The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If you're looking for a website like QAnon, but catering to gun control advocates, you will enjoy some articles from The Trace, a gun control website founded and funded by Michael Bloomberg. In August, The Trace presented a conspiracy about the amicus briefs filed in New York State Rifle & Pistol Association v. Bruen. The article was reprinted by Politico. Will Van Sant, The NRA's Shadowy Supreme Court Lobbying Campaign, Politico, Aug. 5, 2022.
The 12-brief conspiracy
The Politico reprint of the Trace article opens with snazzy graphics. Forty-nine amicus brief were submitted in the Bruen case: "12 of those briefs were filed by people or institutions who had received millions of dollars from the NRA, a Trace and Politico Magazine investigation found. Only 1 brief disclosed the financial connection." According to Van Sant, "neither the justices nor the public were told that 11 of these ostensibly independent voices owed their livelihoods in part to the NRA." Let's look at some of his examples.
In 1991, the Law Enforcement Alliance of America (LEAA) was created by San Jose police officer Leroy Pyle. The then-police chief of San Jose, Joseph McNamara, was one of the leading gun control spokesmen in America. McNamara attempted to fire Pyle for Pyle's Second Amendment advocacy. Pyle ended up winning his case, thanks in part to the excellent work of his attorney, who happened to be the daughter of California Senator Dianne Feinstein. Later, Jim Fotis succeeded Pyle as head of LEAA, and LEAA received substantial donations from NRA. Although LEAA is apparently now defunct, in its day it advocated for the viewpoint of most rank and file law enforcement officers: skepticism about gun control and support for strict punishment of violent criminals.
In Bruen, an amicus brief was filed by The League for Sportsmen, Law Enforcement and Defense, which is based in Virginia. Van Sant's article reports:
"Those of us involved with the League have been involved in 2nd Amendment advocacy for decades," attorney Christopher Day, counsel of record on the brief, said by email in response to a request for comment. "The League is not affiliated with the NRA, nor received any financial support from them." The League is led by James Fotis, who for many years oversaw an NRA-supported effort to elect judges and state attorneys general who opposed firearms restrictions.
According to Van Sant, it was "shadowy" for the League's 2021 brief not to disclose in that brief that the League's president had, years before, headed an organization that received NRA grants.
That is not what the Supreme Court Rules say, nor should they. Consider some career attorneys at the U.S. Department of Justice. During their employment, they "owed their livelihoods" (Van Sant's phrase) to the DOJ. Later, they left the DOJ for private practice, and still later they wrote an amicus brief supporting a DOJ position in a Supreme Court case. Per Van Sant's theory, the former DOJ lawyers must disclose their past DOJ employment in their amicus brief.
A similar situation arises for former NRA General Counsel Bob Dowlut. He retired from the NRA several years ago, when he turned 70. In Bruen, he penned an amicus brief for the Bay Colony Weapons Collectors. According to that organization's head, Karen McNutt, Bay Colony paid Dowlut a "nominal sum" and his work was essentially pro bono. She said "I don't think the NRA was funding this in any way. And I don't think Bob was getting any money to do this." Van Sant does not dispute these facts, but he nevertheless calls Dowlut "shadowy" for not disclosing his former employer in the brief.
Then there's Stephen Halbrook, a private practitioner in Virginia. Starting in the 1980s, he represented the NRA in numerous cases. In those cases and others, he has compiled a 5-0 record in the Supreme Court.
While Halbrook has authored many NRA briefs, his amicus briefs in recent years, including in Bruen, have been on behalf of the National African American Gun Association. No surprise, since Halbrook has done more than any other scholar to research and describe the Reconstruction Era history of gun control laws aimed at disarming the Freedmen, and the congressional response. See, e.g., Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (2d ed. 2010).
According to Van Sant, because the NRA has been one of many clients in Halbrook's private practice, he was "shadowy" for not disclosing in a 2021 amicus brief for a different organization that the NRA has also been a client.
