The Social Cost of Nullifying the Right to Arms: The Case of Mexico

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.

However, in contravention of the statute and the Mexican Constitution, the Mexican executive has imposed extra-legal gun control. Only one gun store, operated by the military, is allowed to operate. Contrary to the statute, gun permits are almost never issued, and even then only for .22 caliber handguns. Accordingly, most Mexican are left without the means of defending themselves and their families.

Part III of the article examines collective defense. An important difference between the arms right in the Mexican Constitution and the U.S. Second Amendment (and arms rights in 45 U.S. state constitutions) is that the former is purely for individual defense, whereas the latter also encompasses collective defense, as in a militia. While the Second Amendment belongs to individuals and includes the right of personal self-defense (such as against a lone burglar or rapist), the American right protects the ability of individuals to come together to defend their communities.

Part III.B describes how the Mexican people have practiced community self-defense, such as by coming together to form community militias for protection from cartels and from corrupt governments allied with the cartels. On the whole, the community militias were successful; although they are not as prevalent as they were 15 years ago, the world’s largest avocado-exporting region is still safeguarded by a community militia.

Part III.A of the article examines the legality of communal defense in Mexico. Plainly, the right would not be vindicated in a Mexican court today. However, we argue that Mexicans still have the right of collective self-defense, at least in a moral sense. And ultimately as a natural law right that no government can legitimately prohibit. In the Mexican context, the natural right of self-defense was explicated by Catholic scholars–particularly Francisco Suárez (1548–1617) and Francisco de Victoria (1486–1546)–who helped create the legal culture that became the foundation of Mexican law. Victoria, in fact, was deeply involved in then-current controversies over the Spanish conquest of Mexico, and he argued, without persuasive rebuttal, that the pagan Indians of Mexico had a natural law right of collective self-defense against the atrocities of the Spanish invaders.

Tomorrow, the U.S. Supreme Court will not be asked to decide what Mexican law should be, but rather what American law is. Namely, that a 2005 federal statute, the Protection of Lawful Commerce in Arms Act, jurisdictionally forbids American courts from entertaining lawsuits such as Mexico’s. However, the broader context of the case is that presidents of Mexico–like the politicians described the Mendoza, Montaner & Llosa book Guide to the Perfect Latin American Idiot–are part of a long tradition of incompetent and/or repressive Latin American governments attempting to deflect popular wrath about the government’s malfeasance by blaming the Yanquis. At least in some parts of Mexico, the Mexican federal government is a failed state, and the state failure will not be remedied by Mexico’s enlistment of American gun prevention lawyers whose nearly identical lawsuits against law-abiding American manufacturers in previous decades were rejected and prohibited by courts, state legislatures, and the United States Congress.

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