NRA, ACLU Lawsuit: NSA Spying Creates ‘Gun Registry’ and Chills Speech



Massive data collection could be used to identify gun owners, target 2nd Amendment advocates and intimidate participation in politics.

The National Rifle Association (NRA), the nation’s largest 2nd Amendment organization, joined the American Civil Liberties Union (ACLU) in a lawsuit levied against the National Security Agency (NSA) demanding an end to their extensive surveillance program on Americans – with the NRA concerned about how data collected on gun owners can create a de facto national ‘gun registry.’

The Amicus Brief filed by the ACLU formally names several officials involved in the spying apparatus, including Director of National Intelligence James Clapper, NSA chief Keith Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric Holder and FBI director Robert Mueller.

The Hill reported:

“Under the government’s reading of Section 215, the government could simply demand the periodic submission of all firearms dealers’ transaction records, then centralize them in a database indexed by the buyers’ names for later searching,” the NRA writes.

The group claims that Congress could never have meant to authorize such a vast surveillance operation because it has repeatedly rejected proposals to create a national gun registry.

The NRA’s brief also claims that the phone record program violates its members’ First Amendment rights to associate and communicate freely. The group argues that people could fear retribution for associating with the gun-rights group if they knew the government was monitoring their phone records.

While the prima facie violations of the 4th Amendment are clear enough, the implications for how warrantless spying and data collection could chill free speech are just as important.

The NRA and ACLU insist that “the mass surveillance program threatens the First Amendment rights of the NRA and its members,” citing the 1958 NAACP case against the State of Alabama, where the Supreme Court recognized that the “involuntary disclosure of the membership of advocacy groups” can inhibits First Amendment rights of members.

“The mass surveillance program could allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA”

Moreover, due to “modern data analysis techniques, and the risk of public disclosure,” the plaintiff parties argue, even government agencies with the best of intentions could inadvertently infringe upon or hinder First Amendment rights, thus ‘heightening concerns’ about the NSA’s surveillance program.

These mass data collection practices – which obviously include warrantless targeted monitoring – also threaten the 2nd Amendment right to keep and bear arms, according to the lawsuit. With reference to the 1968 Gun Control Act, which the NRA controversially supported, it notes that “the Congress has recognized that government record keeping on gun owners inhibits the exercise of Second Amendment rights.”

The NRA and ACLU brief calls for an injunctions, arguing that both 1st Amendment and 2nd Amendment rights are threatened and could be easily violated (in addition to the blatant and ongoing violations of the 4th Amendment:

“The mass surveillance program raises both issues, potentially providing the government not only with the means of identifying members and others who communicate with the NRA and other advocacy groups, but also with the means of identifying gun owners without their knowledge or consent…” [emphasis added]

Such violations are more than just theoretical; they are concerns reflecting the known behavior of the current administration.

Targeting Guns, Obama Has Ordered Massive Data Collection

The Obama Administration has made its intentions of challenging gun rights quite clear, attempting to push several restrictive policies, including a thus-far failed attempt to introduce a new assault weapons ban through Congress, while claiming in rhetoric that it didn’t not seek a national registry.

Despite this, President Obama has issued now at least 25 executive orders (23 of which were issued in the wake of Sandy Hook) to “close loopholes” and encourage more stringent background checks and ‘clarify’ the rights of medical professionals on “asking their patients about guns in the home” and ‘mental health’ status inquiries. Still other executive orders pertain towards streamlining and centralizing databases about gun owners while “improv[ing] incentives for states to share information with the background check system.” All this will only accelerate with the implementation of ObamaCare.

These actions become even more troubling when you consider the scandal that broke over the I.R.S. admissions that it unfairly targeted Tea Party protesters and other advocacy groups for their political stances. According to reports in Bloomberg News:

“The extra IRS scrutiny was given to organizations seeking tax exempt status if they had “tea party” or “patriot” in their name.”

Further, such targeting reportedly did not stop even after widespread public disclosure and Congressional hearings.

Attorney General Eric Holder, named in the surveillance lawsuit filed by the NRA and ACLU, has also come under fire for allegedly targeting journalists who report on leaks with prosecution. Holder has denied this in testimony concerning the case of Fox News correspondent James Rosen, who was effectively threatened with violations of the Espionage Act; Holder argued not over whether the reporter was targeted, but that actual prosecution was never seriously considered.

A House Report on the Justice Department’s leak investigations chastised Holder’s rationales. The report stated:

“We take little comfort in Mr. Holder’s assurances to us now that the Department never intended to prosecute Mr. Rosen when it labeled him a criminal suspect in 2010.”

“Tarnishing a journalist as a suspect in a national security investigation is not something that should be taken lightly. Espionage is a serious federal crime, punishable by up to a decade in prison. In essence, the Justice Department dangled Mr. Rosen over a cliff. But the American people were then assured by Mr. Holder that this was appropriate because there was never a potential of him falling to his doom.”

As the NRA and ACLU argue in their case, a chilling effect on free speech – which the IRS and Justice Department examples cited above clearly constitute – is indeed a violation of the First Amendment. Even where the First Amendment is not outright ‘prohibited,’ there is a clear case of “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” where groups or individuals are intimidated or put through red tape because of their advocacy positions.

The lawsuit cites the 1963 case Gibson v. Florida Legislative Investigation Comm. – in which the Supreme Court ruled that a subpoenaed witness could not be forced to give up the membership list of an organization – in arguing that “political effectiveness could be drastically reduced if mass surveillance programs are allowed to have a ‘chilling’ effect on communications between the NRA and its followers.” With NSA surveillance casting an extremely wide and almost ubiquitous net, this could apply to anyone, not just gun owners, the case argues, stating, “These concerns are not unique to the NRA, but could apply equally with respect to the plaintiffs, or to any other or organization that takes controversial stands on public issues.”

Again, this issue is NOT only important to those in favor of gun rights or those opposed to the Obama Administration policies; to the contrary, if these practices are allowed to stand – or grow – other groups will be targeted as well by subsequent administrations, and the political dimensions could be flipped or skewed to unfairly spy upon and intimidate Democrats, liberals, anarchists, etc.

And that would be discrimination by the very government that is explicitly supposed to be restrained by the Bill of Rights – most assuredly by the 1st, 2nd and 4th Amendments which are meant to guarantee free expression and advocacy, the right to keep and bear arms (even against a tyrannical government, by the way) and the right to privacy and due process if search is to occur – based upon evidence, probable cause and a warrant issued based upon a (named not secret) witness and specific items to be found.

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