Judge Lets NRA's 1st Amendment Lawsuit Against Andrew Cuomo Move Forward

from the when-the-2nd-meets-the-1st dept

Let’s put some cards on the table to start off this post: I think Andrew Cuomo is a terrible governor of NY (and he was a terrible Attorney General before that), and doesn’t deserve to be in office. I also think the NRA is a joke of an organization, that stirs up bullshit fear and racial divisions, and frequently shits on the 1st Amendment plenty of times when people try to challenge the 2nd Amendment. I recognize that some percentage of you probably feel differently about Cuomo and (chances are…) a non-overlapping venn diagram of you probably feel differently about the NRA. I think they’re both terrible and should disappear from public life. And I say that upfront because my position on this particular lawsuit has nothing to do with which side I “like.” I don’t like either one.

But on the law in this particular case, clearly the NRA is in the right, while Cuomo is wrong. And thankfully, so far a judge agrees.

Let’s take a step back, though, to look at what’s happening. Cuomo is no fan of the NRA. And he decided to use his position as governor to punish the NRA for its advocacy. Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It’s kind of incredible that he would think this would fly. Indeed, the situation is pretty damn close to that time that Cook County (Illinois) Sheriff Thomas Dart pressured credit card companies to stop doing business with Backpage, leading to a pretty massive judicial smackdown from Judge Richard Posner.

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff?s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant?s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Posner, in the Dart/Backpage case, recognized that allowing government officials to pressure third parties into avoiding businesses they disliked over speech was a real problem:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or ?plug the band? (a listing of music performances that includes such dubious offerings as ?SUPERCELL Rocks Halloween at The Matchbox Bar & Grill?), or men dating men or women dating women…

Or, you could add to that list, and say “the 2nd Amendment.” And it would fit right in with what Cuomo did regarding the NRA:

“I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.”

Even if you think that the NRA is a horrible organization, and that various private entities should rethink any association they have with the NRA, that’s entirely different than a powerful government official making such a statement.

But, of course, what many in the press writing about this have ignored is that this kind of bullying has been Cuomo’s playbook for years. When he was Attorney General, we had a ton of articles about the same grandstanding move, in which Cuomo would pick some high profile issue, then publicly threaten to sue organizations if they didn’t go along with his “voluntary” plan, which would be announced at a giant press conference with a smiling Andrew Cuomo. He did this in forcing broadband providers to set up porn filters. He did it in forcing social media sites to block access to porn sites again. He also did it in trying to force broadband providers to kick users off their networks over copyright infringement. And no one calls him on this abuse of power.

Except, now the NRA has. And a federal judge is letting the case move forward after denying a motion to dismiss from Cuomo’s team. The order makes it clear that Cuomo might finally face some constitutional push-back on his intimidation techniques. It’s still early in the case, so things could change, but Judge Thomas McAvoy is not impressed by Cuomo so far.

Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, the temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state.

The judge finds, as in other cases, that there’s a clear implied threat in the message coming from the Governor of the state of New York:

While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed.

There’s still much more to go in the case, and as the case moves into discovery, perhaps there will be other revelations, but right now it certainly looks like a government official abusing his position to try to retaliate against an organization he doesn’t like for their expressive speech.

And, yes, there’s something potentially ironic in the NRA now being protected by the very same 1st Amendment that it so frequently complains about in blaming video games, TV, and movies for gun violence, but it turns out that you don’t actually have to believe in the Constitution to be protected by it, and that’s kind of a good thing.

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Comments on “Judge Lets NRA's 1st Amendment Lawsuit Against Andrew Cuomo Move Forward”

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K`Tetch says:

Re: "Late" Judge Posner?

Masnik: Here’s one
Posner: I’m not dead!
Masnik: Nothing — here’s your nine pence.
Posner: I’m not dead!
MORTICIAN: Here — he says he’s not dead!
Masnik: Yes, he is.
Posner: I’m not!
Posner: He isn’t.
Masnik: Well, he will be soon, he’s very ill.
Posner: I’m getting better!
Masnik: No, you’re not — you’ll be stone dead in a moment.
MORTICIAN: Oh, I can’t take him like that — it’s against regulations.
Posner: I don’t want to go in the cart!
Masnik: Oh, don’t be such a baby.
Posner: I can’t take him…
DEAD PERSON: I feel fine!
Masnik: Oh, do us a favor…
Posner: I can’t.
Masnik: Well, can you hang around a couple of minutes? He won’t be long.
Posner: Naaah, I got to go on to Prenda — they’ve lost nine today.
Masnik: Well, when is your next round?
MORTICIAN: Thursday.
Posner: I think I’ll go for a walk.
Masnik: You’re not fooling anyone y’know. Look, isn’t there something you can do?
Posner: I feel happy… I feel happy.
Masnik: Ah, thanks very much.
MORTICIAN: Not at all. See you on Thursday.