Even former Solicitor General Paul Clement is purported to be in on the "shadowy" conspiracy. Clement, the winning attorney in Bruen, joined the board of the Bradley Foundation in 2020. Van Sant writes:
"In 2020 and 2021, Bradley made grants totaling $2 million to groups that filed pro-NRA amicus briefs in Bruen. Grantees included the Independence Institute, Kopel's Colorado think tank, which received $300,000 during those two years, and the Claremont Institute, which received $200,000 during the same period."
This was news to me, and unsurprisingly so since I don't work in Development. When the Independence Institute's staff are preparing a grant application with a Second Amendment angle, they do ask me for supporting information. I inquired about the Bradley grant and was told that $150,000 annual Bradley grants were given in 2020 and 2021. I was informed: "These funds are restricted to" particular other policy centers at the Independence Institute "and do not fund 2A work at all." "So this [Trace] article doesn't have all the facts." Van Sant had not bothered to ask us.
Van Sant traces his grand conspiracy to a January 2018 meeting of the NRA Civil Rights Defense Fund. According to the minutes of the meeting, the Fund approved a grant to the New York State Rifle & Pistol Association for the case that eventually became Bruen. Like many of the lawyers named in Van Sant's article, I attended that meeting. NRA members can attend CRDF meetings, and before the pandemic, many pro-Second Amendment lawyers, including me, often attended the thrice-annual meetings of the NRA board and related committees. There, we talked shop, exchanged ideas, and so on.
But Van Sant sees something more. This January 2018 meeting was the birthplace of the grand conspiracy of the supposedly "coordinated" amicus briefs three years later in Bruen. A typical CRDF meeting involves presentations for several dozen grant proposals, most of them involving attorneys representing defendants caught up in unfair enforcement of local gun laws, ranges resisting attempted closure by local officials, and the like. The CRDF board then goes into executive session to consider the grants, and the visiting lawyers and other NRA members must leave the room.
As Van Sant accurately reports, I paid no attention to Bruen until the cert. grant in April 2021. Just as I paid no attention to a variety of other cases that were launched in hopes of eventually getting a cert. grant, such as Rogers v. Grewel (cert. denied 2020, with Justices Thomas and Kavanaugh dissenting). The cases I focus on are the ones I write about, or for which I write amicus briefs; these included two of the cert. petitions that the Court granted, vacated, and remanded the week after Bruen.
At least from my perspective, NRA "coordination" of amicus briefs in Bruen was nonexistent. I have written dozens of amicus briefs, and Bruen was the only time a side that I was supporting refused to supply any information. The normal procedure is that a party's lawyers know who the friendly amici are and share a list with other friendly amici. That way, all the amici can "coordinate" (as the practice manuals urge) by ensuring that the contents of their various briefs address different topics and do not overlap.
Van Sant writes, "the current disclosure rule doesn't contemplate the level of coordination that exists between filers and counsel for cases." Actually, in Bruen the level of coordination was zero.
The Trace pipeline to Whitehouse
The next time Sen. Sheldon Whitehouse (D-R.I) takes the floor to describe his imaginative conspiracy theories about amicus briefs, the recent article from The Trace will likely contribute to his material. Last November, Sen. Whitehouse used a previous article by Van Sant, about me, as part of his amicus conspiracy storytelling.
In October 2021, Van Sant apparently thought that he had discovered a scoop: the Independence Institute, where I work, has received substantial grants from the NRA Foundation. This is not exactly news. The Independence Institute respects the privacy of all our donors, and we disclose them to the extent required by law. However, if a donor chooses to disclose, we will confirm the donor's statement. For years the NRA Foundation has disclosed all its grants, including the amounts, in its annual reports and public filings.
The first law review article to note the funding was written in 1998 by Carl Bogus, a law professor at Roger Williams College who advocates for gun control. "Libertarian think tanks and the National Rifle Association (NRA) generously funded the research of activist authors such as Stephen Halbrook, Don Kates, and David Kopel." Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 316 (1998)
So when the Washington Post asked me about NRA grants in May 2013, I answered accurately, and the Post described the Independence Institute as "a legal think tank that receives NRA funding." As debate begins, Senate background check proposal for gun sales lacks necessary votes, Wash. Post, May 2, 2013. To be precise, the Independence Institute is not solely a "legal" think tank. We work on many issues in many ways, and legal work is well under 10% of our total output. In response to other media queries about NRA donations, Independence Institute President Jon Caldara has repeatedly stated that the Institute is "proud" to receive support from "America's oldest civil rights organization."
