NRA and ACLU Teaming up on the First Amendment in NRA v. Vullo

I'm delighted to report (as Adam Liptak wrote in today's New York Times) that the ACLU will be representing the NRA in this important First Amendment case, and that the ACLU's Legal Director David Cole—an experienced Supreme Court advocate—is (the Times notes) planning on arguing.

The issue in the case is whether New York financial regulatory authorities coerced banks and insurance companies to cut off ties with the NRA and thus violated the First Amendment. As the petition argued,

The Second Circuit's opinion below [rejecting the First Amendment claim] gives state officials free rein to financially blacklist their political opponents—from gun-rights groups to abortion-rights groups to environmentalist groups and beyond.

Cole's presence at the lectern and the ACLU's presence on the briefs will help convey the core message to all the Justices: The case is about everyone's free speech rights, not just the NRA's. Cole has argued six cases before the Court, all connected to the First Amendment, most recently Mahanoy Area School District v. B.L. (2021). Mahanoy was an 8-1 decision, and I hope NRA v. Vullo will be 9-0.

Note that I consulted with William Brewer, Sarah Rogers, and Noah Peters of Brewer Attorneys & Counselors on the petition, and look forward to consulting further with them and with Cole (with whom I've much enjoyed working in the past) on the merits briefs.

Comments

[Jerry B.]

There is a God.

[Rev. Arthur L. Kirkland]

Adult-onset superstition is as bad as CTE.

[Magister]

Not quite as bad, since it's more reversible.

[Scooter]

Not nearly as bad as the Hoplophobia, Meat.

LOL

[Rev. Arthur L. Kirkland]

Are you superstitious enough to believe fairy tales are true?

You get a pass if you are younger than 12 or so, of course, especially if you were afflicted by childhood indoctrination.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Better than believing truths are just fairy tales.

[Jerry B.]

Go fuck yourself, Arthur. Your one note song is really tiring.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And he's got one hell heck of a sense of humor.

[Randal]

I hope this means the ACLU is getting back to its roots. I used to support them but over the last many years they morphed into a wing of the Democratic party. If I want to support Democrats I can do that already.

Next step: Embrace the second amendment as an American civil liberty. It'll never happen but dreams can be dreamt.

[Dr. Ed 2]

I predict a 7-2 decision written by Kagan.

What the left fails to understand is that they will not always be in charge, and that the advantage of living in a republic is that minorities have rights. That the government can't conspire to destroy an organization it dislikes, be it the NRA or PETA.

And what I suspect Kagan will understand is that there are states that would do the same thing to PETA if they could.

[Doug Heffernan]

I'm delighted to report that your hyperlink on "Adam Liptak" is messed up (404).

[Magister]

Probable link intended is https://www.nytimes.com/2023/12/09/us/aclu-nra-scotus-free-speech.html

David Cole, the civil liberties group’s national legal director, said the request in one sense posed a hard question.

“It’s never easy to defend those with whom you disagree,” he said. “But the A.C.L.U. has long stood for the proposition that we may disagree with what you say but will defend to the death your right to say it.”

Mr. Cole, who will argue for the N.R.A. when the case is heard by the justices, probably in March, said it concerned principles that apply to all kinds of groups.

“If Maria Vullo can do this to the N.R.A., then why couldn’t a regulator in Texas do it to an immigrants’ rights group or a regulator in Arkansas do it to Planned Parenthood?” he asked.

[Brett Bellmore]

It's a measure of how far the ACLU has fallen that they'd consider this a hard question. To the ACLU of old, (Which even then wasn't terribly principled, or they'd have been defending the 2nd amendment, too.) it would have been an easy call.

[Magister]

The ACLU continues to believe that the Second Amendment protects a collective right, not an individual right. The ACLU of old - is that the one that George H. W. Bush demonized ("card carrying member of the ACLU")?

[David Nieporent]

Yes, but this isn't a Second Amendment case; it's a pure First Amendment case.

[Brett Bellmore]

I'm not sure they actually believe it. They certainly assert it. Prior to the Heller case, they were citing obscure cases, (And miss-citing Miller!) to defend that position, but Heller sure blew away any basis for claiming they had judicial support for their stance. It just caused them to double down.