Anonymous Coward says:

Re: Is BDS Protected As Well?

Boycotts in general should be categorized as a form of expression, and thus, yes, protected under the 1st Amendment, whether or not you agree with the boycott and the reasons behind it.

That is what should occur, of course. Whether that is what will occur is going to depend on a whole lot of things.

Wendy Cockcroft (user link) says:

Re: Is BDS Protected As Well?

Does the US First Amendment protect against those who would try to suppress the anti-Zionist Boycott, Divestiture and Sanctions movement?

Hell to the yeah!

Whether you agree with the movement or not, success in legally suppressing their speech against organisations, etc., that they don’t like could ultimately lead to success in legally suppressing your speech against organisations, etc., that you don’t like.

See Poland’s Holocaust denial law for details; it bans mention of Poland’s role assisting the Nazis and characterises this as a hate crime.

DannyB (profile) says:

Holiday Reminder PSA

Please remember this holiday season that firearms make excellent gifts for the entire family. Family packs available at participating retailers. Check out the new Starter Guns sized just right for the little ones. Please use firearms responsibly when drinking. The NRA offers discounts to those who can show proof of mental impairment or illness.

DannyB (profile) says:

Re: Re: Holiday Reminder PSA

Either sarcasm or do not sarcasm. There is no try.

Point: the NRA will never accept even common sense ideas like keeping firearms out of the hands of mentally ill people or others who clearly should not have them. It is a gun manufacturers association masquerading as trying to protect gun owners’ rights.

Anonymous Coward says:

Re: Re: Re: Holiday Reminder PSA

No argument there. The NRA, in my view at least, is both necessary and corrupt. Without the NRA we would likely have lost our constitutional gun ownership rights a long time ago. But with them we get stupid resistance any kind of gun control and licensing improvements.

I don’t give them any of my own money but some of what they do would be pure comedy gold if the outcome wasn’t so tragic.

Anonymous Coward says:

Re: Re: Re:2 Holiday Reminder PSA

The problem with that is that your definition of "assault rifles" is probably wrong (if it agrees with recent political tripe at all).

The AR-15, for example, is a single-shot, magazine-fed semi-automatic. So are many "hunting rifles" and shotguns. It looks very much like the military model it is based on but it is definitely not the same gun. Despite this, politicians have been holding up pictures of the AR-15 as the root of all gun evil. All this demonstrates is a fundamental misunderstanding of the issue.

Automatic (fully auto, burst, etc) weapons already require special licensing to own and may even be outright illegal in some areas. Still, they’re not unconstitutional.


anti-semiautomatic rifles

Wth is that? Did you mean "automatic rifles"?

Federal Restrictions on silencers should be lifted

So… silencers should be ok for everyone?

nasch (profile) says:

Re: Re: Re: Holiday Reminder PSA

Point: the NRA will never accept even common sense ideas like keeping firearms out of the hands of mentally ill people or others who clearly should not have them.

I would like to push back on this idea that mentally ill people are violent. The mentally ill, as an entire group, are no more likely to commit violence against another person than the public at large is. Certain specific people may be at risk for causing harm to themselves or others, but this is no reason to deny any rights – whether gun ownership or anything else – to the entire group. Understand I am coming at this from the position of better understanding of mental health, not from a desire to see a gun in every hand. I believe we’d be much better off with many fewer guns, and almost everyone is safer without a gun than with one.

Anonymous Coward says:

Re: Re: Re: yes, protected under the 1st Amendment

Keeping firearms out of the hands of angry people is so much more likely to prevent gun violence.

Where is the study for that? Common knowledge that most people are sicker to death of being told what to do by mad people than being told what to do by a mentally challenged person.

Uriel-238 (profile) says:

Re: Re: Re:2 "Keeping firearms out of the hands of angry people"

We’d save more lives keeping firearms out of the hands of drunk people.

Here in California, in order to legally handle firearms you have to be sober enough to fly (that is 24 hours since your last drink). It’s one of the gun regulations I actually agree with.

A lot of gun related deaths and injuries are in circumstances complicated by inebriation.

Regarding angry people, people driving cars get angry all the time without deciding to aggress with their vehicle. I suspect that most gun owners by far can get pissed off without being even tempted to pull out Mrs. Jones.

