Why gun makers are not sued for crimes, the 2005 law and the Mexico case

Suppose a man drinks six beers, climbs into a pickup and hits a minivan. The family in the minivan sues the driver, which is right. They sue the bar that kept pouring after he was plainly drunk, which in many states is also right. And then a lawyer proposes that they also sue the company that built the truck, on the ground that it knew pickups were sometimes driven by drunks and failed to design a truck that would refuse to start.

Most of us would call that absurd on its face, and a court would throw it out. Yet for years that was roughly the theory used against the companies that make and sell firearms: a criminal misused a lawful product, so sue the maker. The law that stopped it is the Protection of Lawful Commerce in Arms Act of 2005, and it is one of the most misunderstood statutes in American politics. Let me explain what it says, what it does not say, and why a unanimous Supreme Court relied on it in 2025.

The claim and the terms

Here is the claim in one sentence. The Protection of Lawful Commerce in Arms Act, usually called PLCAA, bars civil suits that seek to hold a licensed manufacturer or seller of firearms liable for the criminal misuse of a firearm by a third party, while leaving open suits against sellers and makers for their own wrongdoing.

Define the terms. Civil liability means being sued for damages or an injunction, as distinct from criminal prosecution. A qualified civil liability action is the statute's name for the kind of suit it bars: a civil action brought by any person against a manufacturer or seller of a firearm or ammunition, or a trade association, for damages or other relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third party. A qualified product is a firearm or ammunition, or a component part, that has been shipped or transported in interstate commerce. The act is codified at Title 15 of the United States Code, sections 7901 to 7903, and President George W. Bush signed it on October 26, 2005.

Note two features of that definition. First, it protects licensed makers and sellers. An unlicensed trafficker or a dealer who knowingly breaks the law gets no shelter. Second, it protects against suits for the criminal misuse by a third party. It does not protect a maker whose own product is defective or whose own conduct is unlawful.

Where the law came from

To understand why Congress acted, go back to the late 1990s. In 1998, New Orleans became one of the first cities to sue gun manufacturers, and over the next few years Chicago, Atlanta, Cleveland, Detroit and other cities followed, along with some counties and, later, a state attorney general. The theory varied, but the common thread was that the industry's distribution practices flooded the market with guns, some of which ended up with criminals, and that the makers should pay the public cost of the resulting violence.

Many of those suits were framed as public nuisance claims, an old doctrine used against a polluter or a business that disturbs a community. The difficulty, from the industry's side, was not only the cost of defending each case but the strategy: if a handful of cities could win a settlement or extract a change in business practice through litigation, they could achieve by court order what they could not achieve in the legislature. That is the heart of the constitutional objection. Under the separation of powers, the question of what firearms may be sold, to whom, and under what rules is a legislative question. A judge and jury in a single city should not set national policy through a damages award.

Congress agreed, after years of debate, and passed PLCAA with bipartisan votes. The Senate vote was 65 to 31 and the House vote was 283 to 144, in the summer and fall of 2005.

What the law says

PLCAA's text has three parts that matter.

1. The findings. Congress declared that the Second Amendment protects an individual right, that firearms are lawful products, and that suits seeking to hold the industry responsible for the criminal acts of others were an abuse of the legal system that threatened the lawful commerce in arms and the constitutional right.
2. The bar. A "qualified civil liability action" may not be brought in any federal or state court, and a pending action must be dismissed.
3. The exceptions. Section 7903(5)(A) lists the kinds of suit that the bar does not cover. Among them: - An action against a person convicted of knowingly transferring a firearm knowing that it would be used to commit a crime of violence or a drug trafficking crime, brought by someone directly harmed by that conduct. - An action against a seller for negligent entrustment or negligence per se, meaning the seller supplied a firearm to a person he knew or should have known was likely to use it in a manner involving unreasonable risk. - An action in which a manufacturer or seller knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm. This is called the predicate exception. - An action for breach of contract or warranty in connection with the purchase of the product. - An action for death, physical injury or property damage resulting directly from a defect in design or manufacture, when the product is used as intended or in a reasonably foreseeable way. A gun that blows up in the user's hand is not covered by the bar. - An action brought by the attorney general to enforce the federal gun laws.

