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

No. 22-842

In the

Supreme Court of the United States

__________________________________________

THE NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

Respondent.

__________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

__________________________________________

BRIEF OF AMICUS CURIAE

FIREARM POLICY COALITION, INC.

IN SUPPORT OF PETITIONER

__________________________________________

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

WILLIAM V. BERGSTROM

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae

January 16, 2024

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION ........................................................ 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ............................................................... 6

I.

The Second Circuit’s Decision is Incompatible

with Bantam Books. ............................................ 6

II.

Protecting the First Amendment Rights of

Organizations Like the NRA Is Critical to

Protecting Second Amendment Rights. ............ 14

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

CASES

Page

Antonyuk v. Chiumento,

Nos. 22-2908 (L), 22-2972 (Con),

22-2933, 22-2987, 22-3237,

2023 WL 8518003 (2d Cir. Dec. 8, 2023) ....... 16

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ................ 2, 3, 6, 7, 9, 12, 13

Buckley v. Valeo,

424 U.S. 1 (1976) ...................................... 13, 14

Defense Distributed v. Bruck,

30 F.4th 414 (5th Cir. 2022) ..................... 19, 20

Defense Distributed v. Grewal,

971 F.3d 485 (5th Cir. 2020) .......................... 19

Defense Distributed v. United States

Department of State,

838 F.3d 451 (5th Cir. 2016) .......................... 19

District of Columbia v. Heller,

554 U.S. 570 (2008)......................................... 15

Hill v. Colorado,

530 U.S. 703 (2000)......................................... 15

Kennedy v. Warren,

66 F.4th 1199 (9th Cir. 2023) ..................... 9, 10

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995)......................................... 13

New York State Rifle & Pistol Association v.

City of New York,

140 S. Ct. 1525 (2020) .............................. 15, 16

iii

New York State Rifle & Pistol Association v.

Bruen, 597 U.S. 1 (2022) ............................ 1, 15

Rosenberg v. Rectors & Visitors of Univ. of Va.,

515 U.S. 819 (1995)......................................... 14

Snyder v. Phelps,

562 U.S. 443 (2011)......................................... 14

Washington v. Defense Distributed,

Nos. 20-35030, 20-35064,

2020 WL 4332902 (9th Cir. July 21, 2020) .... 20

We the Patriots, Inc. v. Grisham,

No. 1:23-cv-00771-DHU-LF,

2023 WL 6622042 (D.N.M. Oct. 11, 2023) ..... 18

OTHER AUTHORITIES

The Associated Press, Cuomo Declares State of

Emergency Over Gun Violence, N.Y. TIMES

(July 6, 2021), https://nyti.ms/3TX4Roo ........ 17

Ian Ayres & Spurthi Jonnalagadda, Guests With

Guns: Public Support for “No Carry” Defaults

on Private Land, 48 J. L. MED. & ETHICS 183

(2020)............................................................... 16

Governor Hochul Signs Landmark Legislative

Package to Strengthen Gun Laws and Protect

New Yorkers, N.Y. GOV’S. PRESS OFF.

(June 6, 2022), https://on.ny.gov/4b7Q40n .... 16

Jeffrey M. Jones, Americans’ Views of NRA Become

Less Positive, GALLUP (Sept. 13, 2019),

https://bit.ly/4aQh6sJ ..................................... 11

KOB4, New Mexico Gov. Lujan Grisham holds

news conference on gun violence, YOUTUBE

(Sept. 8, 2023), https://bit.ly/3SgWkv6 .......... 18

iv

Letter from Att’y Gen. Raul Torrez to Gov.

Lujan Grisham (Sept. 12, 2023),

https://bit.ly/3O2uXCC ................................... 18

Memorandum from Maria T. Vullo, Superintendent

of Fin. Servs., to the Chief Exec. Officers or

Equivalent of N.Y. State Chartered or

Licensed Fin. Insts. (Apr. 19, 2018),

https://on.ny.gov/3TujB7v .............................. 10

Luis Ferré-Sadurní & Grace Ashford, N.Y. Democrats to Pass New Gun Laws in Response to

Supreme Court Ruling, N.Y. TIMES

(June 30, 2022), https://nyti.ms/48Tgpgn ........ 1

STAFF OF H.R. COMM. ON OVERSIGHT AND GOV’T

REFORM, 113TH CONG., REP. ON THE DEPARTMENT OF JUSTICE’S “OPERATION CHOKE POINT”:

