Charles William Welch IV
Staff Editor, Delaware Journal of Corporate Law, Volume 50
Introduction
Since the passage of the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, questions have arisen on the extent of liability coverage that firearm manufacturers, and dealers, have.[1] The question of where we draw this line has now made its way up to the United States Supreme Court.[2] This blog will address the history of PLCAA, examine how certain states and nations have tried to impose tort liability, in light of the act, against firearm manufacturers, and discuss the broader implications that PLCAA has on constitutional law.
Background and Issue
The origins of PLCAA comes from a particular foundational belief from some within American society that firearms, as a whole, are dangerous “consumer products.”[3] Consequently, legislators devised an idea to look at firearms sales in terms of tort law, rather than constitutional law. In 1991, for example, the District of Columbia had a law on the books that “provided for a manufacturer, importer, or dealer of an assault weapon to be held strictly liable and in tort for damages that result from the use of an assault weapon in the District of Columbia.”[4] “[T]he purpose of the act [was] to require the firearm industry to accept, as a cost of doing business, the cost associated with all direct and consequential damages for bodily injury from the result of [said weapons].”[5]
“When debating the original act, [D.C.] Counselor Jarvis indicated [,] ‘gun manufacturers are in this business because they are making money. . . . [W]hat they need to experience is suits brought against them under a strict liability statute and maybe they will decide that the best bottom line interest is not to manufacture or sell guns.’”[6]
This conflicted with the Second Amendment of the United States Constitution.[7] A fear grew amongst Federal legislators that “[s]uch a state lawsuit in a single country could destroy a national industry and deny citizens everywhere the right to keep and bear arms guaranteed by the Constitution.”[8] With these concerns in mind, Congress passed PLCAA, which amongst the listed purposes included, “[t]o prohibit 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.”[9] However, PLCAA did include certain carveout exceptions for when a dealer, manufacturer, or importer could be held liable under tort claims.[10]
Some states, such as Delaware, decided to pass their own laws to combat negligent firearm dealership. Delaware’s legislature did this when they found that:
“the unavailability of a robust public nuisance statute related to the sale, manufacturing, importing, or marketing of a firearm-related product has limited the ability to seek legal redress in situations where firearms manufacturers and retail dealers may have knowingly or recklessly taken actions that have endangered the safety and health of Delaware residents through the sale, manufacture, distribution, and marketing of lethal, but nonetheless legal, firearms. Even as manufacturers have incorporated features and technology resulting in more deadly and destructive firearms, some actors in the firearm industry have implemented sales, distribution, and marketing practices that have contributed to the development of an illegal secondary market for these increasingly dangerous instruments.”[11]
This concern almost parallels the concern currently in the nation of Mexico, and is the primary motivation for their lawsuit against Smith and Wesson, Inc.; Barrett Firearms, Inc.; as well as a host of other gun manufacturers that are corporations.[12] “The number of gun-related homicides in Mexico grew from fewer than 2,500 in 2003 to approximately 23,000 in 2019.”[13] The nation of Mexico alleges that many of these firearms originated in the United States.[14]
“Mexico’s government has borne a variety of harms as a result of this gun-violence epidemic, including but not limited to: costs of additional medical, mental-health, and other services for victims and their families; costs of increased law enforcement, including specialized training for military and police; costs of the increased burden on Mexico’s judicial system; diminished property values; and decreased revenues from business investment and economic activity.”[15]
One finding of the First Circuit as to why PLCAA did not represent defendants from a tort liability suit from Mexico is “that Mexico’s complaint adequately alleges that defendants have been aiding and abetting the sale of firearms by dealers in knowing violation of relevant state and federal laws.”[16] The First Circuit summarized that,
“[f]airly read, the complaint alleges that defendants are aware of the significant demand for their guns among the Mexican drug cartels, that they can identify which of their dealers are responsible for the illegal sales that give the cartels the guns, and that they know the unlawful sales practices those dealers engage in to get the guns to the cartels. The complaint further alleges that even with all this knowledge, and even after warnings from the U.S. government, defendants continue to supply the very dealers that they know engage in straw sales and large-volume sales to traffic guns into Mexico, that they design military-style weapons and market them as such knowing that this makes them more desirable to the cartels[.]”[17]
However, at face value, the author of this article can already see how holding these companies liable, on these grounds specifically, is suspect when considering the intent of PLCAA. Recall, one of the major concerns of the legislators who passed PLCAA was that a “state lawsuit in a single country could destroy a national industry and deny citizens everywhere the right to keep and bear arms guaranteed by the Constitution.”[18] Even if these companies are supplying dealers that end up selling to straw purchasers, and said purchasers sell to cartels, this does not show malicious intent, or violate the spirit of PLCAA. To display why, we dive into hypotheticals, as the First Circuit’s “holding at this stage [was] based on the allegations in the complaint, construed favorably to Mexico. Mexico w[ould] have to support its theory of proximate causation with evidence later in the proceedings.”[19]
“The Department of Health and Human Services estimates that the US–Mexico border region, which extends 62.5 miles north and south from the border, is home to around 15 million people.”[20] While not all live on the US side, even a third of said persons would constitute 5 million people.
