It is no secret that when it comes to the Second Amendment, the American Civil Liberties Union (ACLU) has exercised its Fifth Amendment right to remain silent on defending it. However, it seems that the ACLU has decided to break its silence in a very shocking, but pleasant turn of events. The organization has agreed to represent the National Rifle Association (NRA) in its upcoming Supreme Court case against the New York State Department of Financial Services, in National Rifle Association v. Vullo, No. 22-842.
While technically not a pure Second Amendment defense case per se, the case involves the NRA's First Amendment rights allegedly being suppressed by the former superintendent of the Department of Financial Services (DFS), Maria Vullo, when she publicly encouraged banks and credit card companies to stop doing business with the organization back in 2018 after the Parkland, Florida, high school shooting.
The National Rifle Association filed suit against Vullo, both personally and in her former capacity as the Superintendent of the DFS. The case was presented before a three-judge panel of the Second Circuit Court of Appeals in 2021. The NRA alleged that while acting in her official capacity as a state agent, Vullo used her regulatory power to threaten NRA business partners and coerce them into disassociating with the NRA, in violation of its First Amendment rights.
In a thread posted to its account on X, the ACLU gave its reasoning for taking on this case and, at the same time, explained how the ACLU felt about the NRA, its mission, and, in my opinion, its professional and personal disdain for the Second Amendment. However, in the statement, you will see the real reason why we have the First Amendment, as well as the Second.
BREAKING: We’re representing the NRA at the Supreme Court in their case against New York’s Department of Financial Services for abusing its regulatory power to violate the NRA’s First Amendment rights.
— ACLU (@ACLU) December 9, 2023
The government can’t blacklist an advocacy group because of its viewpoint.
In a statement to the New York Times, the ACLU's national legal director, David Cole, stated perfectly why we have the Bill of Rights, especially the First and Second Amendments. Cole also addressed growing criticism of the ACLU and its perceived ignorance of First Amendment legal issues in favor of other, more popular legal fights about social justice issues, and other cases involving the perceived liberal agenda and ideology. He said:
It’s never easy to defend those with whom you disagree. 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.
It will be controversial, within and outside the A.C.L.U. But if it was easy, it wouldn’t mean as much.
In this hyper-polarized environment, where few are willing to cross the aisle on anything, the fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free speech principle at stake.
Reinforcing Cole's statement, the ACLU went further in a separate statement regarding the group's intentions in this upcoming SCOTUS case. It read:
The A.C.L.U. does not support the N.R.A. or its mission. We signed on as co-counsel because public officials shouldn’t be allowed to abuse the powers of the office to blacklist an organization just because they oppose an organization’s political views.
The NRA appealed its loss in the Second Circuit Court of Appeals after the three-judge panel unanimously sided in favor of former DFS Superintendent Maria Vollo. In their opinion, the judges wrote that the government, or an agent of the government, cannot coerce private companies or individuals into "refraining" their First Amendment rights.
The First Amendment forbids government officials from "abridging the freedom of speech." U.S. Const. amend. I ; seeZieper v. Metzinger , 474 F.3d 60, 66 (2d Cir. 2007). Government officials cannot, for example, use their regulatory powers to coerce individuals or entities into refraining from protected speech. At the same time, however, government officials have a right -- indeed, a duty -- to address issues of public concern. Here, for the reasons discussed below, we conclude that the NRA has failed to plausibly allege that Vullo "crossed the line ‘between attempts to convince and attempts to coerce.’ " Zieper , 474 F.3d at 66 (quoting Okwedy v. Molinari , 333 F.3d 339, 344 (2d Cir. 2003) (per curiam)).
Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 706-7 (2d Cir. 2022)
I believe that the judges got that wrong, and the ACLU thinks that as well. This is also where I believe this is a Second Amendment case. In this case, and from what we have been seeing over the years by elected officials, the government has been using its authority, or the perceived threat of its authority, to force companies and or individuals into acting against other companies and or individuals from exercising their Second Amendment rights.
In California, for example, Governor Gavin Newsom and his administration were so "appalled" that the 9th Circuit Court of Appeals ruled in favor of a firearms company being able to advertise and or market products for minors that they sent his hoplophobic Attorney General, Rob Bonta, to make sure California prevented it from happening in the state.
The ruling was in response to a lawsuit filed by several gun-rights groups on behalf of Junior Sports Magazines, Inc. against California's law that prohibited any marketing or advertisements of a firearm or any part of a firearm that is designed, intended, or reasonably appears to be attractive to minors. The Court's ruling stated that "the First Amendment demands more than good intentions and wishful thinking to warrant the government's muzzling of speech."
By defending the First Amendment rights of the NRA, the ACLU is also defending the Second Amendment rights of all Americans and the companies that are involved in the firearms industry. Usually, the saying goes the First Amendment is backed up by the Second Amendment; though in this case, it's the reverse. This case is a perfect example of why the First Amendment also backs up the Second. Gun-grabbing Democrats like Newsom and New York Governor Kathy Hochul have a very serious lesson to learn, and thankfully, the ACLU has decided to defend the Second by defending the First.
