Posts Tagged ‘guns’

Dissension in ACLU ranks over NRA brief

Last month we noted that the ACLU had filed a brief on the side of the NRA in its regulatory-retaliation First Amendment suit against New York Gov. Andrew Cuomo. The brief “strikes me as quite sound legally,” writes Eugene Volokh, who quotes and annotates its text. But the action has roused passionate opposition within the organization itself, reports Mark Joseph Stern at Slate. For example, the ACLU’s New York affiliate declined to join the brief and its officials issued a public statement critical of it. Among their arguments: the NRA “has enormous resources and is fully able to present its First Amendment claim.” Others argue that the dispute is at least in part fact-intensive and does not rest entirely on First Amendment issues, since Cuomo had denounced a particular insurance product marketed by the NRA as unlawful — although the governor’s own statements make clear that his call for regulators to squeeze the group’s finances went beyond that, and indeed included a call for them to put the squeeze on groups with advocacy missions similar to the NRA’s. Yet other factions within the ACLU charge that for it to side with the NRA is to advance “white supremacy.” More: Scott Greenfield.

The legal role the ACLU is playing here, it should be noted, is amicus, as distinct from pro bono defense. As Howard Wasserman, writing at PrawfsBlawg, notes:

The resources argument (putting aside whether it has any merit) strikes me as inapposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU’s brief, on which it did expend some of its limited resources, is to the NRA’s legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party’s constitutional position to the money in its bank account.

August 29 roundup

  • Astonishing investigation into feds’ “235 school shootings a year” statistic: “NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened. …We were able to confirm just 11 reported incidents.” [Anya Kamenetz, Alexis Arnold, and Emily Cardinali, NPR]
  • Sentences that make you go back and read twice: “Mister Cookie Face lawyer Blake Hannafan also applauds the verdict and says 600 lb Gorillas ‘overreached.’” [AP/WHEC, Metro West Daily News on legal battle between Massachusetts dessert company and ice cream supplier]
  • “In-N-Out Burger sends pun-filled letter to beer maker to address ‘brewing’ trademark issue” [ABA Journal]
  • In Arkansas, socially conservative Family Council Action Committee enlists in the ranks against liability reform, and some less-than-charitable souls wonder whether $150,000 in donations from a Little Rock law firm might have had anything to do with that [Andrew DeMillo, AP]
  • AG Brian Frosh’s embarrassing SALT suit, religious adoption fight, Cardin’s red meat thrown to Left, union influence in Montgomery County, Baltimore water supply, and more Maryland stuff in my new Free State Notes roundup;
  • Federal court strikes down North Carolina’s U.S. House map as partisan gerrymandering, which could (or might not) lead to lively doings at the Supreme Court between now and Election Day [my new post at Cato]

ACLU: don’t let New York regulators squelch NRA’s First Amendment rights

I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:

Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.

My post from May on the topic is here. More on the ACLU brief: Dan M. Clark, New York Law Journal; Declan McCullagh.

August 15 roundup

Literally (for once) weaponizing the First Amendment

The Internet interprets censorship as damage and routes around it: even after opponents manage to talk a judge into issuing a prior restraint order on speech, gun blueprints are still online in widely available libraries and will remain so. And making a gun at home in the U.S. remains legal, as it has been all along, though subject to a recent law on those undetectable by scanner technology [Brian Doherty, David French/NRO, Declan McCullagh, Josh Blackman thread, Erica GoldbergCodeIsFreeSpeech.com] And I only read Playboy for the articles about guns written by colleague Matt Larosiere (“Fully 3-D printed guns are still ineffective, probably less effective than firearms you can craft from hardware store scraps.”) Earlier on Defense Distributed “arms export” controversy here and here, and more from David Kopel and Cyrus Farivar on the lawsuit settlement. More: Trevor Burrus (“Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets”).

Police and prosecution roundup

  • After parking lot shooting Pinellas County, Florida sheriff “claim[ed] his hands were tied by Florida’s Stand Your Ground law. But that is not true” [Jacob Sullum, Reason, more; David French, NRO]
  • Major USA Today story on origins of Baltimore’s devastating crime and murder wave [Brad Heath; Jonathan Blanks, Cato]
  • Related: in Baltimore’s Gun Trace Task Force police scandal, plea bargains punished the innocent [Capital News Service investigation by Angela Roberts, Lindsay Huth, Alex Mann, Tom Hart and James Whitlow: first, second, third parts]
  • California Senate votes 26 to 11 to abolish felony murder rule, under which participants in some serious crimes face murder rap if others’ actions result in death [ABA Journal, bill]
  • New Jersey’s reforms curtailing cash bail, unlike Maryland’s, seem to be working reasonably well [Scott Shackford; longer Shackford article on bail in Reason; earlier here, here, etc.]
  • “Miami Police Union Says Head-Kicking Cop ‘Used Great Restraint,’ Shouldn’t Be Charged” [Jerry Iannelli, Miami New Times]

