I saw this today on the /gunpolitics subreddit of Reddit.
I had to laugh but it is true in California.
I saw this today on the /gunpolitics subreddit of Reddit.
I had to laugh but it is true in California.
A lot of companies talk a great game but rarely do they put their money where their mouth is. Brownells is an exception. Brownells both makes and sells standard capacity magazines. Now they are supporting the fight to overturn California’s ban on these magazines in a big way.
$50,000 big. They just donated $50,000 to the California Rifle and Pistol Association to help fund the legal bills for Duncan v. Becerra.
From their press release:
GRINNELL, Iowa (September 8, 2020) – Brownells is donating $50,000 to the California Rifle & Pistol Association to help fund the fight to restore freedom and standard-capacity magazines to California gun owners.
In August, a three-judge panel of the United States Court of Appeals Ninth Circuit upheld a previous decision against California’s ban on magazines in the Duncan v. Becerra case. The panel determined a ban on magazines with capacity of over 10 rounds violates the 2nd Amendment rights of Californians.
In an effort to delay striking down California’s draconian magazine ban, the California Attorney General’s office petitioned for an en banc review of panel’s ruling, extending the struggle for California gun owners to regain their Constitutionally-guaranteed rights.
To help see that struggle through to a victorious finish, Brownells is contributing $50,000 for CRPA’s efforts to the cause.
“The California Rifle & Pistol Association Foundation is proud of the partnership with Brownells to fight for the rights of all Americans to exercise their Second Amendment rights,” said CRPA Foundation Director of Development Rick Travis. “Brownells’ generous donation will be used 100% in the fight to see the Duncan v. Becerra case to a successful conclusion in restoring the Second Amendment in California.”
If the rulings against California’s magazine ban are upheld, they could serve as precedent in similar decisions against other similar bans enacted by anti-gun politicians in other states.
The California Rifle and Pistol Association has put together a six-page FAQ analyzing the 9th Circuit’s decision in Duncan v. Becerra. More importantly, it goes into detail on what is now legal and what still must wait for a court to act.
CRPA was the organizational plaintiff in the case. They were the ones who actually brought the case on behalf of Virginia Duncan and the other individual plaintiffs. The FAQ was put together by attorney Chuck Michel and his team who were the original attorneys on the case.
Whether you are a dealer, a California resident, or merely someone who wants to help out friends behind enemy lines, I think it is important to read this FAQ so that you stay legal.
The FAQ and legal analysis is found here.
California is one of the few remaining “may issue” states. Given yesterday’s refusal by the Supreme Court to consider a number of carry cases, that isn’t going to change anytime soon.
While some counties in California are effectively “shall issue”, the majority are not. That is the case with Santa Clara County which includes cities like San Jose.
This has led to charges of favoritism towards campaign donors to Sheriff Laurie Smith. NBC News Bay Area has done an investigative report on the issue. They found that there were 749 new applications for a carry permit in the 2014-2018 time period. If you were not a donor to the sheriff’s re-election coffers, you had about a 5.5% chance of obtaining a permit. However, if you were one of the 28 people who donated either directly or indirectly, your chances skyrocketed to a 79% approval rate.
While Sheriff Laurie Smith denies any correlation between campaign donations and CCW permits, the issue is still under investigation by the Santa Clara County DA’s office.
Rob, who publishes 2A Updates on Twitter, noted, “Wow hard to believe a permit system where an elected official has unlimited discretion to approve or deny applications would result in political favoritism.”
This generated a response on Twitter to the effect that the Sheriff should just post the going amount to obtain a permit so that people could budget for it.
The system in California and other states where carry permits are “may issue” is ripe for abuse. You have seen cases in New York City where police officials have been arrested on charges of accepting bribes to issue permits.
Sheriff Smith’s campaign donation approach is just a little less obvious than an envelope full of cash – but not by much.
Olympian Kim Rhode and the California Rifle & Pistol Association won a preliminary injunction against enforcement of California’s ammunition background checks and importation ban yesterday.
