Kopel: ‘The Trace’ Unearths a Shadowy QAnon-Like Grand NRA Conspiracy That Resulted in the Bruen Decision

If you’re looking for a website like QAnon, but catering to gun control advocates, you will enjoy some articles from The Trace, a gun control website founded and funded by Michael Bloomberg. In August, The Trace presented a conspiracy about the amicus briefs filed in New York State Rifle & Pistol Association v. Bruen. The article was reprinted by Politico. Will Van Sant, The NRA’s Shadowy Supreme Court Lobbying Campaign, Politico, Aug. 5, 2022.

The 12-brief conspiracy

The Politico reprint of the Trace article opens with snazzy graphics. Forty-nine amicus brief were submitted in the Bruen case: “12 of those briefs were filed by people or institutions who had received millions of dollars from the NRA, a Trace and Politico Magazine investigation found. Only 1 brief disclosed the financial connection.” According to Van Sant, “neither the justices nor the public were told that 11 of these ostensibly independent voices owed their livelihoods in part to the NRA.” Let’s look at some of his examples. …

According to Van Sant, it was “shadowy” for the League’s 2021 brief not to disclose in that brief that the League’s president had, years before, headed an organization that received NRA grants. …

A similar situation arises for former NRA General Counsel Bob Dowlut. He retired from the NRA several years ago, when he turned 70. In Bruen, he penned an amicus brief for the Bay Colony Weapons Collectors. According to that organization’s head, Karen McNutt, Bay Colony paid Dowlut a “nominal sum” and his work was essentially pro bono. She said “I don’t think the NRA was funding this in any way. And I don’t think Bob was getting any money to do this.” Van Sant does not dispute these facts, but he nevertheless calls Dowlut “shadowy” for not disclosing his former employer in the brief.

Then there’s Stephen Halbrook, a private practitioner in Virginia. Starting in the 1980s, he represented the NRA in numerous cases. In those cases and others, he has compiled a 5-0 record in the Supreme Court.

While Halbrook has authored many NRA briefs, his amicus briefs in recent years, including in Bruen, have been on behalf of the National African American Gun Association. No surprise, since Halbrook has done more than any other scholar to research and describe the Reconstruction Era history of gun control laws aimed at disarming the Freedmen, and the congressional response. See, e.g., Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (2d ed. 2010).

According to Van Sant, because the NRA has been one of many clients in Halbrook’s private practice, he was “shadowy” for not disclosing in a 2021 amicus brief for a different organization that the NRA has also been a client.

Even former Solicitor General Paul Clement is purported to be in on the “shadowy” conspiracy. Clement, the winning attorney in Bruen, joined the board of the Bradley Foundation in 2020. Van Sant writes:

“In 2020 and 2021, Bradley made grants totaling $2 million to groups that filed pro-NRA amicus briefs in Bruen. Grantees included the Independence Institute, Kopel’s Colorado think tank, which received $300,000 during those two years, and the Claremont Institute, which received $200,000 during the same period.”

This was news to me, and unsurprisingly so since I don’t work in Development. When the Independence Institute’s staff are preparing a grant application with a Second Amendment angle, they do ask me for supporting information. I inquired about the Bradley grant and was told that $150,000 annual Bradley grants were given in 2020 and 2021. I was informed: “These funds are restricted to” particular other policy centers at the Independence Institute “and do not fund 2A work at all.” “So this [Trace] article doesn’t have all the facts.” Van Sant had not bothered to ask us.

Van Sant traces his grand conspiracy to a January 2018 meeting of the NRA Civil Rights Defense Fund. According to the minutes of the meeting, the Fund approved a grant to the New York State Rifle & Pistol Association for the case that eventually became Bruen. Like many of the lawyers named in Van Sant’s article, I attended that meeting. NRA members can attend CRDF meetings, and before the pandemic, many pro-Second Amendment lawyers, including me, often attended the thrice-annual meetings of the NRA board and related committees. There, we talked shop, exchanged ideas, and so on.

But Van Sant sees something more. This January 2018 meeting was the birthplace of the grand conspiracy of the supposedly “coordinated” amicus briefs three years later in Bruen. A typical CRDF meeting involves presentations for several dozen grant proposals, most of them involving attorneys representing defendants caught up in unfair enforcement of local gun laws, ranges resisting attempted closure by local officials, and the like. The CRDF board then goes into executive session to consider the grants, and the visiting lawyers and other NRA members must leave the room. …

In October 2021, Van Sant apparently thought that he had discovered a scoop: the Independence Institute, where I work, has received substantial grants from the NRA Foundation. This is not exactly news. The Independence Institute respects the privacy of all our donors, and we disclose them to the extent required by law. However, if a donor chooses to disclose, we will confirm the donor’s statement. For years the NRA Foundation has disclosed all its grants, including the amounts, in its annual reports and public filings.

The first law review article to note the funding was written in 1998 by Carl Bogus, a law professor at Roger Williams College who advocates for gun control. “Libertarian think tanks and the National Rifle Association (NRA) generously funded the research of activist authors such as Stephen Halbrook, Don Kates, and David Kopel.” Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 316 (1998)

So when the Washington Post asked me about NRA grants in May 2013, I answered accurately, and the Post described the Independence Institute as “a legal think tank that receives NRA funding.” As debate begins, Senate background check proposal for gun sales lacks necessary votes, Wash. Post, May 2, 2013. To be precise, the Independence Institute is not solely a “legal” think tank. We work on many issues in many ways, and legal work is well under 10% of our total output. In response to other media queries about NRA donations, Independence Institute President Jon Caldara has repeatedly stated that the Institute is “proud” to receive support from “America’s oldest civil rights organization.” …

As I pointed out to Van Sant in an email exchange this summer, there was no NRA Foundation grant when I wrote the Bruen brief in April-June 2021. Yet he refused to correct his November 2021 article The NRA Paid a Gun Rights Activist to File SCOTUS Briefs. “Point me to the sentence that is factually incorrect,” he wrote. The sentences that are factually incorrect begin with the first paragraph:

The NRA Foundation has paid an attorney and Second Amendment activist to write favorable briefs in Supreme Court cases, suggests a hacked document released on the dark web last week. Since 2019, that attorney has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York’s gun licensing requirements that is being heard today. The briefs did not disclose the funding, allowing the NRA to buttress its affiliate’s arguments while concealing the effort from judges and the public.

There are two falsehoods in this first paragraph. First, there was no NRA Foundation grant when I wrote the Bruen brief.

Second, the Independence Institute has never been an “affiliate” of the NRA. An affiliate has some sort of official relationship. For example, the Colorado State Shooting Association is an affiliate of the NRA. Therefore, the NRA Competitions Division recognizes scores from CSSA shooting matches just the same as if the match had been conducted by NRA itself. The think tank where I work, the Independence Institute, has solicited and received grants from the NRA Foundation. That doesn’t make us an “affiliate,” just as we are not an “affiliate” of any other donor.

Although Van Sant refused to correct his November 2021 article, his August 2022 article did include the fact that there was no NRA Foundation grant when I wrote the Bruen brief.

— David Kopel in The Paranoid Style in Gun Control Politics