And both the legal departments and psych sector are pretty sure that people who shoot others or themselves aren’t merely angry.

Uriel-238 (profile) says:

Re: Re: Re:4 People want to be drunk (or stoned, or loaded)

Stop selling booze and your problem is solved

Yeah, that didn’t work out the last time.

Though we are in the process of changing culture to where it’s not okay to drive while drunk. In the eighties and nineties, DUIs were the norm, not the exception.

Maybe we can do the same with guns.

Ultimately, the problem is that we don’t have a state that can watch over us and keep us safe when we are determined to be stupid and irresponsible, given our state agents are also human beings, equally determined to be stupid and irresponsible.

Because of this, we have a paradox where we have to trust the people to be adult and observe safety rules around things that are dangerous, and yet people so often demonstrate they aren’t trustworthy and will kill themselves or each other if left to their own devices.

nasch (profile) says:

Re: Re: Re:7 Re:

What strawman? You said “your comment comes across as serious – like it was an endorsement of the idea.” techflaws replied “So, simply mentioning an angle/idea is endorsing it.” How else are we to interpret your comment other than as expressing your belief that techflaws was endorsing the position he mentioned?

Toom1275 (profile) says:

Re: Re: Re:8 Re:

Wrong part of the comment.
The issue is the "simply mentioning it" part, which is not exactly the case.

In this current environment, here there and everywhere I see dozens of trolls are making false equivalances and fallacies like "well if they pull support from Gab why not Facebook?" "So you’re a hipocrite for saying the baker was wrong"

And then comes something that appears as written to suggest "If private companies can deny service without issue, then why would anyone think it’s wrong when Cuomo gets involved?"

It’s not just that the statement itself suggests endorsement, it’s that it’s functionally indistinguishable from the other statements that have been made that do seriously endorse the idea.

That’s what I mean by referring to Poe.

Some context to suggest that the second part supposed to be Cuomo‘s thought process rather than the commenter’s own and it would have been hard to confuse:

>Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It’s kind of incredible that he would think this would fly.

"Seems to be working just fine for rightsholders and Paypal, I should try this."

That would still be "mentioning it" but clearly not be an endorsement, hence why "mentioning=endorsement" doesn’t hold up.

Bamboo Harvester (profile) says:


Me as well. Their brokering GCA’68 out of an un-passable, Un-Constitutional Bill was their most blatant treachery.

I learned to shoot rifle and pistol on NRA ranges. Try and find an NRA range now. They’re nothing more than a private political group, constantly begging money to “fix stuff”, 99% of which goes to “overhead”.

Anonymous Coward says:

Re: Re: Delusional

I’m just wondering if Andrew Cuomo has bodyguards? Or is he just like the rest of us? If he does, do THEY have guns? If so, how can that be? No one else has any rights to protect themselves, but he can have security guards and with guns?

Typical leftest garbage. You the people, who cares, we the ones above you only get that right.

K`Tetch (profile) says:

Re: Re: Re: Delusional

well, it might have something to do with him being a much higher target for attack than, say, your worthless self.

I mean who wants to target and attack a worthless anonymous coward, compared to the Governor of NY. It’s all about profile, and you’re too scared to log into yours.

Coincidentally, even cabinet officials generally wander around without much security in countries like the UK, probably because with a lack of guns, the most they’ll be targeted with is an egg or two.

Tell you what though, with your piss-poor approach to risk assessment, I hope you don’t have a gun (or are you an example of current NRA training – ‘everyone’s out to get me’ coupled with ‘my opponents are cowards’?)

Christenson says:

Re: Re: Re:3 Correlation fallacy?

You are wrong there…Noone claims gun ownership is correlated with suicide… but we are claiming that gun possession is highly correlated with dying as a result of suicide attempts. It is also known that suicide is an impulsive act, so setting up situations where planning ahead is required to use weapons saves lives.

But that problem is better solved through voluntary culture, perhaps with a bit of legal encouragement to create the structures that require the planning ahead, like safe storage spaces for weapons similar to regular household storage spaces for your extra furniture. Would you store a weapon for a friend of yours in need?? Would someone know if someone was in need?

Cdaragorn (profile) says:

Re: Re: put an end to gun violence in New York once and for all

There is literally no way you can possibly prove that statement. You’re assuming that because tougher gun laws were made during that period they therefore must have had some part in the result. That kind of assumption only leads to bad laws seated firmly in the certainty that you’ve proven something you haven’t even begun to explore.

