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 FOR U.S. SENATOR TED CRUZ,

U.S. REPRESENTATIVE DARRELL ISSA,

AND 37 OTHER MEMBERS OF CONGRESS AS

AMICI CURIAE SUPPORTING PETITIONERS

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

GENE C. SCHAERR

KENNETH A. KLUKOWSKI

AARON S. GORDON

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

Counsel for Amici Curiae

DECEMBER 3, 2024

QUESTIONS PRESENTED

The questions presented are:

1. Whether the production and sale of firearms in

the United States is the “proximate cause” of alleged

injuries to the Mexican government stemming from

violence committed by drug cartels in Mexico.

2. Whether the production and sale of firearms in

the United States amounts to “aiding and abetting”

illegal firearms trafficking because firearms

companies allegedly know that some of their products

are unlawfully trafficked.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION AND INTEREST OF AMICI

CURIAE .................................................................... 1

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

ARGUMENT ................................................................ 7

II.

Mexico’s Lawsuit Is an Affront to

American Sovereignty..................................... 7

Mexico’s lawsuit attempts to hijack

U.S. courts to subject American

citizens to Mexican law, which

restricts the right to bear arms. ............. 9

Principles of comity confine each

court to its own territorial

jurisdiction. ............................................ 11

PLCAA’s reach is coextensive with

the reach of U.S. court jurisdiction. ...... 14

Mexico’s Lawsuit Disrespects the U.S.

Constitution and U.S. Law. .......................... 15

The Second Amendment recognizes

a fundamental right to keep and

bear arms. .............................................. 15

Congress

enacted

PLCAA

preserve the Second Amendment. ........ 24

iii

This matter is a foreign policy

dispute properly handled through

diplomacy, not domestic litigation. ....... 28

CONCLUSION .......................................................... 31

TABLE OF AUTHORITIES

Cases

Page(s)

American Banana Co. v. United Fruit Co.,

213 U.S. 347 (1909) ................................................ 12

American Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ................................................ 29

Andrews v. State,

50 Tenn. 165 (1871)................................................ 20

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) .................................................. 24

Barrows v. Jackson,

346 U.S. 249 (1953) .......................................... 22, 23

Chapman v. Allen,

15 Tex. 278 (1855) .................................................. 20

Church v. Hubbart,

6 U.S. (2 Cranch) 187 (1804).................................... 7

Craig v. Boren,

429 U.S. 190 (1976) ................................................ 22

Davenport v. Tilton,

51 Mass. 320 (1845) ............................................... 20

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................. 16, 17, 18, 19

Edye v. Robertson (Head Money Cases),

112 U.S. 580 (1884) ................................................ 29

Estados Unidos Mexicanos v. Smith & Wesson

Brands, Inc., 633 F. Supp. 3d 425

(D. Mass. 2022)......................................................... 5

Estados Unidos Mexicanos v. Smith & Wesson

Brands, Inc., 91 F.4th 511 (1st Cir. 2024)............... 5

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) ................................................ 12

Foster v. Neilson,

27 U.S. (2 Pet.) 253 (1829) ..................................... 29

Golding v. Golding’s Adm’r,

24 Ala. 122 (1854) .................................................. 20

Hartford Fire Ins. Co. v. California,

509 U.S. 764 (1993) ................................................ 12

Hilton v. Guyot,

159 U.S. 113 (1895) ................................................ 11

Jimenez v. Quarterman,

555 U.S. 113 (2009) ................................................ 25

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ................................................ 30

Leighton v. Kelsey,

57 Me. 85 (1869) ..................................................... 20

Luis v. United States,

578 U.S. 5 (2016) .................................................... 20

May v. Breed,

61 Mass. (7 Cush.) 15 (1851).................................. 13

McDonald v. City of Chicago,

561 U.S. 742 (2010) ........................ 15, 16, 17, 18, 19

Medellín v. Texas,

552 U.S. 491 (2008) ................................................ 29

Miller v. State,

54 Ala. 155 (1875) .................................................. 20

New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1 (2022) ........................................ 19

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................ 24

Nunn v. State,

1 Ga. (1 Kelly) 243 (1846) ...................................... 18

Oetjen v. Central Leather Co.,

246 U.S. 297 (1918) ................................................ 28

Pfizer, Inc. v. Government of India,

434 U.S. 308 (1978) ................................................ 13

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) .......................................... 22, 23

Republic of Mexico v. Hoffman,

324 U.S. 30 (1945) .................................................. 29

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ................................................ 25

Runyon v. McCrary,

427 U.S. 160 (1976) ................................................ 23

Sanchez-Llamas v. Oregon,

548 U.S. 331 (2006) ................................................ 30

Smith v. California,

361 U.S. 147 (1959) ................................................ 21

Société Nationale Industrielle Aérospatiale v.

U.S. Dist. Ct. S. Dist. Iowa,

482 U.S. 522 (1987) ................................................ 11

vii

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) .................................. 20

The Apollon,

22 U.S. (9 Wheat.) 362 (1824) .................................. 8

The Santissima Trinidad,

20 U.S. (7 Wheat.) 283 (1822) .................................. 8

The Sapphire,

78 U.S. (11 Wall.) 164 (1870) ................................. 13

Truax v. Raich,

239 U.S. 33 (1915) .................................................. 23

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ................................................ 17

Warth v. Seldin,

422 U.S. 490 (1975) ................................................ 22

Washington v. Glucksberg,

521 U.S. 702 (1997) ................................................ 16

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................ 29

Zivotofsky v. Kerry,

576 U.S. 1 (2015) .................................................... 29

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ........................................ 27

Constitución Política de los Estados

Unidos Mexicanos [Const.] Feb. 5, 1917

(rev’d 2015), as amended, art. 10 (Mex.) ................. 9

viii

Statutes

15 U.S.C. § 7901................................... 6, 25, 26, 27, 30

15 U.S.C. § 7902......................................................... 14

15 U.S.C. § 7903......................................................... 14

Protection of Lawful Commerce in Arms Act,

Pub. L. No. 109-92, 119 Stat. 2095 (2005)

(codified at 15 U.S.C. §§ 7901–03) ....................... 3, 8

Treatises

Restatement (Third) of the Foreign

Relations Law of the United States § 402

(1987) ........................................................................ 8

