Jonathan Lowy got his rear end handed to him by the Supreme Court last week in Smith & Wesson v. Mexico, and now the longtime anti-gun litigator is desperately trying to spin the unanimous decision as some sort of moral victory.
Lowy used to be the chief litigator for Brady before leaving the group to start Global Action on Gun Violence, and he was the architect of Mexico's $10 billion lawsuit against Smith & Wesson and other U.S. gun makers that blamed them for aiding and abetting drug cartels. In a 9-0 decision, the Supreme Court rejected Mexico's claims, ruling that the country (and its attorneys) had failed to demonstrate that the firearms industry is the proximate cause of cartel violence south of the border.
Lowy told the Los Angeles Times that, “[n]otwithstanding the Supreme Court ruling, Mexico’s lawsuit has accomplished a great deal", which is downright laughable. The entire point of Mexico's lawsuit was to win a verdict and use the judiciary to bankrupt these companies or force them to adopt restrictions like ending the manufacture of AR-15s and other centerfire semi-automatic rifles. Not only did Lowy lose bigly, the Supreme Court's decision is going to make it much harder for others to file these kinds of junk lawsuits going forward.
But both Lowy and the Mexican government have a vested interest in looking for anything they can claim as a victory, and the Trump adminstration has given them a little something to boast about.
A few hours after the high court decision, Ronald Johnson, the U.S. ambassador in Mexico City, wrote on X that the White House was intent on working with Mexico “to stop southbound arms trafficking and dismantle networks fueling cartel violence.”
The comments mark the first time that Washington — which has strong-armed Mexico to cut down on the northbound traffic of fentanyl and other illicit drugs — has acknowledged a reciprocal responsibility to clamp down on southbound guns, said President Claudia Sheinbaum. She hailed it as a breakthrough, years in the making.
“This is not just about the passage of narcotics from Mexico to the United States,” Sheinbaum said Friday. “But that there [must] also be no passage of arms from the United States to Mexico.”
Despite Sheinbaum's claim that Johnson's comment is some kind of breakthrough, the federal government has supposedly been working for decades to stop illegal drug trafficking south of the border. Those efforts included the scandalous gunwalking in Operation Fast & Furious during the Obama administration, as well as earlier efforts during the Bush administration that also allowed U.S.-purchased firearms to cross into Mexico.
There's a big difference, however, in cracking down on illegal gun-running and targeting the lawful commerce in arms that was the subject of Mexico's litigation. As Justice Elena Kagain wrote about the lawsuit for the Court:
It does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted. Instead, it levels a more general accusation: that all the manufacturers assist some number of unidentified rogue dealers in violation of various legal bars. The systemic nature of that charge cannot help but heighten Mexico’s burden. To survive, it must be backed by plausible allegations of pervasive, systemic, and culpable assistance.
And not a single justice found those allegations to be plausible.
Are gun makers aware that some small fraction of the firearms they produce will be used for criminal purposes, or even diverted south of the border? I'm sure, just as the makers of Budweiser and Jim Beam are aware that a small portion of their products will be consumed by people who'll get behind the wheel while they're intoxicated. For that matter, automotive executives are aware that some drivers will break all kinds of laws when they're on the road. But that awareness doesn't make those executives or these industries culpable for criminal activity. Again, quoting Kagan: "an ordinary merchant does not become liable for criminal misuse of her goods simply by knowing that, in some fraction of cases, misuse will occur."
Lowy can try to spin last week's 9-0 loss into a moral victory if he wants, but the truth is that Smith & Wesson v. Mexico was an unmitigated disaster for the gun control lobby, and one that will have far-reaching consequences for years to come.
