By Dave Kopel
America's 1st Freedom, Oct. 2011. More by Kopel on gun policy and Mexico.
Certainly, the Mexican government has legitimate grounds for a lawsuit against Obama administration staffers and the Bureau of Alcohol, Tobacco, Firearms and Explosives (employees who organized "Operation Fast and Furious." That "investigation" coerced licensed firearm dealers into selling guns to straw purchasers who were plainly buying guns on behalf of criminals.
As the result of that Obama/BATFE fiasco, approximately 2,500 guns were put into the hands of criminals, and many of them were taken to Mexico for use by drug cartels, especially the Zetas. Subsequently, the guns have been used in many shootings, homicides and other crimes in Mexico.
"Operation Fast and Furious" was, in fact, a plain violation of U.S. law--specifically the Arms Export Control Act, which prohibits anyone from exporting firearms to other countries unless the U.S. State Department issues a permit. There is no "law enforcement" exception that would apply to "Fast and Furious."
The United States has the legal authority to bring cases against people in foreign countries who organize conspiracies to smuggle illegal weapons into the United States with the intent that those weapons end up in the hands of gangsters. Likewise, Mexico has the legal authority to file lawsuits--or even criminal charges--against Americans who intentionally conspire to promote illegal gun smuggling into Mexico.
The Mexican government has every right to be furious about "Operation Fast and Furious." Indeed, the government has said that it wants to extradite the "Fast and Furious" perpetrators to Mexico for criminal trial. Unfortunately, Mexican President Felipe Calderón also is laying plans for baseless lawsuits against law-abiding Americans.
In conjunction with President Barack Obama, Secretary of State Hillary Clinton and Attorney General Eric Holder, Mexico's Calderón spent late 2008 and early 2009 loudly complaining that guns from the United States constitute about 90 percent of Mexican "crime guns." Shortly thereafter, the Obama administration's "Fast and Furious" program began, which would have the immediate and inevitable effect of increasing the number of American guns used in Mexican crimes.
However, the Obama-Calderón team was not able to convince Congress that cracking down on law-abiding Americans is the solution to Mexico's drug cartel problem.
Moreover, the assertions about American guns in Mexico turned out to be greatly exaggerated. Only a fraction of crime guns found in Mexico are traced by BATFE agents. Most of the traces fail. Many of the American guns turn out to have originally been supplied to the Mexican army or police, and then given to Mexican gangsters by corrupt Mexican government employees.
A report by the U.S. Department of Justice revealed that the average age of an American gun found in Mexico is 14 years. That shows that the American guns in Mexico are mainly guns that are stolen one at a time in the United States and sold into the black market, where some of them get taken to Mexico. In other words, the typical American gun found in Mexico is not a new firearm that was recently purchased from a gun store in the southwest U.S.
The Calderón government, however, seems willfully oblivious to the facts. Not surprising, since yanqui-bashing has long been politically popular in Mexico. According to Mexico's ambassador to the United States, American gun stores could be described as "providers of material support to terrorists." (In an April 11, 2011, letter to the Dallas Morning News, the ambassador argued against the claim that Mexican cartels were "terrorists." He said that if they were, then American gun stores were terrorist supporters.)
Never mind the fact that every time an American gun store sells a firearm, the store first must get permission from the FBI's National Instant Check System or a state police equivalent.
And never mind that the only way that American gun manufacturers sell firearms to consumers is via federally licensed firearm dealers who only make a sale after approval from the government.
None of those facts has stood in the way of the Mexican government taking steps to sue American gunmakers. The Mexican government has already hired a law firm: Reid, Collins & Tsai. That firm, with offices in New York City and Austin, Texas, is a boutique firm specializing in innovative cases. They were retained by Mexico on Nov. 2, 2010.
Where would such a lawsuit take place? Well, one obvious place is in a Mexican court. None of the American state and federal protections against abusive anti-gun lawsuits would apply in a Mexican court. Of course, the Mexican government, in a Mexican court, would be the "home team." It would not be fair to say that all Mexican courts are corrupt, but it would be realistic to acknowledge that Mexico's federal government would have the ability to pressure Mexican judges.
Why would a Mexican court have jurisdiction over American gunmakers? To start with, many American gunmakers have voluntarily done business in Mexico by selling guns there. The vast majority of such sales are to the America and other nations.
What about the American gunmakers who do not sell to Mexico? Getting Mexican court jurisdiction over them would be hard, but not necessarily impossible. The Mexican government could allege that the American manufacturers knew, or should have known, that the manner in which they sell guns in the United States would inevitably have consequences in Mexico.
Following a victory in a Mexican court, likely including an award of millions of dollars in damages, the Mexican government could then ask an American court to seize the money in the American gunmakers' bank accounts, or to seize their other assets, such as manufacturing equipment, buildings or land. American courts are usually willing to enforce judgments from foreign courts unless there was some procedural irregularity in the foreign court. So as long as the Mexican government is careful to play by the rules in the Mexican court, the result could be the financial destruction of American gunmakers.
Another potential venue is the International Court of Justice. Informally known as the "World Court," the IJC is located in The Hague, Netherlands. It is part of the United Nations, which should tell you all you need to know about its probable attitude towards gun rights and citizen gun ownership.
