Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

No. 22-842

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------THE NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

both individually and in her former official capacity,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

---------------------------------♦--------------------------------BRIEF FOR SENATOR TED BUDD AND

17 ADDITIONAL MEMBERS OF THE UNITED

STATES SENATE, AND REPRESENTATIVE

RICHARD HUDSON AND 62 ADDITIONAL

MEMBERS OF THE UNITED STATES HOUSE

OF REPRESENTATIVES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------JAMES R. LAWRENCE, III

Counsel of Record

ENVISAGE LAW

2601 Oberlin Road, Suite 100

Raleigh, North Carolina 27608

(919) 755-1317

jlawrence@envisage.law

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE .................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

2

ARGUMENT ........................................................

4

I.

THE SECOND CIRCUIT’S DECISION

UNDERMINES FIRST AMENDMENT

FREEDOMS CONGRESS PASSED LEGISLATION TO PROTECT .........................

4

A. Congress Passed Legislation to Prevent

Former New York Governor Andrew

Cuomo and Others From Bringing

Baseless Lawsuits Against the Gun

Industry ...............................................

4

B. Andrew Cuomo, Maria Vullo, and the

New York Department of Financial

Services End Run the PLCAA and the

First Amendment ................................

8

1. Cuomo and Vullo Use New York

State Financial Services Regulations to Disrupt the NRA’s Access

to Essential Financial Services ......

8

2. Cuomo and Vullo’s Targeted, Coercive Regulatory Agenda Flouts Congress’ Express Desire to Protect the

First Amendment Rights of Gun

Rights Advocates ............................ 13

ii

TABLE OF CONTENTS—Continued

Page

3. The First Amendment Bars Cuomo

and Vullo From Using Regulatory

Power to Target, Censor, and Chill

Protected Speech. The Second Circuit’s Contrary Holding, Which

Gave Short Shrift to This Court’s

Cases, Should be Reversed ............. 15

II.

THE SECOND CIRCUIT’S DECISION

UNDERMINES FEDERALISM AND THE

STATES’ EQUAL SOVEREIGNTY ........... 21

CONCLUSION..................................................... 27

APPENDIX

Members of the United States Congress Joining

this Brief ........................................................... App. 1

iii

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................. 20, 21

BMW of North America, Inc. v. Gore, 517 U.S. 559

(1996) ..................................................... 22, 23, 25, 26

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(1963) ................................................................. 15-19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007) .......................................................................20

Burks v. Lasker, 441 U.S. 471 (1979) ..........................23

District of Columbia v. Heller, 554 U.S. 570

(2008) .........................................................................7

Loc. No. 93, Int’l Ass’n of Firefighters, AFL-CIO

C.L.C. v. City of Cleveland, 478 U.S. 501

(1986) .......................................................................19

McCulloch v. Maryland, 17 U.S. 317 (1819) ...............14

McDonald v. City of Chicago, 561 U.S. 742

(2010) .........................................................................8

Nat’l Pork Producers Council v. Ross, 598 U.S.

356 (2023) .................................................... 21, 22, 26

New State Ice Co. v. Liebmann, 285 U.S. 262

(1932) .......................................................................27

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ...............................................8

Norwood v. Harrison, 413 U.S. 455 (1973) .................20

Roman Cath. Diocese of Brooklyn v. Cuomo, 141

S. Ct. 63 (2020) ..........................................................9

iv

TABLE OF AUTHORITIES—Continued

Page

Shelby Cnty. v. Holder, 570 U.S. 529 (2013) .................3

Thomas v. Chicago Park Dist., 534 U.S. 316

(2002) .......................................................................15

Whole Woman’s Health v. Jackson, 595 U.S. 30

(2021) .......................................................................26

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ......... 1, 3, 4, 7-9, 13-16, 19, 21, 27

U.S. Const. amend. II .................................. 1, 2, 7, 8, 12

U.S. Const. amend. XIV ..............................................22

STATUTES

15 U.S.C. § 7901(a)(2) ...................................................7

15 U.S.C. § 7901(a)(6) ........................................... 14, 26

15 U.S.C. § 7901(b)(5) ......................................... 3, 7, 13

15 U.S.C. §§ 7901-7903 .................................................2

15 U.S.C. § 7903(4) ......................................................14

15 U.S.C. § 7903(5)(A) ............................................. 6, 13

42 U.S.C. § 1983 ........................................................ 1

Protection of Lawful Commerce in Arms Act,

Pub. L. No. 109-92, §§ 1-4, 119 Stat. 2095 .... 2, 3, 6-8,

............................................................... 13, 14, 26, 27

v

TABLE OF AUTHORITIES—Continued

Page

RULES

Fed. R. Civ. P. 11(b)(2) ...................................................7

Fed. R. Civ. P. 12(b)(6) ........................................... 17, 20

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

3 THE DEBATES, RESOLUTIONS, AND OTHER PROCEEDINGS IN CONVENTION ON THE ADOPTION OF

THE FEDERAL CONSTITUTION (Jonathan Elliot

ed., 1830) ...................................................................1

David Stout & Richard Perez-Pena, Housing

Agencies to Sue Gun Makers, N.Y. TIMES (Dec.

8, 1999), https://www.nytimes.com/1999/12/08/

us/housing-agencies-to-sue-gun-makers.html ........ 4, 5

Fred Musante, After Tobacco, Handgun Lawsuits, N.Y. TIMES (Jan. 31, 1999), https://www.

nytimes.com/1999/01/31/nyregion/after-tobaccohandgun-lawsuits.html .............................................4

George A. Mocsary, Administrative Browbeating

and Insurance Markets, 68 VILL. L. REV. 579

(2023) .......................................................................25

Governor Cuomo Issues Guidance on Essential

Services Under The ‘New York State on

PAUSE’ Executive Order (Mar. 20, 2020),

https://www.governor.ny.gov/news/governorcuomo-issues-guidance-essential-services-undernew-york-state-pause-executive-order .....................9

vi

TABLE OF AUTHORITIES—Continued

Page

Guidance for Determining Whether A Business

Is Subject To A Workforce Reduction Under

Recent Executive Orders (Oct. 23, 2020), https://

esd.ny.gov/guidance-executive-order-2026 ...............9

N.Y. State Dep’t of Fin. Servs., ACCESS TO FINANCIAL SERVICES IN NEW YORK 1 (2023), https://

www.dfs.ny.gov/system/files/documents/2023/

05/nydfs_access_to_financial_services_nys_

20230505.pdf .............................................................9

Neil Gorsuch, Liberals’N’Lawsuits, NAT’L REV.