3 Joseph Story,

Commentaries on the Constitution of the

United States § 1890 (1833) ................................... 17

Joseph Story,

Commentaries on the Conflict of Laws § 512

(1834) ...................................................................... 13

St. George Tucker,

View of the Constitution of the United States,

in 1 Blackstone’s Commentaries: With Notes

of Reference, to the Constitution and Laws, of

the Federal Government of the United States;

and of the Commonwealth of Virginia

(Phila., William Young Birch & Abraham

Small 1803)....................................................... 16, 17

Other Authorities

Black’s Law Dictionary (10th ed. 2014) .................... 11

Cong. Globe,

39th Cong., 1st Sess. 1182 (1866)

(statement of Sen. Pomeroy) .................................. 18

Dominick Cortez,

There Can Be Only One: Mexico Has

One Gun Store But a Proliferation of Guns,

Mich. St. Int’l. L. Rev. Blog (Apr. 21, 2021) .......... 10

Robert J. Cottrol & Raymond T. Diamond,

The Fifth Auxiliary Right,

104 Yale L.J. 995 (1995) ........................................ 16

William S. Dodge,

International Comity in American Law,

115 Colum. L. Rev. 2071 (2015) ............................. 12

Stephen P. Halbrook,

The Founders’ Second Amendment (2008) ............ 17

Stephen P. Halbrook,

The Right to Bear Arms in Texas: The Intent

of the Framers of the Bills of Rights,

41 Baylor L. Rev. 629 (1989).................................. 24

Nicholas J. Johnson et al.,

Comparative Law: National constitutions,

comparative studies of arms issues, case

studies of individual nations, in Firearms

Law and the Second Amendment:

Regulation, Rights, and Policy

(2d ed. Online Supp. 2020)....................................... 9

David B. Kopel,

Mexico’s Gun-Control Laws:

A Model for the United States?,

18 Tex. Rev. L. & Pol. 27 (2013) ........................ 9, 10

Nelson Lund,

The Past and Future of the Individual’s

Right to Arms, 31 Ga. L. Rev. 1 (1996).................. 16

Joyce Lee Malcolm,

To Keep and Bear Arms: The Origins

of an Anglo-American Right (1994) ................. 16, 17

Julie Rose O’Sullivan,

The Extraterritorial Application of

Federal Criminal Statutes: Analytical

Roadmap, Normative Conclusions, and

a Plea to Congress for Direction,

106 Geo. L.J. 1021 (2018) ........................................ 8

Joel R. Paul,

Comity in International Law,

32 Harv. Int’l L.J. 1 (1991) .................................... 12

Eugene Volokh,

Implementing the Right to Keep and Bear

Arms for Self-Defense: An Analytical

Framework and A Research Agenda,

56 UCLA L. Rev. 1443 (2009) ................................ 20

Eugene Volokh,

The Commonplace Second Amendment,

73 N.Y.U. L. Rev. 793 (1998) ................................. 16

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

The foreign nation of Mexico has filed a lawsuit

that attempts to use the federal courts to advance a

theory of liability for lawful American businesses that

would infringe upon a constitutional right and do so in

direct conflict with a law Congress passed precisely

to prevent such liability. The Second Amendment to

the United States Constitution ensures the right to

keep and bear arms for law-abiding and peaceable

American citizens, but it would be impossible to

exercise that right if a citizen could not lawfully

purchase a firearm because the firearm industry had

become insolvent. Congress passed the Protection of

Lawful Commerce in Arms Act to prevent such an

outcome by placing firearm manufacturers on equal

footing with other American manufacturers. Under

the Act, so long as a firearm is properly made and

properly transferred into commercial channels, a

manufacturer is generally not liable if a criminal later

misuses that firearm in the commission of a crime.

Amici are U.S. Senator Ted Cruz of Texas, the

Ranking Member of the Subcommittee on the

Constitution of the Senate Committee on the

Judiciary, U.S. Representative Darrell Issa of

California, the Chairman of the Subcommittee on

Courts, Intellectual Property, and the Internet of the

House Judiciary Committee, and 37 other Members of

Congress in both the Senate and the House of

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than Amici Curiae or

their counsel has made a monetary contribution toward the

brief’s preparation or submission.

Representatives. Members of Congress are called to

pass statutes that constitute much of the public policy

of this Nation, and as such have a substantial interest

in seeing the judiciary interpret and apply those

statutes in the manner Congress intended. Amici are

also Members who recognize the importance of the

Second Amendment as a fundamental right, and who

are committed to ensuring that Acts of Congress have

the desired effect of protecting the Second Amendment

for future generations of Americans.

The following is the full list of Amici:

United States Senate

Ted Cruz

Marsha Blackburn

John Hoeven

Mike Braun

Mike Lee

Bill Cassidy, M.D.

Cynthia Lummis

John Cornyn

Roger Marshall, M.D.

Mike Crapo

James Risch

Kevin Cramer

Eric Schmitt

Steve Daines

Rick Scott

Deb Fischer

Thom Tillis

AMICI CURIAE (cont’d)

United States House of Representatives

Darrell Issa

Mark Alford

Jim Baird

Aaron Bean

Andy Biggs

Mike Bost

Chuck Fleischmann

Glenn Grothman

Andy Harris

Diana Harshbarger

Kevin Hern

Clay Higgins

Ronny Jackson

Doug LaMalfa

Mary Miller

Troy Nehls

August Pfluger

Keith Self

Pete Sessions

Adrian Smith

Claudia Tenney

Daniel Webster

SUMMARY OF ARGUMENT

Mexico’s lawsuit is an affront to the sovereignty

of the United States of America. It has no place in

federal court, and it attempts to coerce American

courts to subvert the policy determinations of the

political branches of the U.S. Government. A nation’s

authority on its own soil is virtually absolute.

Congress exercised that authority in passing the

Protection of Lawful Commerce in Arms Act (PLCAA),

Pub. L. No. 109-92, 119 Stat. 2095 (2005) (codified at

15 U.S.C. §§ 7901–03). Mexico’s suit disregards those

legal principles, trying to impose its own foreign view

of liability protection law and the right to bear arms

on the American people.

Mexico’s suit attempts to impose the laws of that

foreign nation upon the citizens and companies of this

nation. This is ironic, given that Mexico’s Constitution

also provides its citizens the right to possess firearms

in their residences for self-defense. But that nominal

right is a pale shadow of its American counterpart,

subject to severe restrictions, coupled with the fact

that there is only a single gun store in Mexico. That

nation’s laws and tradition of the right to own firearms

bear little resemblance to that of our own.

