This week, in many Christian traditions, is not only part of the Christmas season, the period between December 25 and the Feast of the Epiphany on January 6. It is also a week when we remember people who died for the faith. December 26 was the Feast of St. Stephen, whose act of voluntary martyrdom is told in the 6^th Chapter of Acts. (Notice the young coat check boy named Saul standing on the sidelines. He reenters the story later.) On December 27 we remember St. John the apostle, who during a lifetime of persecution was not martyred, but not for lack of trying. Yesterday was the feast of the Holy Innocents, the day on which we remember the infants slaughtered by Herod in his raging over the announcement of the arrival of the Christ child. Today is the saint’s day of Thomas Becket, which makes sense because he was murdered in Canterbury Cathedral by Henry II’s henchmen on this date in 1170 (or thereabouts.)

Many find the celebration of the martyrs jarring to the holiday spirit. I suppose that’s somewhat intentional, but a bit upsetting none the less. We might call today the Slaughter of the Innocence, as the stories of the martyrs remind us how power responds to threats. History proves that: This day alone witnessed the Wounded Knee Massacre in 1890, the Nazi firebombing of London in 1940, and Richard Nixon’s bombing of Hanoi in 1972.

The news this week has any number of reminders of that gloomy fact, Russia’s Christmas Day attack on Ukraine’s utility infrastructure being at the top of the list. Of particular interest to the small but select group of readers of this blog is the story of the gun litigation brought by the Republic of Mexico against Smith and Wesson and several gun distributors and retailers, which aired on Sixty Minutes last Sunday. Mexico’s constitution has a right to bear arms clause, but the sale of guns is tightly regulated. As a result, a large majority of the guns used by drug cartels and human smugglers in Mexico come from the United States, most purchased from a few identifiable retailers. Estimates of the number of United States guns smuggled into Mexico each year range from 300,000 to 700,000, and it’s estimated that perhaps 100,000 Mexican citizens have been killed by guns coming from the United States. Rachel Nolan writes about the “iron river,” as it’s called, and its impact on human smuggling in a recent issue of the London Review of Books.

The Mexican government got tired of this, and filed suit in federal court in Massachusetts, claiming that the defendant manufacturer and retailers should pay for the damage caused by the guns they sold. The trial court, while expressing sympathy for the claim, dismissed it, saying that a federal statute absolutely protects the gun industry from civil liability for the criminal misuse of a gun. The First Circuit Court of Appeals reversed, noting that the statute has an exception: if the defendant knows or has reason to know that a sale is illegal, the statutory immunity vanishes. Mexico’s pleadings allege that ninety percent of the sales come from a small group of retailers, typically in large quantities: several hundred assault rifles, for instance, to the same person over the course of a few days. These sales were made to so-called “straw purchasers,” for the purpose of reselling to someone that can’t pass a background check. Straw purchases are illegal in the United States. Most of the defendant retailers are located on or near the Mexican border. Therefore, Mexico alleges, the retailers, and by imputation the manufacturers and distributors, either knew or should have known that the guns were going into Mexico, to be used in criminal activity. 

There is nothing exotic about this theory. It’s closer to first year law stuff. The Restatement of Torts says “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” In plain English: a gun manufacturer or dealer is not responsible for every crime committed with a gun. However, if the gun dealer does something negligent, such as selling to a straw purchaser, and knows or should know that the straw purchaser will resell to a bad guy, then the gun dealer is liable for a crime committed with the gun. The Restatement, published by the American Law Institute (a group of law professors) does not make law; as the name implies, it restates generally accepted legal principles. 

The issue on appeal was not whether Mexico should win the lawsuit. It was whether a jury should have a chance to hear the case in the first place. All Mexico wants is to tell its story to a jury. Yet, judging from the reaction to the 1^st Circuit opinion, you would have thought the sky was falling. The defendants, of course, appealed to the Supreme Court, and any number of industry groups filed “friend of the court” briefs. That’s not surprising. What is a bit eyebrow-raising is the brief filed earlier this month by seventeen United States senators, with the never shy of the limelight Ted Cruz at the top, and twenty-two members of the U.S. House of Representatives.

