ACLU Finally Stepping Up In NY And California

The state branches of the American Civil Liberties Union in New York and California appear to be stepping up to oppose measures aimed at the gun culture.

First, in California. The ACLU is joining with groups like the Firearms Policy Coalition to oppose AB 1968 which mandates a lifetime ban on firearm ownership by anyone who has been involuntarily admitted to a mental health facility more than once in one year.

In a letter to Assemblyman Evan Low (D-Campbell) who is the author of the bill, they said:

“This bill stigmatizes people with a history of mental health issues, and perpetuates the harmful and false stereotype that such people are inherently violent and dangerous.”

As AWR Hawkins notes in an article in Breitbart, the bill’s approach is essentially the same as that was used to deny Social Security recipients that needed help managing their monies. That is, it didn’t differentiate between non-violent and violent behavior and lumped them all together.

Duke University psychiatrist and behavior health professor Jeffrey Swanson had an op-ed in the Washington Post at the time criticizing this lumping together. He said then, ““the vast majority of mentally ill individuals pose no threat to themselves nor to others. Yet the ban stigmatized a broad swath of the mentally ill by treating them as a threat.

Now on to New York where the ACLU filed an amicus brief supporting the NRA in their lawsuit against Gov. Andrew Cuomo (D-NY). To me, this is the more important of the two because the ACLU’s defense of the NRA rightly points out the danger of using the administrative state against any organization that is out of favor at the time with a politician. describes the efforts of the Cuomo administration to deny the NRA the ability to obtain banking and insurance coverages.

A timeline prepared by the NRA suggests the intimidation campaign began last fall. The anti-gun group Everytown for Gun Safety met with New York officials in September 2017; a month later the Department of Financial Services began an investigation that started with a company called Lockton, which administered the NRA-branded personal liability insurance program known as Carry Guard. Despite a 20-year relationship, Lockton responded by abruptly ditching the NRA as a customer in February; so did Chubb and Lloyd’s.

Emboldened by this initial success, Maria Vullo, head of the state’s Department of Financial Services, sent a pair of ominous letters to all banks, financial institutions, and insurers licensed to do business in New York. Vullo warned companies to sever ties with pro-Second Amendment groups that “promote guns and lead to senseless violence” and instead heed “the voices of the passionate, courageous, and articulate young people” calling for more restrictions on firearms. All companies receiving the letter, she advised, should “review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”

New York Gov. Andrew Cuomo underlined the regulatory threat in a tweet the next day: “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.'”

As a result of those not-very-veiled threats, the NRA says, multiple banks withdrew bids to provide basic depository services. The NRA is also worried about being able to continue producing its NRA TV channel, with hosts including Dana Loesch and Cam Edwards, unless it can obtain normal media liability insurance.

David Cole, the ACLU Legal Director, explained in a blog post why they filed their amicus brief even though they still cling to a collective right view of the Second Amendment.

In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.

His blog post points out that while it may be the NRA that is targeted today, it could be a liberal group that is being targeted tomorrow for “disapproved speech” and that violates the First Amendment.

The amicus brief opposes NY’s motion to dismiss the NRA’s case. Their argument centers on two major points. First, that the court must consider all circumstances to determine whether or not Cuomo and company threatened adverse actions against the NRA’s banks and insurers. In essence, it urges the court to look beyond the “wink-wink, nudge-nudge” wording of the press releases and guidance letters and look to the substance of what was being communicated. That is, if you do business with the NRA we will consider it a reputational risk and make it hard for you to do any business in New York State.

The second argument in the amicus brief is that Cuomo and the other defendants misstated the requirements for a First Amendment claim. The ACLU says the requirements to make a First Amendment claim are rather straightforward and the NRA met the standard. However, the defendants (Cuomo and company) have tried to add some “non-existent requirements on to the test.” The brief then takes these apart one after another and finds they have no merit. They conclude that the NRA’s lawsuit should not be dismissed and that the case should go forward.

While I don’t agree with the ACLU on a lot of things and certainly not their incorrect interpretation of the Second Amendment, I do applaud their efforts in both California and New York State. It isn the latter case where I think they’ve really stepped up in their protection of constitutional rights.

ACLU FIles Brief In Support Of TrainMeAZ’s Appeal

After the Arizona legislature passed Constitutional carry in 2010, Alan Korwin started a billboard and transit ad campaign called TrainMeAZ to promote gun safety instruction among other things. Unfortunately, the City of Phoenix censored the transit ads by removing them because, in their words, it didn’t meet their ad standards. Korwin promptly sued and was aided in the lawsuit by the Goldwater Institute.