ILLEGALLY CHOKING OFF LEGITIMATE

BUSINESSES? (2014) ........................................ 12

Menqi Sun, New York Financial Regulator Notches

$100 Million Settlement With Coinbase,

WALL ST. J. (Jan. 4, 2023),

https://on.wsj.com/3Hhz5uM ............................ 7

Andrew Willinger, Litigation Highlight: Federal

Judge Weighs Maryland’s Post-Bruen

Sensitive Places Law, DUKE CTR. FOR

FIREARMS LAW: SECOND THOUGHTS BLOG

(Oct. 18, 2023) ................................................. 17

1

INTEREST OF AMICUS CURIAE

Firearms Policy Coalition, Inc. (FPC) is a

nonprofit membership organization that works to

create a world of maximal human liberty and

freedom.1 It seeks to protect, defend, and advance the

People’s rights, especially but not limited to the

inalienable, fundamental, and individual right to

keep and bear arms. FPC accomplishes its mission

through legislative and grassroots advocacy, legal and

historical research, litigation, education, and

outreach programs. FPC’s legislative and grassroots

advocacy programs promote constitutionally based

public policy. Since its founding in 2014, FPC has

emerged as a leading advocate for individual liberty

in state and federal courts, regularly participating as

a party or amicus curiae.

INTRODUCTION

Shortly after this Court held in New York State

Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022),

that the State of New York must allow its law-abiding

citizens to carry firearms in public, the State enacted

a “sensitive places” law effectively limiting carry to, in

the Governor’s words, “probably some streets.” Luis

Ferré-Sadurní & Grace Ashford, N.Y. Democrats to

Pass New Gun Laws in Response to Supreme Court

Ruling,

N.Y.

TIMES

(June

30,

2022),

https://nyti.ms/48Tgpgn. Litigation over New York’s

new and draconian public carry restrictions is

ongoing. One might think of the litigation over that

No counsel for any party has authored this brief in

whole or in part, and no person or entity, other than amicus or

its counsel, has made a monetary contribution to the preparation

or submission of this brief.

1

2

bill and other New York laws limiting the right to

keep and bear arms as representing the primary

battlefield on which the long-running conflict between

New York and the Second Amendment rights of its

citizens is playing out. Simultaneously, however, the

conflict is playing out in other indirect ways, of which

this case is a prime example. Not satisfied with

limiting the Second Amendment rights of its people

directly, New York has sought to cripple the National

Rifle Association by cutting it out of the market for

financial services and threatening retaliation against

those willing to do business with it.

Just as New York’s attempts to curtail firearm

rights directly violates the fundamental Second

Amendment right to keep and bear arms, this indirect

strategy violates the equally fundamental First

Amendment right to freedom of speech. This case

involves multiple clear instances of thinly veiled

threats made by both the governor of New York and

the head of its powerful financial regulatory

department to insurers, banks, and other financial

institutions doing business in New York that made it

perfectly clear that anyone willing to do business with

the NRA would face, at least, intensified regulatory

scrutiny, for having the temerity to do business with

a politically disfavored organization. That these

statements were understood to be threats is

demonstrated by the fact that they worked. Several of

the NRA’s business partners cut ties with the

organization, telling the NRA that the only reason for

their action was concern with incurring the wrath of

their regulators and inviting potential enforcement

actions for taking on too much “reputational risk” by

doing business with the group. This is a textbook

violation of the principle that this Court articulated in

3

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963),

that just as the government cannot directly retaliate

against a disfavored group for their speech, it also

cannot, indeed especially cannot, retaliate against it

indirectly by going after third-party intermediaries

who do business with the speaker.

In holding that this case does not conflict with

Bantam Books, the Second Circuit below misapplied

the law. It ignored the most important facts: that the

defendants possessed immense power over the

financial institutions to which they issued their

threats and the institutions understood the

statements to be threats. And it offered a blinkered

reading of the threats that ignored context, including

the identity and authority of the speaker. Its approach

would, if followed in other cases, mean that only the

most brazen threats could possibly be recognized as

amounting to a First Amendment violation. Indeed,

the Second Circuit’s analysis perversely appears to

allow the great scope of authority wielded by the

defendants to excuse their threats, since, in the

Second Circuit’s view, issues of “reputational risk”

were within the regulator’s purview and so

appropriately a topic on which she had to keep the

regulatory community informed of her views.

