

arrest or detention; restrictions on free

expression and media, including violence

against journalists; [and] serious acts of

government corruption[.]

Id.; see also Kloppe-Santamaria, supra (“Military and

police personnel, in particular, have been accused of

the abduction of thousands of people over the course of

the last decade.”).

As explained above, “homicides in Mexico” did not

“increase[] dramatically beginning in 2004” with the

expiration of the “assault weapons” ban. Pet.App.10a.

Rather, homicides increased dramatically after

30 https://www.state.gov/wp-content/uploads/2023/02/41561

0_MEXICO-2022-HUMAN-RIGHTS-REPORT.pdf.

President Calderón took office in December 2006 and

deployed 30,000 soldiers and federal police to battle

drug cartels. Sara Llana, Escalating drug war grips

Mexico, CHRISTIAN SCIENCE MONITOR, May 23, 2007.31

As a U.S. Congressional Research Service report

explained, “the government’s crackdown, as well as

turf wars among rival [cartels], has fueled an

escalation in violence throughout the country,

including states along the U.S.-Mexico border.”

Mérida Initiative for Mexico and Central America:

Funding and Policy Issues, CONG. RES. SERV., Apr. 19,

2010.32 The report found “a 126% increase” in drug

trafficking-related murders from 2007 to 2008, at least

another 27% increase in 2009, and that “drug

trafficking-related violence…escalated even further”

in 2010. Id. Dramatic increases in 2011 and 2017 were

likewise “attributed” to the “violent confrontations

within and between Mexican criminal organizations”

that escalated after Calderón’s offensive. KloppeSantamaria, supra.

Additionally, the Mexican military is partly

responsible for domestic law enforcement. Some

believe “the militarization of public security forces has

had the greatest impact on [the] increase in homicides.

Assigning public security tasks to the armed forces has

contributed to rising lethality rates because these

security agents” are trained “to take out the enemy.”

31 https://www.csmonitor.com/2007/0523/p01s01-

woam.html.

32 https://crsreports.congress.gov/product/pdf/R/R40135.

Luz Parra, Why Has There Been Such an Increase in

Homicides in 2017?, WILSON CTR., Feb. 2018.33

Mexico’s homicide problem stems from a legal

culture of criminal impunity, aggravated by illegal

state violence as a counterproductive response.

E. Many Mexico citizens have embraced the

right to keep and bear arms because their

government fails to protect them.

Because the Mexican government fails to protect

the Mexican people, professor Ernesto Villanueva, of

the National Autonomous University of Mexico,

argues that Mexicans would be safer if their

government obeyed the Mexican constitutional right to

arms. See Ernesto Villanueva, EL DERECHO DE

ARMARSE: LO QUE TODO MEXICANO DEBE SABER SOBRE LA

POSESIÓN Y PORTACIÓN LEGALES DE ARMAS DE FUEGO

(2017); Ernesto Villanueva & Karla Valenzuela,

SEGURIDAD, ARMAS DE FUEGO Y TRANSPARENCIA: MITO Y

REALIDAD SOBRE EL DERECHO DE POSESIÓN Y PORTACIÓN

DE ARMAS DE FUEGO EN MÉXICO (2012).34

Mexican senator Jorge Luis Preciado argued that

because “the state has failed in its duty to protect

citizens,” Article 10 of Mexico’s constitution should be

amended expressly to allow citizens to carry weapons

for self-defense. “There is no reason why a citizen

should not be able to defend themselves,” he said.

33 https://www.wilsoncenter.org/publication/why-has-there-

been-such-increase-homicides-2017.

34 An English translation of an excerpt of the 2012 book

is available in Nicholas Johnson, et al., FIREARMS LAW

AND

THE

SECOND AMENDMENT 1761–66 (3d ed. 2022),

http://firearmsregulation.org/www/FRRP3d_Ch19.pdf#page=139.

