ACLU and NRA unite to defend the First Amendment

Gun Rights

Americans differ on the meaning and interpretation of the Second Amendment “right to keep and bear arms.” But there’s almost complete agreement on a nearly absolute guarantee of the First Amendment right against the government “abridging the freedom of speech, or of the press.”

That First Amendment interpretation was upheld May 30 by a unanimous decision of the U.S. Supreme Court in the case National Rifle Association v. Vullo.

The respondent was Maria Vullo, the superintendent of the New York State Department of Financial Services from 2016-2019. The NRA charged she used her official capacity to, in the court’s summary, use “DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy.” Those suppressed specifically included Lockton Companies, LLC, an insurance firm offering policies to NRA members.

In a “strange bedfellows” development, the case was taken up and litigated by the American Civil Liberties Union, most of whose members and contributors would likely disagree with NRA members on most other issues. Likewise, the court’s majority opinion was written by Justice Sonia Sotomayor, one of the court’s more liberal members. Everyone involved agreed government attacks on free speech are not to be tolerated, and political disagreements are to be adjudicated not in courtrooms, but in the court of public opinion.

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The court ruled Vullo coerced “regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.” And, “viewpoint discrimination is uniquely harmful to a free and democratic society.” It said Ms. Vullo was free to express her own opinions in public. But “she may not use the power of her office to punish or suppress disfavored expression.”

Aside from the specific First Amendment issue at hand, this also is a rebuke to the vast regulatory state that controls our lives at the federal, state and local levels. Government officials are tasked with performing certain functions and are prohibited from expanding those functions beyond the letter of the law. In particular, nothing in the Bill of Rights can be violated.

The ACLU insisted if New York State got away with this repression, “then officials in other states can punish other advocacy organizations in the same way–including the ACLU itself.” Exactly. That would include California’s state government, with its own overreach problems.

Last Sept. 13, a three-judge panel of the Court of Appeals for the Ninth Circuit threw out a California law banning gun ads that might influence minors. It ruled the state “presented no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad.” 

Five days later, in a non-gun case, the First Amendment was upheld in the case of technology trade association NetChoice v. Rob Bonta, California’s attorney general. U.S. District Judge Beth Labson Freeman ruled that, although protecting children online “clearly is important,” the law’s provisions “do not pass constitutional muster.”

As free people tussle in the marketplace of ideas, they depend on free speech and media. May those freedoms always be upheld.

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