When Jeff Bezos said that the editorial page of the Washington Post was going to focus on personal liberties and free markets, my little libertarian heart jumped for joy. Then the innate skepticism born of nearly a decade covering politics reared its head and told that part to knock it off. It was too early to really celebrate, though I wanted to.
Yet in the wake of Mexico and Smith & Wesson appearing before the Supreme Court, it looks like there's reason to hope.
It seems the editorial board had thoughts on the case, which hinges on Mexico seeking to hold gun companies responsible for the firearms that end up in cartel hands. There's no evidence of any company selling directly to the cartels, mind you, and Mexico isn't implying it in the least. They're instead saying they're responsible because they sell guns at all and aren't doing enough to keep them out of evil hands.
Never mind that guns tend to go to distributors, then the stores, then the eventual buyer, who is sometimes a straw buyer or other times someone who later gets a gun stolen.
But the Washington Post came down on the side of...Smith & Wesson.
If the Supreme Court were to rule in Mexico’s favor now, it would open the floodgates for frivolous lawsuits against other businesses, too. Imagine if beer companies became liable for selling large quantities of their product in college towns. Under Mexico’s theory of the case, these companies could foresee that underage people would wind up drinking their product, so they’d be responsible for any trouble they got into. Justice Brett M. Kavanaugh explained that the same argument could be made against companies that make baseball bats and knives sold in high-crime areas, not to mention pharmaceuticals or automobiles. “Lots of sellers and manufacturers of ordinary products know that they’re going to misused by some subset of people,” he said.
In 2023, the Supreme Court unanimously rejected a similar lawsuit that tried to hold Twitter liable for aiding and abetting terrorism. The family of a victim killed in a 2017 attack in Turkey claimed that the social media platform had contributed to the death by hosting content that helped the Islamic State recruit followers. Justice Clarence Thomas wrote for the court: “If aiding-and-abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.”
Congress has established separate liability shields for other industries, as well. Think of vaccine manufacturers and internet service providers (Section 230). To keep the industry solvent after Sept. 11, 2001, airlines were protected from liability suits stemming from the terrorist attacks.
In this case, Mexico does not offer proof that gunmakers coordinated with specific gun dealers known to be selling illegally. Justice Amy Coney Barrett wondered why they didn’t instead sue “the retailers that were the most proximate cause of the harm.” Justice Sonia Sotomayor noted that the court has repeatedly said “mere knowledge is not enough” to establish liability. “You have to intend and take affirmative action,” she said, “to participate in what they’re doing.”
In fact, it should be noted that Smith & Wesson doesn't have access to the gun tracing data that would even allow them to know that a gun dealer has a habit of selling guns that end up in criminal hands.
How could they take action to prevent it when they have no way of knowing who is doing what?
That didn't make it into the editorial itself, but that's hardly surprising. That's a little bit of gun industry inside baseball that most people aren't aware of. I only know because the NSSF addressed some errors that were present in the arguments.
I also find the argument about beer and other alcohol manufacturers somehow being expected to anticipate that underage drinking or DUIs and were thus liable. I've made the same argument about knives over at our sister site, Bearing Arms.
But the shocking fact in all of this is that I find myself mostly in agreement with an editorial from the Washington Post regarding a lawsuit filed against the firearm industry. I know what Bezos said, but I'm still floored that it's happening.
There are points that I might quibble with the editorial board about--they referred to gun control advocates "well-intentioned" and I'm not ready to make that assumption, for example--but for the most part, we got personal liberties on the opinion page.
It's a small miracle.
Let's just hope Bezos has the guts to continue it.
