Posts Tagged ‘guns’

ACLU: don’t let New York regulators squelch NRA’s First Amendment rights

I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:

Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.

My post from May on the topic is here. More on the ACLU brief: Dan M. Clark, New York Law Journal; Declan McCullagh.

Filed under: ACLU, Andrew Cuomo, First Amendment, guns, insurers, regulatory retaliation

August 15 roundup

“Lawmakers are doing nothing to stop wheelchair ramp scams: businesses” [Julia Marsh and Yoav Gonen, New York Post, earlier on NYC ADA shakedowns]
Not a flattering picture: inside the politicized office of one state’s (Minnesota’s) attorney general [Rachel M. Cohen, The Intercept, Briana Bierschbach, Minnesota Public Radio, J. Patrick Coolican and Jessie Van Berkel, Minneapolis Star-Tribune (Swanson releases criminal record of aide-turned-critic]
Remembering when the U.S. went through its first moral panic about plastic guns, in 1986 [Dave Kopel]
Until 2012, after 60 Minutes did an exposé, “it was perfectly legal for members of Congress to trade on inside information. Not for you, of course. You’d go to jail. But for some strange reason, mystifying to all, that law simply did not apply to Congress.” [Kevin Underhill, Lowering the Bar]
“Federal Court: Miami Taxi Companies Have ‘No Right To Block Competition’ From Uber” [Nick Sibilla, Forbes]
“Not even consumer law professors routinely read consumer contracts and disclosures” [Jeff Sovern, CL&P]

Filed under: ADA filing mills, attorneys general, contracts of adhesion, guns, Minnesota, politics, taxis and ridesharing

Literally (for once) weaponizing the First Amendment

The Internet interprets censorship as damage and routes around it: even after opponents manage to talk a judge into issuing a prior restraint order on speech, gun blueprints are still online in widely available libraries and will remain so. And making a gun at home in the U.S. remains legal, as it has been all along, though subject to a recent law on those undetectable by scanner technology [Brian Doherty, David French/NRO, Declan McCullagh, Josh Blackman thread, Erica Goldberg CodeIsFreeSpeech.com] And I only read Playboy for the articles about guns written by colleague Matt Larosiere (“Fully 3-D printed guns are still ineffective, probably less effective than firearms you can craft from hardware store scraps.”) Earlier on Defense Distributed “arms export” controversy here and here, and more from David Kopel and Cyrus Farivar on the lawsuit settlement. More: Trevor Burrus (“Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets”).

Filed under: First Amendment, guns

Police and prosecution roundup

After parking lot shooting Pinellas County, Florida sheriff “claim[ed] his hands were tied by Florida’s Stand Your Ground law. But that is not true” [Jacob Sullum, Reason, more; David French, NRO]
Major USA Today story on origins of Baltimore’s devastating crime and murder wave [Brad Heath; Jonathan Blanks, Cato]
Related: in Baltimore’s Gun Trace Task Force police scandal, plea bargains punished the innocent [Capital News Service investigation by Angela Roberts, Lindsay Huth, Alex Mann, Tom Hart and James Whitlow: first, second, third parts]
California Senate votes 26 to 11 to abolish felony murder rule, under which participants in some serious crimes face murder rap if others’ actions result in death [ABA Journal, bill]
New Jersey’s reforms curtailing cash bail, unlike Maryland’s, seem to be working reasonably well [Scott Shackford; longer Shackford article on bail in Reason; earlier here, here, etc.]
“Miami Police Union Says Head-Kicking Cop ‘Used Great Restraint,’ Shouldn’t Be Charged” [Jerry Iannelli, Miami New Times]

Filed under: Baltimore, California, Florida, guns, Maryland, New Jersey, police, police unions, stand your ground

Claim: doctors should be obliged to ask patients about guns

Right on schedule, here come claims that doctors may have an actual generalized legal duty (not just a right) to ask about guns in the home [Elisabeth J. Ryan, Petrie-Flom Center “Bill of Health”]

Filed under: guns, medical malpractice

British Medical Journal article: ban pointy knives

If you figured the British Medical Journal would take the side of individual liberty against the nanny state, you might soon be fated to miss the point.

Filed under: guns, nanny state, United Kingdom

Constitutional law roundup

“Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.” [John Kenneth Ross, IJ “Short Circuit” on Webb v. City of Maplewood]
“Does the Excessive Fines Clause Apply to the States? You’d think we’d know that by now — but the Supreme Court hasn’t spoken to this.” [Eugene Volokh]
“SCOTUS Bingo: The Slaughterhouse Cases” [Sheldon Gilbert on Heritage “SCOTUS 101” podcast with Elizabeth Slattery and Tiffany Bates; Eighth Circuit occupational licensure case]
Should committing a crime unrelated to guns or violence lead to lifetime forfeiture of gun rights? [Ilya Shapiro and Matt Larosiere on Cato amicus brief in Kanter v. Sessions, Seventh Circuit]
“A Debt Against the Living: An Introduction to Originalism,” Federalist Society podcast with Michael McConnell and Ilan Wurman discussing Wurman’s new book]
A new and better Article V? [proposal for an “amendment amendment“]