US District Court Judge Roger T. Benitez opened his 120 page opinion granting the preliminary injunction by saying:
The experiment has been tried. The casualties have been counted.
California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.
This is a big win for the CRPA, attorney Chuck Michel, and especially the gun owners, new and old, of California.
Judge Benitez went on to conclude:
Together, the background check requirement for all ammunition purchases in California and the anti-importation provisions that prohibit direct sales to residents often effect a complete statutory barrier to the lawful purchase of ammunition. Moreover, the provisions are interlocking and derive from the same section of Proposition 63. See §§ 8.1 through 8.16. The anti-importation provisions are not severable from the ammunition background check requirements. Even if only one part was unconstitutional both parts would need to be enjoined. But severability does not matter here, as both parts fail constitutional muster and require injunctive relief….
It is not the Court’s role to dictate to a state how it should go about attempting to accomplish its goal. If the state objective is to make it extremely difficult, if not impossible, for its law-abiding citizens to purchase protected ammunition, then this law appears to be well-drafted. However, if the genuine object is to keep ammunition out of the hands of those who should not be able to buy it, perhaps the State could create a database (that would include persons prohibited, i.e., aliens
unlawfully present, felons, and others) and simply make that information available to sellers by cross-checking with the magnetic strip on a standard driver’s license and by allowing out-of-state vendors the same ability to engage in commerce as it does California vendors.
I would wager house money that California Attorney General Xavier Becerra will appeal this ruling. As of this morning, he has not nor has he published a press release indicating any acknowledgement of the Judge Benitez’s ruling. If the state does appeal, the question then becomes will they be granted a stay to the preliminary injunction while they appeal the ruling. We will see.
In the meantime, Californians are free of an onerous and unconstitutional burden on their Second Amendment rights.
Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.
Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.
Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.
On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.
When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.
Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.
Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.
Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.
Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.
However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.
The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.
I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.
The above quote comes from Susan Orfanos. She was the mother of Telemachus Orfanos who was one of the victims in the multiple murders committed at the Borderline Bar in Thousand Oaks, California. It was reported on the CBS Evening News for Friday, November 9th.
“He didn’t come home last night,” said his mother, Susan. “I don’t want prayers. I don’t want thoughts. I want gun control and I hope to God nobody else sends me any more prayers. I want gun control. No more guns.”
The link to the story includes the video interview with her and a friend of the murderer.
I can excuse the bitter words of a distraught mother who lost a son. However, I have also gotten emails from both the Brady Campaign and the cult of personality known as Giffords calling for more gun control and asking for donations.
Excuse me but these murders happened in the gun control paradise known as California. Giffords Law Center rates the state an “A”. It is the only state in the Union rated this high. Even New York, New Jersey, and Massachusetts only get A minuses. In the last Brady Campaign rankings I can find from 2015, California was the number one state in terms of adopting the gun control measures they wanted.
Red Flag laws?
Highly restrictive may issue concealed carry?
Ban on open carry?
Assault weapon (sic) bans?
Magazine size restrictions?
Purchase of ammunition only through licensed dealers?
Background check to buy ammo?
Ban carry in establishments that serve alcohol?
The state has every thing that the gun prohibitionists have been calling for to supposedly stop “gun violence” and “mass shootings” and yet it failed. When a murderer is determined to commit evil deeds the weapon really almost becomes irrelevant. It could just as easily have been an attack using a knife as in Melbourne, Australia on Friday. Even worse might have been an arson attack where an exit was illegally locked or blocked. Some of the worst night club fires in the US and the rest of the world have been due to arson.
My point is that there is little that can be done to stop the initial attack even with the most restrictive of laws. Evil people will do what evil people will do.
That said, there are a number of things that might have lessened the toll. For example, if the six off-duty cops there had been allowed to carry in the Borderline Bar, they could have responded with deadly force to stop the murders. Or, for example, as Greg Ellifritz points out, the murderer posted to Facebook and Instagram during the attack which was an opportunity to attack the murderer when he was distracted. While it might have been illegal in California, in many states you can carry in a place that serves alcohol so long as you don’t drink. This would be the place for Designated Defenders as suggested by Massad Ayoob.
