Misrule of Law

This essay originally appeared in Law & Liberty on August 14, 2020 (here). Thanks to Power Line for the link, Instapundit (here), and Real Clear Policy (here)!

The non-profit National Rifle Association, founded in 1871, describes itself as “America’s longest-standing civil rights organization.” With nearly five million members, the NRA is also one of the nation’s largest and most influential organizations, promoting the safe ownership and use of firearms. Through its affiliated foundation (a tax-exempt entity formed in 1990), political advocacy arm (the Institute for Legislative Action), publications, and programs, the NRA is widely regarded as the leading champion of the rights of gun owners. The NRA’s mission is “preserving the right of all law-abiding individuals to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.” Disclosure: I am a Life Member of the NRA.

Opponents of gun ownership tend to be quite vociferous, and the topic of gun rights is highly polarized and contentious, on both sides.  Because of its fierce—and effective–defense of the Second Amendment, proponents of gun control view the NRA as a prime enemy. The latest attack on the NRA, via lawfare, is an apparent attempt to tie up the group’s financial resources–earmarked for pro-Trump ads—by forcing the organization to incur massive legal fees fighting a blatantly partisan lawsuit filed by an ambitious ideologue from New York. First, a bit of backstory is necessary to fully understand the significance of the New York Attorney General’s unprecedented attack on the NRA.

The Left’s native antipathy toward the NRA is heightened by the fact that the group endorsed Donald Trump for President in 2016 and again this year. In 2016, the NRA reportedly spent over $30 million on behalf of the Trump campaign, including a hard-hitting television ad buy in battleground states that many Democrats blame for Trump’s upset victory. Thus, the NRA has come to symbolize the Left’s hatred of guns, Donald Trump, and the “deplorables” they imagine comprise NRA members. (In 2008, then-Senator Barack Obama tellingly referred to working-class voters in decimated industrial towns as embittered losers who “cling to their guns to explain their frustrations.”)

It is not surprising, therefore, that the NRA has become a target this election year. Politicians routinely identify “whipping boys” to energize the partisan base, in order to generate campaign contributions, increase voter turnout, and the like. By any objective measure, however, the Democrats’ anti-NRA rhetoric is over the top. In 2019, the San Francisco Board of Supervisors unanimously declared the NRA to be a “domestic terrorist organization,” such as the Ku Klux Klan. Does that make Justice Antonin Scalia and his colleagues, who held in District of Columbia v. Heller (2008) that the Second Amendment affords an individual right to own and use firearms, terrorists also? Or the NRA’s five million members? Or the owners of the estimated 393 million civilian-held guns in the U.S.? Of course not. But the demagogic rhetoric, baseless as it is, inflames passions, sows division, and invites ever-increasing escalation.

In the current political climate—a woke fever swamp in which leftist activists routinely resort to extreme measures in the name of Resistance–the last thing we need is escalation. Here we return to our main theme. Not to be outdone by the San Francisco Board of Supervisors, newly-elected Democratic New York Attorney General Letitia James, who as a candidate called the NRA a “terrorist organization,” recently filed a lawsuit seeking the utter dissolution of the NRA. The lawsuit was announced days after the NRA publicly revealed that it intended to spend “tens of millions of dollars” in swing states to help re-elect President Trump. If James is successful, the NRA would cease to exist. Shuttered. Kaput. And, James warned, the NRA should not even think about relocating to another state: “To be clear, no charity registered in New York state, including the NRA, can dissolve and relocate to another state without approval of my office or of the Supreme Court of New York. As long as our lawsuit continues, the NRA must stay right where it is….”

Railing against guns is a winning strategy for pols in New York City, and James is no novice at the game. Her vendetta against the firearm industry is well-rehearsed. As a candidate for AG, she vowed  to “target the NRA,” condemning the organization as “an organ of deadly propaganda masquerading as a charity for public good.” In 2016, when she served as New York City Public Advocate prior to her election as AG, James unsuccessfully attempted to pressure six financial institutions into discontinuing their practice of providing financial services to gun manufacturers.

