NY v NRA

“…or the right of the people to peaceably assemble.”

Many of you know this comes from the First Amendment, and is often referred to as the “freedom of association” clause.  Assembly is often interpreted as meaning forming a group in the public square to protest a government action.  It can also mean assembling in a tavern or assembling across state lines via membership in a group.  In NAACP v Alabama (357 U.S. 449), the Supremes found that “freedom of association” is also broadly implicated by the expressed enumeration of freedom of speech.  (For the mere participation in a group is, by definition, an act of political speech).

While these rights simply prohibited federal limitations on individual rights, they have become, essentially, incorporated into State Constitutions vis a vis the Fourteenth Amendment.

This brings us to the New York Attorney General and the National Rifle Association.

Last week Letitia James, the State Attorney General, decided to hold a press conference.  Most thought she was going to be making an announcement about her investigations into President Trump and Deutsche Bank.  (Hey… if you can’t make Russia stick, the Germans are always a good second act.)

Instead, she issued somewhat of a surprise.  She announced that her investigations of the NRA show that it is corrupt, self-serving, and in violation of the New York charitable institutions law.  The only remedy she can possibly come up with to mitigate these breeches of NY law is a complete global dissolution of the organization.  Nothing short of that will assuage the damaged egos of those who have given donations to the NRA.

She is clearly deeply concerned about the feelings and rights of Second Amendment advocates across America.  As they say in the South… “Well, bless her heart.”

(If you have arrived here from our Newsletter, continue reading here…)

So… the first question is a jurisdictional one.  From what I understand (and this is information I have gleaned through brief research and is subject to altering), the NRA is not actually incorporated in the State of New York; it has a charitable trust that is incorporated in the State of NY.  For that matter, I would not be surprised to learn it has similar trusts incorporated throughout each of the 50 states, and possibly other countries as well.  Oftentimes straight donations to an organization requires that the receiving institution have some tangible connection to the donor’s state.  Since there is a facet of a charitable trust located in NY to the extent the trust has assets and activities in the State of NY, those assets and actives are regulated by NY law. 

Ms. James is essentially using this as the “camel in the tent”.  In her mind, once her offices have a breach available for exploitation, they can infect the whole organization.  (The fact that an agent of the State finds this to be entirely reasonable is disgusting enough, and should end her career as a per se violation of her oath of office… but I digress.)

Her investigations have shown actions on the part of the NRA Board, as well as direct actions by Wayne LaPierre, that are dubious at best.  If true, they suggest the NRA has essentially served as a vehicle for independent wealth creation on the part of Mr. LaPierre. 

My response…

So what?

Most non-profits and political action groups have managers who make hundreds of thousands, if not millions, of dollars a year.  The leaders of these groups have to, at the same time, be fundraisers, lobbyists, and multi-level managers.  There are very, very, very few individuals who possess these skills, and if the organization wants to be successful, and have any shot at achieving the goals that the organization is in existence to strive for, there is going to have to be some extremely talented individuals at the top.  They also have the ability, due to their unique and rare skill set, to command a fairly substantial salary.

The NRA is by no means alone in having wealthy managers.

But let’s say, for the sake of argument, that somehow people were in fact “defrauded” when they gave their dues and donations to the NRA, that they did not know a portion of those funds were going to enrich Mr. LaPierre himself. 

What is the proper remedy?

Return of funds?  A class action?  Civil penalties against the wayward transgressors?

No… in her mind the only methodology that makes sense is a full-scale dismantling and closing of the doors of the organization in chief.   

Her politics and anti-gun rhetoric are completely immaterial to this, of course…  She felt compelled to tell us rubes that during her press conference. 

There is just one problem though… that pesky Constitution.

While the goals of the organization might be advocacy for the Second Amendment, the actions of Ms. James clearly violate the First.

Every member and every donor is, by definition, engaging in a form of political speech and assembling with likeminded individuals.  While she may enjoy certain regulatory powers as it relates to the charitable institution in New York, her broad condemnation and nuclear remedy is both appalling and unconditional. 

(Imagine if she had done the same thing to the Southern Poverty Law Center or the ACLU… Well, let’s be honest… that would never happen now, would it?)

The irony is, in the final analysis, Ms. James has handed President Trump a gift at a time when gifts are heartily welcomed.  She has engaged in the most egregious of unforced errors.  She has allowed her political beliefs and her political ambitions to get ahead of reasoned political strategy.

As President Trump goes into his election campaign, his base is engaged to the extent that they are engaged.  He does indeed have Trumpian supporters, but many are tepid supporters at best, like in the last election voting against the Democratic candidate rather than for Trump.

Enter into the mix a boatload of new gun owners.  They come from a variety of political backgrounds… and many have turned to the one organization they have heard of for training guides in how to be responsible:  The NRA.

Now we have a Democrat… from New York… who is anti-gun and trying to literally destroy the NRA.  This case is going to take years to litigate.  Nothing will be even remotely settled by election day.  By doing this stunt, Ms. James has not energized a single democratic voter… but she has energized a boatload of moderate voters and new gun-owner voters in favor of Trump.

Yes, Virginia… there really is a Santa Claus… and yes… the Democrats really do want to take your guns away.

Well played, Ms. James , well played.