(Feb. 7, 2005), https://www.nationalreview.

com/2005/02/liberalsnlawsuits-joseph-6/ .................5

New York remains top financial centre, London

clings to second place, survey shows, REUTERS

(Sept. 28, 2023), https://www.reuters.com/

business/new-york-remains-top-financialcentre-london-clings-second-place-survey2023-09-28/ ..............................................................21

Remarks by Secretary Andrew Cuomo to Handgun Control, Inc. (June 20, 2020), https://

archives.hud.gov/remarks/cuomo/speeches/

handguncontrl.cfm ............................................ 5, 6, 8

vii

TABLE OF AUTHORITIES—Continued

Page

Robert T. Miller, Delaware Law Requires Directors to Manage the Corporation for the Benefit

of its Stockholders and the Absurdity of Denying It, HARV. L. SCHOOL FORUM ON CORP. GOVERNANCE (Dec. 13, 2023), https://corpgov.law.

harvard.edu/2023/12/13/delaware-law-requiresdirectors-to-manage-the-corporation-for-thebenefit-of-its-stockholders-and-the-absurdityof-denying-it/ ...........................................................24

Sharon Walsh, Gunmakers Up in Arms Over

HUD Plan to Sue Them, WASH. POST (Dec. 9,

1999), https://www.washingtonpost.com/wp-srv/

WPcap/1999-12/09/056r-120999-idx.html ...............4

The HUD Gun Suit, WASH. POST (Dec. 17, 1999),

https://www.washingtonpost.com/archive/opinions/

1999/12/17/the-hud-gun-suit/48ee0a45-18da4e8d-9b86-b9512172ae09/ ........................................5

Wash. State Off. of the Ins. Comm’r, Why is

Kreidler saying self-defense insurance policies

are illegal?, COMM’R’S EYE ON INSURANCE

(Oct. 21, 2019) .........................................................25

William B. Barr & Jonathan Berry, Delaware Is

Trying Hard to Drive Away Corporations,

WALL. ST. J. (Nov. 24, 2023), https://www.wsj.

com/articles/delaware-is-trying-hard-to-driveaway-corporations-business-environmentalsocial-governance-investing-780f812a ........................ 24

1

INTEREST OF THE AMICI CURIAE1

Amici Curiae are Senator Ted Budd and 17 additional members of the United States Senate, and Representative Richard Hudson and 62 additional members

of the United States House of Representatives. See Appendix. As elected representatives, amici have an interest in protecting their constituents’ First and Second

Amendment rights. Statutes enacted by Congress such

as 42 U.S.C. § 1983 give individuals the ability to enforce their constitutional rights against government

officials. In addition to longstanding civil rights laws,

Congress previously passed legislation for the express

purpose of protecting the First Amendment rights of

gun manufacturers, sellers, and their trade associations. Those rights are at stake in this case.

The power of one State to drive policy across the

entire country is also at issue here. “The people will

be represented in one house,” and “[t]he state legislatures in the other,” explained James Iredell, one of

this Court’s first Justices, at North Carolina’s 1788

ratifying convention. 3 THE DEBATES, RESOLUTIONS,

AND OTHER PROCEEDINGS IN CONVENTION ON THE ADOPTION OF THE FEDERAL CONSTITUTION 48 (Jonathan Elliot

ed., 1830). Given the Senate’s role in representing the

interests of the States, Senator Budd and his fellow

1

Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae certifies that no counsel for a party authored this brief in

whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this

brief. No person other than amici made such a monetary contribution.

2

Senate colleagues have a unique interest in ensuring

that sister States do not exert control over the affairs

of the people in the States they represent.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

Former New York Governor Andrew Cuomo is an

implacable foe of gun rights. While previously serving

as a cabinet member, Cuomo pledged the federal government’s resources to a litigation campaign against

gun manufacturers and their supporters, an agenda so

extreme it rattled gun control proponents. In 2005,

Congress quelled Cuomo’s ambitions by enacting the

Protection of Lawful Commerce in Arms Act, Pub. L.

No. 109-92, §§ 1-4, 119 Stat. 2095, 2095-99 (codified at

15 U.S.C. §§ 7901-7903) (the “PLCAA”), a statute to

shield both the gun industry and organizations like Petitioner NRA from legal claims arising out of violent

crimes committed by third parties.

Cuomo did not accept democracy. Aware such legislation might become a reality, Cuomo earlier promised to take his fight against gun rights to the state

and local level whatever may come. Together with

longtime ally Respondent Maria T. Vullo, the former

Superintendent of the New York Department of Financial Services (“DFS”), Cuomo delivered on that promise. Blocked by federal law and this Court’s Second

Amendment precedents from mounting a direct attack

on the NRA and gun manufacturers, Cuomo instructed

3

Vullo and her powerful state agency to urge insurers

and financial institutions to drop the NRA as a customer. Meanwhile, Vullo and DFS selectively enforced

the Empire State’s insurance laws against NRA vendors, interfering with the organization’s access to mission-critical insurance coverage and basic financial

services. This campaign singled out the NRA’s financial relationships on account of the organization’s First

Amendment-protected advocacy for gun rights, speech

Vullo maligned as “promot[ing] guns that lead to

senseless violence.” Pet. App. 246, 249. This was not, as

the Second Circuit found below, a “good faith” effort to

enforce New York’s insurance laws in an evenhanded

way, but rather a state-sanctioned assault on disfavored speech in violation of the First Amendment—including the very speech rights Congress sought to

protect in the PLCAA. 15 U.S.C. § 7901(b)(5).

