Ted Cruz Wants Supreme Court to Protect Gunmakers Fueling Cartel Violence

The Supreme Court announced last week that it is taking up a contentious gun case in which the government of Mexico is suing U.S. gun manufacturers. Mexico alleges the companies are raking in hundreds of millions in profits by “knowingly” flooding that country with military-grade assault weapons and other guns favored by the nation’s violent cartels. 

The question before the high court is whether this case should be thrown out before trial. An appeals court ruled the case should go forward, because Mexico has a substantive case that gunmakers “aided and abetted the knowingly unlawful downstream trafficking of their guns.”

Who is sticking up for the gunmakers as allies at the Supreme Court? The allies include the National Rifle Association, the National Shooting Sports Foundation. But also one Sen. Ted Cruz, who has raked in more than $900,000 in gun money for his political career, and who is up for reelection in November in a tight race with House Democrat Colin Allred. A gun industry Super PAC has spent $630,000 boosting Cruz’s campaign so far.

The Texas senator has spearheaded — along with other far-right congress members like Rep. Marjorie Taylor Greene — an amicus brief, or friend-of-the-court filing, that reads more a friend-of-the-gun-industry beef. It insists that preserving gun profits is essential to safeguarding the Second Amendment. Howso? Because “it would be impossible to exercise that right if a citizen could not lawfully purchase a firearm because the firearm industry had become insolvent.” In other words, Cruz is arguing, if this lawsuit were to drive the gun industry’s bad actors out of business, there wouldn’t be any gunmakers left.

In Mexico, legal, private gun ownership is extremely rare; the country counts only two gun stores. But the country has a major problem with drug cartels that have armed themselves to the teeth with American-manufactured assault weaponry, which gets trafficked into the country across the porous border with the United States. Cartel agents make bulk purchases from fly-by-night dealers on the border — who are obviously engaged in suspicious sales, but who are nonetheless kept well-supplied with deadly product.

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The Mexican government sued Smith & Wesson and a host of other gun manufacturers in 2021, alleging that the industry had not only turned a blind eye to the problem but constructed a business model to profit from sales of guns that are smuggled south. The complaint alleged that the sales value of the guns trafficked from the sued manufacturers to Mexico is $170 million a year. Citing University of San Diego research, it asserted that if sales of guns destined for Mexico were to end, as many as 47 percent of gun dealers would go belly up. 

Gunmakers are at best “willfully blind” to the profitable end-destination of their products, the Mexican suit alleges, while others are actively complicit. “Defendants know that many of their guns are headed for the criminal market,” the complaint states, “and they act accordingly to maximize that revenue and profit.” 

Some companies make their serial numbers easy to deface, for example, which the lawsuit claims aids criminals who seek to prevent their illegal guns from being traced. “Colt does not even try to hide its pandering to the criminal market in Mexico,” the lawsuit alleges; the company pushes three models “that it specifically targets to the Mexican market” including pistols called “El Jefe,” “El Grito,” and the “Emiliano Zapata 1911.” These guns have become “status symbols” for cartel members, the lawsuit describes. The Zapata model is engraved with an image of the storied Mexican revolutionary and his catchphrase: “It is better to die standing than to live on your knees.” (Colt told the Wall Street Journal it was not involved in the design, engraving, or marketing of the Zapata pistol.)

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Filed in a U.S. district court in Massachusetts, the suit was originally tossed out, in a decision that cited an industry-backed law, passed in 2005, called the Protection of Lawful Commerce in Arms Act, which offers broad immunity to the gun industry. Under this law, gunmakers are generally held harmless for the frequently deadly and often criminal end use of their products. The gun industry has relied on PLCAA as a get-out-of-lawsuits-free card. (However a case brought by families of the Newtown massacre, over the reckless marketing of war-bred weapons to a civilian audience — has proven that PLCAA’s protections are not absolute.)

On appeal, a unanimous panel of three judges from the First Circuit court ruled that Mexico’s lawsuit could go forward, because it had sufficiently implicated gun companies in lawlessness. “The complaint adequately alleges that defendants aided and abetted the knowingly unlawful downstream trafficking of their guns into Mexico,” that court ruled. Mexico has presented a substantive case, it added, that gunmakers were more than “passive observers” of the network that supplies the cartels, rather “more akin to a calculated and willing participant” in the crime-gun supply chain.

The Mexican lawsuit is seeking as much as $10 billion in damages as well as an injunction that would restrict sales of assault weapons and high-capacity magazines, as well as limit bulk sales of guns. 

Gunmakers argued in their petition to the Supreme Court: “In essence, Mexico seeks to use Mexican tort laws to regulate how firearms are made and sold in the United States.” It adds that the “brazen” suit “poses a grave threat to the sovereignty of the United States, its citizens, and their Second Amendment rights.”

Mexico argued against the Supreme Court taking up the case before trial. It says the industry should face consequences for the “deliberate choice to supply their products to bad actors” and for marketing its products in ways designed to “drive up demand among the cartels.”

The gun industry has no shortage of allies in Congress. But it has invested in none like Cruz, who by one tally has taken in more than $940,000 from gun interests — tops in Washington, according to Axios. As a Texas senator, Cruz also represents a border state, home to a large number of the dodgy gun shops accused of making bulk sales of guns that are then trafficked south. Cruz voted against the 2022 bipartisan gun bill, passed in the wake of the Uvalde school massacre, which was supported even by his Republican state colleague Sen. John Cornyn.

Judging by the amicus brief to the high court in his name, Cruz was eager to step up to the plate — to make expansive legal arguments on behalf of the industry. Crafted this spring, the brief insists that “Mexico’s Lawsuit Disrespects the U.S. Constitution and U.S. Law.”

The brief alleges that gun manufacturers are legally entitled to turn a blind eye to the end use of their products under PLCAA, “so long as a firearm is properly made and properly transferred into commercial channels.” The Cruz brief insists that PLCAA is, in fact, a bulletproof shield against lawsuits: “The theory of liability that Mexico argues for U.S. courts to impose upon firearm manufacturers,” it states, “contradicts the clear and unambiguous language of PLCAA precluding that liability.”

Most concerning, Cruz’ brief insists that congress passed PLCAA because a profitable gun industry is essential to ”protect the Second Amendment,” reasoning that “the right is practically worthless if the firearms industry goes out of business.”

The brief even appears to make the argument that the Second Amendment itself protects gunmakers from liability. “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.” It argues that Mexico is attempting to “circumvent our Constitution” by “nominally” targeting “firearms manufacturers rather than firearms bearers,” and is actually “attempting to do via litigation what no public body in the United States could do via legislation or regulation.”

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The amicus brief effectively aligns Cruz with the interests of the criminal Mexican cartels, whom the senator routinely grandstands against in other contexts. Cruz has lashed out at the Biden administration’s border policies, for example, as being the “single best thing that ever happened” to the cartels. While defending the illegal gun sales that are arming cartel’s big fish, Cruz has also gotten on his Senate soap box to inveigh against the gangs for small-fry issues, like “poaching red snapper in American waters and importing it for unwitting consumers.”

The gun issue is emerging as one of the strongest contrasts in Cruz’ race against Allred, a former NFL linebacker and member of the House, who has backed legislation to mandate universal background checks among other gun safety regulations. Allred has been endorsed by Giffords, the gun safety group, which has touted that “he’ll continue to challenge the NRA and anyone who stands in the way of progress.”