“This is what the Second Amendment of the U.S.

established since its founding[.]”35

Some

Mexican

citizens

safeguard

their

communities from cartel violence by forming selfdefense groups known as autodefensas (selfdefenders). Several (illegally) armed groups have

successfully driven cartels out of their towns,

including in Tancítaro, “the avocado capital of the

world.” See David Kopel, Joseph Greenlee, & Bhav

Nindar Singh, The Social Cost of Nullifying the Right

to Arms: The Case of Mexico, 64 S. TEX. L. REV. at Part

III.B (forthcoming 2025).36

IV. Military and law enforcement themed

advertising reflects an understanding of the

right to keep and bear arms that has existed

throughout American history.

The Mexican executive claims Petitioners “market

their products in ways” “likely to especially attract and

motivate criminal users, including the cartels,” by

using images of “military” and “law enforcement,” and

“reinforc[ing] this association with pictures of

American flags”—as if Mexican cartels revere Old

Glory. Pet.App.105a, 127a.

In America, the exercise of the right to keep and

bear arms has always had a synergistic relationship

35 Proponen armar a la población; el estado fracasó: Preciado,

EXCÉLSIOR,

July

10,

2016,

https://www.excelsior.com.mx/nacional/2016/10/07/1120970.

36 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5028

089.

with military use of arms. Indeed, the first clause of

the Second Amendment declares the necessity of “a

well regulated militia.” U.S. CONST. amend. II.

Historically, militiamen had to provide their own

arms, suitable for military use. See District of

Columbia v. Heller, 554 U.S. 570, 624 (2008)

(“Ordinarily when called for militia service able-bodied

men were expected to appear bearing arms supplied by

themselves and of the kind in common use at the

time.”) (quoting United States v. Miller, 307 U.S. 174,

179 (1939)) (brackets omitted). The 1792 federal

militia act specified the firearms and edged weapons

that militiamen had to possess and bring to service. 1

Stat. 271 (1792). Colonial and early State arms

statutes ordered most of the free population

(sometimes including females) to own particular types

of firearms and bladed weapons. See David Kopel &

Joseph Greenlee, The Second Amendment Rights of

Young Adults, 43 S. ILL. U. L.J. 495 (2019) (describing

hundreds of pre-1800 statutes). These arms mandates

were not enacted by legislatures insistent that

everyone go duck-hunting. They were enacted so that

the population would have combat weapons.

Additionally, ordinary citizens participated in law

enforcement by being obliged to join in the “hue and

cry” to pursue fleeing criminals, the “watch and ward”

to guard towns during day (“ward”) and night

(“watch”), and the posse comitatus to assist the sheriff

in keeping the peace. Id. at 534–35; see also South v.

State of Maryland for use of Pottle, 59 U.S. 396, 402

(1855) (A sheriff “may command the posse comitatus

or power of the country; and this summons, every one

over the age of fifteen years is bound to obey, under

pain of fine and imprisonment.”).

During World War I, “while the Army, including

the National Guard, was either overseas or in training

camps, states formed home guard companies to guard

bridges, power plants, and other potential targets for

sabotage.” Robert Cottrol & Brannon Denning, TO

TRUST THE PEOPLE WITH ARMS 69 (2023). The same

decade, “Faced with incursions from revolutionaries

and bandits caught up in the bloody Mexican

Revolution of 1910–1920, sheriffs and their posses in

the American Southwest occasionally joined soldiers

from the US Army or acted alone to fight off invaders

from south of the border.” Id.

In World War II, “several states formed state

guard units to guard critical installations and to be

available for civil disturbances.” Id. After Pearl

Harbor, Hawaii relied heavily on volunteer civilians,

and “created a more extensive militia system than any

other state or territory.” Barry Stentiford, THE

AMERICAN HOME GUARD 149 (2002). The volunteers

were responsible for “breach defense, watching

strategic and vulnerable points such as hilltops,

runways, and crossroads, traffic control, providing

guides and scouts for the army, and, if all else failed,

implementation of scorched earth in the path of

invaders.” Id.

Maryland’s governor called forth volunteer

citizens “to furnish immediately, local protection

against parachute troops, saboteurs, or organized

raiding parties.” 3 STATE PAPERS AND ADDRESSES OF

GOVERNOR HERBERT R. O’CONOR 618 (1947). The best

arms that citizens could bring were arms suitable for

defending the community against enemy invaders.

The old-fashioned .30-06 bolt-action rifle is

beloved by generations of American hunters.