In October 2021, Russian hackers broke into the NRA Foundation's records, and when the NRA wouldn't pay ransom, the hackers published the material on the dark web. The material included a grant application I had written. Since the Independence Institute making a grant application to the NRA Foundation is not new news, Van Sant created a fresh angle, claiming that two of my recent Supreme Court amicus briefs should have disclosed NRA Foundation donations.
In June 2021, I had co-authored an amicus brief in New York State Rifle & Pistol Association v. Bruen. The amicus brief was on behalf of "Professors of Second Amendment Law, Weld County, Colorado, Weld County Sheriff Steve Reams, Independence Institute, and Firearms Policy Foundation." The other amicus brief, filed in 2019 for New York State Rifle and Pistol Association v. New York City, was on behalf of "Professors of Second Amendment Law, Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, Jews for the Preservation of Firearms Ownership, Millennial Policy Center, and Independence Institute." In May 2020, the Court ruled 6-3 that the New York City case was moot.
As I pointed out to Van Sant in an email exchange this summer, there was no NRA Foundation grant when I wrote the Bruen brief in April-June 2021. Yet he refused to correct his November 2021 article The NRA Paid a Gun Rights Activist to File SCOTUS Briefs. "Point me to the sentence that is factually incorrect," he wrote. The sentences that are factually incorrect begin with the first paragraph:
The NRA Foundation has paid an attorney and Second Amendment activist to write favorable briefs in Supreme Court cases, suggests a hacked document released on the dark web last week. Since 2019, that attorney has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York's gun licensing requirements that is being heard today. The briefs did not disclose the funding, allowing the NRA to buttress its affiliate's arguments while concealing the effort from judges and the public.
There are two falsehoods in this first paragraph. First, there was no NRA Foundation grant when I wrote the Bruen brief.
Second, the Independence Institute has never been an "affiliate" of the NRA. An affiliate has some sort of official relationship. For example, the Colorado State Shooting Association is an affiliate of the NRA. Therefore, the NRA Competitions Division recognizes scores from CSSA shooting matches just the same as if the match had been conducted by NRA itself. The think tank where I work, the Independence Institute, has solicited and received grants from the NRA Foundation. That doesn't make us an "affiliate," just as we are not an "affiliate" of any other donor.
Although Van Sant refused to correct his November 2021 article, his August 2022 article did include the fact that there was no NRA Foundation grant when I wrote the Bruen brief.
His decision not to correct the November 2021 article, which contains known false statements, violates the Society of Professional Journalists Code of Ethics, which states: "Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly."
The actual Supreme Court Rules
Van Sant keeps shifting the standard that he claims to apply. He starts off looking for violations of the actual Supreme Court Rules; finding none, he invents his own standards and calls people unethical for not obeying his imaginary rules. Recall his attacks on Jim Fotis, who presently runs an organization that has never received NRA funding. Per Van Sant, a 2021 amicus brief from Fotis's present organization should have disclosed that years before Fotis led an organization that did receive NRA funding.
The Trace's Van Sant wrote to me in 2021 accusing me of violating Supreme Court Rule 37.6. That rule states:
Except for briefs presented on behalf of amicus curiae listed in Rule 37.4, a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such contribution. The disclosure shall be made in the first footnote on the first page of text.
In the article that Van Sant wrote several days later, he quoted Sen. Whitehouse accurately describing the Court's interpretation of Rule 37.6:
The court itself, Whitehouse stated, has accepted a reading of "preparing or submitting" that is "so narrow as to encompass only the costs of formatting, printing, and delivering the specific brief in the specific case at issue."
For the 2019 brief and the 2021 brief, the costs of "preparing or submitting"—that is, "the costs of formatting, printing, and delivering the specific brief in the specific case," were paid by other amici, not by the Independence Institute. Any footnote 1 description of Independence Institute donors would have been improper, according to the Court's interpretation of the Court's Rules.