This case presents other constitutional problems.

In their pursuit of the NRA and gun rights advocates,

Cuomo, Vullo, and DFS used New York’s insurance

laws to project power outside the State’s boundaries.

Their agenda raises federalism concerns. “Not only

do States retain sovereignty under the Constitution,

there is also a fundamental principle of equal sovereignty among the States.” Shelby Cnty. v. Holder, 570

U.S. 529, 544 (2013) (internal quotation marks omitted). If Vullo’s actions are affirmed, some States may

prove to be more equal than others.

---------------------------------♦---------------------------------

4

ARGUMENT

I.

THE SECOND CIRCUIT’S DECISION UNDERMINES FIRST AMENDMENT FREEDOMS CONGRESS PASSED LEGISLATION

TO PROTECT.

A. Congress Passed Legislation to Prevent

Former New York Governor Andrew

Cuomo and Others From Bringing Baseless Lawsuits Against the Gun Industry.

Former New York Governor Andrew Cuomo has

long targeted gun rights. In the late 1990s, inspired by

lawsuits against the tobacco industry, various plaintiffs started suing gun manufacturers, retailers, and

trade associations for gun violence. Fred Musante, After Tobacco, Handgun Lawsuits, N.Y. TIMES (Jan. 31,

1999), https://www.nytimes.com/1999/01/31/nyregion/

after-tobacco-handgun-lawsuits.html. While serving

as the Secretary of the United States Department of

Housing and Urban Development, Cuomo pledged to

throw the resources of an entire federal cabinet department behind this nascent litigation campaign. David

Stout & Richard Perez-Pena, Housing Agencies to Sue

Gun Makers, N.Y. TIMES (Dec. 8, 1999), https://www.

nytimes.com/1999/12/08/us/housing-agencies-to-suegun-makers.html. Initial reports attributed Cuomo

with saying “that his agency would file a massive lawsuit” against gun companies “on behalf of the nation’s

3,191 public housing authorities.” Sharon Walsh, Gunmakers Up in Arms Over HUD Plan to Sue Them,

WASH. POST (Dec. 9, 1999), https://www.washingtonpost.

com/wp-srv/WPcap/1999-12/09/056r-120999-idx.html.

5

Later reports clarified the housing authorities “would

bring a class action lawsuit against gun makers with

help from” Cuomo’s agency. Stout & Perez-Pena, supra.

Cuomo’s plan was too extreme even for gun control proponents. The Washington Post, which said it

“strongly supports rigorous controls for handguns,” editorialized against the plan, describing Cuomo’s project

as “an abuse of a valuable system.” The HUD Gun Suit,

WASH. POST (Dec. 17, 1999), https://www.washingtonpost.

com/archive/opinions/1999/12/17/the-hud-gun-suit/48

ee0a45-18da-4e8d-9b86-b9512172ae09/. The Post conceded that it is “wrong for an agency of the federal government to organize other plaintiffs to put pressure

on an industry”—even one the paper described as “distasteful”—in order “to achieve policy results the administration has not been able to achieve through

normal legislation or regulation.” Id.

Undeterred, Cuomo later argued that “when

you’ve tried for years and years to get legislation, and

you see no progress, then you go to the court system.”

Remarks by Secretary Andrew Cuomo to Handgun

Control, Inc. (June 20, 2020), https://archives.hud.gov/

remarks/cuomo/speeches/handguncontrl.cfm. To promote his agenda, Cuomo indulged what one member of

this Court called an “overweening addiction to the

courtroom as the place to debate social policy” rather

than the ballot box, something “bad for the country and

bad for the judiciary.” Neil Gorsuch, Liberals’N’Lawsuits, NAT’L REV. (Feb. 7, 2005), https://www.national

review.com/2005/02/liberalsnlawsuits-joseph-6/.

6

Cuomo speculated that voters might reject his litigation agenda. Calling this “very much a political issue,” one on which “the NRA is very potent politically,”

Cuomo worried “that if certain politicians are elected,

the lawsuits [against the gun industry] will go away.”

Remarks by Secretary Andrew Cuomo, supra. Gun

manufacturers, Cuomo complained, are “going to be

immunized” from liability “if Bush becomes president.”

Id. Ultimately though, “this is not going to be an effort

that is won in Washington.” Id. “You can’t win this in

Washington,” Cuomo explained. Id. “If we engage the

enemy in Washington we will lose.” Id. The gun industry “will beat us in this town,” which Cuomo called the

industry’s “fortress.” Id.

In 2005, with bi-partisan support, Congress handed

Cuomo the defeat he long feared. The PLCAA shields

manufacturers, distributors, and trade associations

from any “civil action or proceeding or an administrative proceeding brought by any person” against a gun

manufacturer, seller, or trade association “resulting

from the criminal or unlawful misuse of a [firearm] by

the person or a third party.” 15 U.S.C. § 7903(5)(A).

Congress provided that such litigation “may not be

brought in any Federal or State court,” id. § 7902(a),

and required that all pending actions “be immediately

dismissed,” id. § 7902(b). Not only that, Congress defined “person” to include “any governmental entity,” id.

§ 7903(3), permanently blocking by federal statute

Cuomo’s proposed litigation campaign.

Congress’ rejection of Cuomo’s agenda contained a

detailed list of findings and purposes. By banning

7

these lawsuits, Congress determined that “[t]he liability actions commenced or contemplated by the Federal

Government [(i.e., Cuomo’s plan)], States, municipalities, and private interest groups and others” were not

only misguided, but “based on theories without foundation in hundreds of years of the common law and

jurisprudence of the United States and do not represent a bona fide expansion of the common law.” Id.