Consistent with the principle of comity—that is,

the recognition one nation gives domestically to the

official acts of another nation, having due regard to

international duty and the rights of those under the

protection of its laws—a foreign nation is generally

entitled to pursue claims in U.S. courts on the same

basis as that of a domestic person. Thus, Mexico is

entitled to pursue firearm manufacturers to the same

extent that a U.S. citizen could, but no more.

Contrary to Mexico’s contention, there is no gap

in PLCAA’s coverage that would allow this suit.

PLCAA reaches as far as each district court’s

jurisdiction, and prevents it at every turn. The theory

of liability that Mexico argues for U.S. courts to impose

upon firearm manufacturers contradicts the clear and

unambiguous language of PLCAA’s preclusion of

liability.

The district court understood as much and

dismissed Mexico’s action as barred by PLCAA. The

district court properly rejected Mexico’s arguments

that because its alleged injuries occurred outside the

United States and because it is a foreign-sovereign

plaintiff, PLCAA was categorically inapplicable to this

lawsuit. See Estados Unidos Mexicanos v. Smith &

Wesson Brands, Inc., 633 F. Supp. 3d 425, 443–45

(D. Mass. 2022). The First Circuit agreed with the

district court’s holding that PLCAA applied to

Mexico’s suit—though the appellate court went on to

hold that Mexico’s claims fell within PLCAA’s textual

exceptions and allowed the suit to proceed. See

Estados Unidos Mexicanos v. Smith & Wesson Brands,

Inc., 91 F.4th 511, 518, 538 (1st Cir. 2024). Amici focus

here on Mexico’s arguments that its suit is

categorically exempt from PLCAA—though Amici also

submit that the First Circuit’s holding that Mexico’s

suit fell within PLCAA’s exceptions was erroneous, for

reasons explained in the petition for certiorari.

This Court should reject Mexico’s spurious

argument that PLCAA is categorically inapplicable, as

well as its other arguments on the merits. Mexico’s

lawsuit thus disrespects the U.S. Constitution and

U.S. law. While Mexico may not place much stock in

the Second Amendment, the right to keep and bear

arms is fundamental to our scheme of ordered liberty.

This right predates the Amendment’s adoption in

1791, but the concept of everyday law-abiding citizens

being able to own firearms is a distinctly American

right. By the time the Fourteenth Amendment was

ratified in 1868, the right’s focus came to include

personal protection against criminal elements, in

addition to concern about an oppressive central

government. But throughout our history and tradition,

this right has remained fundamental to American

liberty.

The Second Amendment must be construed

according to its original public meaning. Anything its

plain text covers is presumptively protected, placing

the burden on the government to demonstrate that a

restriction is consistent with America’s historical

firearms tradition. As with other constitutional rights,

the Second Amendment is the product of interest

balancing by the American people and secures the

right of citizens to use arms for lawful purposes.

Congress passed PLCAA to protect the Second

Amendment, as the right is practically worthless if the

firearms industry goes out of business. As with the

interpretation of any statute, analysis must begin with

the text of PLCAA. Congress’ enacted findings include

that lawful firearm businesses whose products “have

been shipped or transported in interstate or foreign

commerce are not, and should not, be liable for the

harm caused by” criminals; that “imposing liability on

an entire industry for harm that is solely caused by

others is an abuse of the legal system” and threatens

constitutional rights under the Second and Fourteenth

Amendments; and that such efforts “circumvent the

Legislative branch of government to regulate

interstate and foreign commerce[.]” 15 U.S.C.

§§ 7901(a)(5), (6), (8). Congress’ express purpose was

“[t]o prohibit causes of action against manufacturers,

distributors, dealers, and importers of firearms or

ammunition” predicated on such theories, in order

“[t]o preserve a citizen’s access to a supply of firearms

and ammunition for all lawful purposes.” Id.

§§ 7901(b)(1), (2). PLCAA’s legislative history is fully

consistent with this enacted language.

This does not leave Mexico without recourse if it

has suffered loss. Mexico has a full range of diplomatic

tools at its disposal. But Mexico’s lawsuit pursued on

American soil carries foreign-policy implications,

which is the province of Congress and the President,

not the courts. As with an agreement between nations,

grievances become the subject of international

negotiations and reclamations, resolved through

political and diplomatic channels. It is the U.S.

President’s role to address such grievances consistent

with law, as the U.S. Constitution assigns our

President primary responsibility for the conduct of

foreign relations. Congress left no route for judicial

redress here because it made clear that firearm

companies are not liable for criminal misuse of their

products.

Congress passed PLCAA to prevent precisely this

sort of lawsuit. Mexico cannot use our courts to evade

our own positive law. This Court should therefore

reverse the First Circuit’s erroneous decision

approving that evasion.

ARGUMENT

Mexico’s Lawsuit Is an Affront to American

Sovereignty.

This lawsuit has no place in a court of the United

States. It is an attempt to coopt the power of the

federal judiciary to both circumvent the role of

Congress and usurp the role of the Executive. It shows

disregard for the respective roles that the Constitution

of the United States has assigned to the three

branches of the Federal Government and is an affront

to the sovereignty of the United States.

“The authority of a nation within its own territory

is absolute and exclusive.” Church v. Hubbart, 6 U.S.

(2 Cranch) 187, 234 (1804). The United States

exercised its sovereign prerogative to create and

enforce a system of laws within its own borders when

Congress passed the Protection of Lawful Commerce

in Arms Act, Pub. L. No. 109-92, 119 Stat. 2095 (2005)

(codified at 15 U.S.C. §§ 7901–03). That Act of

Congress forecloses relief for the Respondent here, as

the district court correctly held.

Mexico’s lawsuit disregards the principle of

territorial sovereignty in both directions. “The laws of

no nation can justly extend beyond its own territories,

except so far as regards its own citizens.” The Apollon,

22 U.S. (9 Wheat.) 362, 370 (1824); see also The

Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 353–54

(1822). “The Third Restatement provides that a State

has jurisdiction to prescribe law with respect to

‘conduct that, wholly or in substantial part, takes

place within its territory.’ This is known as subjective

territorial jurisdiction.” Julie Rose O’Sullivan, The

Extraterritorial Application of Federal Criminal

Statutes: Analytical

Roadmap,

Normative

Conclusions, and a Plea to Congress for Direction, 106

Geo. L.J. 1021, 1031 (2018) (emphasis in original)

(quoting Restatement (Third) of the Foreign Relations

Law of the United States § 402(1)(a) (1987)). Here,

Mexico both ignores Congress’ prerogative in PLCAA

to limit tort liability and Mexico’s constraint to focus

its legal efforts on persons and events on Mexican soil.