Van Sant's email to me had argued that a footnote 1 statement was mandatory because the NRA was a "party" in the above cases. In fact, the plaintiffs were the New York State Rifle & Pistol Association (NYSRPA) and individual New Yorkers. None of the plaintiffs have ever made any contribution to the Independence Institute. If the NRA had been a party and the Independence Institute had paid for "preparing or submitting" the briefs, I would have made a disclosure, as I did in my 2009 amicus brief in McDonald v. City of Chicago, which was consolidated with the case NRA v. Oak Park.
Van Sant's original theory was that disclosure was required in NYSRPA v. Bruen because one member of the NYSRPA board of directors, President Tom King, is also a member of the NRA's 76-person board of directors. In New York and other states, there are competitive shooting and training associations that are legally affiliated with NRA. All of these associations, including NYSRPA, are self-governing and incorporated in their home states.
Compliant with Van Sant's stated deadline for a response, Independence Institute President Jon Caldara sent Van Sant the following:
Mr. Van Sant:
The Independence Institute respects the privacy of all our donors and employees.
As you are likely aware, for years the NRA Foundation has, via its public filings, disclosed grants to the Independence Institute, and the Independence Institute has confirmed to media the receipt of those grants. There is no secret about this.
The Independence Institute, including David Kopel, participates in amicus briefs on many topics. None of our donors choose which cases we are involved in.
Supreme Court Rule 37.4 [sic, 37.6] applies to "counsel for a party…or a party." The NRA Foundation was not a party in either of the New York State Rifle & Pistol Association cases. Neither was the NRA.
There are thousands of gun clubs and state or local associations that have chosen to have a formal relationship with NRA. These include the New York State Rifle & Pistol Association. By Supreme Court rules, these organizations are plainly not treated as if they were the NRA itself. If the Supreme Court considered them to be the same as the NRA for the purpose of Supreme Court rules, then these organizations would not have been allowed to file amicus briefs in cases where the NRA itself was a party, such as NRA v. Oak Park.
President, Independence Institute
Meanwhile, I was busy writing articles for the Volokh website about some of the briefs in the Bruen case. One of those articles examined a brief by Everytown for Gun Safety. Like The Trace, Everytown was created and funded by Michael Bloomberg. My article argued that Everytown's amicus brief had chopped historical quotes to alter their meaning and had cited sources that, when reviewed, actually said the opposite of what Everytown claimed.
A few hours later, Van Sant published his article. It was headlined: "The NRA Paid a Gun Rights Activist to File SCOTUS Briefs. He Didn't Disclose it to the Court. Hacked documents provide a rare glimpse into the gun group's efforts to seek influence at the Supreme Court, which is now hearing a major public carry case."
Van Sant's article did not address his earlier theory that NYSRPA being a party meant that the NRA was also a party. His new theory, never announced in his emails to me, was that I had violated a different portion of Supreme Court Rule 37, which requires amici to disclose who "made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such contribution." For the moment, put aside the fact that the Supreme Court says this applies only to printing and delivery costs, neither of which the Independence Institute paid.
Applying Van Sant's idea would mean that the Independence Institute (and, presumably, every other amicus organization) should disclose every donor in the first footnote of every brief, or at least every donor whose donation was intended in part to help with amicus briefs in general. This would include every donor who contributes to the Independence Institute, since our donors know that some of our work includes amicus briefs.
These days, grant applications, including for the NRA Foundation, often include a section for metrics, and so the Independence Institute's grant applications list all our outputs that can be quantified. My proposal enumerated the following quantifiable metrics: books, scholarly journal articles, newspaper or magazine op-eds, amicus briefs, media appearances on national and local television and radio and internet media, and citations in judicial opinions, newspaper and magazine articles, scholarly journals, books, and other media. The Trace quoted a political science professor who said that including amicus briefs among the metrics meant that I was supposed to list the NRA Foundation in footnote 1 of all my amicus briefs. But that is incorrect as a matter of law—as Senator Whitehouse accurately stated.