Introduced in 1903 and improved in 1906, it was the

standard military service rifle for decades. See Joseph

W. Shields, FROM FLINTLOCK TO M1 153–60 (1954).

Colt revolvers found their first financial success with

military contracts. See David Harsanyi, FIRST

FREEDOM: A RIDE THROUGH AMERICA’S ENDURING

HISTORY WITH THE GUN 100–04 (2018). The 16-shot

lever action Henry Rifle, still in production today,

started in 1862 as an arm for Union soldiers in the

Civil War. See Wiley Sword, THE HISTORIC HENRY

RIFLE 25–31 (2006).

To encourage responsible Americans to learn the

skills required if their country needed their armed

service, Congress in 1903 created the Civilian

Marksmanship Program and the National Board for

the Promotion of Rifle Practice, whose purposes

included organizing National Matches. Militia Act, 32

Stat. 775 (1903). Then Congress authorized the sale of

surplus military firearms to the public. 33 Stat. 986

(1905). The NRA was the chosen distribution agent via

its many affiliated clubs.

In 1916, Congress created the Office of the

Director of Civilian Marksmanship to administer the

civilian marksmanship program, commonly called

“DCM.” See Johnson, at 550–52.

The DCM program worked very well, according to

a 1966 study by the Arthur D. Little consulting firm.

Comparing soldiers who had differing gun club

backgrounds and soldiers with none, the study found

that Army trainees with prior gun club membership in

general, and DCM club membership especially,

“achieved significantly higher” Marksmanship

Qualification Scores. Arthur D. Little, Inc., A Study of

the Activities and Missions of the NBPRP, report to The

Department of the Army 15 (Jan. 1966).37 They were

also most likely to “enlist,” “prefer a combat outfit,”

and “become a marksmanship instructor.” Id. at 16.

Further, said the Arthur D. Little study, the

National Matches, which are shot by citizens bearing

their personal arms, were studied by the military to

assess best practices to teach shooting and

marksmanship. The Army Marksmanship Training

Unit adopted knowledge gleaned from the National

Matches into its marksmanship instruction manuals.

Id. at 49. The study did not find any instance of a DCM

gun being used in a crime, or of a DCM member using

a gun in a crime. Id. at 41.38 Today, citizens who choose

to serve in the military will serve more effectively if

they have practiced with civilian, semiautomatic

versions of the firearms used by the military.

The right to keep and bear arms also continues to

be connected to law enforcement. In many

jurisdictions across the country, law enforcement

37 https://shared.nrapvf.org/sharedmedia/1511988/nbprp-

study-little-1966-complete.pdf.

38 Since 1979, all citizens have been able to purchase DCM

arms, because the requirement of club membership was held to

violate Equal Protection. Gavett v. Alexander, 477 F. Supp. 1035

(D.D.C. 1979). Since 1996, the DCM has been the federally

chartered, but private, Corporation for the Promotion of Rifle

Practice and Firearms Safety. 36 U.S.C. §40701 et seq.

relies on trained volunteers. For example, in Colorado,

the Colorado Mounted Rangers is a volunteer

organization of 200 citizens who provide assistance

pursuant to formal agreements with over 30 Colorado

Sheriffs’ Offices, Police Departments, and other local

governments. In 2013, they supplied 50,000 hours of

services to local governments. They respond to violent

crimes, prison escapes, natural disasters, backcountry

search and rescue, and everything else that law

enforcement officers do. Although they train to the

same high standards as the Colorado State Patrol,

these unpaid volunteers are not government

employees and are not peace officers except when

activated by the requesting government agency. David

Kopel, The Posse Comitatus and the Office of Sheriff:

Armed Citizens Summoned to the Aid of Law

Enforcement, 104 J. CRIM. L. & CRIMINOLOGY 761, 821–

23 (2014).

Mexico’s criticism of Petitioners’ military, law

enforcement, and patriotic marketing miscasts

America’s firearms culture. The constructive

relationship between the right to keep and bear arms,

the military, and law enforcement has existed

throughout American history.

V. This Court decided N.Y. Times v. Sullivan to

halt abusive suits targeting the First

Amendment.