The problem this creates should be obvious. New

York is a leader in the movement among a small

number of states seeking to curtail the Second

Amendment rights of their citizens to the maximum

extent possible. In this environment, the authority to

regulate the “reputational risk” of associating with

pro-Second Amendment groups is not a tool that is

likely to go unused. Indeed, the recent past is replete

with examples of states following New York’s lead

4

when it comes to finding creative new ways to infringe

Second Amendment rights, and this case is just one of

several that are currently pending that demonstrate

the strong animus these states have to groups that

will seek to promote and defend the right to keep and

bear arms. Indeed, amicus is aware of similar tactics

currently being used in New Jersey and Washington

to try and punish pro-Second Amendment

organizations. By protecting core political speech, the

First Amendment indirectly protects a host of other

rights. But similarly, attacks on First Amendment

rights surrounding such speech threatens a host of

other rights. To ensure that the First Amendment

remains protective of all people’s rights to take

positions on important social and constitutional

issues—especially positions that are disfavored by

those in power—this Court should make clear that

such tactics remain unconstitutional.

SUMMARY OF ARGUMENT

I. The Second Circuit misapplied Bantam Books

when it held that defendant Maria Vullo’s private

statements to bankers and insurers, official

regulatory guidance, and statements to the press, all

focused on emphasizing her animus towards proSecond Amendment groups like the NRA and

underscoring for the regulated entities that

association with such organizations constituted a

“reputational risk,” was constitutionally protected

speech and not blatant retaliation against the NRA

for taking disfavored political positions. This Court

must correct this error, which results from the Second

Circuit applying a heightened pleading standard that

is inappropriate at this early stage of the case and

ignoring the most crucial fact: that these threats were

5

perceived as threats by their recipients who caved to

pressure from Vullo and cut ties with the NRA as a

result.

The Second Circuit excused Vullo’s actions by

largely ignoring the effect that her immense

regulatory authority would have had on the import

that financial institutions gave to her words while

simultaneously using the breadth of her authority to

regulate risks to excuse those words. This sort of

analysis would permit Vullo or her successors in office

to enshrine their policy preferences on any important

issue in official banking policy and back those

preferences up with threats of enforcement actions

and fines. If Vullo has authority to regulate

“reputational risks” and to unilaterally announce to

the financial institutions she regulates which clients

or political positions represent unacceptable

reputational risks, then she has the de facto authority

to cut virtually any group with which she disagrees off

from the financial sector entirely. Such power

obviously poses a grave threat to First Amendment

freedoms, especially of groups like the NRA or amicus

who take positions on important constitutional issues

that are regularly opposed by Vullo and others in

positions of power. The Second Circuit’s decision must

be reversed.

II. It is no accident that this issue has arisen in

the context of an organization advocating for Second

Amendment rights. Vullo is not the first politician

with apparent disdain for the people’s right to keep

and bear arms and she will not be the last. But tactics

like hers have spread and will continue to do so if this

Court does not send a strong message that the First

Amendment rights of organizations promoting the

6

right to keep and bear arms are just as protected as

anyone else’s. While New York has, following this

Court’s decision in Bruen, sought to limit the practical

effect of that decision directly, a nascent movement to

indirectly attack the Second Amendment and those

who advocate for a proper understanding of the scope

of its protections, that began even before Bruen was

decided, has picked up steam in recent years. Vullo’s

tactics in this case are of a piece with tactics by

likeminded politicians in other states that look to New

York as an example in this area. Indeed, it is arguably

less egregious than some other assaults on the First

Amendment rights of advocacy organizations and

corporations who support the Second Amendment,

and this Court should make clear that such tactics

will not be countenanced.

ARGUMENT

I. The Second Circuit’s Decision is

Incompatible with Bantam Books.

In Bantam Books, this Court warned that “the

freedoms of expression must be ringed about with

adequate bulwarks.” 372 U.S. at 66. Those bulwarks,

however, are of little value if the government can

circumvent them by targeting third parties who do

business with an unfavored speaker, even though it

would be blatantly unconstitutional for it to target the

speaker directly. Determining when a government

official is unconstitutionally targeting intermediaries

for their lawful interactions with a disfavored speaker

requires “look[ing] through forms to the substance” of

speech by government actors to see whether they are

7

unconstitutionally quelling the exercise of First

Amendment rights. Id. at 67.