§ 7901(a)(7).2 Congress also found, three years before

this Court’s landmark decision in District of Columbia

v. Heller, 554 U.S. 570 (2008), that the Second Amendment “protects the rights of individuals, including

those who are not members of a militia or engaged in

military service, to keep and bear arms,” 15 U.S.C.

§ 7901(a)(2). And relevant here, one of the PLCAA’s

core purposes is “[t]o protect the right, under the First

Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely,

to assemble peaceably, and to petition the Government

for a redress of their grievances.” Id. § 7901(b)(5).

Stymied by “the enemy” on Capitol Hill, Cuomo

did not accept democracy. In 2000, more than five years

before Congress enacted the PLCAA, Cuomo pledged

to take his fight against the gun industry and its allies

to the state and local level. Prefiguring the events

2

Congress’ rejection of these legal theories as a legitimate

expansion of the common law evokes Rule 11’s sanctionable bar

on pursuing legal claims unsupported “by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law.” Fed. R. Civ. P. 11(b)(2).

8

giving rise to this litigation, Cuomo promised that

“[w]e’re going to beat them,” meaning gun rights advocates like the NRA, “state by state, community by community.” Remarks by Secretary Andrew Cuomo, supra.

New York’s former governor was not bluffing.

B. Andrew Cuomo, Maria Vullo, and the

New York Department of Financial Services End Run the PLCAA and the First

Amendment.

1. Cuomo and Vullo Use New York

State Financial Services Regulations to Disrupt the NRA’s Access to

Essential Financial Services.

After Congress enacted the PLCAA, this Court

subjected state and local gun regulation to fundamental rights scrutiny in McDonald v. City of Chicago, 561 U.S. 742 (2010), which incorporated the

Second Amendment against the States. Having lost in

Congress and before this Court, state regulators like

Cuomo had a problem. Because of the PLCAA, direct

lawfare against the gun industry and trade associations like the NRA was off the table. At the same time,

wholesale restrictions on gun ownership at the state

and local level were out of the question after McDonald, and now so are bans on carrying handguns for

self-defense outside the home, New York State Rifle &

Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

This is where DFS and its former Superintendent

Respondent Maria T. Vullo, a Cuomo nominee to that

9

job and one of the former New York Governor’s longtime political allies, Pet. App. 198 ¶¶ 19-20, enter the

scene. Thwarted from achieving their goals in other

ways, Cuomo and Vullo sought to deny gun rights activists access to basic financial and insurance services.

And there is no doubt such services are and were

essential. At the outset of the COVID-19 pandemic,

Cuomo identified financial services as one of twelve

categories of “essential businesses” allowed to operate.

Governor Cuomo Issues Guidance on Essential Services Under The ‘New York State on PAUSE’ Executive

Order (Mar. 20, 2020), https://www.governor.ny.gov/news/

governor-cuomo-issues-guidance-essential-services-undernew-york-state-pause-executive-order.3 DFS itself recognizes that “[a]ccess to safe and affordable financial

services is critical to household financial stability.” N.Y.

State Dep’t of Fin. Servs., ACCESS TO FINANCIAL SERVICES IN NEW YORK 1 (2023), https://www.dfs.ny.gov/

system/files/documents/2023/05/nydfs_access_to_financial_

services_nys_20230505.pdf.

3

This Court previously enjoined, on First Amendment

grounds, Cuomo’s targeting of religious services as part of his response to the COVID-19 pandemic, noting that “while a synagogue or church may not admit more than 10 persons,” so-called

“essential businesses,” including financial institutions, were allowed to “admit as many people as they wish.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (per curiam);

see also Guidance for Determining Whether A Business Is Subject

To A Workforce Reduction Under Recent Executive Orders (Oct.

23, 2020), https://esd.ny.gov/guidance-executive-order-2026 (defining banks, lending institutions, and insurance companies as

“essential businesses”).

10

What is true for individuals and families holds

true for organizations like the NRA which need banking services to raise, manage, and disburse funds. Pet.

App. 203 ¶ 28. Commercial liability insurance is a general requirement to conduct business and a common

contractual prerequisite to engage vendors and hold

in-person events. Id. at 203-04 ¶ 29. The NRA, like bar

associations, civic organizations, and other groups, offers affinity insurance plans as a membership perk. Id.

at 204 ¶ 30. Under Vullo, DFS regulated all these offerings.

Prevented by Congress and this Court from

mounting a direct legal attack on the NRA and gun

manufacturers, Cuomo and Vullo set out on an indirect, but just as damaging path. For the NRA’s longtime financial vendors, this first meant unwanted

attention from DFS regulators. In October 2017, DFS

launched an investigation into the NRA’s Carry Guard

self-defense affinity insurance product. Id. at 206-07

¶¶ 34-37. The pressure became so pronounced that the

NRA’s longtime insurance broker ended its relationship with the organization, with the broker raising

concerns that it might lose its New York business license. Id. at 209 ¶ 42. Contemporaneously, a large commercial insurance carrier declined to do business with

the NRA at any price. Id. at 210 ¶ 44.

Cuomo and Vullo took the campaign to another

level. In an April 2018 press release, Cuomo announced he had instructed Vullo and DFS “to urge insurers and bankers statewide to determine whether

any relationship they may have with the NRA or

11

similar organizations sends the wrong message to

their clients,” explaining further that “[t]his is not just

a matter of reputation, it is a matter of public safety.”

Id. at 243-44. Vullo issued two guidance letters to all

insurers and financial institutions doing business in

the State of New York. After invoking the lives lost at

Sandy Hook and Columbine High School, Vullo framed

any ongoing or potential relationship with “the NRA or

similar gun promotion organizations” as fraught with

“reputational risks” and “encourage[d]” these DFS-regulated entities “to take prompt actions to managing

these risks and promote public health and safety.” Id.

at 248, 251. The day after Vullo sent her guidance letters, Cuomo called the NRA “an extremist organization” and “urge[d] companies in New York State to

revisit any ties they have to the NRA and consider

their reputations, and responsibility to the public.” Id.

at 213 ¶ 51.