MDT (profile) says:

Venn Diagram

I recognize that some percentage of you probably feel differently about Cuomo and (chances are…) a non-overlapping venn diagram of you probably feel differently about the NRA.

Yeah, I make Venn Diagram’s heads hurt. 😛 I’m one of those few people who are both for stricter gun laws (stricter rational gun laws, like universal background checks and laws against anyone with mental illness owning them, or anyone in a household with someone with mental illness owning one) and also very much pro 2nd amendment (I’ve had guns around me all my life, and my mother is a 76yo woman who keeps one in her purse for protection, with a conceal carry permit).

So, I think both that (A) Cuomo is a lousy governor, and that (B) the NRA is full of bull excrement. The NRA is no longer about actual gun ownership, and is now all about money and being a Republic political arm. Doesn’t mean I think we should get rid of guns, just need a new alternative to the NRA to uphold 2nd amendment without backing nutjobs for office.

Honestly, I wouldn’t be surprised

Thad (profile) says:

Re: Venn Diagram

anyone with mental illness

While there are certainly people who have mental illnesses that should prevent them from owning a firearm, you’re painting with a discriminatory broad brush here. Most people with mental illness are neither violent nor dangerous, and indeed the mentally ill are far more likely to be victims of violence than perpetrators.

This country’s approach to mental illness is sorely lacking, and I believe it would do us a lot of good to look at the ways that it is lacking and how it can be improved. But it seems like we only ever talk about the mentally ill in the context of scapegoating them as dangerous people who we need to fear. That is neither productive nor helpful.

It also lets many shooters off the hook — "oh, he only did it because he was mentally ill." While some shooters are indeed mentally ill, many are not. Domestic abuse is a far better predictor of gun violence than mental illness.

Uriel-238 (profile) says:

Re: Re: Re: Diagnoses

The modern psychiatric sector tries to be self aware regarding how easy it is to interpret ordinary behavior as symptomatic mental disorders. The way that our court systems could indict a ham sandwich our psychology professionals could make a case to have anyone committed, including themselves or each other. And it can be easy to get stuck and forgotten in a mental institution, if no-one is managing your case.

As such, it’s not enough to be crazy to get diagnosis and treatment. If a man hears the voice of God, it’s not the place of his doctor to decide he’s delusional.What’s more important to (assuming caregivers abide by ethics of western medicine) is whether or not those voices interfere with his day-to-day functioning. If not, he’s not crazy enough to warrant treatment. If so, it’s a problem, even if it really is the voice of God.

That’s the bar for treatment: If a symptom causes dysfunction, and interferes with life, then it’s time to get assessed by a psychiatrist. And until then, not.

And the bar for denying someone their basic rights is if they present a danger to themselves or others. If they do, it’s time to take their gun away or do what is necessary to keep them safe. If they don’t pose a danger, even if they’re clearly truly gone fishing they get to keep their gun collection.

It can totally be tricky. The patients that come in for fear they’re going to do something radical are often the ones that can vent just by talking about it. The ones that ultimately become a gunman or an assailant or a vandal are often quiet or isolated.

Then there’s our president. Clearly a danger to others, but President of the United States is a hard position to assess or commit.

KeillRandor (profile) says:


The US second amendment is already dead, killed by a Republican Supreme Court in 2010, but most people haven’t realised it.

The whole point about the US Bill Of Rights is that it was intended as a limitation on FEDERAL power, vs the States, and the second amendment therefore existed within the context of such State led, managed and regulated militias being something the FEDERAL government should have no power or influence over. (Without this as a bulwark against potential Federal overreach, there wouldn’t have been enough states to ratify the new Constitution.)

So the whole point about the 2nd amendment was that it was up the States to manage the use of firearms as part of their militia and the Federal government had no say in the matter. This meant that managing the use of arms within the context of state militia, was intended to be managed as a local issue, by local people, dealing with local context. (There’s always going to be a difference between necessary regulation in rural and urban areas, and the second amendment allowed for this.)


The Republican-led Supreme Court chose to incorporate the 2nd amendment under the 14th.

This means that rather than being of the States for the Federal government to obey, the second amendment, is now of the FEDERAL government, FOR the States to obey, and so any changes in regulation etc. that the Federal government makes to the second amendment is something the States can no longer resist, as a matter of law.


It seems that many people have no recognition and understanding of just how and why the US Republican Party has been slowly putting the pieces together to support a fascist state for quite some time, with this being one of the main ones.