The Second Circuit below utterly failed to do

that. Although it purported to apply this Court’s

precedent, in reality it elevated form over substance

and ignored the threatening implication of a

regulator’s statements in formal guidance letters and

press releases that were generally addressed to the

regulated community as well as more specific

statements to parties that were actually doing

business with the NRA. As a result, the Second

Circuit blessed conduct that was intended to punish

the NRA for its speech by shutting it out of the market

for insurance products and other financial services.

Focusing on the substance of the statements in

question should make this an easy case. It involves a

regulator who openly spoke about her dislike of “the

NRA or similar gun promotion organizations” and

attempted to enshrine her policy preferences as part

of the risk-management practices of finance

companies doing business in New York. Sitting atop

the Department of Financial Services (“DFS”), Maria

Vullo headed up an office with authority to regulate

any financial institution doing business in New York

and to impose massive liability on entities that fail to

comply. See, e.g., Menqi Sun, New York Financial

Regulator Notches $100 Million Settlement With

Coinbase,

WALL

ST .

J.

(Jan.

4,

2023),

https://on.wsj.com/3Hhz5uM. From this immensely

powerful position, she made statements to financial

institutions that did, in fact, cause them to cut ties

with the NRA out of a concern that their continued

business relationship would attract the regulator’s

attention. In meetings with insurers regulated by her

8

agency, Vullo offered her views on gun control and

expressed a “desire to leverage [her] powers to combat

the availability of firearms, including specifically by

weakening the NRA.” Pet. App. 221. Vullo also issued

official guidance letters, entitled “Guidance on Risk

Management Relating to the NRA and Similar Gun

Promotion Organizations,” to the heads of licensed

New York banks and insurers that warned recipients

that DFS may consider association with the NRA to

constitute a reputational risk that financial

institutions would need to account for on their balance

sheets. Pet. App. 211, 246–51. And then Vullo, in

conjunction with then-Governor Cuomo, issued a

press release urging businesses to cut ties with the

NRA and to “take prompt action[] to manage the[]

risks” of doing business with them. Pet. App. 244. In

a tweet following the press release, Governor Cuomo

called the NRA “an extremist organization” and

reiterated his call for financial institutions to cut ties

with them. Pet. App. 213 (quoting Andrew Cuomo

(@NYGovCuomo), TWITTER (Apr. 20, 2018, 8:58 AM),

https://bit.ly/41ZeR2w).

In analyzing the statements, as well as the

actual regulatory enforcement actions against

insurers based on their work with the NRA, that are

at issue in this case, the Second Circuit purported to

analyze Vullo’s “(1) word choice and tone, (2) the

existence of regulatory authority, (3) whether the

speech was perceived as a threat, and, perhaps most

importantly, (4) whether the speech refers to adverse

consequences” to determine whether her actions had

impermissibly threatened those who would do

business with the NRA. Pet. App. 25 (citations

omitted). But in reality, the Second Circuit improperly

gave controlling significance to the first and the last

9

factor, downplaying the dispositive facts that Vullo

had immense regulatory power over the financial

institutions to whom she made her threats and that

the threats accomplished their aim by causing several

regulated entities to cut ties with the NRA. See Pet.

App. 28–29 (“Although she did have regulatory

authority over the target audience, and even

assuming some may have perceived the remarks as

threatening . . .”). Rather, what really counted for the

Second Circuit (the factor it said was “perhaps most

important[]”) was that the communications were

somewhat equivocal in describing the consequences

for regulated entities doing business with the NRA or

other pro-Second Amendment groups because “the

only ‘adverse consequences’ alluded to were the ‘risks,

including reputational risks . . . if any,’ of continuing

to do business with gun promotion groups amid

growing public concern over gun violence and the

‘social backlash’ against ‘organizations that promote

guns that lead to senseless violence.’ ” Pet. App. 25, 29

(emphasis and ellipsis in opinion). But this analysis

inverts Bantam Books, in which this Court found the

impact of the challenged statements on book

distributors to be “particularly relevant” points for

analysis and rejected Rhode Island’s argument that

the blacklists were “mere legal advice” as “naïve,”

considering rather that the statements served as

“instruments of regulation” against the entities they

targeted. 372 U.S. at 63, 68–69. While the presence of

overtly threatening language would of course make

this case even easier, the Second Circuit’s crediting its

absence to Vullo, as though it exonerates her actions,

has no basis in Bantam Books or in common sense. As

other courts have correctly noted, such language will

only be present in the “most obvious cases of coercion.”