Mexico’s lawsuit attempts to hijack U.S.

courts to subject American citizens to

Mexican law, which restricts the right

to bear arms.

With its lawsuit, Mexico is attempting to impose

the laws of that foreign nation upon the citizens and

companies of this nation. See Pet. App. 25a–27a

(Compl. ¶¶ 55–62). Mexico also presumes to exempt

itself from American law in such a way as to

manipulate American courts into giving that foreign

power what it wants here, in violation of clear U.S. law

(i.e., PLCAA). See Pet. App. 27a–43a (Compl. ¶¶ 61–

117).

Ironically, Mexico’s Constitution provides that its

citizens have a right to possess firearms in their

residences for purposes of self-defense. See

Constitución Política de los Estados Unidos Mexicanos

[Const.] Feb. 5, 1917 (rev’d 2015), as amended, art. 10

(Mex.) (hereinafter, “Mex. Const. art. 10”). But rather

than the broad individual right enshrined in the

Second Amendment, “[i]n practice, the right is much

weaker in Mexico than in the United States.” David B.

Kopel, Mexico’s Gun-Control Laws: A Model for the

United States?, 18 Tex. Rev. L. & Pol. 27, 28 (2013); see

also Nicholas J. Johnson et al., Comparative

Law: National constitutions, comparative studies of

arms issues, case studies of individual nations, in

Firearms Law and the Second Amendment:

Regulation, Rights, and Policy 182 (2d ed. Online

Supp. 2020), https://perma.cc/F648-DR7X.

For one, the constitutional provision itself makes

clear that the right does not extend to arms

“prohibited by the Federal Law.” Mex. Const. art. 10.

Thus, the Mexican Constitution offers, at best,

minimal constitutional protection against legislative

infringements upon the right to keep arms, since that

right is subject federal lawmakers’ judgment about

which arms to prohibit. See Dominick Cortez, There

Can Be Only One: Mexico Has One Gun Store But a

Proliferation of Guns, Mich. St. Int’l. L. Rev. Blog (Apr.

21, 2021), https://tinyurl.com/u8we8jsr.

And indeed, there are many restrictions on the

possession and use of arms. The Mexican Military

operates a nationwide gun registry and handles all

applications for gun permits. Kopel, supra, at 36.

Mexico admits in this lawsuit that “[it] has one gun

store in the entire nation and issues fewer than 50 gun

permits per year.” Pet. App. 8a (Compl. ¶ 4). The

country’s federal laws largely confine firearm

possession to the home. Kopel, supra, at 39–40.

Mexicans must belong to a shooting club to obtain a

permit to possess more than a single firearm, and

those who do not so belong may obtain a permit to keep

only a single handgun at home. Id. at 36–37. In

addition, Mexican federal law forbids various models

and calibers of firearms. Possession of shotguns is

allowed only if they are 12-gauge or smaller and have

barrels longer than twenty-five inches. Id. at 34. The

Mexican statute also prohibits rifles any greater than

.30 caliber. Id. Handguns are allowed if they have

calibers of .380 or less, but some calibers are

excluded—most notably .357 magnum and 9mm

parabellum. Id. at 35. These are but a few of the

manifold, major restrictions on Mexican citizens’ right

to keep arms. See id. at 31–40. This “right” does not

resemble the American conception of a constitutional

right. Compare infra Part II.A.

Thus, Mexico’s lawsuit attempts to diminish the

fundamental right to bear arms in America to

resemble the nominal right to bear arms in Mexico.

This Court should prevent that diminution and

effectuate the directives Congress set forth in PLCAA.

Principles of comity confine each court

to its own territorial jurisdiction.

Principles of comity in foreign relations do not

allow this Court to do what Mexico is asking.

International comity “is the recognition which one

nation allows within its territory to the legislative,

executive or judicial acts of another nation, having due

regard both to international duty and convenience,

and to the rights of its own citizens, or of other persons

who are under the protection of its laws.” Hilton v.

Guyot, 159 U.S. 113, 164 (1895). Each sovereign power

on earth must act in a manner that shows due respect

to its fellow nations. “Comity refers to the spirit of

cooperation in which a domestic tribunal approaches

the resolution of cases touching the laws and interests

of other sovereign states.” Société Nationale

Industrielle Aérospatiale v. U.S. Dist. Ct. S. Dist. Iowa,

482 U.S. 522, 543 n.27 (1987). Black’s Law Dictionary

defines comity as “[a] practice among political entities

(as countries, states, or courts of different

jurisdictions),

involving

esp[ecially]

mutual

recognition of legislative, executive, and judicial acts.”

Comity, Black’s Law Dictionary 324 (10th ed. 2014).

“The overarching function of comity in U.S.

jurisprudence is to manage conflict between sovereign

authorities within the context of a decentralized

international system. In essence, comity mitigates the

inherent tension between principles of territorial

exclusivity and sovereign equality. Comity does not

address the conflict between sovereign authorities

directly, but softens our sensitivity to potential

sovereign conflicts by bridging gaps created by other

related tensions.” Joel R. Paul, Comity in

International Law, 32 Harv. Int’l L.J. 1, 54 (1991).

An important aspect of comity—one that is

especially relevant here—is what is sometimes termed

“‘prescriptive comity,’” or “‘the respect sovereign

nations afford each other by limiting the reach of their

laws.’ [This Court] … [has] employed ‘prescriptive

comity’ … as a means ‘to avoid unreasonable

interference with the sovereign authority of other

nations.’” William S. Dodge, International Comity in

American Law, 115 Colum. L. Rev. 2071, 2099 (2015)

(quoting Hartford Fire Ins. Co. v. California, 509 U.S.

764, 817 (1993) (Scalia, J., dissenting); F. HoffmannLa Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164

(2004)). “For a country to treat a defendant ‘according

to its own notions rather than those of the place where

he did the acts’ …, ‘not only would be unjust, but would

be an interference with the authority of another

sovereign, contrary to the comity of nations, which the

other state concerned justly might resent.’” Id.

(quoting American Banana Co. v. United Fruit Co.,

213 U.S. 347, 356 (1909)), overruled on other grounds,

Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370

U.S. 690 (1962)).