James’s widely-publicized lawsuit contends that self-dealing and mismanagement by a handful of high-level NRA executives–consisting of excessive salaries, lavish travel arrangements and other perks, and the lack of proper financial controls—constituted a breach of fiduciary duty by diverting millions of dollars away from the NRA’s charitable mission for personal use. For these (alleged) individual misdeeds, James proposes to eliminate the entire organization. This is akin to revoking a major corporation’s charter if a few officers engaged in securities fraud or embezzlement. The individual malefactors should be punished, not the entire enterprise. In the case of a non-profit membership organization, the affected parties—stakeholders, if you will–are the individual members. James’s lawsuit is directly contrary to their interests. Dissolving the NRA would leave its five million members without a meaningful voice—and is obviously calculated to do so.

James’s allegations are not new, reprising details publicized in a highly-visible internal feud last year between NRA chief executive Wayne LaPierre and the group’s former president, Oliver North, regarding wasteful spending of NRA resources. The charges, if true, are of concern to NRA members and may support lesser remedies enforced by the New York Attorney General, such as restitution by or removal of the offending officials. If charitable assets were misused, NRA members—far from passive–may decline to renew, suspend their financial support, or demand leadership changes to rectify the questioned practices. James’s charges, while serious, manifestly do not warrant the death penalty for a high-profile advocate in one of the nation’s most hotly-contested public policy issues. The NRA is not a sham organization, Ponzi scheme, or boiler room fundraising scam; it is the most prominent, and successful, advocate for gun rights in the world. Seeking dissolution of the NRA for the transgressions of a few officials is an egregious—and transparently vindictive–overreach.

Many large corporations grossly overpay their senior executives. Without defending the alleged practices, nepotism, private air travel, extravagant expense reimbursement, and cozy oversight are not unusual features of executive life, both on Wall Street and in the non-profit world. Nor are labor unions, religious organizations, hospitals, and universities exempt from cupidity on the part of key officials. One suspects that allegations similar to those lodged against the NRA could be made against other high-profile charities (including some based in New York, such as the Clinton Foundation or Al Sharpton’s National Action Network), although James has targeted only the NRA.

Seeking abolition of an organization that represents America’s gun owners, in a lawsuit filed three months before a presidential election, smacks of brazen politics. Is it only a coincidence that an activist state official (the initials AG, some have suggested, really stand for “aspiring governor”) has decided to commence a costly lawsuit on the eve of an election, against an organization associated with the Left’s most hated adversary, President Trump? Here’s a thought experiment: Imagine the reaction if a Republican state attorney general brought an action to dissolve Planned Parenthood, the Southern Poverty Law Center, the American Civil Liberties Union, or George Soros’s Open Societies Foundations, just as the campaign season kicked off. Would observers be justified in questioning the motives of the attorney general? As Manhattan Institute senior fellow Howard Husock has stated, such a move “would rightly be understood as an attack on civil rights.” 

The NRA has branded Democratic nominee Joe Biden “100 percent anti-gun.” If unmolested, the NRA intended to disseminate that message in its characteristically effective manner to voters in battleground states, where the election will likely be decided. Kneecapping an organization with an enterprise-threatening lawsuit in order to divert its substantial campaign war chest into legal fees is more than an odious act of lawfare; it is election interference—an assault on democracy.

James’s stunt has deservedly been denounced by voices across the political spectrum, including the Wall Street Journal, City Journal, law professors Jonathan Turley and William Jacobson, and the National Shooting Sports Foundation. National Review called James’s lawsuit a “partisan vendetta,” a “plainly partisan political attack,” and “pure political score-settling.” NRA President Carolyn Meadows described James’s lawsuit as “a baseless, premeditated attack on our organization and the Second Amendment freedoms it fights to defend,” and “a power grab by a political opportunist.”

It is all those things, and more. As Howard Husock observed in City Journal, James’s outrageous lawsuit is an “affront to civil society”; “it is not up to the government to decide how citizens associate or participate in political life.”

James attempted to justify the lawsuit on the grounds that “no one is above the law,” not even powerful groups such as the NRA. She declined to note that the NRA has power only because it represents millions of Americans who support the Second Amendment. James’s lawless action punishes those citizens for transparently partisan reasons.