Two weeks later, DFS and the entities involved in

administering, marketing, and underwriting NRAbranded affinity insurance products entered consent

decrees. One of the decrees barred the NRA’s affinity

insurance administrator not only from participating in

the Carry Guard insurance program, but also in “any

other NRA-endorsed programs with regard to New

York State.” Id. at 269 ¶ 42. Similarly, the underwriters for the NRA-endorsed program agreed “they shall

not enter into any agreement or program with the

NRA to underwrite or participate in any affinity-type

insurance program involving any line of insurance.”

Id. at 289 ¶ 22. DFS also imposed civil penalties of

12

$7 million and $1.3 million on the entities involved in

NRA’s insurance program. Id. at 268 ¶ 41, 287 ¶ 20.

While Cuomo and Vullo were exercising state

power against the NRA’s insurance vendors through

DFS, the state agency was working against Lloyd’s of

London. Vullo and DFS gave the company the bad

news first: Lloyd’s was out of compliance with New

York laws governing affinity insurance. Id. at 223 ¶ 69.

Then came the good news: leniency was available if

only the global insurance marketplace would instruct

its syndicates to stop underwriting gun and NRArelated polices. Id. Lloyd’s accepted the deal, announcing its underwriters would stop providing insurance

to the NRA. Id. at 224 ¶ 72. Lloyd’s later entered a

consent decree with DFS, paying $5 million in civil

monetary penalties while committing to refrain from

“enter[ing] into any agreement or program with the

NRA to underwrite or participate in any affinity-type

insurance program involving any line of insurance covering persons or entities whose home state is New

York.” Id. at 305-06 ¶¶ 19-20.

The campaign had the effect Cuomo and Vullo

wanted. The NRA struggled to find an insurance carrier willing to extend general commercial liability insurance to the organization for fear of being targeted

by DFS, imperiling the organization’s Second Amendment advocacy agenda. Id. at 227-28 ¶ 81. The organization even found basic financial services difficult to

come by, as banks withdrew their bids for the NRA’s

business after Vullo’s April 2018 guidance letters. Id.

at 228 ¶ 82.

13

2. Cuomo and Vullo’s Targeted, Coercive Regulatory Agenda Flouts Congress’ Express Desire to Protect the

First Amendment Rights of Gun

Rights Advocates.

In the PLCAA, one of Congress’ express purposes

was to ensure “the right, under the First Amendment

to the Constitution, of . . . trade associations, to speak

freely, to assemble peaceably, and to petition the Government for a redress of their grievances.” 15 U.S.C.

§ 7901(b)(5). The statute blocks what Congress defined

as a “qualified civil liability action,” meaning any “civil

action or proceeding or administrative proceeding

brought by any person against a manufacturer or

seller of a qualified product, or a trade association”

which is premised on “the criminal or unlawful misuse” by the person bringing the action “or a third party.”

Id. § 7903(5)(A); see also id. § 7902 (barring any “qualified civil liability action”). The term “trade association” includes groups like the NRA. See id. § 7903(8).

Third party conduct was front and center in Vullo’s

April 2018 guidance letters. Opening with references

to school shootings, DFS’ former Superintendent noted

the “social backlash” against both the NRA and other

organizations “that promote guns that lead to senseless violence,” praising “the passionate, courageous,

and articulate young people who have experienced this

recent horror first hand.” Pet. App. 246, 249. Vullo cited

“recent actions of a number of financial institutions

that severed their ties with the NRA after” a school

shooter “killed 17 people in Parkland, Florida” as “an

14

example” of companies “fulfilling their corporate social

responsibility.” Id. at 247, 250.

The PLCAA prevented Vullo from suing the NRA

and the components of the supply chain for the firearms used in these tragedies.4 But Vullo evaded the

statute by targeting the NRA’s insurance and financial

vendors which happen to fall outside the definitions of

“manufacturer,” “seller,” and “trade association.” By

leveraging financial regulations to inflict long-desired

harm on the NRA, Vullo and DFS effectively nullified

a federal statute. Vullo also handed state and local regulators a playbook for undermining the First Amendment rights of any group that expresses disfavored

views, as any number of environmental, health, and

safety regulations can be used as a predicate to hinder

an opponent’s access to essential services. After all, the

power to regulate is the power to destroy. Cf. McCulloch v. Maryland, 17 U.S. 317, 431 (1819) (“[T]he power

to tax involves the power to destroy.”). Letting the decision below stand “invites the disassembly and destabilization” of not just the gun industry, but “of other

industries and economic sectors lawfully competing in

the free enterprise system in the United States,” 15

U.S.C. § 7901(a)(6), the very result Congress sought to

avoid by passing the PLCAA.

4

Congress defined the term “qualified product” to include “a

component part of a firearm or ammunition, that has been

shipped or transported in interstate or foreign commerce.” 15

U.S.C. § 7903(4).

15

3. The First Amendment Bars Cuomo

and Vullo From Using Regulatory

Power to Target, Censor, and Chill

Protected Speech. The Second Circuit’s Contrary Holding, Which Gave

Short Shrift to This Court’s Cases,

Should be Reversed.

Governments have long sought to inhibit disfavored speech by controlling the medium of expression.

The “core abuse against which [the First Amendment]

was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the

‘evils’ of the printing press in 16th- and 17-century

England.” Thomas v. Chicago Park Dist., 534 U.S. 316,

320 (2002). That system prohibited “the publication of

any book or pamphlet without a license and required

that all works be submitted for approval to a government official.” Id.