Way back in the 90's, my supper club had Ira Glasser as a guest speaker. Naturally the topic of the 2nd amendment came up. He said, essentially, that of course the 2nd amendment was an individual right, but that if the ACLU defended it, their donors would desert them, so they left it to the NRA to handle that amendment.

And here he is in reason: "Asked why the American Civil Liberties Union does not defend the right to bear arms, ACLU Executive Director Ira Glasser admits that '"contrary to official ACLU policy'" the Second Amendment protects such a right for individuals. But he says that does not mean the government may not regulate guns. Were Congress to ban private ownership of firearms completely, he says, the ACLU would challenge the action."

He then back-tracked a bit, but the account Sullum gave was certainly consistent with what he said at the supper club a few years later. I think he was perhaps a bit more frank in private than in his public statements.

Of course, today's ACLU has been through the post-CU purge, in which they officially adopted litigation guidelines disfavoring defending groups they dislike on ideological grounds. So this team up is at least a little surprising, maybe they are returning to just being conflicted, rather than a straight up left-wing litigation group.

[Eugene Volokh]

Whoops, fixed, thanks for letting me know.

[Rev. Arthur L. Kirkland]

Does the corruption make the NRA more or less attractive to gun fetishists and other conservatives?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Corruption? Is that what attracts you to statism?

[Jerry B.]

While you, on the other hand, are attractive to no one but, perhaps, your right hand. On second thought, you probably refuse to use your RIGHT hand for anything.

[David Lawson]

I'm a Patron-level Life Member but very much not so proud of the NRA of late. It is rotten at the executive level and at the board level.

I'm glad to know that the ACLU is stepping up and helping out with this case because despite the corruption therein, the NRA has a vital mission and being frozen out of insurance, banking, and such is not right either.

I've donated thousands to the NRA in the past, even been a plaintiff in a suit against Chicago (subsequent to being a plaintiff in SAF's McDonald suit) but I refuse to give any more until their house is cleaned out.

[Brett Bellmore]

I've been a life member ever since Bush banned the importation of that HK-93 I'd been saving up to buy. Seemed like a reasonable use of the money. But I was not 20 feet from Neal Knox when they shut off his microphone in Philly, (I was so made that I tore the NRA sticker off my truck that very night!) and reversed most of the Cincinnati reforms that had made the NRA a genuine membership organization. Haven't donated a cent to them since.

Of course, if NY really did manage to destroy the NRA as an organization, they would NOT like the result; All those members wouldn't just go away. They'd mostly end up in organizations like the SAF and GOA, which are much more principled and aggressive.

[DonP]

There does seem to be a pretty direct relationship between people that aren't fond of the 2nd amendment hating on big chunks of the 1st amendment as well.

Trying to use it to achieve the controls they can't get, under the Constitution, of the 2nd.

Nice to see the ACLU returning to their roots ... finally.

[Ed Grinberg]

.

There does seem to be a pretty direct relationship between people that aren’t fond of the 2nd amendment hating on big chunks of the 1st amendment as well.
Trying to use it to achieve the controls they can’t get, under the Constitution, of the 2nd.

https://reason.com/volokh/2023/12/07/thursday-open-thread-166/?comments=true#comment-10347175

[Longtobefree]

If I were the NRA, I wouldn't trust the ACLU.

[Brett Bellmore]

They do have a history of teaming up on free speech issues, but, yeah, it's got to be a careful alliance, since the ACLU leadership are pretty hostile to the 2nd amendment, and conservative organizations in general.

[The Margrave of Azilia]

"May it please the Court, the ACLU believes it is essential to protect the First Amendment rights of even the most despised organizations, such as nazis and the NRA."

[Stephen Lathrop]

Cole's presence at the lectern and the ACLU's presence on the briefs will help convey the core message to all the Justices: The case is about everyone's free speech rights, not just the NRA's.

It was the ACLU's take on Citizens United that convinced me the ACLU is more concerned about the ACLU's speech than it is about everyone's.

[Brett Bellmore]

Their take on CU before they won, (They were on the prevailing side.) was good. But the left-wing extremists were so enraged over their CU victory that they conducted a purge to expel the principled leadership, and replaced the director of litigation with a guy whose claim to fame was gaming out ways to reverse the CU decision!