10

Kennedy v. Warren, 66 F.4th 1199, 1211 (9th Cir.

2023). The Second Circuit would presumably

similarly find unthreatening the remarks of a mafioso

selling “insurance” to a business owner who idly

remarks on what a nice dry-cleaning operation he has

and would it not be a terrible shame if it all burned

down? Its reasoning leaves speakers unprotected from

quite obvious government coercion unless the

government is foolish enough to act in a particularly

ham-fisted or brazen manner.

In any event, the Second Circuit’s piecemeal

review of the language understates how brazen Vullo

was. Take, for example, the manner in which the

Second Circuit treated the language contained in the

guidance letter Vullo issued to the heads of New York

financial institutions. Contrary to the court’s

description of the letter, Vullo did not merely say that

regulated entities risked “social backlash” and

possible “reputational risk” from doing business with

the NRA or other pro-Second Amendment

organizations. Pet. App. 29. Rather, the letter began

by discussing “several recent horrific shootings” and

asserted 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.” Memorandum

from Maria T. Vullo, Superintendent of Fin. Servs., to

the Chief Exec. Officers or Equivalent of N.Y. State

Chartered or Licensed Fin. Insts. (Apr. 19, 2018),

https://on.ny.gov/3TujB7v. It is this societal “demand”

that the guidance letter suggests weighs upon the

regulated institutions by opening them up to

“reputational risks” from “dealing[] with the NRA or

similar

gun

promotion

organizations.”

Id.

Nevertheless, the Second Circuit accepted this

11

language as nothing more than legitimate concern

from a regulator, since Vullo had authority to regulate

risks taken on by financial institutions and, “as

research shows, a business’s response to social issues

can directly affect its financial stability in this age of

enhanced corporate social responsibility.” Pet. App.

30; see also Pet. App. 30 n.14.

And here we hit upon the most important

problem with the Second Circuit’s decision. This

reasoning, if accepted, has the potential to permit a

financial regulator like Vullo, who had, as the head of

DFS, the authority to fine virtually any major

financial institution in the country for failure to

properly manage its risks or to deprive them of a

license to do business in New York, to enshrine her

political positions in banking regulations and cut off

any cause with which she disagrees from access to

financial services. Never mind that, around the time

Vullo issued her guidance letter, she was dramatically

overstating the “reputational risk” of working with

the NRA, which, while divisive, was viewed positively

by about half of the country, see Jeffrey M. Jones,

Americans’ Views of NRA Become Less Positive,

GALLUP (Sept. 13, 2019), https://bit.ly/4aQh6sJ

(showing that 48% of Americans viewed the group

favorably and 49% viewed it unfavorably), what

matters for the risk assessment of banks and insurers

is whether the person sitting at the top of DFS has a

negative view of a group’s advocacy work.

It would be bad enough if Vullo were only

throwing her regulatory weight behind an emergent

“heckler’s veto” to deprive Second Amendment

advocacy organizations of access to financial services,

but she herself manufactured that veto in this case,

12

and then she put enforcement authority behind it by

recasting a social debate as an unacceptable risk for a

financial institution to keep on their balance sheets.

By the same alchemy, Vullo could convert the act of

providing banking or insurance services to advocacy

organizations working on any cause with which she

disagrees into an unacceptable risk. Indeed, this same

maneuver was behind the Department of Justice’s

infamous “Operation Choke Point” which similarly

sought to cut off financial services to certain

industries (including the firearms industry) on the

basis that doing business with them “create[d] a

‘reputational risk’ sufficient to trigger a federal

investigation.” STAFF OF H.R. COMM. ON OVERSIGHT

AND GOV’T REFORM, 113TH CONG., REP. ON THE

DEPARTMENT OF JUSTICE’S “OPERATION CHOKE POINT”:

ILLEGALLY CHOKING OFF LEGITIMATE BUSINESSES? at

1 (2014). While Vullo sought to punish those

promoting Second Amendment rights, it is easy to

imagine different regulators latching on to different

pet policy issues—be they abortion, LGBTQ rights,

the rights of undocumented immigrants, or other

controversial issues of the day.

