From the Mundane to the Unprecedented to the Lawless: Litigating Civil Cases Against Firearms Industry Actors

Abstract

In the spring of 2025, the U.S. Supreme Court will hear oral argument in Estados Unidos Mexicanos v. Smith & Wesson, Inc., the first time the Court has taken up a case concerning the Protection of Lawful Commerce in Arms Act (PLCAA).  This statute constrains the civil causes of action allowed against firearms manufacturers and sellers, though it authorizes them when defendant firearms makers, distributors, and sellers proximately cause injury by a knowing violation of laws applicable to the sale and marketing of firearms. The government of Mexico argues that PLCAA permits its lawsuit because Mexico has properly alleged that the named firearms industry defendants have aided and abetted gun dealers who break federal firearms laws and that the named defendants themselves have violated the Massachusetts consumer protection statutes. Thus, Mexico seeks to hold gun manufacturers and a gun distributor accountable for their part in harms arising from the firearms violence wrought by drug cartels in Mexico. During the past fifteen years, others injured by shootings have relied on the same sorts of laws Mexico does to overcome early motions to dismiss by gun dealers, distributors, and manufacturers. More recently, states have passed firearms-specific statutes governing the responsible manufacturer and sale of firearms. These constitute a new wave of laws to serve as predicates whose violation can constitute a basis for PLCAA-authorized litigation against firearms industry members. So, the Supreme Court has chosen to examine PLCAA at a time when plaintiffs have additional possible predicate statutes on which to found suits against the firearms industry.

In the fall of 2024, Everytown Law, a leading litigator in the effort to redress and prevent the harms that arise from firearms violence, published an entire practitioner’s manual devoted to aiding less experienced attorneys considering and filing suits against gun industry members. Firearms Litigation: A Practitioner’s Guide to PLCAA and Beyond (Everytown Manual) is a meticulous aide to navigating PLCAA, emerging lower court doctrine, and a bevy of state and federal firearms laws. It provides nuts-and-bolts instruction to attorneys representing those harmed by gun violence, especially attorneys who might otherwise be daunted by PLCAA.

The juxtaposition of the Everytown Manual and the Supreme Court’s grant of certiorari in Estados Unido Mexicanos throws into sharp relief the divergence between careful, sound lawyering, which is manifested and encouraged by the Manual, and unprecedented, radical judicial activity, which is demonstrated by the Supreme Court’s interlocutory intervention and the novelty of the particular issues it has agreed to hear. Furthermore, the Court’s decision to hear the case positions it to continue its aggressive expansion of Second Amendment rights. It has certainly platformed litigants and lobbyists who seek to bring the entire firearms industry within judicially created Second Amendment protection. Faced with a Supreme Court constantly rewriting and reinterpreting the Second Amendment and associated doctrine, even the most sophisticated, diligent, and painstaking guide to litigation cannot keep up.