Action in the Courts: The Fate of the NRA and SCOTUS on Bump Stocks

This past weekend was essentially consumed by the parsing, interpreting, and spinning of New York Attorney General Letitia James’ numerous wins against the National Rifle Association and three former/current corporate officers.

After a six-week trial and a week of reportedly contentious deliberations, the jury found that, as alleged in the NY AG’s case, longtime NRA CEO Wayne LaPierre and former treasure and CFO Wilson “Woody” Philips were both guilty of improperly spending millions in NRA funds. Current corporate secretary and general counsel John Frazer was also found to have failed to fulfill his statutory duties, but not to a level sufficient them to remove him from his job.

The jury also found the National Rifle Association had — as an organization — failed to properly run its nonprofit and responsibly manage its assets from the time period alleged in the charges, March 20, 2014 through May 2, 2022.

Much has already been said, written, and opined about the verdict, but one truth that has stood up under rigorous scrutiny: the National Rifle Association Board effectively did nothing as the organization devolved from an effective Second Amendment-focused civil-rights organization into a tiny kingdom ruled by a group of insiders.

What’s done is done. What remains to be seen is what differences the verdict makes in how the NRA operates going forward. The wild card won’t be the actions of remaining board insiders or those who are pushing for reforms. They’ve been fighting for years.

The jury’s findings now dictate a bench trial before Judge Joel Cohen. That’s where he will unilaterally determine if the appointment of a special master is required to assure that the NRA doesn’t repeat its past offenses. He’ll also determine if the individual defendants will be banned from all future roles with the NRA (or any other New York not-for-profit).

Judge Cohen’s rulings from the bench could come as early as July.

Longtime NRA board member Owen “Buz” Mills isn’t holding back in his reaction to the New York verdict.

He told me, “I’m glad to see phase one of the trial concluded. I am a longtime witness and in-house critic, and I am not at all surprised to see the jury conclude that we – the NRA board of directors – are guilty of ‘failure to properly safeguard its charitable assets and failed to protect whistleblowers.’”

“In my opinion,” Mills continued, “this was the most serious charge. The court is looking at mid-summer before it can enjoin phase two, the remedy portion of the trial. The judge will impose fines, sanctions, and rule on whether the NRA has stepped up to the plate and purged all the shifty players and decided to pursue business in accordance with its charter.”

The New York AG, Mills says, “wants to see funds returned to the NRA and the court essentially assuming control of the Association.”

That suggested remedy, Mills says, doesn’t line up with the NRA’s own report to the board. It, he says, “claims they won this trial. They’ve done this before, too. Reality is, our legal team has yet to put any score on the board.”

“Reality is,” he says, “the management that has been in place since the Frankel debacle (2003), sweeping bad behavior under the rug is racing ahead with business as usual, totally missing the opportunity to show the court we can manage ourselves as adults.”

The NRA, as Mills pointed out, “isn’t the first organization to suffer these ills. Several have purged bad leadership/management, rectified their behavior, and gone forward to honorably serve their members.”

But, he concluded, “TRUST – once spurned -is difficult to earn again.”

Mills is one of the few current or former board members who has spoken publicly. But he’s not the only public figure pulling for the NRA to straighten up and reengage.

Alan Gottlieb, founder and longtime head of the Second Amendment Foundation and the Citizens Committee on the Right to Keep and Bear Arms, is pulling for the NRA to get back to work.

“I hope the NRA powers-to-be get back on track as soon as possible,” he told me, “This is a very important election year.” But, he also cautions, “This is why gun owners should not put all their eggs in one basket. We need a gun rights movement based on multiple organizations.”

On Thursday, the United States Supreme Court will hear arguments from the Biden administration making the case that the government’s 2017 ban on bump stocks is legal and should be upheld.

The ban followed the attack on concert goers in Las Vegas that left 60 people dead and over 400 wounded. The shooter used a number of bump stocks to increase his rate of fire into the crowd. In response, the ATF reclassified bump stocks as machine guns.

After being forced to surrender his bump stock, Michael Cargill sued, claiming the ATF didn’t have the authority to ban bump stocks. He lost, but appealed and lost again before a Fifth Circuit panel. He then asked the entire Fifth Circuit to hear the case. The Fifth reversed the panel’s verdict, finding Cargill’s assertion correct.

In response the government asked the Supreme Court to intervene, arguing in their brief that, “The court has long recognized that courts should avoid reading statutes in a manner that provides ready evasion of their provisions,” arguing the Fifth Circuit’s decision “invites such evasion.”

Cargill’s attorneys counter that argument with the position that while a bump stock can accelerate the rate of fire, they still require the trigger to be actuated by the shooter for every shot. “A bump stock accelerates firing by causing repeated ‘functions’ of the trigger to occur in rapid succession; it does not produce multiple shots in response to a ‘single function’ of the trigger.”

Cargill also argues that even if the bump stock did allow a semiautomatic rifle to fire more than one shot with one pull of the trigger, the function doesn’t happen automatically.

We’ll be listening to the arguments on Thursday…and we’ll keep you posted.