Last October, the trial court found for the City of Phoenix and denied the motion for summary judgement by the Goldwater Institute. The case has been appealed to the Arizona Court of Appeals. Yesterday, the American Civil Liberties Union filed an amicus brief in support of the Goldwater Institute and Alan Korwin.

From the press release announcing the brief:



Unlikely alliance between organizations highlights case’s importance to fundamental freedoms

The American Civil Liberties Union has filed a friend-of-the-court brief supporting the Goldwater Institute’s appeal in Korwin v. Cotton, a free-speech challenge to Phoenix’s transit advertising standards that were applied to remove 50 “Guns Save Live” advertisements from the city’s bus shelters.

“This case has profound implications beyond whether Appellants can post their proposed advertisement on City of Phoenix bus shelters,” the ACLU’s brief argues. “It involves the scope of the Arizona Constitution’s grant to all persons the right to freely speak, write and publish on all subjects.”

The City’s policy forbids non-commercial advertising on city buses and transit shelters. In 2010, plaintiff Alan Korwin and his company, TrainMeAZ, purchased 50 transit shelter ads designed to drive business to their gun-training website. The ads pictured a large heart with “Guns Save Lives,” followed by the group’s website.

Even though the ads were commercial in nature, the City removed the ads, despite approving “Jesus Heals,” Veterans’ Administration, and water-conservation advertisements that did not appear to propose a commercial transaction.

“The City’s arbitrary decision-making is exactly the type of censorship the U.S. and Arizona Constitutions forbid,” said Clint Bolick, Vice President for Litigation at the Goldwater Institute, who characterized the City’s policy as “we sort-of know it when we see it.”

The Maricopa County Superior Court (a lower court) upheld the City’s actions in a 2012 decision. The case is now before the Arizona Court of Appeals.

“This odd-couple alliance between the Goldwater Institute and the ACLU highlights the importance of the case to our fundamental freedoms,” said Bolick.

The case is expected to be argued in the Court of Appeals later this year.

A copy of the ACLU amicus brief can be found here under “Case Documents”:


“I am thrilled to see the ACLU get behind this case,” said Alan Korwin, the Appellant in the case and an ACLU member for decades, “It is the right thing to do. Phoenix was out of its mind to tear down our bus-stop ads in the middle of the night without notice.

I have supported many of ACLU’s efforts on free speech, and they figured prominently in my 12th book about things you’re not allowed to say, Bomb Jokes at Airports.

“This case is about free speech, which is central to everything I’ve been doing as a writer and publisher for nearly three decades,” he said. “It is particularly gratifying though that the substance here is gun safety, at a time when the national scene is dominated by efforts to restrict gun rights for the public.”

Say v. Adams: An Earlier ACLU Case Challenging CCW Restrictions

A lawsuit brought by the American Civil Liberties Union of South Dakota on behalf of legal immigrant Wayne Smith has generated a lot of interest. The very fact that the ACLU is representing Mr. Smith over the denial of his concealed carry permit is part of it. The other aspect of the case generating some interest is that the NRA is in favor of permanent resident aliens getting CCW permits while it appears that Gun Owners of America has had a mixed response.

The South Dakota suit is very similar to a lawsuit decided in Kentucky back in 2008. The details of that case as well as the legal outcome will help us to understand the current case. In that case, Alexander Say, an attorney and a Permanent Resident, – that is, he held a “green card” – had lived in Kentucky since 1995.

In July 2006, Mr. Say applied to the Jefferson County Sheriff’s Department for a Concealed Deadly Weapon (CCDW) permit. He was told he was not eligible because he was not a U.S. citizen. The Commonwealth of Kentucky that same July had changed their law to now make citizenship a prerequisite for a CCDW. But for that, Mr. Say had met all the other requirements to be granted a CCDW.

Kentucky had changed their requirements for a CCDW so as to gain Federal approval of their CCDW as a substitute for a telephone NICS check. However, a NICS check for a non-citizen requires an Illegal Alien Query (IAQ) conducted through U.S. Immigration and Customs Enforcement. However, the Kentucky State Police didn’t conduct an IAQ before issuing a CCDW. With a requirement that the CCDW applicant be a citizen, then this was no longer an issue and the CCDW would qualify as a substitute for NICS purposes.

This case, like the South Dakota case, was brought by the ACLU. They challenged the denial of Mr. Say’s CCDW application on the grounds that it was a violation of the Equal Protection Clause of the Fourteenth Amendment. They sought a preliminary injunction that was granted by U.S. District Court Judge Thomas Russell.

