In this issue of the Gun Tests Guardian: NRA Wins 9-0 First Amendment SCOTUS Decision; State of Texas stops Federal government from enforcing new FFL rule; and SAF replies to gun ban in Connecticut.
NRA WINS 9-0 1A SCOTUS DECISION
New York State official violated NRA’s rights, Supreme Court says.
On May 30, 2024, the United States Supreme Court issued a 9-0 decision in the NRA v. Vullo decision, a big win for the NRA in a 1st Amendment case.
NRA had claimed that Maria Vullo, New York State’s former superintendent of the Department of Financial Services (DFS), had violated the gun group’s 1st Amendment rights “by coercing DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy,” according to the decision written by Associate Justice Sonia Sotomayor. Justices Gorsuch and Jackson each filed a concurring opinion.
More from the decision: “The NRA contracted with DFS-regulated entities— affiliates of Lockton Companies, LLC (Lockton)—to administer insurance polices the NRA offered as a benefit to its members, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then underwrite. In 2017, [then-superintendent] Vullo began investigating one of these affinity insurance policies—Carry Guard—on a tip passed along from a gun-control advocacy group. The investigation revealed that Carry Guard insured gun owners from intentional criminal acts in violation of New York law, and that the NRA promoted Carry Guard without the required insurance producer license. Lockton and Chubb subsequently suspended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs.”
On February 27, 2018, Vullo met with senior executives at Lloyd’s, expressed her views in favor of gun control, and told the Lloyd’s executives “that DFS was less interested in pursuing” infractions unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA.”
On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations. (Guidance Letters).” In the Guidance Letters, according to the decision, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Vullo and Governor Cuomo also issued a joint press release echoing many of the letters’ statements, and “ ‘urg[ing] all insurance companies and banks doing business in New York’ ” to join those “ ‘that have already discontinued their arrangements with the NRA.’ ”
According to the decision, “Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. [Bantam Books, Inc. v. Sullivan (1963)]. Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”
As we said at the time of the suit, it seemed to us at Gun Tests that the NRA plausibly alleged that Vullo violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA to punish or suppress gun-promotion advocacy. It took no great insight to see that, but to finally get court review of the New York State officials’ conduct is satisfying. However, New York State officials got what they wanted by shutting down the Carry Guard program permanently and across the country.
Click the link below to read the decision.
ATF RESTRAINED FROM ENFORCING ‘ENGAGED IN THE BUSINESS’ RULE
Federal government stopped until at least June 16.
A temporary restraining order (TRO) that stops ATF, the U.S. Department of Justice, Attorney General Merrick Garland, and ATF Director Steven M. Dettelbach from enforcing the regulations in the ATF’s “Definition of Engaged in the Business as a Dealer in Firearms” has been extended through June 16, 2024.
In Texas et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. District Court for the Northern District of Texas issued the TRO on May 19, 2024, then extended the order through June 2, 2024, then extended the order again to June 16.
On April 10, 2024, the attorney general signed ATF’s final rule, Definition of “Engaged in the Business” as a Dealer in Firearms, amending ATF’s regulations of when a person is considered “engaged in the business” as a dealer in firearms (other than a gunsmith or pawnbroker). Texas sued shortly thereafter.
Randy Kozuch, executive director of the NRA Institute for Legislative Action (NRA-ILA), said the new definition of firearms dealers was the latest “Biden Administration attack on law-abiding gun owners [and] blatant attempt to coerce Americans to forego legal activity with firearms under threat of potential confiscation of their lawfully acquired and constitutionally protected property. The Administration has conceded that it cannot enforce this unlawful rule in criminal cases because they know that it exceeds the limited authority granted to them by Congress and, in some cases, expressly contradicts the statutory text. NRA is already working to use all means available to stop this unlawful rule.”
The plaintiffs suing ATF include the state of Texas, the Gun Owners of America, Inc., the Gun Owners Foundation, the Tennessee Firearms Association, and the Virginia Citizens Defense League, and others.
Click the link below to read a pdf of the decision.
SAF SUBMITS REPLY BRIEF IN CONNECTICUT GUN BAN CHALLENGE
Asks for appeals court to overrule district court inaction.
The Second Amendment Foundation (SAF) is trying to to obtain a preliminary injunction against a Connecticut ban on so-called “assault weapons.” The case is known as Grant v. Lamont, filed in September 2022.
SAF’s latest effort in the challenge is a reply brief to the U.S. Court of Appeals for the Second Circuit. SAF is asking the Court of Appeals to reverse a district court ruling that would not stop the ban. Also, SAF asks the appeals court to remand the case back to the district court for reconsideration under the
2022 Bruen ruling.
SAF Executive Director Adam Kraut said, “The state wants this case decided on raw emotion rather than the rule of law as defined by the Supreme Court, which did away with ‘interest balancing’ as a foundation for ruling on Second Amendment-related cases.”
SAF is joined by the Connecticut Citizens Defense League and three private citizens, Michael Stiefel, Jennifer Hamilton and Eddie Grant, Jr.,. for whom the case is named. They are represented by attorneys Doug Dubitsky of North Windham, Craig L. Atkinson of Harwinton, and Craig Fishbein of Wallingford, all in Connecticut.
“The 2022 Bruen decision expressly forbids courts from considering sensationalized portrayals of firearms when considering whether the Second Amendment protects their possession,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “The state has erroneously described modern semiautomatic rifles as ‘weapons of war,’ which is simply not true.”
“We are not asking the court to recognize a new constitutional right,” Gottlieb added. “All we are asking is that the court faithfully apply existing precedent and recognize a right Connecticut citizens have always possessed under the constitution.”
Click the link below to read a pdf of the decision.