These principles govern the resolution of this

case. This Court “has long recognized the rule that a

foreign nation is generally entitled to prosecute any

civil claim in the courts of the United States upon the

same basis as a domestic corporation or individual

might do.” Pfizer, Inc. v. Government of India, 434 U.S.

308, 318–19 (1978). Indeed, to do otherwise “would

manifest a want of comity and friendly feeling.” The

Sapphire, 78 U.S. (11 Wall.) 164, 167 (1870). But

“every state has both the right and the power to control

and regulate personal property found within its limits;

and having given such rights to its own citizens, they

shall not be taken away by the application of the

principle of comity.” May v. Breed, 61 Mass. (7 Cush.)

15, 43 (1851); see also Joseph Story, Commentaries on

the Conflict of Laws § 512 (1834) (“[N]o nation is under

any obligation to enforce foreign laws, prejudicial to its

own rights, or those of its subjects.”).

That is what Petitioners successfully argued in

the district court below. Mexico is entitled to pursue

firearms manufacturers to the same extent that a U.S.

citizen or a U.S. company could pursue those

manufacturers, but no further. In that vein, PLCAA

would not allow district courts to entertain a suit by

domestic plaintiffs seeking to impose the tort liability

on the firearms manufacturers that Mexico seeks in

this case. Domestic plaintiffs could not bring suit for

these same injuries alleged here by Mexico. Under

Pfizer, this Court may allow Mexico to sue firearms

manufacturers only on the “same basis” allowed for

domestic parties, foreclosing Mexico’s claims here.

PLCAA’s reach is coextensive with the

reach of U.S. court jurisdiction.

Bizarrely, Mexico argues that PLCAA does not

take away the authority of the U.S. District Court for

the District of Massachusetts to hear this case. But the

wording of the statute is clearly to the contrary: “A

qualified civil liability action may not be brought in

any Federal or State court.” 15 U.S.C. § 7902(a). The

word “any” is unambiguous. And in terms of what

sorts of actions cannot be adjudicated by any district

court, PLCAA adds:

The term “qualified civil liability action”

means a civil action or proceeding or an

administrative proceeding brought by any

person against a manufacturer or seller of a

qualified product, or a trade association, for

damages, punitive damages, injunctive or

declaratory relief, abatement, restitution,

fines, or penalties, or other relief, resulting

from the criminal or unlawful misuse of a

qualified product by the person or a third

party[.]

Id. § 7903(5)(A). 2

Mexico has the statute precisely backward.

PLCAA is intended to provide protection as far as U.S.

courts can reach, consistent with Congress’ findings

and purposes set forth below in Part II.B. These

American causes of action do not extend to conduct

adjudicated in Mexican courts on Mexican soil, and

2 The statute then provides a number of exemptions. But none of

those apply here for the reasons argued by Petitioners. See Pet’rs

Br. 17–20, 29–31, 39.

conversely the foreign laws of Mexico do not extend

into U.S. courts on U.S. soil. Insofar as any cause of

action would otherwise obtain on U.S. soil under U.S.

or foreign law, PLCAA bars it.

It would be a perverse reading of PLCAA to refuse

to give effect to the clear and unambiguous language

of an Act of Congress that precludes that liability.

PLCAA’s prohibition on the adjudication of a

“qualified civil liability action” by a district court—

such as Mexico’s suit here—extends to the full extent

of the district court’s jurisdictional reach, including

geographical,

personal,

and

subject-matter

jurisdiction. It is difficult to conceive of language that

Congress could have used to make that point clearer.

PLCAA applies here, and thus, bars Mexico’s suit.

II. Mexico’s Lawsuit Disrespects

Constitution and U.S. Law.

the

U.S.

This lawsuit’s affront to the sovereignty of the

United States also manifests disrespect to the U.S.

Constitution and U.S. statutory law. This Court

should correct the First Circuit’s mistaken holding

that this action may proceed, and make clear that

sweeping legal theories of the sort pressed by Mexico

in this case are untenable under PLCAA.

The Second Amendment recognizes a

fundamental right to keep and bear

arms.

While Mexico may not place much stock in

America’s Second Amendment, “the right to keep and

bear arms is fundamental to our scheme of ordered

liberty.” McDonald v. City of Chicago, 561 U.S. 742,

767 (2010) (emphasis in original). This Court in

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

made “clear that this right is ‘deeply rooted in this

Nation’s history and tradition.’” McDonald, 561 U.S.

at 767 (quoting Washington v. Glucksberg, 521 U.S.

702, 721 (1997)). This right is antecedent to the

Constitution, as Blackstone regarded it as “one of the

fundamental rights of Englishmen,” Heller, 554 U.S.

at 594, 603; see also St. George Tucker, View of the

Constitution of the United States, in 1 Blackstone’s

Commentaries: With Notes of Reference, to the

Constitution and Laws, of the Federal Government of

the United States; and of the Commonwealth of

Virginia app. at 300 (Phila., William Young Birch &

Abraham Small 1803) (“Tucker’s Blackstone”) (“The

right of self-defense is the first law of nature.…

Wherever … the right of the people to keep and bear

arms is, under any colour or pretext whatsoever,

prohibited, liberty … is on the brink of destruction.”);

Robert J. Cottrol & Raymond T. Diamond, The Fifth

Auxiliary Right, 104 Yale L.J. 995 (1995) (reviewing

Joyce Lee Malcolm, To Keep and Bear Arms: The

Origins of an Anglo-American Right (1994)).

But the concept of everyday law-abiding private

citizens being able to own and carry firearms is a

distinctly American right, as recognized years before

Heller. See generally Eugene Volokh, The

Commonplace Second Amendment, 73 N.Y.U. L. Rev.

793 (1998); Nelson Lund, The Past and Future of the

Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996).

“The right to keep and bear arms was considered no

less fundamental by those who drafted and ratified the

Bill of Rights.” McDonald, 561 U.S. at 768–69 (citing,

inter alia, Stephen P. Halbrook, The Founders’ Second

Amendment 171–278 (2008); Malcolm, supra, at 155–

64).

That regard continued in the Early Republic, as

Justice Joseph Story explained:

The right of the citizens to keep and bear

arms has justly been considered, as the

palladium of the liberties of a republic; since

it offers a strong moral check against the

usurpation and arbitrary power of rulers;

and will generally, even if these are

successful in the first instance, enable the

people to resist and triumph over them.