Although this Court acknowledged in Bantam

Books that the Rhode Island Commission to

Encourage Morality in Youth’s communications might

have been legitimate if they were “attempt[ing] to give

distributors only fair legal advice,” 372 U.S. at 72, it

cannot be that since Vullo “was charged with

overseeing insurance entities, banks, and other

financial institutions in New York[] . . . she surely had

the right to raise these concerns,” Pet. App. 30. There

is no limit to this principle where the regulator has

such broad authority and can push regulated entities,

with the (unstated) threat of fine or investigation

13

always in the background, to cease doing business

with anyone speaking out on any issue that she

dislikes. If accepted, then rather than weighing

against her in the First Amendment analysis, the fact

that Vullo had authority to make good on her threats

would perversely provide cover for her actions. After

all, the Second Circuit emphasized that “government

officials have a right—indeed, a duty—to address

issues of public concern,” Pet. App. 5, and with the

broad scope of potential “reputational risks” that

businesses may encounter, Vullo’s duty as head of

DFS to speak out on her issues is potentially

unlimited, and will immunize her and those in similar

positions to essentially legalize her own policy

preferences for financial institutions in New York and

throughout the country.

To the extent there is any daylight between this

case and Bantam Books, it is only because Vullo’s

actions here are considerably more troubling than

Rhode Island’s were there. After all, as Justice Harlan

pointed out in that case, there were legitimate

grounds on which Rhode Island could possibly

regulate the books the Commission targeted in that

case; if they really were obscene, then they were not

protected by the First Amendment. Bantam Books,

372 U.S. at 77–78 (Harlan, J., dissenting). Here,

however, Vullo targeted the NRA and other proSecond Amendment organizations for what is

unquestionably the sort of “core political speech” that

this Court has stressed is entitled to the greatest

protection. McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 347 (1995). After all, the First Amendment

exists “to assure unfettered interchange of ideas for

the bringing about of political and social changes

desired by the people.” Buckley v. Valeo, 424 U.S. 1,

14

14 (1976) (internal quotation marks omitted).

Attempts by New York to curtail such speech—

amounting to de facto viewpoint discrimination on an

issue of significant public importance and debate, see,

e.g., Rosenberg v. Rectors & Visitors of Univ. of Va.,

515 U.S. 819, 830 (1995), should elicit the most careful

and protective review possible, and should certainly

not be lightly dismissed at the pleading stage.

II. Protecting the First Amendment

Rights of Organizations Like the NRA Is

Critical to Protecting Second

Amendment Rights.

It is no accident that this issue has come to this

Court for the first time in 60 years in the context of

officially sanctioned discrimination by New York

against a Second Amendment organization. This

Court has frequently reiterated that “the point of all

speech protection is to shield just those choices of

content that in someone’s eyes are misguided, or even

hurtful.” Snyder v. Phelps, 562 U.S. 443, 458 (2011)

(quoting Hurley v. Irish-American Gay, Lesbian &

Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995))

(ellipsis omitted). And while in some cases, like

Snyder, that means that the First Amendment must

be read to protect expression even of ideas that society

writ large finds “offensive or disagreeable,” id.

(quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)),

formidable threats to our First Amendment liberties

also come in cases involving more evenly divided

debate over issues of broad public importance. It is

these cases that often push litigants and courts to

upset other doctrines, often at the margins at first, in

a way that ultimately erodes procedural or

substantive protections for everyone. In his dissent in

15

Hill v. Colorado, Justice Scalia warned that “[t]here is

apparently no end to the distortion of our First

Amendment law that the Court is willing to endure in

order to sustain . . . restriction[s] upon the free speech

of abortion opponents.” 530 U.S. 703, 753 (2000). And

just as “abortion distortion” was the concern then (in

the First Amendment context and elsewhere), “gun

distortion” is a real threat today as states like New

York come up with new stratagems by which to

hamper the Second Amendment rights, many of which

will have far-reaching impacts on other rights and

protections if this Court does not strictly police them.