This Court confronted a more modern, informal

censorship regime in Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963). That case involved a First Amendment challenge to the Rhode Island Commission to Encourage Morality in Youth’s activities. Id. at 60. The

Commission was tasked with “investigat[ing] and recommend[ing] the prosecution of all violations” of state

laws related to content “containing obscene, indecent

or impure language, or manifestly tending to the corruption of the youth.” Id. Instead of targeting book

publishers, the Commission sent notices to book distributors that held content in inventory which “had

been declared by a majority of [the Commission’s]

16

members to be objectionable for sale, distribution or

display to youths under 18 years of age.” Id. at 61. The

censors targeted the distributors for a reason—the

government almost certainly knew that “[t]he distributor who is prevented from selling a few titles is not

likely to sustain sufficient economic injury to induce

him to seek judicial vindication of his rights.” Id. at 64

n.6. Unsurprisingly, with the threat of prosecution

looming, the notices caused the targeted distributors

to stop listing and selling the objectionable titles. Id.

at 64. This Court struck down the system on First

Amendment grounds, finding the Commission to be

“an agency not to advise but to suppress.” Id. at 72.

Cuomo, Vullo, and DFS employed a similar scheme

to the one Rhode Island devised in Bantam Books. In

much the same way the Commission targeted book distributors instead of publishers in that case, New York’s

executive branch did not target the NRA directly, but

rather financial services vendors critical to its mission.

Vullo and DFS’ enforcement activities barred the

NRA’s affinity insurance administrator, marketer, and

underwriter from certain further dealings with the organization. Part I.B.1, supra. DFS also extracted millions of dollars in civil penalties from the NRA’s

vendors. Id.

The conduct at issue here is even more coercive

than what took place in Bantam Books. Before this

Court, the Commission argued that it “simply exhorts

booksellers and advises them of their legal rights.” Id.

at 66. Even “though the Commission” could only inflict

“informal sanctions,” there had been no prosecutions,

17

and no books had “been seized or banned by the

State,” this Court found “the Commission deliberately

set about to achieve the suppression of publications

deemed ‘objectionable’ and succeeded in its aim.” Id. at

67. The same is true here. As in Bantam Books, this

Court should “look through forms to substance,” and

“recognize” the “informal censorship” that exists here

for what it is. Id.

The Second Circuit reached a different conclusion.

The court determined, “as a matter of law” at the Fed.

R. Civ. P. 12(b)(6) stage, that “Vullo’s statements in the

Guidance Letters and Press Release are clear examples of permissible government speech,” Pet. App. 28,

which “use[d] only suggestive language and rely on the

power of persuasion,” id. at 36. In this telling, Vullo’s

statements “were written in an even-handed, nonthreatening tone and employed words intended to persuade rather than intimidate.” Id. at 29. Similarly, the

Second Circuit found Vullo and DFS’ treatment of

Lloyd’s and the consent decrees entered against the

NRA’s vendors “show that [Vullo] was simply executing her duties as DFS Superintendent and engaging in

legitimate enforcement action.” Id. at 33.

The decision below contains multiple flaws. Foremost, the Second Circuit gave only passing attention

to this Court’s Bantam Books decision, with the court’s

only detailed treatment of the case consigned to a footnote in the qualified immunity section of the opinion.

See Pet. App. 35 n.15. There, in denying that case law

“clearly establish[es] that Vullo’s statements in this

case were unconstitutionally threatening or coercive,”

18

the court homed in on the Rhode Island Commission to

Encourage Morality in Youth “advising that lists of

‘objectionable’ books were being sent to the Chief of

Police, and warning that the Attorney General ‘will act’

in case of noncompliance.” Id. According to the court,

that “will act” advisory is sufficient to distinguish

Bantam Books from Vullo’s actions in this case.

Vullo and the state agency she commanded loomed

even larger than the Rhode Island Commission. The

Commission in Bantam Books could only “recommend”

obscenity prosecutions, lacking the power to bring

them directly. 372 U.S. at 60. As Justice Harlan put it

in his dissent, the Commission’s statements had “an

air of authority which that body does not possess.” Id.

at 77 (Harlan, J., dissenting). Unlike the Commission,

Vullo and DFS had direct authority over the NRA’s

vendors, and the agency exercised it repeatedly. Comparatively, Vullo and DFS held more power and did far

more than the Commission which argued, as Vullo does

here, that it “simply exhorts booksellers and advises

them of their legal rights.” Bantam Books, 372 U.S. at

66.

The Second Circuit characterized Vullo’s actions

as “good faith” enforcement of New York’s insurance

laws, finding that “DFS explicitly permitted Lloyd’s

(and the other entities) to continue doing business with

the NRA.” Pet. App. 37. The court substantially overstated the freedom of the NRA’s former vendors. While

the consent decrees provided that the NRA’s affinity

insurance administrator “may assist the NRA in procuring insurance for the NRA’s own operations,” Pet.

19

App. 270 ¶ 43, and the NRA was allowed to “purchase

insurance from [the organization’s underwriter] for

the sole purpose of obtaining insurance for the NRA’s

own corporate operations,” id. at 289 ¶ 22, the entities

were still barred from “underwrit[ing] or participat[ing] in any affinity-type insurance program involving any line of insurance to be issued or delivered in

New York State,” id. at 270 ¶ 43, 289 ¶ 22. DFS required the same from Lloyd’s. See id. at 306 ¶ 20. In

this regard, the consent decrees blocked the vendors

from engaging in an entire line of business with the

NRA, regardless of the underlying compliance of any

future affinity programs.

In the Second Circuit’s telling, Vullo acted against

“serious insurance law violations” to which “the entities—sophisticated companies represented by experienced counsel—admitted.” Id. at 33. But the consent

decrees themselves do not represent a judicial determination of wrongdoing, rather they are “devices to

facilitate settlement.” Loc. No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S.