3 Joseph Story, Commentaries on the Constitution of

the United States § 1890 (1833) (quoted in McDonald,

561 U.S. at 769–70). This Court consistently regards

Justice Story’s Commentaries as authoritative

expositions of the original public understanding of

constitutional provisions. See, e.g., U.S. Term Limits,

Inc. v. Thornton, 514 U.S. 779, 802–03 (1995); Heller,

554 U.S. at 608.

Nor was Story alone in his view. Another leading

figure among expositors of the Constitution during the

Early Republic, St. George Tucker, explained:

This may be considered as the true palladium

of liberty.[] The right of self-defense is the

first law of nature. * * * Wherever * * * the

right of the people to keep and bear arms is,

under any colour or pretext whatsoever,

prohibited, liberty, if not already annihilated,

is on the brink of destruction.

1 Tucker’s Blackstone app. at 300.

The decades between the adoption of the Second

Amendment in 1791 and the adoption of the

Fourteenth Amendment in 1868—which extended the

right to keep and bear arms to apply against the

States, McDonald, 561 U.S. at 750—saw the central

concern shift from protection against an all-powerful

national government that would disarm the people

writ large to a concern for personal self-defense, see id.

at 769–77. Acknowledging this shift was nothing new.

This Court had already held that when the Second

Amendment was ratified in 1791, individual selfdefense was “the central component” of the right to

keep and bear arms. Heller, 554 U.S. at 599. The Court

defined self-defense as the “central component”

notwithstanding the primary anti-tyranny concern in

1791 that the citizenry be able to organize in largescale collective self-defense against a federal

government that would throw off the constraints of the

Constitution and refuse to submit to political

accountability by standing for election. Id. at 598–99;

see also, e.g., Nunn v. State, 1 Ga. (1 Kelly) 243, 251

(1846).

By 1868, the primary concern was for individual

citizens who were not being protected by state or local

law enforcement officers, or worse yet, whose rights

were actually being violated by those obligated to

protect them. See McDonald, 561 U.S. at 770–78;

Cong. Globe, 39th Cong., 1st Sess. 1182 (1866)

(statement of Sen. Pomeroy) (“Every man * * * ha[s]

the right to bear arms for the defense of himself and

family * * *. [I]f the cabin door of the freedman is

broken open and the intruder enters for purposes as

vile as were known to slavery, then should a well-

loaded musket be in the hand of the occupant to send

the polluted wretch to another world * * *.”). That core

concern regarding self-defense remained throughout

the development of the American Nation, such that “it

is clear that the Framers and ratifiers of the

Fourteenth Amendment counted the right to keep and

bear arms among those fundamental rights necessary

to our system of ordered liberty.” McDonald, 561 U.S.

at 778.

The contours of the right to keep and bear arms

are the capacious metes and bounds of the Second

Amendment’s original public meaning. “When the

Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that

conduct. The government must then justify its

regulation by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.”

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1, 24 (2022). This too is nothing new. “The Second

Amendment standard accords with how we protect

other constitutional rights.” Id. The Second

Amendment “is the very product of an interest

balancing by the people” and it “surely elevates above

all other interests the right of law-abiding, responsible

citizens to use arms” for lawful purposes. Heller, 554

U.S. at 635 (emphasis in original). “It is this balance—

struck by the traditions of the American people—that

demands [this Court’s] unqualified deference.” Bruen,

597 U.S. at 26.

It is obvious, too, that “[t]he right to keep arms,

necessarily involves the right to purchase them * * *,

and to purchase and provide ammunition suitable for

such arms[.]” Teixeira v. County of Alameda, 873 F.3d

670, 678 (9th Cir. 2017) (quoting Andrews v. State, 50

Tenn. 165, 178 (1871)); see also Miller v. State, 54 Ala.

155, 157, 158 (1875) (noting that the “constitutional

right to bear arms” encompasses “[t]he right * * * to

obtain * * * [a] pistol for defense”). This follows from

the axiom that “[c]onstitutional rights * * * implicitly

protect those closely related acts necessary to their

exercise.” Luis v. United States, 578 U.S. 5, 26 (2016)

(Thomas, J., concurring in judgment). Where a legal

instrument “confers a right, it confers all the

necessary means by which such right can be

established and made effectual.” Davenport v. Tilton,

51 Mass. 320, 329 (1845) (Shaw, C.J.); accord Leighton

v. Kelsey, 57 Me. 85, 89 (1869); Chapman v. Allen, 15

Tex. 278, 284 (1855); Golding v. Golding’s Adm’r, 24

Ala. 122, 129 (1854). Thus, “[a] ban on gun sales, or a

heavy tax on such sales, would be unconstitutional

* * * because it would make it much harder for wouldbe gun owners to get guns.” Eugene Volokh,

Implementing the Right to Keep and Bear Arms for

Self-Defense: An Analytical Framework and A

Research Agenda, 56 UCLA L. Rev. 1443, 1545 (2009)

(footnote omitted). That is particularly true for the

Second Amendment, as the right to bear arms is

unusual in that it can be effectively exercised by the

vast majority of citizens who lack the skills to be

gunsmiths only if those citizens are able to purchase

firearms manufactured by others, such as Petitioners

here. The Court should explicitly include in its

decision here that these lower courts and scholars are

correct, providing much-needed direction to lower

courts that have not afforded adequate weight to that

practical reality.

It therefore is not a material difference here that

suits like that of Mexico nominally target firearms

manufacturers rather than firearms bearers. One

cannot exercise the right to keep and bear arms

without a means for acquiring them, and firearms

cannot be acquired if no one can make them. This

Court illustrated the point nicely in holding

unconstitutional a statute targeting bookstores as a

violation of the “constitutionally protected freedoms”

of speech and press, noting that “[c]ertainly a retail

bookseller plays a most significant role in the process

of the distribution of books.” Smith v. California, 361

U.S. 147, 150 (1959). This Court’s “decisions furnish

examples of legal devices and doctrines in most

applications consistent with the Constitution, which

cannot be applied in settings where they have the

collateral effect of inhibiting the freedom of

expression, by making the individual the more

reluctant to exercise it.” Id. at 150–51. The parallels to

the present issue are obvious: an arms manufacturer

“plays a most significant role in the process of the

distribution of” constitutionally protected arms and

suits like Mexico’s are “legal devices and doctrines”

that, even assuming they are “in most applications

consistent with the Constitution” (which Amici do not

concede), “cannot be applied in settings where they

have the collateral effect of inhibiting” the right to

keep and bear arms “by making the individual the

more reluctant to exercise it.” See id.

