NRA’s Free Speech Argument Aims to Cripple Regulatory Powers – Bloomberg Law

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The National Rifle Association’s launch of Carry Guard insurance in 2017 was intended as liability protection for gun owners to insure against liability if their weapon harms a person—the bail bonds, the legal fees, the court costs.

“Nothing can prepare you for the crushingly stressful and expensive aftermath of firing your gun in self-defense,” an NRA email advertising the product read. “Because even if you do everything right, the truth is, you will likely be arrested.”

To legal scholars like me, Carry Guard set off alarm bells. This product—colloquially known as “murder insurance”—quickly caught the attention of state regulators.

The New York State Department of Financial Services, led by Superintendent Maria Vullo, launched an investigation, citing the state’s cut-and-dry laws against insuring intentional criminal acts. In 2018 and 2019, three insurance entities that supported Carry Guard or similar products agreed to pay more than $13 million in fines. In 2021, the NRA agreed to a penalty of $2.5 million.

Rather than move on from this blunder, the NRA is seeking relief at the US Supreme Court. Citing unrelated comments made by Vullo in a 2018 guidance memorandum issued in the wake of the Parkland, Fla., mass shooting, the NRA—alongside its unlikely partner, the American Civil Liberties Union—is asking the Supreme Court to nullify the NYDFS’s action via an extreme and unworkable interpretation of the First Amendment. Oral arguments are slated for March 18.

In its complaint, the NRA claims that because of Vullo’s actions, it “has encountered serious difficulties obtaining corporate insurance coverage.” However, the NRA fails to explain how these difficulties are attributable to improper actions by Vullo, rather than simple repercussions from its decision to offer this insurance. Furthermore, finances aside, the NRA can’t show any tangible injury to its ability to engage in pro-gun speech.

For these reasons, the Second Circuit unanimously held the NRA didn’t have a valid First Amendment case because Vullo’s actions couldn’t reasonably be construed as unconstitutionally threatening or coercive; the superintendent was simply exercising her prerogative, consistent with the First Amendment, to express the government’s policy positions.

Furthermore, the Second Circuit also held that Vullo is entitled to qualified immunity as a state official.

If the NRA and ACLU have their way, it would empower a virtually limitless set of claims against the government based on the specious argument that any regulatory action penalizes the speech of third parties. Put simply, the government would no longer be allowed to govern.

NRA v. Vullo represents the latest salvo in a decades-long effort to secure the industry super-privileged legal status. The Protection of Lawful Commerce in Arms Act immunizes weapons manufacturers from liability for crimes committed with their products. Guns are the only consumer products manufactured in the US not subject to regulation by the Consumer Product Safety Commission.

In recent years, red-state legislatures have passed laws requiring all contractors and vendors for state and local government to file certifications that they don’t “discriminate” against the gun industry. This has prevented large national banks—many of which stepped back from lending to assault weapons manufacturers in the wake of shootings—from underwriting cities’ municipal bond issues.

The NRA wants to carve out a special, privileged place in American life and law, and Vullo represents the gun industry’s most audacious ask yet. If the vision the NRA outlines in its briefs is realized, any regulated entity could claim First Amendment protection from any regulation.

After all, industries as varied as car makers, banks, chemical manufacturers, or airlines could claim their business is simply protected speech, immune from government oversight. This bizarre, dystopian scheme would wipe out decades of common-sense rules that protect consumers, the environment, and our financial system.

If the court rules for the NRA, it would represent perhaps its biggest attack on basic state responsibility to date. Regulation-averse industries such as big polluters, big pharma, and predatory lenders would be gleeful. It’s saddening, though not surprising, that the ACLU has signed on to such a corrosive legal argument.

Luckily, the court has a chance to draw a line. Just as regulators were quick to correctly identify Carry Guard as the illegal product it was, the court can firmly reject the NRA and ACLU’s meritless legal arguments.

The court can deliver a simple reality check: Public servants must be able to voice their opinion on matters of public policy. Statements such as Vullo’s are a routine, necessary part of good governance.

The case is National Rifle Association of America v. Vullo, U.S., No. 22-842.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Dru Stevenson is a law professor at South Texas College of Law in Houston, with focus on firearms regulation and administrative law. He signed on to an amicus brief in this case filed by scholars of banking, insurance, and administrative law, and banking governance.

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