So when someone says "you can't sue a gun maker for anything," the statute says otherwise. Defective guns, dealers who knowingly sell to criminals, sellers who break the law and contract disputes are all still in court. What cannot be in court is the bare claim that the industry should pay because a criminal chose to commit a crime.

The car comparison, tested

The analogy in my opening is the one supporters use, and it deserves a hard look instead of a pat on the back. The argument runs like this. Society holds the person who commits a crime responsible, and holds a seller responsible for his own wrongs. It does not hold a lawful manufacturer responsible for a free act of a criminal that the manufacturer did not intend and could not control. We apply that principle to automobiles, kitchen knives, hammers, alcohol, and ladders.

Critics answer that guns are different because their purpose is to injure, and because the industry knows that some fraction of its products will reach criminals. I think that answer is weaker than it sounds. A product's purpose being dangerous is not a reason to impose liability for third-party crime. If it were, the lawful maker of any knife or any spirits would face the same suits. And the "knows that some will reach criminals" claim proves too much: the maker of a car knows some will be used in crimes, and the maker of a phone knows that some will be used by fraudsters. The law has never held the maker liable for that kind of general knowledge, and for good reason. If a manufacturer were liable for the downstream crimes of everyone who ever bought the product, no manufacturer of a useful, dangerous thing could stay in business, and the cost would be paid by honest buyers.

The better formulation of the critics' case, and the one I should give its due, is about marketing. A company that advertises a product to a criminal audience, or that deliberately cultivates illegal demand, is not merely a bystander. That is an argument about the manufacturer's own conduct, and the statute's exception for knowing violations of a statute applicable to marketing is where it lands. Whether the line has been drawn in the right place is a fair debate.

The industry-shield argument, stated fairly

The strongest objection to PLCAA is that it gives one industry a special protection that no other industry has. Tobacco companies were sued. Opioid manufacturers were sued. Lead-paint makers were sued. Why, the critic asks, should gun makers alone be insulated from the ordinary operation of tort law, which is the way a free society holds businesses accountable?

That argument deserves a serious answer, and here it is in four points.

One, PLCAA is not unique. Congress has passed other liability shields: the National Childhood Vaccine Injury Act of 1986 channels many vaccine injury claims into a compensation program, and Section 230 of the Communications Decency Act of 1996 shields online platforms from liability for what their users post. The 1995 Prodigy Lawsuit That Accidentally Created Section 230 tells that story. Whether one likes each of these shields or not, the claim that this one stands alone is wrong.

Two, the shield is narrow. As we saw, it excludes the defective product, the negligent seller, the lawbreaking seller and the breach of contract. It bars only one theory: that the industry is liable for the criminal acts of others merely because it lawfully made and sold a lawful product.

Three, the Constitution is part of the answer. The right to keep and bear arms includes, by implication, a right to acquire them, and Congress could reasonably conclude that litigation designed to bankrupt the supply chain was a way of abolishing the right without amending the Constitution. A legislature's power under the Commerce Clause and its duty to protect enumerated rights both support the choice.

Four, tort law is not the only accountability. The industry is regulated by the Gun Control Act of 1968, the National Firearms Act, the licensing regime and the ATF. If those rules are too weak, the remedy is to change them in Congress, where the public has a vote, rather than to rewrite them one verdict at a time in a county courthouse.

The Mexico case

The most recent chapter in the story ended at the Supreme Court. In 2021, the government of Mexico sued several American gun makers and a distributor in federal court in Massachusetts. The complaint argued that the companies knowingly supplied guns through dealers in the United States, which then reached the Mexican drug cartels and caused violence in Mexico, and it asked for damages. Mexico's claim was built to fit the predicate exception: it alleged that the companies had aided and abetted illegal sales by dealers, which would be a violation of federal law.

The trial court dismissed the suit under PLCAA. The First Circuit reversed, holding that the claims fell within the predicate exception. The Supreme Court granted review, and on June 5, 2025 it decided Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos. The Court's judgment was unanimous, nine to zero, and Justice Kagan wrote the opinion. It held that Mexico's complaint did not plausibly allege that the companies aided and abetted unlawful sales by the dealers, and therefore the claims did not fall within the exception and were barred by the statute.