A K – Street law firm signed the brief but it’s so poorly written – full of purple prose and bereft of simple declarative sentences — that one suspects Senator Cruz (who fancies himself a scholar) couldn’t resist wielding his own editorial pen. (And how does a mere lawyer tell his client, who happens to be a U.S. Senator, that he’s a lousy writer?) The brief gushes with phrases such as “Mexico’s lawsuit attempts to hijack U.S. courts to subject American citizens to Mexican law,” (which sounds like something from the fourth-place winner in a Boys’ State essay contest), and “Mexico’s lawsuit disrespects the U.S. Constitution and U.S. Law” (a Harvard Law School idea of a throwdown if I ever heard one).

Pare away the phony patriotism, which, as Dr. Johnson said, is the last refuge of a scoundrel, and you find nothing but pure cynicism. The heart of the brief is the assertion that the alleged absolute immunity, on which the sales into Mexico depend, are crucial to the financial viability of the gun industry, which, the claim is, perennially teeters on the brink of bankruptcy. Without a viable gun industry, the story goes, Americans would lose the ability to own guns, guaranteed to them by the Second Amendment. In short, the victims of gun violence in Mexico are collateral damage of America’s thirst for cheap, available guns (which Senator Cruz somehow transforms into a constitutional right.)

A political scientist might wonder if the astounding level of political contributions from the gun industry is what endangers its solvency (assuming that it is endangered.) A law professor might wonder whatever happened to the Chicago School principle of economic efficiency that industries bear the true, complete cost of their products, including damage done by those products, and either pass those costs on to the consumer, redesign the product, or stop making it. (The Ford Pinto exploding gas tank cases are a perfect example of Chicago School thinking in action.) But as a theologically – minded lawyer, I can’t help thinking about those babies slaughtered by Herod, disturbed by the news of the Messiah’s birth. To make sure he hits his target, Herod orders them all killed. Just as the gun industry and its friends are willing to see tens of thousands of Mexicans die in order to avoid the one lawsuit that might endanger gun-related wealth, or in order to avenge the Founding Father’s reputation so outrageously dissed by our neighbors to the South. 

Malcolm Guite remembers the story of the Bethlehem massacre in his sonnet “The Holy Innocents (Refugee”):

We think of him as safe beneath the steeple,

Or cosy in a crib beside the font,

But he is with a million displaced people

On the long road of weariness and want.

For even as we sing our final carol

His family is up and on that road,

Fleeing the wrath of someone else’s quarrel,

Glancing behind and shouldering their load.

Whilst Herod rages still from his dark tower

Christ clings to Mary, fingers tightly curled,

The lambs are slaughtered by the men of power,

And death squads spread their curse across the world.

But every Herod dies, and comes alone

To stand before the Lamb upon the throne.

“Every Herod dies, and comes alone / To stand before the Lamb upon the throne.” And there will be no K-Street lawyer there to defend him. But perhaps it’s a bit overblown to compare Senator Cruz to Herod, who after all was denominated “the Great.” There is nothing great about Ted Cruz. Ebeneezer Scrooge is a better comparison. I can easily picture him in his nightgown and cap, pressing the extinguisher-cap down upon the Christmas spirit. Unfortunately for him, but fortunately for Scrooge (and for us) “though Scrooge pressed it down with all his force, he could not hide the light, which streamed from under it, in an unbroken flood upon the ground.”

That is perhaps why we remember the martyrs at this time of year. We remember them in the light of the Incarnation, the light which shines in the darkness, the light that darkness cannot overcome. Power craves the limelight, but shuns interrogation. (The word “arrogant” means, literally, without or above questioning.) None of the defendants, and no one that signed Senator Cruz’s brief, appeared in the Sixty Minutes story. Who can blame them? Sixty Minutes has a way of shining lights into places that power would like to keep in the dark. But the light of the Incarnation will not fade, and will not blink.You can watch that broadcast here. And here is a link to the LRB story about the iron river. And if you simply have not had enough, you can find links to all the briefs in the Smith and Wesson lawsuit here.