Even if one conceives of the Second Amendment

as concerning rights belonging only to arms bearers

and not to arms makers or merchants (which Amici do

not concede), Second Amendment concerns are still

highly relevant when invoked by Petitioners here.

“[T]he reasons which underlie [the] rule denying

standing to raise another’s rights, which is only a rule

of practice,” would be “outweighed by the need to

protect the fundamental rights which would be denied

by permitting the damages action to be maintained.”

See Barrows v. Jackson, 346 U.S. 249, 257 (1953).

Here, Petitioners’ “interest” in invoking the

Second Amendment’s protections is “clear and

immediate,” just like those of the many “business

enterprises” that the Court has permitted to litigate

“against interference with the freedom”—including

the constitutional rights—“of patrons or customers.”

Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925). This

Court’s “decisions have settled that limitations on a

litigant’s assertion of jus tertii are not constitutionally

mandated, but rather stem from a salutary ‘rule of

self-restraint’ designed to minimize unwarranted

intervention” in legal disputes. Craig v. Boren, 429

U.S. 190, 193 (1976). As one modern example, Craig

held that vendors of alcoholic beverages could

therefore assert third-party standing on behalf of their

customers. Id. at 194. The Court held that principle

holds when an enforcement action against a vendor

“‘would result indirectly in the violation of third

parties’ rights.’” Id. at 195 (quoting Warth v. Seldin,

422 U.S. 490, 510 (1975)). That being so, “vendors and

those in like positions have been uniformly permitted

to resist efforts at restricting their operations by

acting as advocates of the rights of third parties who

seek access to their market or function.” Id.

There is a long and venerable history of thirdparty standing extending to similar contexts within

the broad realm of commerce, businesses, and

institutions. More than a century ago, an employee

was able to assert the rights of his employer. Truax v.

Raich, 239 U.S. 33, 38–39 (1915). Private schools can

assert the interests of potential students and their

parents. Runyon v. McCrary, 427 U.S. 160, 175 n.13

(1976) (citing Pierce, 268 U.S. at 535–36). And parties

with a connection to racially restrictive covenants

have standing to vindicate the rights of prospective

purchasers. Barrows, 346 U.S. at 258. The list goes on.

This case is of a piece with those just mentioned:

arms-bearers cannot feasibly exercise their Second

Amendment rights unless someone is able to

manufacture “arms.” By targeting Petitioners—vitally

important players in the chain of commerce in lawful

arms—Mexico’s present suit has the clear

“downstream” effect of frustrating their customers’

exercise of constitutional rights. Thus, Second

Amendment concerns should play a role in this

litigation, even though it is not traditional “armsbearers” who happen to be invoking them. Just as in

another of this Court’s cases, “[i]t sufficiently appears

that mulcting in damages of [Petitioners] will be solely

* * * to punish [them] for” manufacturing lawful

weapons of the sort protected by the Second

Amendment. Barrows, 346 U.S. at 258. “This Court

will not permit or require [a plaintiff] to coerce [a

defendant] to respond in damages” under such

circumstances. Id.

Furthermore, just as Congress could not prohibit

the manufacture or sale of firearms protected by the

Second Amendment, courts cannot recognize causes of

action that would impose liability for the manufacture

or sale of those same firearms. That which government

“may not constitutionally bring about by means of a

criminal statute is likewise beyond the reach of its civil

law,” and ‘“a form of regulation that creates hazards to

protected freedoms’” as much as direct regulation.

New York Times Co. v. Sullivan, 376 U.S. 254, 277, 278

(1964) (quoting Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 70 (1963)). After all, “[m]aking a

constitutional right too expensive to exercise infringes

the right just as much as criminal prohibition.”

Stephen P. Halbrook, The Right to Bear Arms in

Texas: The Intent of the Framers of the Bills of Rights,

41 Baylor L. Rev. 629, 683 (1989). Here, Mexico is

attempting to do via litigation what no public body in

the United States could do via legislation or

regulation—namely, impose massive costs and

injunctive relief against the manufacturers of

firearms, including many firearms that fall within the

core of the Second Amendment’s protections. Such

attempts by a foreign power to circumvent our

Constitution must be rejected.

Congress enacted PLCAA to preserve

the Second Amendment.

The Second Amendment is a right on paper only—

a practically meaningless right—if American citizens

are unable to lawfully obtain firearms. And firearms

will become increasingly harder to procure if they are

no longer being manufactured because the companies

who currently do so went out of business. Congress

passed PLCAA precisely to obviate such an

eventuality.

When interpreting a statute, this Court begins

with the statute’s text. Jimenez v. Quarterman, 555

U.S. 113, 118 (2009). As part of that task, this Court

looks to “the specific context in which that language is

used, and the broader context of the statute as a

whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997).

Mexico

argues

that

the

firearms

manufacturers named here are unprotected because

exceptions to PLCAA’s operative protections apply

here. Regarding both those points and Mexico’s other

arguments, the plain words of Congress’ findings and

purposes belie Mexico’s position.

Congress made several findings relevant here.

One is that Congress found that

[b]usinesses in the United States that are

engaged in interstate and foreign commerce

through the lawful design, manufacture,

marketing, distribution, importation, or sale

to the public of firearms or ammunition

products that have been shipped or

transported in interstate or foreign

commerce are not, and should not, be liable

for the harm caused by those who criminally

or unlawfully misuse firearm products or

ammunition products that function as

designed and intended.

15 U.S.C. § 7901(a)(5). Another relevant finding is

Congress’ determination that

[t]he possibility of imposing liability on an

entire industry for harm that is solely caused

by others is an abuse of the legal system,

erodes public confidence in our Nation’s laws,

threatens the diminution of a basic

constitutional right and civil liberty, invites

the disassembly and destabilization of other

industries and economic sectors lawfully

competing in the free enterprise system of

the United States, and constitutes an

unreasonable burden on interstate and

foreign commerce of the United States.