In April 2010, Chicago's then- Mayor Richard Daley held the 10th annual "Richard j. Daley Global Cities Forum," with mayors from around the world. At the event, Daley announced the idea of suing American gun manufacturers in the World Court. Also endorsing the idea was Philadelphia Mayor Michael Nutter and Mexico City Mayor Marcelo Ebrard Casaubón.
The World Court can only issue binding decisions in nation vs. nation suits. For example, a current case is Costa Rica v. Nicaragua, brought by Costa Rica because the Marxist Sandinista government of Nicaragua has been sending its military across the border and has built military camps in Costa Rica.
Thus, a World Court case would have to be Mexico v. United States of America. Unlike some nations, the United States has not given blanket consent to World Court jurisdiction, so the World Court could hear the case only if the Obama administration allowed it.
It's not hard to imagine the Obama administration doing so and then putting up a deliberately weak "defense" in the World Court. The result could be a World Court order that the U.S. government impose drastic new restrictions on gunmakers and gun owners. The Obama administration would then have the perfect pretext of "international law requirements" to create all sorts of harsh new regulations. American courts could uphold those regulations since they would supposedly be necessary for the American government to comply with its obligations under international law.
The other possible international court for a Mexican government case would be the Inter-American Court of Human Rights located in Costa Rica. This court is part of the Organization of American States (OAS), a group which is quite hostile to gun ownership.
The Obama administration has been attempting--so far unsuccessfully--to get the Senate to adopt the OAS' gun control treaty, known as CIFTA. As I explained in a policy study for the Heritage Foundation, CIFTA would obligate the U.S. government to impose drastic new gun controls. ["The OAS Firearms Convention Is Incompatible with American Liberties."]
Again, the Obama administration would have to cooperate in order for the Inter-American Court to hear the case. The result could be the same as from the World Court: a mandatory international obligation for the U.S. federal government to impose severe regulations on gun owners and gunmakers.
The final possibility for the Mexican suit is in an American federal court. The Calderón government could cherry-pick a court with the most anti-gun judges. Or the government could follow the strategy of the anti-gun lawsuits that the Brady Center masterminded in 1998-1999--sue in many courts all over the United States, the better to force the gun manufacturers to defend a plethora of suits all at once and to prevent them from sharing their legal costs.
The Mexican lawsuit, or lawsuits, would, of course, have a serious obstacle. The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) prohibits nearly all anti-gun suits except those arising from criminal conduct on the part of a gunmaker or gun seller. Many states have similar laws, although not all are as strong and comprehensive as the PLCAA.
The Mexican government could allege that the firearm retailers are engaged in criminal conduct by knowingly selling to retailers (or by selling to wholesalers who sell to such retailers) who violate federal law by selling guns to straw purchasers or other illegal buyers.
Such a claim would be very difficult to prove because it isn't true. But the Brady Center makes this claim all the time, and the thin collection of bogus "facts" that the Brady Center cites in support of the claim might be enough for a court to decide not to throw the case out immediately. Then, the Mexican government could engage in "discovery." It would have the legal right to go on fishing expeditions into the documents of the gun manufacturers and to interrogate their employees at length. The hope would be that enough evidence could be found to keep the case going, and that perhaps a judge who is hostile to Second Amendment rights might eventually rule in Mexico's favor.
Alternatively, or additionally, Mexico could attack the PLCAA itself. This would be an uphill battle, since the Brady Center has already launched numerous failed legal attacks on the PLCAA.
The U.S. Supreme Court, however, has never ruled on the PLCAA. So the strategy of the Mexican government could be to accept some defeats in lower courts while moving the case toward the Supreme Court.
The process would probably take several years, which could give President Obama (if he is re-elected in 2012) time to appoint more anti-gun justices to the U.S. Supreme Court. An Obama-dominated court could throw out the PLCAA entirely. Or the court could invent some kind of implicit exception to the PLCAA so that the Mexican lawsuit could succeed. All it would take is one more Obama appointment. In District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the Second Amendment only survived by a single vote in 5-4 decisions.
In any American court, the government of Mexico would be an especially powerful plaintiff. Most judges spend their entire careers without ever hearing a case brought by a foreign government. Any judge will understand that it would be a national security disaster for the United States if the Mexican government were to be overthrown by the cartels and Mexico became a narco-state. Some intelligence analysts are speculating that the Mexican cartels might attempt a takeover in the next year or two.
Yet if the Mexican government is in danger, Americans are not to blame. Still, judges tend to be cautious people, and if the Mexican government comes into court claiming that its survival depends on a judge overturning the PLCAA and cracking down on American gun rights, some judges might be persuadable. That could be more likely if the Obama administration were filing friend-of-the-court briefs in support of the Mexican government.
Whatever constraints a desire for re-election may place on Barack Obama's anti-gun ideology, those constraints will immediately vanish on Nov. 7, 2012. A Mexican government lawsuit, ultimately decided by Obama-appointed judges, could wipe out American gun manufacturers--all without a need for any judge to formally overrule Heller and repudiate the Second Amendment.