"Backlash" exception to the 1st Amendment
I take minor comfort from the fact that this is a decision issued by a 3-judge panel of the Second Circuit, not en banc, but it has some pretty horrifying Constitutional law in it. The court dismissed an NRA complaint alleging that the New York Department of Financial Services bullied financial institutions into blacklisting the NRA on the ground of "reputational risk." The court explained that "backlash" against Second Amendment supporters was a legitimate reason for a state banking regulator to use threats to induce banks to blacklist customers with controversial advocacy records.
As Powerline suggests, the only right thing to happen now is for the Supreme Court to accept certioriari and punt this awful decision into the sun. In the meantime, however, it sure would be nice to see people cease to use New York banks. The risk there is very high, even beyond the general concern over concentrating the nation's financial system in any particular location.
It's so obvious that the court would never apply this logic to, say, public backlash against the provision of abortion; or gay marriage as an assault on orthodox religion; or anything except the 'backlash' that aligns with their own feelings. One can be in favor of abortion or gay marriage, or against guns, and still see that 'public backlash' is possible in areas where our own values are not the ones concerned. The court is blithely using its own feelings as an excuse to exercise a power it would I don't doubt be at pains to deny where its feelings were violated instead of endorsed.
ReplyDeleteWe are getting close to Judge Kozinsky's observation.
ReplyDelete"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."