Filed under: Article V, constitutional law, guns, occupational licensure, petty fines and fees, Supreme Court

Cuomo to regulated banks, insurers: it might be risky for you to go on dealing with the NRA

As we mentioned in a brief earlier item, New York Gov. Andrew Cuomo has “directed the Department of Financial Services to urge insurance companies, New York State-chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” [Cuomo press release] Maria T. Vullo, Superintendent of Financial Services for the state of New York, issued a guidance memorandum. In language not altogether typical of safety-and-soundness financial regulation, Vullo wrote:

While the social backlash against the National Rifle Association (the “NRA”) and similar organizations that promote guns that lead to senseless violence has in the past been strong, the nature and the intensity of the voices now speaking out, including the voices of the passionate, courageous, and articulate young people who have experienced this recent horror first hand, is a strong reminder that such voices can no longer be ignored and that society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.

Brian Knight writes at FinRegRag:

This request could easily be construed is a thinly veiled threat. While the NYDFS statement does not explicitly say that NY FIs (financial institutions) that may face regulatory sanction for failing to cut ties with the NRA, it doesn’t rule out the possibility either. If the NYDFS had no intention of threatening regulatory sanctions, they could clearly have added language taking the threat of enforcement off of the table. They didn’t, which indicates they want NY FIs to think there is a potential the government will come after them if they don’t end their relationships with groups like the NRA.

These instructions to NY FIs could also be seen as an attempt to suppress political speech that some New York policy makers disagree with. Whatever one thinks of the NRA, it is an organization engaged in legal political speech and advocacy. Cutting off the NRA’s access to financial services could change the political debate by reducing opposition to political efforts to tighten gun laws. The NYDFS release says, “This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.” Given that the NRA does not make a product that could pose a direct risk to public safety, this release is clearly referencing the NRA’s political advocacy.

Knight compares the initiative to the Operation Choke Point episode, in which federal regulators steered banks away from dealing with various controversial but lawful lines of business, including some that were politically fraught. But in that episode, at least, the target enterprises were primarily engaged in the sale of goods and services and thus might in principle have faced financial risks related by fraud or unfulfillable obligations to customers.

The NYDFS order appears to be inherently about political speech. After all, there is no allegation that the NRA is committing fraud against its members. Rather, the argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any FI that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.

The guidance memorandum might thus accomplish by indirection what it would be plainly improper for the state to attempt directly:

There is no law that says a FI (financial institution) cannot do business with a gun rights group and such a law would almost assuredly be unconstitutional. However if the regulator declares that such an affiliation poses a reputational risk to the FI (that the regulator, not the market, determined existed), it has leverage to force the FI to comply.

The NRA has filed a suit against the governor and New York officials saying the program amounts to “coercion” aimed at depriving the association and its constituents of First Amendment rights. More: Scott Greenfield.

Meanwhile, in other news of regulatory retaliation — see also our tag on that — U.S. President Donald Trump reportedly urged the U.S. Postal Service to double its rates for handling packages shipped by Amazon.com, linked in his mind through founder Jeff Bezos with his journalistic nemesis the Washington Post. Postmaster General Megan Brennan is said to have “resisted Trump’s suggestion in private conversations in 2017 and 2018, telling him that package delivery rates are set by contract and reviewed by an independent commission” and that the Postal Service does not get a bad deal from its arrangements with Amazon and other e-commerce firms. [Reuters]

Filed under: Amazon, Andrew Cuomo, banks, Donald Trump, guns, regulatory retaliation

Free speech roundup

Who could have guessed? First person charged with violating Malaysia’s new “fake news” law is someone who criticized the police [Reuters/Guardian (“The law covers digital publications and social media and also applies to offenders outside Malaysia, including foreigners, if Malaysia or a Malaysian citizen are affected.”)]
Or that prosecutors in Spain would be considering hate speech charges against the new separatist premier of Catalonia? [José Antonio Hernández, El País]
“There is no requirement that a platform remain neutral in order to maintain Section 230 immunity. And Facebook does not have to choose between the protections of Section 230 and those of the First Amendment; it can have both.” [Catherine Padhi, LawFare on comments by Sen. Ted Cruz]
“Reporting on Lawsuit — but Not Mentioning It Was Settled — Is Not Libelous” [Eugene Volokh on New Jersey Supreme Court decision in Petro-Lubricant Testing Laboratories, Inc. v. Adelman]
Wisconsin appeals court allows suit against online gun-ad marketplace over shooting; resulting damage to Section 230 would menace social media sites whether or not gun-related [Eric Goldman, Eugene Volokh]
“Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote” [Tim Cushing, TechDirt, earlier]

Filed under: Facebook, free speech, guns, libel slander and defamation, Spain

Supreme Court roundup

After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
“The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]

Filed under: administrative law, Antonin Scalia, churches, constitutional law, contracts, guns, Indian tribes, Supreme Court