The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The ACLU Defends the NRA
David Cole writes in defense of the National Rifle Association
New York Attorney General Letitia James is asking a court to dissolve the National Rifle Association due to alleged financial improprieties by the NRA's leadership. According to James:
The NRA's influence has been so powerful that the organization went unchecked for decades while top executives funneled millions into their own pockets. . . . The NRA is fraught with fraud and abuse, which is why, today, we seek to dissolve the NRA, because no organization is above the law.
Such a move would certainly put an end to the alleged fraud and abuse. It would also deprive gun owners of a powerful political ally.
David Cole, national legal director of the American Civil Liberties Union, has taken to the WSJ editorial page to defend the NRA from James's suit, highlighting the danger of allowing elected officials to target and dissolve political nonprofits they oppose. As Cole notes, "If the New York attorney general can do this to the NRA, why couldn't the attorney general of a red state take similar action against the ACLU, the AFL-CIO, Common Cause, or Everytown for Gun Safety?"
Cole writes:
Our democracy is premised on the right of association. The First Amendment protects not only the right to speak, but also to band together with others to advance one's views. Making or resisting change in a democracy requires collective action, and a healthy democracy therefore demands a robust "civil society." The right to associate can't survive if officials can shut down organizations with which they disagree. . . .
[W]e believe Ms. James has also gone too far. Dissolution of a nonprofit is the most extreme remedy state regulators can seek. It has historically been reserved for organizations that are essentially false fronts for personal gain. . . .
Dissolution is proper only where a corporation is so subsumed by waste, misuse or fraud that it no longer fulfills a charitable purpose. There is simply no precedent for such extreme action against an organization like the NRA, which, whether you like it or not, has been serving charitable purposes very effectively (indeed, many of its opponents would say, too effectively) for a century and a half. And even if the threat of dissolution is meant only to gain leverage for a deal, threats of unconstitutional action ought not be a part of the attorney general's arsenal.
Cole is correct. If specific NRA officials have abused their positions they should be removed. If they committed crimes, they should be prosecuted. But the ability of the NRA's members to associate and pursue their political priorities should not be impaired due to the malfeasance of NRA officials.
