The NRA's Amicus Brief Machine

Historians in the News
tags: Second Amendment, gun control, Supreme Court, National Rifle Association

Over the past two decades, as more money and political energy have been directed at major Supreme Court cases, the marshaling of favorable amicus briefs — in which law professors and other specialists offer advice to the court, nudging it one way or the other — has become an industry of its own, a form of shadow lobbying targeting an institution that, in theory, is not supposed to be lobbied. The number of briefs filed surged, and justices have cited them with ever greater regularity. In a noted 2016 law review article titled The Amicus Machine, two professors from William & Mary Law School detailed how elite Supreme Court advocates employ “wranglers” to identify parties willing to file briefs and “whisperers” to ensure that filings convey the right message — one that is likely to be embraced by the justices. The result is a “systematic, choreographed engine designed by people in the know,” the professors wrote.

In part, that choreography is aimed at “creating the appearance of a groundswell of support for a given decision,” said Lisa Graves, a former Justice Department official who heads the progressive watchdog group True North Research. The NRA seems to have fully embraced this idea. Not only did the NRA fund Bruen, a cadre of attorneys paid by the association who were at the 2018 Arlington meeting where money was allocated to the case served as counsel on briefs filed by other groups lobbying against firearms restrictions. Two of its state affiliates and its legal fund also filed briefs backing the association. One organization, called The Center for Human Liberty, was incorporated in Nevada two months before filing its pro-NRA brief. Another, called The League for Sportsmen, Law Enforcement and Defense, was incorporated in Virginia nearly two months after it filed its amicus brief in Bruen. “Those of us involved with the League have been involved in 2nd Amendment advocacy for decades,” attorney Christopher Day, counsel of record on the brief, said by email in response to a request for comment. “The League is not affiliated with the NRA, nor received any financial support from them.” The League is led by James Fotis, who for many years oversaw an NRA-backed effort to elect judges and state attorneys general who opposed firearms restrictions. 

Several briefs were filed by NRA-funded legal scholars whose work has been built on that of other NRA-funded legal scholars — a practice that Patrick J. Charles, senior historian for the U.S. Air Force, described as “citation gymnastics.” Charles, the author of Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry, filed a brief in Bruen as an independent scholar that supported neither side and called for “care in navigating conflicting and competing historical claims.” In an interview, he said there is support for some of what the pro-NRA briefs argue, but in sum they are a distortion. “They take a few facts, hype them, and assert that they have what they do not have,” Charles said. “They do this again and again, it’s just ridiculous. It’s completely dishonest. The NRA understood this early on, that you just have to keep putting information out there, insisting that it’s true, and people come to believe it.”

The NRA was certainly aware of the value of having plentiful briefs. Tom King is an NRA board member and director of the New York affiliate that is the petitioner in Bruen. He is also president of the NRA Foundation, which has given grants to groups and individuals that filed NRA-friendly briefs in the case. Speaking to an interviewer in January about how Bruen made it to the court, King said, “We had a lot of amicus briefs and [the justices] took the case.” 

The amicus engine has a brake — at least in theory. Supreme Court rules require amicus filers to disclose whether any other entity — and especially parties in a case or their attorneys — have made a “monetary contribution” to the “preparation or submission” of a brief. The 2007 rule, which requires disclosure when funds have been channeled to the amicus filer or its attorneys, was prompted by concerns that litigants were silently financing favorable briefs.

Read entire article at The Trace

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