Inside New York State’s Heedless Crusade Against the NRA
The legal mechanism the New York attorney general is using to bludgeon the gun rights organization could be used on any objectionable civil society group, even churches.
On February 6, in the National Rifle Association’s trial over alleged financial mismanagement, one of the venerable organization’s leaders relayed a line out of a Christopher Nolan movie. Tom King, an NRA board member, testified that New York’s then-Attorney General Eric Schneiderman privately warned him of a “coming storm.” King testified that Schneiderman said he was under enormous pressure from the state’s political leadership to use state power to go after the gun rights organization.
After he was MeTooed out of office, Schneiderman’s successor, Letitia James, explicitly campaigned on going after the NRA’s non-profit status based solely on the organization’s political views. She called the NRA an “organ of deadly propaganda masquerading as a charity for public good.” The New York Daily News reported that James’s campaign argued that the NRA should lose its non-profit status based on its “lobbying against background checks and for concealed carry reciprocity laws.” After her election, James told Ebony the NRA was not “charitable organization, but in fact...a terrorist organization.” The group had a “poisonous agenda” that was “directly antithetical” to New York’s gun policies.
With the pejoratives removed, “deadly propaganda” and lobbying for a “poisonous agenda” are simply exercising the First Amendment rights to petition and free speech. That the NRA’s advocacy is “directly antithetical” to New York’s is more reason to protect it.
Once in office, James realized a direct attack on the NRA’s speech was a nonstarter. Yet for an organization of any scale to speak effectively, it must raise money, hire employees, and otherwise run an operation. So, when suing the NRA, James used the pretext of financial mismanagement to take the organization on. She claimed that the organization diverted “millions of dollars away” from its programs including “public affairs”—the very same programs she denounced as “deadly propaganda.”
While James did not conceal her political motivation, the NRA admittedly gave her a pretext. As the NRA’s lawyer Sarah Rogers acknowledged at trial, there is “no question that some individuals, some executives—an ad agency, a travel agent—betrayed” its mission through financial excesses, including expensing luxury perks like private flights. The NRA’s members justifiably demanded reforms—and indeed almost all the contractors and executives implicated in the scandal have been fired, sued, or resigned. The organization set its house in order, in other words.
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None of that justifies New York’s unconstitutional crusade against the NRA. The core claim against the NRA relates to the group’s supposed failure to engage in “proper administration,” which allows the State to step in to prevent unlawful diversion of charitable funds. The New York Court of Appeals, the state’s highest court, has held that absent fraudulent intent, which the state has not alleged, a law defining proper administration “might well be regarded as unconstitutional on the ground of vagueness.” That makes sense—the potential for selective prosecution such as this is precisely why statutes must be read narrowly. If that were not the case, any number of health, safety, and environmental regulations Americans labor under could be used to wreak havoc on ideological enemies. Left unchecked, James’s legal theory provides a blueprint for deploying state power against churches with financial management serving as the predicate, particularly in deep blue states like California, where we learned during the COVID-19 pandemic that the right to go to a marijuana dispensary is more essential than the right to worship God.
While Letitia James threatened the NRA’s non-profit status, New York’s then-Governor Andrew Cuomo and his head of Financial Services Maria Vullo used government pressure against banks and insurance companies who did business with the group. Cuomo described the group as “an extremist organization” and urged “companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.” Vullo issued a formal letter to insurers which stated that, because the group “promoted guns that lead to senseless violence,” the Department “encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions.” Using New York’s financial services regulations, Vullo followed up by issuing multi-million-dollar fines to groups which did business with the NRA. The Supreme Court is now hearing the case and is widely expected to rule this conduct was unconstitutionally threatening.
The NRA needs to regain the trust of its members and is taking important steps to do so. Nevertheless, this should not obscure nor justify the State of New York’s selective, politically-motivated prosecution.