Suppose there were only 100 dealers on the American side of our nearly 2,000 mile southern border.[21] While certain dealers may indirectly harm the state of Mexico by selling guns to straw purchasers, there is likely to be a vast majority of business simply in providing a means of defense, hunting, or recreation to Americans in that region. Such people may also be drawn to “military-style weapons,” if that includes the commonplace AR-15, a rifle which was once coined the “swiss army knife” of rifles.[22] In a sense, we have come full circle, as the sentiment is that military style weapons are coveted by criminals and that their manufacturers should face harsher scrutiny. This harkens back to the attempt by the District of Columbia to impose strict liability on their manufacturers.[23]
At the same time, this regulation on commerce can find its way into direct conflict with the rights of law abiding citizens. If we know that certain dealers are the ones supplying straw purchasers, because said arms trace back to their stores, what should the government do if the dealer is the only one within a 50 mile radius that could arm the people of their locality? In some states, like New Mexico, a person must find a business that possesses a Federal Firearm License in order to legally purchase a firearm.[24] Do we provide Mexico with a way to punish the manufacturers who sell to businesses that negligently arm straw purchasers, even though they may be the only ones that can reasonably provide a means of defense to the law abiding citizen? While this possibility seems outlandish, scarcity of dealers is a real risk. Consider that Mexico itself only “has one gun store in the entire nation[.]”[25]
Conclusion
The concern that manufacturers are producing firearms, which will ultimately land into the hands of criminals, disrupt public order, and cause chaos, is not novel. But any attempt to regulate the problem, if we are to stay within the spirit of PLCAA, requires us not to overreach. We have seen many lawsuits hinge on these PLCAA carveouts by looking at how broad we determine these exceptions are.[26] The plaintiff of this suit is the country of Mexico because of border smuggling. But overall, this remains a broader issue with deep ramifications, whatever the Supreme Court ultimately decides.
[1] Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901–7903 (2005).
[2] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511 (1st Cir. 2024), cert. granted, 145 S. Ct. 116 (U.S. July 3, 2024) (No. 23-1141).
[3] David Kopel, Treating Guns Like Consumer Products, 148 U. Pa. L. Rev. 1213, 1214 (2000).
[4] Assault Weapon Manufacturing Strict Liability Act of 1990: Hearings On H.R. 3712 Before the Comm. on the Dist. of Columbia, 102nd Cong. 3 (1991) [hereinafter AWMSLA Hearings].
[5] Id.
[6] Id. at 7. See also Protection of Lawful Commerce in Arms Act: Hearing on H.R. 800 Before the H. S. Comm. on Com. and Admin. L., 109th Cong. 2 (2005) [hereinafter PLCAA Hearings] (“The strategy behind these lawsuits is no secret. One of the personal injury lawyers suing the firearms industry, John Cole, told the Washington Post ‘The legal fees alone are enough to bankrupt the industry.’”).
[7] U.S. Const. amend. II.
[8] PLCAA Hearings, supra note 6 at 54 (2005).
[9] Protection of Lawful Commerce in Arms Act,15 U.S.C § 7901(b)(1).
[10] Id. §7903(5)(A).
[11] 83 Del. Laws 332 § 3 (2022).
[12] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 515 n.1 (1st Cir. 2024), cert. granted, 145 S. Ct. 116 (U.S. July 3, 2024) (No. 23-1141).
[13] Id. at 516.
[14] Id.
[15] Id.
[16] Estados Unidos Mexicanos, 91 F.4th at 529.
[17] Id. at 530.
[18] PLCAA Hearings, supra note 6 at 54.
[19] Estados Unidos Mexicanos, 91 F.4th 511 at 538.
[20] An Overview of the US-Mexico border, USAFacts (July 30, 2024), https://usafacts.org/articles/an- overview-of-the-usmexico-border/.
[21] Id.
[22] See Garland v. Cargill, 602 U.S. 406, 430 (2024) (Sotomayor, J., dissenting) (categorizing the AR-15 and other semi-automatic rifles, which one can affix bump stocks to, as “commonly available, semiautomatic rifles.”). “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller and United States v Miller.” Miller v. Bonta, 542 F. Supp. 3d 1009, 1014 (S.D. Cal. 2021) (internal citations omitted).
[23] AWMSLA Hearings, supra note 4.
[24] N.M. Stat Ann. § 30-7-7.1 (2019).
[25] Estados Unidos Mexicanos, 91 F.4th at 516.
[26] Id. at 527 n.4.
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