Constitutional law roundup

  • “Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.” [John Kenneth Ross, IJ “Short Circuit” on Webb v. City of Maplewood]
  • “Does the Excessive Fines Clause Apply to the States? You’d think we’d know that by now — but the Supreme Court hasn’t spoken to this.” [Eugene Volokh]
  • “SCOTUS Bingo: The Slaughterhouse Cases” [Sheldon Gilbert on Heritage “SCOTUS 101” podcast with Elizabeth Slattery and Tiffany Bates; Eighth Circuit occupational licensure case]
  • Should committing a crime unrelated to guns or violence lead to lifetime forfeiture of gun rights? [Ilya Shapiro and Matt Larosiere on Cato amicus brief in Kanter v. Sessions, Seventh Circuit]
  • “A Debt Against the Living: An Introduction to Originalism,” Federalist Society podcast with Michael McConnell and Ilan Wurman discussing Wurman’s new book]
  • A new and better Article V? [proposal for an “amendment amendment“]

Cuomo to regulated banks, insurers: it might be risky for you to go on dealing with the NRA

As we mentioned in a brief earlier item, New York Gov. Andrew Cuomo has “directed the Department of Financial Services to urge insurance companies, New York State-chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” [Cuomo press release] Maria T. Vullo, Superintendent of Financial Services for the state of New York, issued a guidance memorandum. In language not altogether typical of safety-and-soundness financial regulation, Vullo wrote:

While the social backlash against the National Rifle Association (the “NRA”) and similar organizations that promote guns that lead to senseless violence has in the past been strong, the nature and the intensity of the voices now speaking out, including the voices of the passionate, courageous, and articulate young people who have experienced this recent horror first hand, is a strong reminder that such voices can no longer be ignored and that society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.

Brian Knight writes at FinRegRag:

This request could easily be construed is a thinly veiled threat. While the NYDFS statement does not explicitly say that NY FIs (financial institutions) that may face regulatory sanction for failing to cut ties with the NRA, it doesn’t rule out the possibility either. If the NYDFS had no intention of threatening regulatory sanctions, they could clearly have added language taking the threat of enforcement off of the table. They didn’t, which indicates they want NY FIs to think there is a potential the government will come after them if they don’t end their relationships with groups like the NRA.

These instructions to NY FIs could also be seen as an attempt to suppress political speech that some New York policy makers disagree with. Whatever one thinks of the NRA, it is an organization engaged in legal political speech and advocacy. Cutting off the NRA’s access to financial services could change the political debate by reducing opposition to political efforts to tighten gun laws. The NYDFS release says, “This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.” Given that the NRA does not make a product that could pose a direct risk to public safety, this release is clearly referencing the NRA’s political advocacy.

Knight compares the initiative to the Operation Choke Point episode, in which federal regulators steered banks away from dealing with various controversial but lawful lines of business, including some that were politically fraught. But in that episode, at least, the target enterprises were primarily engaged in the sale of goods and services and thus might in principle have faced financial risks related by fraud or unfulfillable obligations to customers.

The NYDFS order appears to be inherently about political speech. After all, there is no allegation that the NRA is committing fraud against its members. Rather, the argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any FI that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.

The guidance memorandum might thus accomplish by indirection what it would be plainly improper for the state to attempt directly:

There is no law that says a FI (financial institution) cannot do business with a gun rights group and such a law would almost assuredly be unconstitutional. However if the regulator declares that such an affiliation poses a reputational risk to the FI (that the regulator, not the market, determined existed), it has leverage to force the FI to comply.

The NRA has filed a suit against the governor and New York officials saying the program amounts to “coercion” aimed at depriving the association and its constituents of First Amendment rights. More: Scott Greenfield

Meanwhile, in other news of regulatory retaliation — see also our tag on that — U.S. President Donald Trump reportedly urged the U.S. Postal Service to double its rates for handling packages shipped by Amazon.com, linked in his mind through founder Jeff Bezos with his journalistic nemesis the Washington Post. Postmaster General Megan Brennan is said to have “resisted Trump’s suggestion in private conversations in 2017 and 2018, telling him that package delivery rates are set by contract and reviewed by an independent commission” and that the Postal Service does not get a bad deal from its arrangements with Amazon and other e-commerce firms. [Reuters]