The reasoning is worth understanding. Aiding and abetting requires a defendant to take an affirmative act with the intent of facilitating the crime, and the law generally does not impose liability for mere knowledge that a product might be misused or for failing to take steps to prevent it. The complaint alleged that the companies knew that some dealers were selling to traffickers and did not stop them, but it did not allege that the companies took active steps to help those particular unlawful sales. The Court compared the situation to other lawful providers of goods and services who know that some customers misuse them. A seller who simply continues to sell to the public is not an aider and abettor.

Two points of precision. First, the Court did not hold that the suit was barred because Mexico was a foreign government, and it did not decide whether PLCAA's other provisions barred the claims; it decided that the predicate exception, the one Mexico relied on, did not apply on the pleaded facts. Second, the decision does not say that a seller who truly assists an unlawful sale is protected. That conduct would still fall within the exception.

A unanimous ruling on a political subject deserves a note. Justices who agree on almost nothing agreed here, and the agreement is a hint that the legal question is cleaner than the rhetoric around it. The ordinary rules of causation and complicity applied, and the ordinary rules said no.

What the law did not do

Three corrections to common claims.

First, PLCAA did not end all lawsuits. Defective-product suits, negligent-sales suits and suits under the exceptions remain, and plaintiffs have used them. In one prominent example, families of victims of the 2012 Sandy Hook shooting sued the maker of the rifle used by the shooter, and in 2019 the Connecticut Supreme Court allowed part of the case to proceed on the theory that the company's marketing violated the state's unfair trade practices law. The case ended in 2022 with a settlement reported at $73 million, paid by insurers. Whether that route is consistent with PLCAA is a live question that the Supreme Court has not resolved, and states have since passed laws aimed at the industry's marketing. After Chevron fell, ATF rules lost the deference they quietly relied on covers a related shift on the federal rulemaking side.

Second, PLCAA did not make anyone immune from criminal prosecution. A licensed dealer who knowingly sells to a prohibited person can be charged under the same statutes as before.

Third, PLCAA did not exist to protect irresponsible sellers. It exists to prevent a particular legal strategy: using a tort suit to impose liability on a lawful business for a crime it did not commit. The best way to see the difference is to ask who the defendant is. A seller who breaks the law is liable. A seller who follows the law is not liable for what a criminal later does, and that is not a loophole but the ordinary structure of civilized responsibility.

The Founding angle

constitutionalist questions belong here, so let us ask them. The Constitution does not mention tort law, but it does tell us who makes the rules. Article I gives Congress, not juries, the power to regulate commerce among the states. The Second Amendment protects "the right of the people to keep and bear Arms," and Heller held that this is an individual right. A system in which any county court could effectively tax or abolish an industry by verdict would reverse the order the Founders set. The people's representatives make the policy, and the courts apply it. If the public wants different rules for the sale of guns, the Constitution gives it a way: elect legislators who will pass them.

You can see how other Court decisions treat the same structure in Printz v. United States and the sheriffs who refused to be drafted by Washington and How a Texas student's gun at school produced the Court's Commerce Clause limit. For the pre-1995 history of immunity claims in a different industry, see the Section 230 story linked above, and for how the federal rules and statutes stack up, see ninety years of federal gun law in the dates that changed the rules. A reader who wants the Court's reasoning in full should read the opinion at the courts page or on the Supreme Court's own website.

The case in brief

1. PLCAA, signed October 26, 2005, bars civil suits that blame licensed makers and sellers for the criminal misuse of lawfully sold guns by third parties.
2. It excludes defective products, knowing violations of law, negligent entrustment, breach of contract and warranty, and enforcement actions, so a lawbreaking or careless seller can still be sued.
3. It responded to a wave of municipal suits that tried to set national gun policy through damages, a legislative question the Constitution gives to Congress and the states.
4. In Smith & Wesson Brands v. Estados Unidos Mexicanos (2025) a unanimous Court held that Mexico's complaint did not plausibly allege aiding and abetting, so the claims were barred.
5. The best critique is that the industry deserves no special shield, and the best answer is that the shield is narrow, has analogues elsewhere in federal law, and leaves policy to legislatures.

What you can do: read sections 7901 to 7903 of Title 15 on the House's US Code website, then tell your senators and representative whether you think the exceptions are drawn in the right place.