As an antagonist of Second Amendment rights,

New York is second to no one. Most recently, of course,

it was a New York law requiring an individual to show

“proper cause” before acquiring a license and

exercising the Second Amendment right to carry a

firearm in public that this Court struck down in New

York State Rifle & Pistol Association, Inc. v. Bruen,

597 U.S. 1 (2022), when it established not only that

the Second Amendment enshrines a right to public

carry of firearms but also that the interest balancing

test employed by courts (and capitalized on by New

York previously to uphold its draconian firearm laws)

was inconsistent with this Court’s decision in District

of Columbia v. Heller, 554 U.S. 570 (2008). But before

that case, in an attempt to stave off a decision of this

Court disturbing the interest-balancing regime, New

York intentionally deprived this Court of jurisdiction

in New York State Rifle & Pistol Association v. City of

New York, 140 S. Ct. 1525 (2020) (per curiam), by

amending state law to abrogate the local restriction

on transporting firearms that was challenged there

and render the case moot. Id. at 1526. As Justice Alito

noted in, New York’s strategy was the sort of gambit

16

to “manufacture mootness in order to evade review” of

which this Court had previously “been particularly

wary.” Id. at 1533 (Alito, J., dissenting).

Following Bruen, New York has led the way on a

renewed direct assault on the Second Amendment,

passing, in an Extraordinary Legislative Session

convened specifically for the purpose, a response bill

that seeks to minimize the practical impact of Bruen

by adding new licensing requirements, creating a host

of new “sensitive locations” at which carry is entirely

banned or strictly curtailed, and even reversing the

presumption that individuals may carry on private

property in favor of a so-called “no-carry default” that

governs unless a property owner gives explicit

permission to carry firearms on his or her property.

See Antonyuk v. Chiumento, Nos. 22-2908 (L), 22-2972

(Con), 22-2933, 22-2987, 22-3237, 2023 WL 8518003,

at *3–4 (2d Cir. Dec. 8, 2023). The academics who

championed this last novel and uniquely infringing

restriction openly declared that “lawmakers should

expect that a ‘prohibited-unless-permitted’ default

would radically expand the private spaces where guns

could not be carried,” and as a result may even

“reduc[e] preferences to carry and possess firearms

more generally, as it becomes increasingly

inconvenient to do so.” Ian Ayres & Spurthi

Jonnalagadda, Guests With Guns: Public Support for

“No Carry” Defaults on Private Land, 48 J. L. MED. &

ETHICS 183, 184 (2020). In passing this law, New York

politicians specifically called for other states to follow

its lead in attempting to thwart this Court’s decision

in Bruen. See, e.g., Governor Hochul Signs Landmark

Legislative Package to Strengthen Gun Laws and

Protect New Yorkers, N.Y. GOV’S. PRESS OFF. (June 6,

2022), https://on.ny.gov/4b7Q40n (Governor Hochul

17

referring to “New York State’s nation-leading gun

laws,” Lieutenant Governor Delgado boasting that

“New York is leading the way” passing anti-gun

legislation, Letitia James promising “New York will

continue to lead in imposing reasonable gun laws that

keep our people safe, and I urge other states to follow

suit.”). And, in fact, several states have done so. See,

e.g., Andrew Willinger, Litigation Highlight: Federal

Judge Weighs Maryland’s Post-Bruen Sensitive Places

Law, DUKE CTR. FOR FIREARMS LAW: SECOND

THOUGHTS BLOG (Oct. 18, 2023), https://bit.ly/420rbj0

(“Following in the footsteps of New York and New

Jersey, Maryland enacted S.B. 1 earlier this year . . . .

Among other restrictions, the law bans the public

carry of firearms at designated sensitive locations and

institutes a default ban on carrying firearms on

private property without express permission from the

property owner.”).

This case represents an alternate front in New

York’s continual conflict against the Second

Amendment and those that advocate for a proper

understanding of the right. And just as with its direct

attack, other states are more than willing to follow

New York’s lead in its more inventive attempts to

thwart the Second Amendment by distorting other

constitutional protections and doctrines. For example,

in 2021 then-Governor Cuomo announced New York

as “the first state in the nation is going to declare a

disaster emergency on gun violence,” drawing specific

parallels between the state’s authority to respond to

the COVID-19 pandemic and its ability to respond to

“the epidemic of gun violence.” The Associated Press,

Cuomo Declares State of Emergency Over Gun

Violence, N.Y. TIMES, at 0:17–0:21, 0:54–1:02 (July 6,

2021), https://nyti.ms/3TX4Roo. Following that

18

blueprint, last year the Governor of New Mexico

declared a public health emergency related to gun

violence and, with the assistance of her Department

of Public Health, made it illegal to carry firearms in

public in Albuquerque or the surrounding county. See

We the Patriots, Inc. v. Grisham, No. 1:23-cv-00771DHU-LF, 2023 WL 6622042, at *2 (D.N.M. Oct. 11,

