Tomorrow, March 4, the Supreme Court will hear oral arguments in Smith & Wesson v. Estados Unidos Mexicanos. The case involves a lawsuit by the Mexican President claiming that American firearms manufacturers should pay the Mexican government billions of dollars for gun crimes perpetrated against Mexican citizens in Mexico by drug cartels. According to the lawsuit, law-abiding American firearms manufacturers are to blame. A previous VC post described an amicus brief I coauthored, a Crowell & Moring amicus brief in support of the Mexican government criticizing my brief, and my critique of the critique. Into the fray has stepped the South Texas Law Review, with a special symposium issue about the case. The issue is currently at the printer, and should be available very soon. In this post, I will describe my symposium article, The Social Cost of Nullifying the Right to Arms: The Case of Mexico.
The article is coauthored with Joseph Greenlee and Bhav Ninder Singh. In the four part article, two of the parts elaborate on topics addressed in the amicus brief: the false claim that U.S. firearms retailers are the leading source of cartel firearms (Part IV), and the Mexican lawsuit's evasion of the Mexican government's own responsibility for crime in Mexico, which is caused, inter alia, by a culture of impunity fostered by the Mexican government (Part I).
Part II concerns a topic rarely addressed in American legal scholarship: the Mexican Constitution's right to arms. As we detail, the right has been narrowed since it first appeared in Mexico's 1857 Constitution. Today, the right does not include the right to carry arms in public places, and the constitutional text expressly authorizes reserving some types or calibers solely for government use. Accordingly, Mexico's main gun control statute, enacted in 1968, imposes a rigorous licensing system.