501, 524 n.13 (1986). The entities may have entered

the consent decrees for any number of pragmatic reasons, including to have Vullo and her agency “go easy”

on other, more lucrative components of their businesses. Like the distributors in Bantam Books, Vullo’s

enforcement targets lacked the incentives to fully push

their rights. 372 U.S. at 64 n.6 The practical effect of

the pressure campaign on the private entities was and

is to hinder the NRA’s First Amendment-protected gun

rights advocacy mission. By exploiting a weak link in

20

the NRA’s operation, Vullo and DFS used state power

to “induce, encourage or promote private persons to

accomplish what it is constitutionally forbidden to

accomplish.” Norwood v. Harrison, 413 U.S. 455, 465

(1973) (cleaned up). Regardless, the court below left

unexplored why the “serious misconduct” at issue

spurred investigations into NRA-connected entities,

but not other similarly situated entities in the affinity

insurance marketplace. Pet. App. 220-21 ¶ 66. Nor did

the court account for the fact that the press release and

Vullo’s guidance letter say nothing about insurance

compliance matters, focusing instead on gun violence.

See id. at 243-51.

This leads to the Second Circuit’s misapplication

of the plausibility standard from Ashcroft v. Iqbal, 556

U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007). The lower courts dismissed the NRA’s

case at the pleadings stage, without the benefit of

discovery. The Second Circuit analogized the NRA’s

claims to the Twombly plaintiffs’ “allegations of parallel business conduct and a bare assertion of conspiracy.” Pet. App. 33. The Second Circuit’s apparent

“obvious alternative explanation” for what happened

here, Twombly, 550 U.S. at 567, the “legitimate enforcement action” against the “serious insurance law violations” of the NRA’s vendors, Pet. App. 33, is belied by

Vullo and her agency’s apparent disinterest in other

affinity insurance programs with the same compliance

issues. The court also ignored the NRA’s allegation,

which must be accepted as true at the Fed. R. Civ. P.

12(b)(6) stage, that Vullo’s actions chilled the NRA’s

21

access to financial services and distressed bankers who

complained about her “frustratingly vague” guidance

which “can effectively compel institutions to cease catering to legal businesses.” Pet. App. 228-29 ¶¶ 83-84.

These are far from “unadorned, the-defendant-unlawfully-harmed me accusation[s].” Iqbal, 556 U.S. at 678.

The NRA’s First Amendment claims against Vullo

should go forward.

II.

THE SECOND CIRCUIT’S DECISION UNDERMINES FEDERALISM AND THE

STATES’ EQUAL SOVEREIGNTY.

As home to Wall Street and major stock exchanges,

New York is the financial capital of the world. New

York remains top financial centre, London clings to

second place, survey shows, REUTERS (Sept. 28, 2023),

https://www.reuters.com/business/new-york-remainstop-financial-centre-london-clings-second-place-survey2023-09-28/. Financial institutions and insurers of any

scale, particularly publicly traded companies, have a

presence in the Empire State. DFS exerts significant

power over these interests, with The New York Times

going so far as to call Vullo’s immediate predecessor

the “Sheriff of Wall Street.” Pet. App. 201-02 ¶ 25. For

these companies, compliance with DFS regulations is

the cost of admission to New York and the balance of

the American economy.

Subject to Congress’ power to regulate interstate

commerce, the States enjoy “substantial leeway to adopt

their own commercial codes.” Nat’l Pork Producers

22

Council v. Ross, 598 U.S. 356, 369 (2023). New York,

like its sister States, has the right to govern commercial conduct within its borders. Even so, in our system

of divided sovereignty, problems arise “about where

one State’s authority ends and another’s begins—both

inside and outside the commercial context.” Id. at 375.

To resolve those conflicts, this “Court has long consulted original and historical understandings of the

Constitution’s structure and the principles of equal

sovereignty and comity it embraces.” Id. at 376 (internal quotation marks omitted).

This Court’s decision in BMW of North America,

Inc. v. Gore, 517 U.S. 559 (1996), illustrates the limits

of state power. That case involved a state law fraud action against BMW for failing to disclose that the company had repainted a car marketed as new, id. at 564,

which was a legal practice in other jurisdictions at the

time, id. at 565. An Alabama jury awarded the plaintiff

$4 million in punitive damages for “selling approximately 1,000 cars,” the vast majority of which were

sold outside Alabama, “for more than they were

worth.” Id. at 564.

This Court held that “principles of state sovereignty and comity” prevent “a State [from] . . . impos[ing] economic sanctions on violators of its laws

with the intent of changing the tortfeasors’ lawful conduct in other States.” Id. at 572. In rejecting the modified $2 million verdict as excessive under the Due

Process Clause of the Fourteenth Amendment, this

Court recognized that “[w]hile each State has ample

power to protect its own consumers, none may use the

23

punitive damages deterrent as a means of imposing its

regulatory policies on the entire Nation.” Id. at 585.

The same kind of regulatory overreach is at issue

in this case. Cuomo, Vullo, and DFS’ desire to project

power beyond New York’s borders was apparent at the

outset. In the April 2018 press release, Cuomo “direct[ed] the Department of Financial Services to urge

insurers and bankers statewide” to reevaluate their relationship with the NRA. Pet. App. 243-44. Vullo targeted “all insurance companies and banks doing

business in New York.” Id. at 244. Neither Cuomo nor

Vullo distinguished between operations inside or outside the Empire State. Similarly, Vullo’s guidance letters were addressed to “All Insurers Doing Business in

the State of New York,” id. at 246, and “New York State

Chartered or Licensed Financial Institutions,” id. at

249. The body of those letters contains references to

“[o]ur insurers,” id. at 247, and “[o]ur financial institutions,” id. at 250, but nowhere did Vullo cabin her demands to New York operations, see id. at 246-51.

Vullo’s advisories relate to corporate governance.

