The U.S. Court of Appeals for the Second Circuit delivered genuinely demoralizing news on July 17, 2025. After the NRA won a 9–0 ruling at the Supreme Court in National Rifle Association of America v. Vullo, 602 U.S. 175 (2024) — a unanimous decision holding that the NRA plausibly alleged New York regulator Maria Vullo violated its First Amendment rights — the Second Circuit on remand granted Vullo qualified immunity and dismissed the suit. The win at the highest court in the land was effectively erased in the court directly below it.
What the Supreme Court Actually Said
In 2024, Justice Sonia Sotomayor wrote for a unanimous Court that the NRA had plausibly alleged a textbook First Amendment coercion violation. Vullo, as Superintendent of the New York State Department of Financial Services (DFS), used her regulatory power over insurance companies to pressure the NRA’s business partners — Lockton, Chubb, and Lloyd’s of London — to cut ties with the NRA. The alleged motive was the NRA’s pro-Second Amendment advocacy, which Governor Andrew Cuomo and Vullo found politically intolerable after the February 2018 Parkland school shooting.
The Court vacated the Second Circuit’s earlier dismissal and remanded, but declined to resolve the qualified immunity question. That turned out to be a very consequential omission.
The Guidance Letters: A Mafia Offer You Can’t Refuse
The heart of the NRA’s case was two DFS guidance letters sent to regulated financial institutions under Cuomo and Vullo. They read, in relevant part:
“In light of the above and subject to compliance with applicable laws, the Department of Financial Services encourages regulated financial institutions to continue evaluating and managing their risks, including reputational risks that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility. The department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations and to take prompt actions to managing these risks and promote public health and safety.”
My read: that is a threat dressed up in regulatory language. If you’re a bank or insurer in New York, and the state’s top financial regulator tells you to “manage reputational risks” arising from your NRA relationship, you understand the message. You either cut ties or you face the regulator’s scrutiny. Lockton paid $7 million, Chubb paid $1.3 million, and Lloyd’s paid $5 million in consent agreements with DFS. The NRA lost its Carry Guard insurance program entirely. That’s not coincidence — that’s coercion.
The Remand Panel and the Qualified Immunity Escape Hatch
The three-judge remand panel — Judge Denny Chin (Obama appointee), Judge Susan L. Carney (Obama appointee), and Judge Beth Robinson (Biden appointee) — concluded that Vullo was entitled to qualified immunity. Their reasoning: even if Vullo violated the NRA’s First Amendment rights, the law was not “clearly established” at the time of her 2018 conduct, so she cannot be held personally liable.
The panel wrote:
“Although the NRA plausibly alleged a First Amendment claim, we conclude that Vullo is entitled to qualified immunity.”
And the standard they applied was exacting:
“For a right to be clearly established, existing precedent must have placed the statutory constitutional question beyond debate, such that the ensuing rules declare with a high degree of specificity which conduct is permitted and which conduct is not.”
Since the Supreme Court didn’t decide NRA v. Vullo until 2024, and the conduct at issue occurred in 2018, the panel reasoned that the First Amendment prohibition on this kind of regulatory coercion wasn’t sufficiently clear to a reasonable official back then. Qualified immunity shields all but “plainly incompetent” officials or those who “knowingly violate the law,” and the panel found Vullo fell into neither category.
The Jackson Concurrence as the Road Map
Here is what I find particularly striking. Of all the opinions available to the panel — Justice Sotomayor’s majority, Justice Gorsuch’s concurrence — the Second Circuit leaned most heavily on Justice Ketanji Brown Jackson’s concurrence. Justice Jackson urged lower courts to apply a specific coercion-and-injury analysis when evaluating these kinds of First Amendment claims. That analytical framework gave the panel its lane for the qualified immunity finding.
Concurrences are part of the record, and I am not calling Justice Jackson’s illegitimate. But when a panel of two Obama appointees and a Biden appointee reaches for the most restrictive analytical tool among the three opinions in the case — and uses it to dismiss a suit the full Court unanimously agreed stated a viable claim — you have to notice the choice they made.
Where This Leaves the NRA
The NRA has already filed a cert petition — No. 25-479 — asking the Supreme Court to take up the qualified immunity question. Whether the Court grants cert is anyone’s guess. But the underlying dynamic is worth stating plainly: the NRA won unanimously at SCOTUS on the merits of its First Amendment claim, and the same circuit that initially dismissed that claim has now found a procedural offramp to dismiss it again. Qualified immunity doctrine is doing exactly what critics of the doctrine have long warned — insulating government officials from accountability for constitutional violations by demanding a level of legal clarity that is almost impossible to establish prospectively.
If the Supreme Court does not step back in, Maria Vullo will never face a jury on the question of whether she deliberately weaponized New York’s regulatory apparatus against a civil rights organization because she disagreed with its political speech. That is a troubling outcome regardless of where one stands on the NRA.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.