Acton Institute Powerblog

New York AG takes aim at the NRA and the rule of law

The attorney general of New York state, Letitia James, fired a shot across the bow of the National Rifle Association last week, filing a lawsuit to “dissolve” the nation’s largest gun rights organization “in its entirety.” This punitive legal action is aimed like a Gatling gun at our civic foundations.

James charged four NRA officials with defrauding the New York-based nonprofit of $64 million over three years to finance a lavish lifestyle for themselves, their families, and friends. The specific charges are best settled within the legal system. However, one gets the unsettling feeling that the specifics are beside the point. This is a transparent abuse of power to destroy a well-heeled political foe.

Diversion of charitable funds ranks among the worst moral failures and violations of one’s oath as a trustee – to serve as someone who, by definition, is entrusted with overseeing the proper dispersal of funds for their intended purposes.

However, the first remedy is not to close the doors of a 149-year-old grassroots organization that boasts 5.5 million members – unless that happens to be one’s overarching purpose.

That suspicion is confirmed by James’ own words. “We shut down the president’s own foundation,” James said. “We intend to do the same with the NRA.”

In less politicized cases, state officials only shutter charities when the nonprofit masquerades as another organization, or when virtually none of its funds serve their intended goals. For instance, then-Ohio Attorney General Mike DeWine sued to dissolve a “charity” called Cops for Kids when he learned only two percent of its funds went to charity. Last year, Washington state Attorney General Bob Ferguson closed two dozen charities – founded by a man associated with the Gambino crime family – that falsely claimed to be associated with the United Way (which never received a dime of its donations).

That clearly does not apply to the NRA, which posted contributions of $98 million in 2018 alone. Even if every allegation James made is correct, the NRA had substantial funds to left to spend on its donors’ intentions. Indeed, that seems to be the problem.

The NRA exists to defend the Second Amendment rights of U.S. gun owners. To that end, it spent $54 million in the 2016 election cycle – including more than $30 million supporting President Donald Trump. The remaining funds went to 223 Republicans and nine Democrats.

None went to Tish James, who has promised to take “a proactive approach” to enforcing gun control laws. Her disproportionate legal action against the NRA undermines two unalienable rights: the right to keep and bear arms, and the freedom of association. By dissolving the nation’s leading gun rights lobby and seeing that its funds are dispersed for “legitimate charitable purposes” – as defined by the attorney general, not the NRA’s donors – James undercuts one of her fiercest political rivals.

While membership organizations like the NRA are often portrayed as legislative Goliaths, they are in fact a collection of a million scattered Davids pooling their collective power to bind down the federal government with the chains of the Constitution.

No one expressed this better than Alexis de Tocqueville, who noted the iron-clad law that government action aimed at establishing “equality” renders the citizens increasingly powerless. “Since citizens have become weak while becoming more equal, they can do nothing in industry without associating; now, the public power naturally wants to place these associations under its control,” Tocqueville wrote in Democracy in America.

Since these “associations are stronger and more formidable than a simple individual can be,” the government seeks to give them less freedom “than would be allowed for an individual,” he continued:

Sovereigns have that much more inclination to act in this way since it suits their tastes. Among democratic peoples it is only by association that the resistance of citizens to the central power can come about; consequently the latter never sees associations that are not under its control except with disfavor.

For this reason, Tocqueville wrote, the state has historically sought to abort, regulate, or dissolve these intermediary institutions:

Among all the peoples of Europe, there are certain associations that can be formed only after the State has examined their statutes and authorized their existence. Among several, efforts are being made to extend this rule to all associations. You see easily where the success of such an undertaking would lead.

If the sovereign power had once the general right to authorize, on certain conditions, associations of all types, it would not take long to claim that of overseeing them and of directing them, so that the associations would not able to evade the rule that it had imposed on them. In this way, the State, after making all those who desire to associate dependent on it, would make all those who have associated dependent as well, that is to say, nearly all the men who are alive today.

In this way, the state gradually absorbs the nonprofits that make up civil society or refashions them into a cat’s paw to accomplish the will of politicians, not citizens. The NRA is but the latest example.

The NRA responded in a press release by calling James’ lawsuit “a power grab by a political opportunist.” It has filed a countersuit, claiming political bias – the same legal stratagem that President Trump employed in his unsuccessful defense.

President Trump greeted the news by saying, “I think the NRA should move to Texas and lead a very good and beautiful life.” The attorneys general of Texas and West Virginia, as well as Arkansas Gov. Asa Hutchison, responded by inviting the NRA to relocate to their states. But the impartial administration of justice should not depend on the sufferance of political leaders, the exigencies of geography, or the pendulum of electoral outcomes.

James’ effort to suppress the NRA and deny equal protection of the law to a political foe shows the high price of politicizing charitable institutions.

(Photo credit: lev radin / Shutterstock.com.)

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.