Rather than adhering to The Trace's fanciful interpretation of Supreme Court Rules, the Independence Institute adheres to the rules themselves. So do the briefs filed by Everytown for Gun Safety, The Trace's sister organization. Everytown amicus briefs never disclose donors, including donors who contributed with the intent that some of the donation would be used to fund amicus briefs.
Nevertheless, Senator Whitehouse took to the Senate floor on November 17, 2021, for another episode in his long-running series of speeches and poster boards about "dark money." As has been observed by the Wall Street Journal, the Washington Examiner, National Review, and Prof. Jonathan Adler's Senate testimony, Whitehouse's performances about conservative "dark money" are sometimes factually inaccurate, and always ignore the large amount of "dark money" that goes to left-wing groups, including those who write amicus briefs. Senator Whitehouse is reticent about his own benefits from leftist "dark money."
On the floor of the Senate, Whitehouse reprised The Trace's article, although without mentioning me by name. He excitedly described information that he had gleaned from "Russian hackers." If Senator Whitehouse were truly a sleuth, he would have learned such information long ago, by reading the Washington Post or the NRA Foundation's disclosures. On the floor of the Senate, Whitehouse did not repeat his statement to The Trace that my briefs adhered to Supreme Court Rules.
Not "donor driven"
In nonprofits these days, "donor driven" is a popular buzzword. That is, the organizational fundraising is geared to projects selected by donors. The Independence Institute is among the rare nonprofits that are expressly not "donor driven." We greatly appreciate all our donors, but they do not decide our projects for us. We do not file briefs, publish policy papers, or do anything else just because a donor wants it.
We pick the projects that we think are best for advancing our mission, which by our articles of incorporation is "founded on the eternal truths of the Declaration of Independence." In fundraising, not being donor-driven is a disadvantage.
We do not placate donors by altering our views. The Independence Institute has lost many donors over the years because of, inter alia, our opposition to corporate welfare in all its guises, to the excesses of the War on Drugs, and to tax increases and other wrong-headed (in our view) proposals pushed by leading Colorado Republican officials.
The same rules apply to firearms policy. While the NRA opposes "red flag" laws, I support them, provided they have strong due process protections. See, e.g., my article Red Flag Laws: Proceed with Caution, 45 (Alabama) Law & Psychology Review 39 (2021). I have testified in support of properly-written red flag laws in the U.S. Senate Judiciary Committee (Mar. 26, 2019), the Senate Subcommittee on the Constitution (Apr. 28, 2021), and in the Colorado state legislature. I debated an NRA representative on the topic at a Mountain States Legal Foundation event.
These days, many people on the far left, including the gun control lobby, attempt to delegitimate all institutions and voices that they cannot control. The targets include the United States Supreme Court, and lawyers who present arguments to the Court that the hard left doesn't like. These left-wing semi-fascists, like their right-wing semi-fascist counterparts, reject the rule of law.
Historian Richard Hofstadter's famous essay The Paranoid Style in American Politics described the "heated exaggeration, suspiciousness, and conspiratorial fantasy" in America "that is far from new and that is not necessarily right-wing." Mr. Van Sant's conspiracy articles are part of an American tradition as old as purported exposes of the Illuminati in the 1790s and the Masons in the 1820s.
Without needing to fabricate a conspiracy, one can find a much simpler explanation for why Mr. Bloomberg et al. keep losing in the U.S. Supreme Court: Since 1988, Republican presidential candidates have won four elections, in part because they promised to appoint originalist Justices. Notwithstanding the fiddle-faddle of some writers who support the Bloomberg cause, the original documents overwhelmingly show that the Second Amendment was intended to protect a right to "keep" arms in the home (District of Columbia v. Heller) and to "bear" arms in public places (Bruen). A mountain of original materials demonstrate that Congress passed the Fourteenth Amendment to make the Second Amendment enforceable against the States (McDonald).
So I'll keep on writing amicus briefs on a variety of topics, including the First, Second, Fourth, Fifth, and Eighth Amendments; the Recess Appointment, Interstate Commerce, Republican Form of Government, and Necessary and Proper Clauses; and the Colorado Constitution. And I will continue complying with the actual rules of every court where I file briefs.