“Corporations are creatures of state law,” which means

“the first place one must look to determine the powers

of corporate directors is the relevant State’s corporate

law.” Burks v. Lasker, 441 U.S. 471, 478 (1979). In her

appeals to “corporate social responsibility,” Vullo did

not distinguish between entities incorporated in New

York or other jurisdictions where corporate law demands directors prioritize shareholder gains or in

Delaware where there is ongoing debate regarding

the extent to which corporate directors can legally

24

promote non-shareholder interests. See Robert T. Miller, Delaware Law Requires Directors to Manage the

Corporation for the Benefit of its Stockholders and the

Absurdity of Denying It, HARV. L. SCHOOL FORUM ON

CORP. GOVERNANCE (Dec. 13, 2023), https://corpgov.law.

harvard.edu/2023/12/13/delaware-law-requires-directors-tomanage-the-corporation-for-the-benefit-of-its-stockholdersand-the-absurdity-of-denying-it/; William B. Barr &

Jonathan Berry, Delaware Is Trying Hard to Drive

Away Corporations, WALL. ST. J. (Nov. 24, 2023),

https://www.wsj.com/articles/delaware-is-trying-hardto-drive-away-corporations-business-environmentalsocial-governance-investing-780f812a. Cuomo and Vullo’s

“encouragement” regarding corporate social responsibility placed at least some regulated entities between

the Scylla of not being viewed as a good corporate citizen in the world’s financial capital, and the Charybdis

of home-state fiduciary duty obligations.

The consent decrees contain additional evidence of

Cuomo and Vullo’s efforts to project power outside the

Empire State. The consent decree entered against one

NRA vendor bars “underwrit[ing] or participat[ing] in

any affinity-type insurance program” with the NRA

not just in New York, but anywhere else. See Pet. App.

289 ¶ 22.5 The predicate violations of New York law

5

That this provision applies outside New York is apparent

from the consent decree’s plain language. One provision in the

consent decree bars the vendor from “participat[ing] in the Carry

Guard insurance program or any similar program,” but that language is qualified to “with regard to New York State.” Pet. App.

288 ¶ 21. The immediately following paragraph contains no such

geographic limitation. See id. at 289 ¶ 22.

25

included issuing policies “which provided insurance

coverage that may not be offered in” New York such as

“defense coverage in a criminal proceeding.” Id. at 287

¶ 18. One commentator openly questioned “whether all

of the activities listed in the NYDFS consent decrees

were in fact illegal” under New York law. George A.

Mocsary, Administrative Browbeating and Insurance

Markets, 68 VILL. L. REV. 579, 602 (2023). New York

aside, even though this kind of self-defense coverage is

legal in at least some States,6 the consent decree bars

the NRA’s former vendor from issuing those policies

anywhere. This means Vullo and her agency “impose[d]

sanctions” on the vendor “in order to deter conduct that

is lawful in other jurisdictions,” which is precisely

what this Court condemned in BMW. 517 U.S. at 573.

Nor is the NRA vendor Vullo targeted a local concern. According to the consent decree, that entity “is

the world’s largest publicly-traded property and casualty insurance company, and the largest commercial

insurer in the United States” with “operations in 54

countries and territories.” Id. at 280 ¶ 1. The practical

effect of this consent decree is not just nationwide, but

even extends to foreign commerce.

6

See, e.g., Wash. State Off. of the Ins. Comm’r, Why is Kreidler

saying self-defense insurance policies are illegal?, COMM’R’S EYE

ON INSURANCE (Oct. 21, 2019) (explaining that “[s]elf-defense policies in and of themselves are not illegal,” but that some policies

contravene public policy “by not requiring policy holders to repay

defense costs in the event of a criminal conviction”).

26

If this Court affirms the Second Circuit, then

Cuomo, Vullo, and DFS’ “New York knows best,”7 extraterritorial meddling will inspire States to leverage

their laws to effect policy changes beyond their own

borders in violation BMW’s rule. 517 U.S. at 585. States

home to entrenched, geographically dispersed, critical

industries will have the go ahead to impose a policy

agenda on their sister States—and not just on guns,

but on any number of other contested issues by deploying what Justice Sotomayor called in another, more

geographically-limited context, “scheme[s] to target locally disfavored rights.” Whole Woman’s Health v. Jackson, 595 U.S. 30, 72 (2021) (Sotomayor, J., concurring

in the judgment in part, dissenting in part).

These are the kinds of federalism problems Congress passed the PLCAA to solve. In enacting that statute, Congress determined that the liability protections

that law extended, which Cuomo and Vullo effectively

nullified through their indirect litigation campaign,

were necessary for the very structural reasons alluded

to in Ross, 598 U.S. at 376. Congress found that the litigation gun rights opponents contemplated would “impose an unreasonable burden on interstate and foreign

commerce of the United States,” 15 U.S.C. § 7901(a)(6),

7

Cf. Ross, 498 U.S. 406-07 (Kavanaugh, J., concurring in

part and dissenting in part) (“[California] has aggressively propounded a ‘California knows best’ economic philosophy—where

California in effect seeks to regulate pig farming and pork production in all of the United States. California’s approach undermines federalism and the authority of individual States by forcing

individuals and businesses in one State to conduct their farming,

manufacturing, and production practices in a manner required by

the laws of a different State.”).

27

“and undermin[e] important principles of federalism,

State sovereignty and comity between the sister

States,” id. § 7901(a)(8). Related, two of the seven enumerated purposes of the PLCAA were “[t]o prevent the

use of such lawsuits to impose unreasonable burdens

on interstate and foreign commerce,” id. § 7901(b)(4),

and “[t]o preserve and protect the Separation of Powers doctrine and important principles of federalism,

State sovereignty and comity between sister States,”

id. § 7901(b)(6). What Cuomo, Vullo, and DFS did in

this case undermines all these federalism principles

Congress explicitly recognized. While a State may

“serve as a laboratory” for policy, New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), this Court should put an end to New York’s

unconstitutional experimentation on the NRA’s First

Amendment rights.

---------------------------------♦---------------------------------

CONCLUSION

This Court should reverse the decision below.

Respectfully submitted,

JAMES R. LAWRENCE, III

Counsel of Record

ENVISAGE LAW

2601 Oberlin Road, Suite 100

Raleigh, North Carolina 27608

(919) 755-1317

jlawrence@envisage.law

Counsel for Amici Curiae

January 15, 2024