When determining whether a preliminary injunction is appropriate, the court must consider four factors. First, does the plaintiff have a strong chance of success  based upon the merits. Second, would the plaintiff suffer irreparable injury if not granted the injunction. Third, would the preliminary injunction cause substantial harm to others. Finally, the court must consider if the public interest would be served by the injunction.

In determining whether the plaintiff had a strong likelihood of succss, Judge Russell first looked at what standard of scrutiny was appropriate. While alienage is a suspect class, not all aliens are afforded the protection. Based upon both Supreme Court and Sixth Circuit precedent, only aliens who are permanent resident aliens – which Mr. Say was – are entitled to strict scrutiny. Illegal aliens, non-resident aliens, and others such as those on student or tourist visas are not considered part of a suspect class. Since Mr. Say was entitled to strict scrutiny, the Kentucky exclusion of permanent resident aliens must be both narrowly drawn and serve a compelling governmental interest. Judge Russell found:

Defendants have not satisfied their burden to show why this is a substantial state interest.The Court cannot find that a state’s interest in substituting a state background check for a federal background check is compelling enough to justify creating a classification that discriminates against a suspect class.

Furthermore, the citizenship provision is not narrowly tailored to achieve this governmental interest. A blanket prohibition discriminating against aliens is not precisely draw to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals. As discussed below, if the Kentucky State Police undertakes some administrative burden, it is possible to allow permanent resident aliens to obtain a CCDW license, and still meet the requirements necessary to allow CCDW holders to avoid the NICS inquiry at the time of purchase.

The second leg of the test is irreparable injury if an injunction is not granted. Courts have consistently found that a violation of a constitutional rights constitutes irreparable harm. Judge Russell found that “the violation of the Equal Protection Clause qualifies as an irreparable injury, especially when consider in light of Plaintiff’s likelihood of success.”

The third leg of the test is serious harm to others. The court noted that the Kentucky State Police would have a greater administrative burden if the CCDW was not accepted as a substitute for the NICS check. Furthermore, Kentucky CCDW holders would have to undergo the telephone NICS check. The court found this harm when balanced against the harm of not granting the injunction was “not substantial enough to justify the violation of Plaintiff’s constitutional rights.”

The final leg of the test is whether the injunction was in the public interest. According to Sixth Circuit precedent, it is always in the public interest to prevent violations of constitutional interests. After balancing all of the factors, Judge Russell granted the preliminary injunction to Mr. Say.

The injunction was not the end of this matter. Following the injunction, the Kentucky legislature changed the CCDW law to specify permanent legal residents were eligible for concealed carry permits. When the outcome of Say v. Adams is applied to the South Dakota case, I think there is a strong probability that Wayne Smith will get his concealed carry permit. South Dakota Secretary of State Jason Gant has said in an interview that the legislature may have overlooked the distinction between illegal aliens and permanent legal residents when drafting the 2002 law. He goes on to add that he has heard the legislature will be discussing legislation on this issue when they reconvene this month.

UPDATE: The Yankton (SD) Press and Dakotan has a story about the Smith case today. According to this account, the political leaders of South Dakota don’t seem to be in a hurry to change their CCW law.

Senate Republican Leader Russell Olson, of Wentworth, said his main priority is preserving gun rights for U.S. citizens.

“I’ll fight for the rights of the citizens of South Dakota,” Olson said Friday. “My concern is for the citizens of our state and our nation.”

“Foreign nationals don’t fall under my umbrella,” he added in a separate interview.

House Republican Leader David Lust, of Rapid City, said he hasn’t studied the issue enough to take a position.

The House Minority Leader Bernie Hunhoff, a Yankton Democrat, said he was OK with changing the law to include permanent legal residents but that it would take support from the Republicans to make the change.

South Dakota Governor Dennis Daugaard, a Republican, said he would need to see the language of the any changes before he decided one way or another.

My guess is that Wayne Smith and the ACLU will win in court and the law will be changed whether these political leaders want to do it or not. Given court precedent in the Say case plus Supreme Court precedent making discrimination based on the origins of permanent legal residents subject to strict scrutiny, a proactive approach to making these changes would be the smart thing to do. The fact that the change in the CCW law was a reaction to the terrorist attacks of 9-11 would seem to me to be a weaker rationale than that of Kentucky’s where they wanted to reduce administrative burdens.

From a political standpoint, the Republican leaders need to wake up or they will find themselves scooped on a gun rights issue by the Democrats. They need to remember that many gun owners vote gun rights first and party label second.