This week was filled with interesting legal developments.
We had dozens of amicus briefs come in on the Supreme Court’s gun-carry case as the deadline to file in support of New York’s restrictive law came. There were bill players including the NAACP and the federal government. But, more interesting to me, the ACLU decided to get involved as well.
I look at their argument and what it tells us about the group.
Then we saw the NRA file its answer to the New York Attorney General’s amended complaint that added dozens of claims against the group. Interestingly, some distance between the NRA and CEO Wayne LaPierre appeared in the answer. I look at what the gun group said and what it means for the future of the NRA.
Plus, I talk about local activism with the head of San Diego County Gun Owners on the podcast!
Analysis: ACLU Turns On Gun Rights in Supreme Court Brief [Member Exclusive]
By Stephen Gutowski
The ACLU has decided to once again intervene in a Supreme Court case. This time, though, it sided with the government in opposition to one of the enumerated rights enshrined in the Constitution.
The civil rights group filed a brief in the Court’s upcoming concealed-carry case. The crux of its argument is carrying guns in public is not only unprotected by the Second Amendment; it actually infringes on the First Amendment.
“This is a case about the Second Amendment, but its resolution also implicates fundamental First Amendment values—the freedoms of assembly, association, and speech,” the group said in its filing. “States have many justifications for regulating the public carrying of weapons, concealed or otherwise. But one especially important justification is that such restrictions facilitate civic engagement, by promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence. Accordingly, in assessing the validity of New York’s regulation of the carrying of concealed weapons in public, the Court should give due regard to the state’s important interest in facilitating a wideopen public debate.”
The ACLU is arguing that allowing New York officials complete discretion over who does and does not get to exercise their Second Amendment right is the proper course of action. It is saying the public bearing arms is inherently a threat to the public’s ability to speak freely.
The group goes so far as to argue there should be absolutely no limit to the government’s power to restrict gun carry.
“Because any constitutional rule prohibiting states from restricting the carriage of guns in public would pose substantial risks to the fulsome exercise of rights and liberties essential to self-government,” the ACLU said, “and in particular to freedoms of assembly, association, and speech, the proper resolution of this case is a matter of substantial interest to the ACLU, the NYCLU, and their members.”
Currently, 42 states plus the District of Columbia have gun-carry laws that do not give government officials discretion in who can obtain permits. The ACLU does not say whether it believes the First Amendment is threatened in those states. Instead, it retreats to safer ground by focusing on historical restrictions on concealed carry.
Although, as even they admit, historical restrictions on guns aren’t terribly safe ground given the racist motivations and outcomes of many of them. That includes the “may-issue” concept the New York law is based on. Not that those concerns move the ACLU much in the brief.
“Some gun restrictions were motivated by racial animus and targeted Black people, which would violate the Equal Protection Clause today,” it said. “But even states with regulations animated by invidious discrimination regulated public carry of guns more generally.”
But the brief itself represents the culmination of the ACLU’s transformation on guns. The group was never much of an advocate for the Second Amendment. It started by openly saying the Second Amendment was the responsibility of the NRA.
In recent years, it has started to go further. Some of its top officials have said the landmark Heller decision was wrongly decided, and the Second Amendment does not protect an individual right. Now, they’re actively campaigning against the Court extending any protections to gun-carry whatsoever.
That’s the result of the ACLU’s slide from a single-issue advocacy group into a liberal identity group.
As our politics become more polarized and people have retreated more into their chosen tribes, a number of the biggest political advocacy groups have transformed themselves into identity groups. The calculation seems to be that these groups can raise more by doubling down on appealing to their core demographic than trying to broaden their appeal to those on the fence.
Liberals tend to like the ACLU, but they don’t like guns. So, the ACLU is now going out of its way to attack them. And in a fairly embarrassing way too.
The idea that gun carry presents such a threat to the First Amendment that government officials should be able to completely restrict it if they wish is undoubtedly not going to make it into the majority opinion in this case. Frankly, I’d be surprised if it makes it into any of the dissents either. With government officials in the vast majority of the country, and even the nation’s capital, stripped of the power to deny permits based purely on their personal judgment, it’s difficult to understand how anyone at the ACLU thought it should make the final draft.
It is transparently just an attempt to draw the thinnest of lines between the core question of the case and the ACLU’s top issue. That way, they can tell donors they are fighting against the other side. And maybe that will squeeze a few more dollars out of them.
On this episode, I talk with Wendy Hauffen of San Diego County Gun Owners. She provides insight into what it’s like to run an effective gun-rights organization at the local level.
She described how her group was able to persuade the sheriff to issue more concealed-carry permits. They were able to get him to change the policy even though a court challenge was unable to change the state’s law.
We also talked about how the group has been able to bring women into the gun-owning community. She said the #NotMe program they run has already helped train 500 women and Hauffen said it is continuing to grow.
I also talk with contributing writer Jake Fogelman about the NRA’s upcoming oversight meetings, and why it distanced itself from CEO Wayne LaPierre in court filings this week. Plus, Jake tells us about how California is now set to share the personal information of gun owners with researchers across the country.
You can listen to the full podcast on your favorite podcasting app or by clicking here.
You can also watch the full episode on our YouTube page.
Lawyers for the NRA broached a new argument in its dissolution case this week.
“Nowhere does the Amended Complaint allege that the purported looting and self-dealing allegedly engaged in by the individual defendants furthered the NRA’s business,” the NRA said in a filing. “Nowhere does the NYAG explain how the alleged false financial filings, which were not alleged to have been reviewed or approved by the Board, advanced the NRA’s business by omitting portions of director income.”