(Note: in case people don’t fully understand fascism:

It is essentially a dictatorship writ large – (which is why the tend start in such a manner, though it’s not required) – with the state itself (or the ruling government/party as is usually the case), acting as a dictator in its whole. Such political structure is therefore extreme right wing, next to dictatorship/monarchy itself. As far as their economic and social orientation is concerned however, that can vary, of being either side, depending on the whims of the ‘state’.

“Everything within the state, nothing outside the state, nothing against the state”. (For state: read government/party))

If people don’t think the US Republican Party would like to, and is trying to do everything they can to turn the US into an effectively 1 party state, then… (Unfortunately, I think Trump came a bit too soon for them to get the most out of him following the midterms – though if they get even more Supreme Court justices, then…)

K`Tetch (profile) says:

Re: Note:

“The whole point about the US Bill Of Rights is that it was intended as a limitation on FEDERAL power, vs the States, and the second amendment therefore existed within the context of such State led, managed and regulated militias being something the FEDERAL government should have no power or influence over.”

yeah… no.

US Constitution, Article 1, clause 8
“The Congress shall have Power..
…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

If you go through the late 18th and early 19th century litigation ont he topic, you’ll see that the entire point of the militia was federal.

In fact the first use of the militia, just months after the 2ndA was passed, was a federal use under General St Clair. It was a disaster, and led to the first congressional investigation into Washington. He in response appointed the first secretary of War, then held the first ever Cabinet meeting, before holding off the congressional investigation by asserting the then-unknown ‘executive priviledge’.

The response then was to basically abandon the whole idea of the 2nd Amendment, and reinstate the idea of a military (the army, navy and marines had been disbanded in 1783, except for a single regiment on the northwest frontier to act as a militia core, and a single battery of artillery troops to guard West Point armory (and presumably, instruct militiamen how to use the stuff when needed). That was followed by the establishment of the US Navy in 1894, and the US Marines in July 1798 (yeah, all those that celebrated the Marines birthday on Saturday, that was the completely unrelated Continental Marines birthday, it’s a PR lie, much like ‘the shores of tripoli’ in the hymn, when they never went closer than Dasha, as far from the shores of Tripoli as Columbia SC is from Washington’s crossing of the Delaware)

And the use of the 14th to apply the 2nd to the states, happened in the mid 19th century when it passed, not 2010.

Facts, they’re lovely. Try em. You can have these for instance, I have lots more!

Bamboo Harvester (profile) says:

Re: Re: Note:

Not to mention Article I, Section 8 of the Constitution Proper:

16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

So he’s partly right – the States get to appoint the Officers of the Federal Militia.

I’m too lazy to look up the US Code section on who the Federal Militia is, but as I recall, it’s every able-bodied male between the ages of 16 to 65.

Which is also one of the arguments legalizing the Draft.

Anonymous Coward says:

Not many true 2nd amendment people are still with the NRA, with all the compromises and cave-ins the NRA has been famous for, and especially since they recently supported bans on bumpfire stocks.

The rival Gun Owners of America (GOA) is another “gun lobby” organization, a small upstart that the NRA hates and is trying to crush.


madasahatter (profile) says:

Father Like Son

Andrew’s father Mario was about as arrogant and bad. Mario got in pissing contest with the Seneca Indians over whether NY had tax jurisdiction on the reservation (short answer no state does). Needless to say the Senecas won by the simple expedient of shutting down the section of the NY Thruway which ran through the reservation. The locals in Western NY solidly backed the Senecas.

Anonymous Coward says:

Cuomo: A Visionary Model Solution for ANY Kind of Violence

I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the Catholic Church or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to religion-motivated violence in New York once and for all.

Thisisajokerite says:

The person who wrote this doesnt understand anything about law.

When has the NRA ever suppressed 1st amendments? You’re trash talking the NRA right now. Lots of people do. And when the NRA trash talks back (not “tries to suppress free speech by murder/threats/legal trickery”) then you’re suddenly so, so shook.

I was never for the NRA until I woke up and started really looking at the dishonest nature of such arguments from lefty fanbois.

Furthermore, the NRA isn’t even racist. You’re thinking of nazis or KKK. Is Colion Noir an Uncle Tom for the NRA? Who invented the law of “no handguns to people under 21” wherein the reason for that law is due to the OVERWHELMING number of shootings coming from young males being of a certain ethnicity/race? Not the NRA. They want you to be able to own a gun for self-defense regardless of skin color.

No, that law was made by leftists. The law which targeted black people between 18-20 years old and stripped them of their right to self-defense, but was “generalized” to all people to perform a catch-all to reduce black gang violence/deaths.

And yet the NRA are the racist ones. Lol. What a joke.

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