2023). The governor eventually (and only partially)

backed down after her own attorney general refused

to defend the order in court, noting that he did “not

believe that the Emergency Order will have any

meaningful impact on public safety [and] more

importantly, [he did] not believe it passes

constitutional muster,” and also that it was “not clear

that the problem is properly defined as a ‘public

health emergency.’ ” Letter from Att’y Gen. Raul

Torrez to Gov. Lujan Grisham (Sept. 12, 2023),

https://bit.ly/3O2uXCC. Of course the attorney

general was right; gun violence is nothing like a public

health emergency, but the creative approach

pioneered by New York was just the cover the

governor—who believed that “[n]o constitutional

right, in my view, including my oath, is intended to be

absolute” and that she possessed “additional powers”

to implement temporary restrictions on the Second

Amendment rights of New Mexicans “if there’s an

emergency,” KOB4, New Mexico Gov. Lujan Grisham

holds news conference on gun violence at 32:11,

YOUTUBE (Sept. 8, 2023), https://bit.ly/3SgWkv6—

needed to enforce restrictions more severe than those

that this Court had only just held clearly violated the

Second Amendment.

Most relevant for this case, New York’s attempts

to punish the NRA for its advocacy work in violation

of the First Amendment is part of a broader campaign

19

currently

being

waged

nationwide

against

organizations that seek to promote and defend the

right to keep and bear arms. For instance, for the last

ten years Defense Distributed—“a Texas company

operated for the purpose of promoting popular access

to firearms” has been locked in a legal battle over

Defense Distributed’s publication of computer

assisted design files for a single-round, plastic, 3Dprintable pistol. Def. Distributed v. Bruck, 30 F.4th

414, 421–22 (5th Cir. 2022) (“Defense Distributed III”).

Defense Distributed’s publication of the design files

was initially opposed by the United States, on the

grounds that publication violated the Arms Export

Control Act, Defense Distributed v. United States

Department of State, 838 F.3d 451, 455 (5th Cir. 2016)

(“Defense Distributed I”), but “after a period of

litigation, the parties reached a settlement agreement

that granted Defense Distributed a license to publish

its files.” Def. Distributed v. Grewal, 971 F.3d 485, 488

(5th Cir. 2020) (“Defense Distributed II”). Not satisfied

with the federal government’s enforcement decision,

New Jersey (and several other states) began a

coordinated campaign of harassment against Defense

Distributed with the goal of preventing publication

that looks, in many respects, very similar to the one

undertaken in New York. Defense Distributed claims

that the New Jersey Attorney General:

(1) sen[t] a cease-and-desist letter

threatening legal action if Defense

Distributed published its files; (2)

sen[t] letters to third-party internet

service providers based in California

urging them to terminate their

contracts with Defense Distributed; (3)

initiat[ed] a civil lawsuit against

20

Defense Distributed in New Jersey;

and

(4)

threaten[ed]

Defense

Distributed with criminal sanctions at

a live press conference.

Defense Distributed III, 30 F.4th at 422–23. It also

initiated litigation against Defense Distributed in the

Western District of Washington, securing injunctive

relief preventing Defense Distributed from publishing

its files, and succeeded in having the appeal of that

decision dismissed as moot. Washington v. Def.

Distributed, Nos. 20-35030, 20-35064, 2020 WL

4332902, at *1 (9th Cir. July 21, 2020). And through

its tactics, including attempts to split ongoing

litigation in Texas and transfer parts of the case to a

federal court in New Jersey, it has has so far

succeeded in preventing any appellate court from

“condemning what appear to be flagrant prior

restraints”

on

Defense

Distributed’s

First

Amendment protected speech. Defense Distributed III,

30 F.4th at 421.

By rejecting the Second Circuit’s analysis below,

this Court can send a strong message to such actors

that violations of First Amendment rights are no more

acceptable when they are directed against groups

advocating for Second Amendment rights than in any

other context.

21

CONCLUSION

For these reasons, the Court should reverse the

judgment of the Second Circuit.

January 16, 2024

Respectfully submitted,

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

WILLIAM V. BERGSTROM

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae