The announcement that the Attorney General of New York is investigating the National Rifle Association (NRA) and looking to shut it down raises potentially serious constitutional concerns. Pictured: The NRA’s headquarters in Fairfax, Virginia. (Photo by Olivier Douliery/AFP via Getty Images)
The announcement that the Attorney General of New York is investigating the National Rifle Association and looking to shut it down raises potentially serious constitutional concerns. I am no fan of the NRA. Politically, I think it wields too much influence against reasonable gun control, which I support as consistent with the Second Amendment. It is too closely connected with the profitability of gun manufacturers. It advocates positions and supports candidates, even if indirectly, that I believe undercut our safety.
I will never contribute to the NRA and I will generally vote against candidates it supports. But to paraphrase Voltaire, I will strongly defend its right to be wrong. The NRA is entitled under the First Amendment to advocate these views and to petition the government for what it regards as a redress of grievances under the Second Amendment.
To be sure, the Attorney General of New York has the legitimate authority to investigate all eleemosynary, that is charitable, organizations that operate in New York. The key word is all. If the Attorney General of New York is applying precisely the same standards of investigation to the NRA as it applies to all other charitable groups that advocate controversial positions, including liberal and radical ones, then I could not complain about unequal application of the law. And perhaps she is. But some will wonder whether the liberal Democrat who currently holds the position of New York Attorney General has investigated liberal charities with the same vigor that she is going after the conservative NRA.
Even more important, has she sought to totally shut down these organizations rather than reform them? Again, perhaps she has, but if so she should cite precedents. In today’s highly politicized atmosphere, the burden is on her to demonstrate equal application of the law to all similarly situated charities, regardless of their political positions. She may be able to satisfy that burden, but she should do it with specific examples, especially of liberal organizations she has tried to shut down and throw out of the state.
If the evidence were to show selective investigation of the NRA, that would be part of a larger problem: the weaponization of our justice system for partisan and ideological purposes. The justice system must always be above partisan politics. It cannot serve as a weapon for either side in the political wars that are being fought by both sides at this highly divisive time.
Again to paraphrase, this time the Romans: “Who will guard the guardians?” Who is investigating the decision by the Attorney General of New York to try to shut down the NRA? Is the media seeking her records of prior investigations of other groups whose leaders may have used charitable contributions for private or mixed charitable-private expenditures? Are there governing standards for conducting such investigations or shutting down first amendment-protected organizations? Or does the Attorney General claim the power to pick and choose which charitable organizations to investigate and shut down?
Today it is the liberal Attorney General investigating the conservative NRA. Tomorrow it may be a conservative Attorney General investigating Planned Parenthood, the ACLU or anti-gun organizations. Does this investigation pass the “a shoe on the other foot test?”
These and other questions should be addressed by the media, by lawyer’s groups in New York, by the ACLU and by others interested in the equal application of the law. There may be good answers and if so we are entitled to them.
It would be a mistake for the NRA to pack up its bags and move to Texas, as President Trump has suggested. If it is being singled out because of its political positions, it should stay and fight. Under the so called “castle doctrine” that the NRA advocates, no one or required to leave their home in the face of an intrusion (your home is your castle, hence the term). I for one don’t support a wide application of the castle doctrine, but the NRA does. It would create a dangerous precedent if a politically motivated attorney general could force a constitutionally protected advocacy group to leave the state for fear of being selectively investigated.
No leaders of any charity have the right to cheat their donors by spending contributions on personal, as distinguished from charitable, expenditures. The line between the two is not always clear, especially when it comes to first class travel and accommodations. But it is precisely because the line isn’t clear that objective standards, equally applicable to all, must be articulated and enforced. Absent such standards, the Attorney General has too much discretion to use her considerable powers selectively and unfairly.
The complaint against the NRA alleges some serious matters. And the New York attorney general’s office has in fact investigated some liberal charities for comparable misconduct. The question remains whether that office is applying more demanding standards against politically disfavored groups?
Applying uniform standards is particularly important when it comes to First Amendment protected activity. Regardless of what anyone, including me, thinks of the NRA’s politics, no one can doubt that its advocacy against reasonable gun control is core First Amendment activity that must be protected by the courts against selective investigations and efforts to shut it down.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.
A shorter version of this article originally appeared in the Daily News. It is reprinted here by the kind permission of the author.
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