I’m not sure how to prevent all mass violence events. I do think Malcolm Gladwell is on to something with his theory of threshholds where each event begets a larger and worse event. Media publicity doesn’t help. I’m not saying that it shouldn’t be reported but restraint and discretion should be exercised. For a start, do like many bloggers and academics have pledged: don’t report the killer’s name. As the No Notoriety campaign suggests focus on the victims and not the killer.
It would be a start. In the meantime, be alert and be careful where you go.
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While I might have been tempted to just say “screw it”, all the individual plaintiffs spent hours trying to comply with the law requiring registration of their firearms. Some of the plaintiffs are IT professionals and tech savvy. Nonetheless, the database system was so screwed up, most of them were not able to do so. The response of Cal DOJ was “you procrastinated, so tough”. From the complaint:
The following Monday, July 2, 2018,
Plaintiff (Terry) Jahraus contacted the DOJ for assistance, but the DOJ official told him, essentially, “it
was [his] responsibility to comply with the law [and] that he had all year to do so.” In other
words, DOJ blamed him for failing to register, even though its own statutorily-mandated
registration system was inaccessible and defective throughout the entire period he had attempted
to register it well before the deadline.
SACRAMENTO, CA (September 24, 2018) — Attorneys for seven California gun owners and five advocacy organizations announced a new court filing in a now-federal constitutional rights lawsuit over the State of California’s “assault weapon” registration debacle. The case, Sharp, et al. v. Attorney General Xavier Becerra, et al., was originally filed in the County of Shasta Superior Court. But in late August it was removed to federal district court in Sacramento at the request of Attorney General Xavier Becerra and the DOJ defendants. The new court filing is online at https://www.firearmspolicy.org/sharp.
On August 24, the California Attorney General moved the case to federal court on the basis that the plaintiffs’ claims present a federal constitutional question, in addition to their state-based claims. That same day, the lawsuit was assigned to District Court Judge Morrison C. England, Jr. Two years ago, Judge England issued a bench ruling to enjoin a California statute that criminalized the use of Assembly video footage in political advertisements in a case brought by Firearms Policy Coalition and its Proposition 63 ballot initiative political committee, FPC Second Amendment Defense Committee.
“While it’s interesting that Attorney General Becerra doesn’t want his own state’s courts to hear how badly he mis-administered the mandated firearm registration program, we welcome the opportunity to show Judge England how the DOJ violated the constitutional rights of the plaintiffs and others like them,” said George M. Lee, lead counsel for the plaintiffs. “General Becerra’s actions and failures affected many gun owners from San Diego to Eureka. These law-abiding gun owners tried to register their weapons as required by law but could not do so because DOJ’s registration system was wholly inadequate to do the job. We are simply asking that those injuries be reasonably remedied so that those citizens are not subject to criminal liability for possessing illegal, unregistered weapons – solely as a result of DOJ’s failures.”
In the latest complaint, submitted last Friday, the plaintiffs added a claim for deprivation of their due process rights under Title 42, Section 1983 of the United States Code. The complaint also adds as an institutional plaintiff the Madison Society Foundation, a nonprofit organization that fights to protect the right to keep and bear arms.
The plaintiffs say that Becerra and the DOJ had a legal and constitutional duty to provide a functional registration system during the registration period, but that they were unable to exercise their own rights and legal duties “due to the Defendants’ actions and failures, including but not limited to the inaccessibility, defects, and/or non-functionality of the DOJ’s CFARS-based registration system.” The plaintiffs alleged that the DOJ’s ‘botched’ “assault weapon” registration scheme – including the error-prone Internet application for registration that often crashed completely – violated both the U.S. Constitution and California Constitution’s guarantees of due process. They also allege that the failed DOJ system violated the plaintiffs’ and other similar gun owners’ statutory rights.
“Even though the lawsuit is now in a federal district court, it’s still just a straight-forward case about how Attorney General Becerra and his DOJ didn’t do the job they were mandated to do,” explained Firearms Policy Coalition President Brandon Combs. “Their actions and failures violated the rights of thousands of California gun owners. It’s just that simple.”
Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and potentially subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.
The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”
“This unjust California government-created problem must be stopped immediately,” Second Amendment Foundation Founder and Executive Vice President, Alan Gottlieb, said in a previous statement. “Gun owners should not be put at risk due to state regulatory incompetence.”
The plaintiffs said that they would soon be asking Judge England for a preliminary injunction to protect affected gun owners’ rights and property while the case goes forward to summary judgement or trial.
The plaintiffs are represented by attorneys George M. Lee and Douglas Applegate of San Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor. Attorneys Bradley Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group, who earlier this month secured a major First Amendment victory in a case that challenged a different California gun control statute that banned truthful, non-misleading speech about handguns, have been added to the legal team.
The lawsuit is backed by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.
Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to, or who suffered a privacy breach at DOJ, should contact the organizations’ Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.
Just when you thought California had more than enough gun control laws, the California legislature sends nine more to Gov. Jerry Brown (D-CA) for signature. With some sort of luck, he may – and I emphasize “may” – veto some of these laws. He has done that in the past.
Gun law attorney Adam Kraut discusses a number of these laws in this video from The Gun Collective. He also has some great alternative names to the official ones for these laws.
If you would like to know even more about these bill and would like to let Gov. Brown know your opinion on them, the Firearms Policy Coalition gives you that info in this release that went out on Friday.
FPC Seeks Veto of 9 Gun Bills from California Gov. Jerry Brown,
Asks for Approval of Public Records Act Bill
SACRAMENTO, CA (September 7, 2018) — Today, Firearms Policy Coalition asked California Governor Jerry Brown to veto nine “dangerous” gun bills that would “radically change” the state’s already-voluminous and complex laws. The advocacy organization also requested that Gov. Brown sign one bill that would help prevent state and local agencies from abusing the Public Records Act attorney fee provisions to chill the public’s right to access government files.
Historically, Brown signs most bills sent to him by the Legislature. But, FPC said, he does sometimes veto bills that don’t make sense to him and has rejected gun bills in the past. FPC’s legislative advocate and spokesperson, Craig DeLuz, thinks that Brown has plenty of reasons to reject the nine gun bills they oppose. “Some of these pieces of legislation are just headline-grabbing garbage because it’s an election year,” he said. “And Brown has vetoed some of these bills before, for good reasons. He may just put the brakes on expanding California gun laws in the last year of his last term to leave these decisions to the next governor.”
SB 1177, “just a few months ago an Education Code bill – would make it a crime to apply for the otherwise lawful purchase of a constitutionally protected firearm more than once a month. This bill is a case study of what happens when opportunistic legislators don’t have any real rules (or ethics),” FPC said in a letter. “The sky is blue, the sun sets in the west, and SB 1177 is yet another ego and animus-driven bill to put Senator Portanino’s name in bold print on yet another bill to attack the right to keep and bear arms.”
Another letter points out that San Francisco state senator Wiener’s SB 221 puts people and rights he doesn’t like in the crosshairs of the state. The bill, that would ban gun shows at the Cow Palace in Daly City if signed, was a health-related bill until it was “gutted and amended” just a few months ago. “In SB 221 the Legislature has targeted for especially unfavorable treatment those who would have the audacity to peacefully exercise their fundamental, individual rights protected under the First, Second, and Fourteenth Amendments,” FPC argued.
FPC-opposed bills that were passed by the Legislature include AB 1903, AB 1968, AB 2103, AB 2888, AB 3129, SB 221, SB 1100, SB 1177, and SB 1346. FPC supports SB 1244, a Public Records Act bill, by Bay Area Senator Bob Wieckowski.
Gun owners are encouraged to send Governor Brown a message voicing their opinion using FPC’s free Grassroots Take Action Tools at http://bit.ly/2018-ca-gov-brown .
FPC’s letters to California Governor Jerry Brown can be viewed or downloaded at http://bit.ly/fpc-2018-9-7-gov-brown-letters .
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.
Reason.com 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.