Under Jim Crow, mainstream press rarely

published photographs of black people, except in crime

stories. Black concerns and aspirations received scant

attention. David Wallace, MASSIVE RESISTANCE AND

MEDIA SUPPRESSION: THE SEGREGATIONIST RESPONSE

TO THE DISSENT DURING THE CIVIL RIGHTS MOVEMENT

43–44 (2013).

The black press, typically operating on a

shoestring, filled the gap. When the black press

exposed or criticized abuses by the white power

structure, such as crimes by law enforcement officers,

retribution sometimes came as a libel suit. Aimee

Edmondson, IN SULLIVAN’S SHADOW: THE USE AND

ABUSE OF LIBEL LAW ARISING FROM THE CIVIL RIGHTS

MOVEMENT 17–71 (2019). Even when newspaper

articles were impeccably accurate, there was a

significant risk of enormous verdicts from all-white

juries. (Jurors were selected from voter rolls, and

blacks were often prevented from registering.)

Verdicts aside, legal defense costs threatened the

newspapers’ existence. For example, notwithstanding

Thurgood Marshall’s legal defense, South Carolina’s

Lighthouse and Informer was driven out of business in

1954 by a criminal libel prosecution. Edmondson, at

40–51. On advice of attorneys—including Marshall—

the Sumter Daily Item paid $10,000 to settle a nonmeritorious libel suit. Id. at 57–61.

A 1954 suit against the Lexington Advertiser was

eventually decided in the defendant’s “favor, but not

before a costly legal battle.” Wallace, at 70–71, 92–94.

Another unmeritorious libel case against the

Lexington Advertiser was brought in 1963. The

cumulative effect of the libel suits, plus the loss of

advertising due to violent threats against advertisers,

put the editor $100,000 in debt. Id. at 95–101.

When the Oklahoma Black Dispatch asked the

national NAACP for help in a libel suit involving a

shooting by police, NAACP attorney Robert Carter

convinced the paper to settle, due to “the toll these libel

suits were taking on the bank account of the

organization.” Edmondson, at 128.

As civil rights became a national issue, “outsider”

national media coverage in the South increased. So did

libel suits. New York Times Co. v. Sullivan arose from

a full-page advertisement in the Times, entitled “Heed

Their Rising Voices.” 376 U.S. 254, 256 (1964). The

suit was one of many brought by civil rights opponents.

In 1960, the Times sent Pulitzer Prize winner

Harrison Salisbury to Birmingham. His facts were

accurate; his analysis compared Birmingham to

Johannesburg, and local police behavior to Nazi police.

Harrison Salisbury, Fear and Terror Grip

Birmingham, N.Y. TIMES, Apr. 8, 1960. In retaliation,

local officials sued Salisbury and the Times in multiple

cases, seeking millions in damages. Edmondson, at

99–120.39

For the next year, the Times kept its reporters out

of Alabama, lest a reporter be served with process for

the Sullivan suit and eliminate the Times’ argument

that its small circulation in Alabama was insufficient

for state court jurisdiction. Wallace, at 183–84. The

Times killed two stories, one about Mississippi and

another about voting in Birmingham; although the

39 After Sullivan, the verdict based on the Salisbury article

was overturned. New York Times v. Connor, 165 F.2d 567 (5th

Cir. 1966).

stories were truthful, the lawsuit risk was too great.

Id. at 186–87.

For coverage of the police-sanctioned mob assault

against Freedom Riders on May 14, 1961, and the

follow-up, the Times relied on CBS Television reports.

Edmondson, at 121. CBS was sued for that coverage,

and for a November 1961 story about how voting

registrars in Montgomery County, Alabama, impeded

black registration. Although the reporting was

accurate, CBS retracted both stories, apologized on

air, fired the reporter (award-winning Howard Smith),

and settled the case for an undisclosed amount. Id.

120–25.

The Montgomery Advertiser hoped that “the recent

checkmating of the Times in Alabama will impose a

restraint upon other publications.” Grover Hall, State

Finds Formidable Legal Club to Swing at Out-of-State

Press, MONTGOMERY ADVERT., May 22, 1960.