Id. § 7901(a)(6). Directly on point regarding suing

American companies for the illegal conduct of others

occurring on Mexican soil, Congress found that such

lawsuits are based on theories that are

without foundation in hundreds of years of

the common law and jurisprudence of the

United States and do not represent a bona

fide expansion of the common law. The

possible sustaining of these actions by a

maverick judicial officer or petit jury would

expand civil liability in a manner never

contemplated by the framers of the

Constitution, by Congress, or by the

legislatures of the several States. Such an

expansion of liability would constitute a

deprivation of the rights, privileges, and

immunities guaranteed to a citizen of the

United States under the Fourteenth

Amendment

the

United

States

Constitution.

Id. § 7901(a)(7). As a final point, Congress found that

[t]he liability actions commenced or

contemplated by the Federal Government,

States, municipalities, private interest

groups and others attempt to use the judicial

branch to circumvent the Legislative branch

of government to regulate interstate and

foreign commerce through judgments and

judicial decrees thereby threatening the

Separation of Powers doctrine and

weakening and undermining important

principles of federalism, State sovereignty

and comity between the sister States.

Id. § 7901(a)(8) (emphases added).

All this is consistent with Congress’ express

purposes for enacting the statute, which, as relevant

to this litigation, include

prohibit[ing] causes of action against

manufacturers, distributors, dealers, and

importers of firearms or ammunition

products, and their trade associations, for the

harm solely caused by the criminal or

unlawful misuse of firearm products or

ammunition products by others when the

product functioned as designed and intended.

Id. § 7901(b)(1). Of critical importance, Congress

intended PLCAA “[t]o preserve a citizen’s access to a

supply of firearms and ammunition for all lawful

purposes[.]” Id. § 7901(b)(2). And specific to Congress’

power to regulate interstate and international

commerce, U.S. Const. art. I, § 8, cl. 3, yet another

purpose is “[t]o prevent the use of such lawsuits to

impose unreasonable burdens on interstate and

foreign commerce.” 15 U.S.C. § 7901(b)(4).

The enacted text is controlling here. The impetus

for PLCAA was to prevent products-liability litigation

of the sort here, where the firearms were lawfully

manufactured, had no defects, and were properly

transferred from the manufacturer into streams of

lawful commerce.

PLCAA would not permit a U.S. plaintiff to bring

this suit in district court against U.S. firearms

manufacturers for purported injuries such as these if

they were suffered by U.S. citizens on U.S. soil

invoking U.S. law. For all these reasons, it follows a

fortiori that PLCAA does not permit a foreign plaintiff

to bring this suit in district court for these purported

injuries suffered by foreign citizens on foreign soil

invoking not only U.S. law, but also foreign law.

PLCAA bars this suit.

This matter is a foreign policy dispute

properly handled through diplomacy,

not domestic litigation.

None of this is to say that if Mexico considers

itself aggrieved by the American firearms industry

that Mexico has no recourse. Quite the contrary,

Mexico has a full range of diplomatic tools at its

disposal. That is where this complaint would be

properly directed: to the U.S. Department of State,

with the goal of bringing it to the attention of the

White House. If Mexico believes the United States is

not meeting its international obligations, then the

President of Mexico should seek action from the

President of the United States.

Foreign policy is committed to the political

branches of Congress and the Executive. Oetjen v.

Central Leather Co., 246 U.S. 297, 302 (1918). In

dealings between sovereign nations, an “infraction

becomes the subject of international negotiations and

reclamations,” such that this Court has regarded it as

“obvious that with all this the judicial courts have

nothing to do and can give no redress.” Edye v.

Robertson (Head Money Cases), 112 U.S. 580, 598

(1884). In other words, such disputes are resolved

through “political and diplomatic negotiations.”

Medellín v. Texas, 552 U.S. 491, 520 (2008). It is

outside the traditional role of Article III courts to

decide such foreign policy disputes. See Republic of

Mexico v. Hoffman, 324 U.S. 30, 34–36 (1945);

Zivotofsky v. Kerry, 576 U.S. 1, 22 (2015).

The President addresses such international

grievances as part of his power to resolve claims

against the United States. See American Ins. Ass’n v.

Garamendi, 539 U.S. 396, 415 (2003). Indeed, the U.S.

Constitution tasks the President with the “‘vast share

of responsibility for the conduct of our foreign

relations.’” Id. at 414 (quoting Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952)

(Frankfurter, J., concurring)). “Such considerations,

however, do not allow [courts] to set aside first

principles. The President’s authority to act, as with

the exercise of any governmental power, ‘must stem

either from an act of Congress or from the Constitution

itself.’” Medellín, 552 U.S. at 524 (quoting

Youngstown, 343 U.S. at 585).

However, Congress left no channel for any such

purported international obligation here to be brought

in district court. It is Congress’ prerogative to make

international obligations binding in U.S. courts. Foster

v. Neilson, 27 U.S. (2 Pet.) 253, 315 (1829), overruled

on other grounds by United States v. Percheman, 32

U.S. (7 Pet.) 51 (1833). Moreover, unless international

agreements include language that speaks to judicial

remedies, the default presumption is that the only

remedies for grievances are diplomatic. See SanchezLlamas v. Oregon, 548 U.S. 331, 347 (2006). Without a

clear statement in a statute, obligations under

international agreements are not enforceable in U.S.

district courts. Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108, 115–16 (2013). And there is no

agreement here, anyway.

Even if there were, the only clear statements are

to the contrary. Congress found that “[b]usinesses …

engaged in … foreign commerce … of firearms … that

have been shipped or transported in … foreign

commerce are not, and should not, be liable for the

harm caused by those who criminally or unlawfully

misuse firearm products[.]” 15 U.S.C. § 7901(a)(5).

Congress made a clear public-policy judgment. “The

possibility of imposing liability on an entire industry

for harm that is solely caused by others … constitutes

an unreasonable burden on … foreign commerce[.]” Id.

§ 7901(a)(6). Such lawsuits “attempt to use the judicial

branch to circumvent the Legislative branch of

government to regulate interstate and foreign

commerce through judgments and judicial decrees[.]”

Id. § 7901(a)(8). Therefore, one of Congress’ purposes

in enacting PLCAA was “[t]o prevent the use of such

lawsuits to impose unreasonable burdens on

interstate and foreign commerce.” Id. § 7901(b)(4).

Congress thus spoke clearly: Congress clearly did not

want lawsuits such as Mexico’s lawsuit here to be

adjudicated in U.S. courts.

CONCLUSION

Congress passed PLCAA to prevent precisely this

sort of lawsuit. For the foregoing reasons, and for those

set forth by Petitioners, the judgment of the First

Circuit should be reversed.

Respectfully submitted,