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Journal Article

Citation

Wisniewski S. Seton Hall Legis. J. 2023; 47: 243-265.

Copyright

(Copyright © 2023, Seton Hall University, School of Law)

DOI

unavailable

PMID

unavailable

Abstract

The Unidad de Comercialización de Armanento y Municiones ("UCAM"), Mexico's only gun store, issues fewer than fifty gun permits, each valid for only one year.1 Despite Mexico's strict gun control laws, the country has seen a dramatic increase in gun violence over the past twenty years.2 In 2004, twenty-five percent of all homicides in Mexico were committed with guns.3 By 2020, seventy percent of all homicides in Mexico were committed with guns.

On the other side of the United States-Mexico border, the United States recorded just under sixty-thousand gun dealers in 2017.5 Mexico's geographic position along the United States's southern border means that the United States's gun laws and policies affect the prevalence of guns and gun violence in Mexico.6 For example, between 1999 and 2004, the United States Congress passed a law that banned assault weapons.7 Mass shooting deaths in the United States declined by forty percent over this five-year period.8 When the ban expired in 2004, the number of homicides committed with a gun in the United States increased by 347% as United States gun manufacturers increased the production and distribution of assault weapons.9 Evidence indicates that Mexico experienced a similar decline in homicides committed with a gun during the United States assault weapons ban and a similar increase in homicides committed with a gun after the ban ended.

In August of 2021, Mexico filed suit against United States gun manufacturers.11 Mexico's complaint alleged that the defendants turned a blind eye to the way their design, marketing, and distribution practices routinely supplied Mexican cartels with weapons.12 Mexico further alleged that the defendants knew how to prevent the illegal trafficking of guns to Mexican cartels but chose not to change their business practices to prevent gun trafficking.

Mexico's lawsuit sits before the United States District Court for the District of Massachusetts.14 Before the District Court can rule on the merits of Mexico's claim, the court must first rule on a procedural issue: does Mexico have standing against United States gun manufacturers in light of the Protection of Lawful Commerce in Arms Act (PLCAA)? The PLCAA prohibits qualified civil liability suits against the gun industry.

The PLCAA, and all United States laws, are subject to the presumption against extraterritoriality.16 The presumption provides that United States legislation applies domestically unless Congress expressed clear legislative intent that the statute should apply extraterritorially.17 The Supreme Court solidified a test for determining how Courts should apply the presumption in 2016, but the judiciary has yet to apply this test against the PLCAA.18 Consequently, there is a debate among legal scholars as to whether Congress intended the PLCAA to apply extraterritorially and whether the test for applying the presumption against extraterritoriality is adequate.

This Comment argues that the test for the presumption against extraterritoriality is insufficient when courts apply the test to a statute whose focus is a constitutional right. Part II of this Comment will provide an overview of the PLCAA, explain Mexico's suit against United States gun manufacturers, and introduce the presumption against extraterritoriality. Part III will analyze how legal scholars apply the presumption against extraterritoriality to the PLCAA. Part IV argues that the Court should consider both congressional intent and the scope of the focus of a statute when determining if a statute successfully rebuts the presumption against extraterritoriality. Legal scholars provide varying interpretations of how to analyze the PLCAA under the presumption. While these interpretations begin by following an established framework, they diverge when considering the scope of the PLCAA's focus: the Second Amendment. This Comment does not discuss the merits of the PLCAA. This Comment does not discuss policy issues -- such as border control measures, the United States's "war on drugs," or organized crime in the United States—but rather presents a legal analysis of the presumption against extraterritoriality and gun trafficking along the United States Mexico border. This Comment limits its analysis to the application of the presumption against extraterritoriality to the PLCAA and the impact a domestic or extraterritorial application of the PLCAA may have on United States citizens' access to firearms and ammunition ...


Language: en

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