Although the Times was wealthier than any

Southern black newspaper, “few people realized how

financially vulnerable the Times was in 1960.” Kermit

Hall & Melvin Urofsky, NEW YORK TIMES V. SULLIVAN

85 (2011). In the early 1960s, the paper “was barely

making a profit and likely would not have been able to

survive” the multi-million-dollar damages. Wallace, at

188; see also Anthony Lewis, MAKE NO LAW: THE

SULLIVAN CASE AND THE FIRST AMENDMENT 107 (1992).

According to the Times’ Managing Editor, the paper’s

bank accounts “were coming out ‘cleaned.’ This is an

expensive business.” Edmondson, at 2.

“No strategy for squelching the media’s portrayal

of conditions in the South…carried more potential for

success than the creative use of the law of libel.”

Rodney Smolla, SUING THE PRESS 43 (1986). As the

Washington Post’s executive editor observed, the

southern libel suits “enormously increase the liability

of the press for its defense against such suits in

communities where jurors may be hostile to them[.]”

Wallace, at 187. The ability to report would be

destroyed “if the costs of defending against bare

allegations of error threaten the survival of the

newspaper.” Id. at 188.

There were other Sullivan defendants. Four

prominent black Alabama ministers were also sued:

Ralph Abernathy, Fred Shuttlesworth, Joseph

Lowery, and Solomon Seay. New York Times Co. v.

Sullivan, 273 Ala. 656, 665 (1962); Hall, at 61–64. The

advertiser had listed them as endorsers without their

knowledge or consent. Hall, at 61–64. The jury issued

a half-million-dollar verdict against the ministers and

the Times. “[T]he jury apparently found the four men

guilty because of their civil rights work and not

because they had defamed L.B. Sullivan.” Id. at 69.40

When Sullivan was before this Court, more “huge

verdicts” were, in Justice Black’s words,

lurking just around the corner for the Times

or any other newspaper or broadcaster which

might dare to criticize public officials. In fact,

briefs before us show that in Alabama there

are now pending eleven libel suits by local and

state officials against the Times seeking

$5,600,000, and five such suits against the

40 Besides intimidating ministers, suing the four prevented

federal removal on diversity grounds. Lewis, at 13–14.

Columbia Broadcasting System seeking

$1,700,000. Moreover, this technique for

harassing and punishing a free press—now

that it has been shown to be possible—is by

no means limited to cases with racial

overtones; it can be used in other fields where

public feelings may make local as well as outof-state newspapers easy prey for libel verdict

seekers.

Sullivan, 376 U.S. at 294–95 (Black, J., concurring).

According to the Southern Publishers Association, as

of 1964 there were 17 pending libel suits against the

media in southern courts, seeking total damages of

$238,000,000. Wallace, at 174–75. For example, the

Saturday Evening Post was being sued for coverage of

riots against integration of the University of

Mississippi. Curtis Pub. Co. v. Birdsong, 360 F.2d 344

(5th Cir. 1966) (reversing verdict for plaintiffs);

Edmondson, at 146–53.

After Sullivan, this Court’s action was still

necessary against libel abuse. See e.g., Henry v.

Collins, 380 U.S. 356 (1965) (reversing libel verdicts

for criticism of law enforcement misconduct);

Associated Press v. Walker, 388 U.S. 130 (1967)

(extending actual malice rule to public figures);

Edmondson, at 136–46, 153–62 (discussing Henry and

the many suits by Mississippi segregationist leader

Edwin Walker).

The circumstances leading to Sullivan were like

those prompting PLCAA: decades of abusive suits,

including litigation designed to coerce submission

through legal expenses. The Sullivan petitioners

asked much of this Court: the invention of major

restrictions on tort law. Petitioners here ask much

less: the fair construction of a federal statute.

————♦————

CONCLUSION

The First Circuit’s decision should be reversed.

Respectfully submitted,

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Rd.

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 E. 16th Ave.

Denver, CO 80203

(303) 279-6536

david@i2i.org

December 3, 2024

GEORGE A. MOCSARY

UNIVERSITY OF WYOMING

COLLEGE OF LAW

1000 E. University Ave.

Laramie, WY 82071

(307) 766-5262

gmocsary@uwyo.edu

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.