That’s the first time there has been space between CEO Wayne LaPierre, who is one of the individual defendants in the case, and the NRA as an organization. The NRA’s lawyers essentially argue that the allegations that LaPierre and other executives used NRA money to fund luxurious trips and shopping sprees for themselves or their family members don’t directly implicate the organization. So, even if the court finds the executives broke the law, it shouldn’t hold the NRA responsible.
In fact, the group goes further than that. The NRA’s filing argues that, if the allegations are true, the NRA itself is the actual victim in the case.
“Even if the allegations against current and former executives are taken as true (as they must be, for purposes of this Motion), the NRA and its Board would be the victims of the alleged wrongdoing—not perpetrators,” the group said in the filing. “Thus, no provision of New York law justifies punishing the NRA or its members.”
The NRA also argues New York Attorney General Letitia James (D.) undercut her claim it is to blame for the corruption its current and former executives are alleged to have committed. It said James accused former NRA Treasurer Woody Phillips and the other executives of hiding inappropriate spending and contract negotiations from the NRA Board, which indicates the organization couldn’t have approved of or benefited from the alleged misconduct.
“The misconduct of one defendant cannot be imputed to another defendant merely because of an existing business relationship,” it said in the filing. “Nor are allegations of misconduct against a member of an entity sufficient to state a claim against that entity. Nor can the NYAG get around this hurdle with vague, unsubstantiated allegations of ‘control’ of the Board by defendant LaPierre. Indeed, these allegations are contradicted by repeated statements in the Amended Complaint that the individual defendants took steps to conceal their misconduct from the Board and Audit Committee; testimony from Audit Committee officials that clearly underscores the repeated actions taken to remedy Phillips’ time as treasurer.”
That is a pretty remarkable argument to come from the lawyers for a group that LaPierre still runs. That’s especially true when you consider those lawyers are from Brewer Attorneys and Counselors. The firm’s head, William Brewer, has been the key legal advisor to LaPierre for the last several years. He’s the one who has been primarily responsible for guiding the NRA’s legal strategy, including LaPierre’s decision to unilaterally take the group into bankruptcy in a failed attempt to sidestep the New York case.
But it’s unlikely the NRA is preparing to throw LaPierre under the bus. There may actually be less going on than meets the eye here.
First, it’s important to note the NRA in no way agrees that LaPierre and the other executives did the things James has accused them of. Instead, it’s just saying that even if those things are true, they don’t necessarily implicate the organization as a whole, and they shouldn’t be used as a reason to dissolve it.
Second, the thrust of the filing sticks closely to the argument the NRA has been making all along. It argues that there were some irregularities and abuses by some executives and, especially, former top contractor Ackerman McQueen but the NRA has reformed its operations. It notes the federal bankruptcy judge who dismissed the NRA’s case complimented some of the group’s reforms in his ruling and argues it proves James wrong.
“Despite the benefit of a full investigation, multiple amendments, sweeping discovery in the NRA’s federal bankruptcy case, and a twelve-day trial in the federal bankruptcy court featuring twenty-three witnesses, the NYAG fails to allege any wrongdoing perpetrated or approved by the NRA’s Board sufficient to meet its burden to plead specific, non-conclusory allegations implicating a majority of the Board, or any decisions of the Board that are not subject to business judgment protection,” the group said in the filing. “The NYAG’s allegations are nothing but speculative, conclusory allegations about supposed misconduct by individual executives with no allegations against the majority of the NRA’s Board.”
The NRA filing also picks the attacks on James back up. It points out that she has been openly hostile towards the NRA, which she has labeled a “terrorist organization,” since before she even became attorney general. And it notes her attempt to shut down a group the size and scope of the NRA is unlike anything attempted before.
“The New York Attorney General (“NYAG”) seeks to dissolve a 150-year-old non-profit organization and to silence the constitutionally guaranteed political speech of its 5 million members based on conclusory allegations against two current, and two former NRA executives, and 5 unnamed Board members, with no allegations of complicity, acquiescence—or even knowledge—by the Board,” it said. “That the NYAG seeks draconian relief on such paltry grounds underscores that the motive of this lawsuit is to advance a political vendetta and not to achieve legitimate interests of the State, its people, the NRA or its 5 million members.”
Critics have repeatedly accused Brewer of putting LaPierre’s interests ahead of the NRA’s despite representing the organization. NRA member Fank Tait, who is trying to intervene in the case, has been vocal in criticizing the lawyer’s enormous fees and cozy relationship with LaPierre. The argument noting the difference between LaPierre, whose personal lawyer filed a separate motion to dismiss James’ charges, and the NRA shows Brewer is at the very least willing to do the due diligence in presenting valid counters to the charges against the group.
Still, it’s unlikely LaPierre’s power inside the NRA will wane anytime soon.
Given that LaPierre remains firmly in control of the NRA and has faced relatively little internal dissent from the current members of the NRA Board, it’s also difficult to see this argument persuading a judge. If LaPierre has victimized the NRA Board, the majority of them are in no hurry to reprimand him in any way, let alone force him out of his role. Perhaps the NRA’s lawyers can thread the needle in court, but there’s little appreciable distance between the group and its CEO in the real world.
Down at the Shore
I headed down to the shore with my family on Saturday. I’m going to spend the next couple of days trying to relax a bit while also staying up with the news. We’ll see how that goes lol.
The weather is beautiful. The Delaware shore is nice and comfortable. I’ve spent a lot of time down here with friends and family over the years.
I’m looking forward to closing out the summer and recharging a bit. I hope you are all able to do the same. There has been a lot of deal with over the past year and a half. It’s important to unwind when you can.
That’s it for now.
I’ll talk to you all again soon.