The Supreme Court is now in the process of deciding Heller v. District of Columbia, and should be rendering a decision either today or tomorrow. While we wait, feel free to read over the amicus brief submitted by the Libertarian Party in this landmark case. The message of the brief is simple: The Second Amendment is an individual right of the same importance as the First Amendment, and therefore any attempt to regulate this right should be subject to the strictest of scrutiny.
The brief is really a phenomenal one for the LP because it ties in gun rights to issues like ballot access–an issue with which we are all too familiar. The LP was the only political party to file a brief in the case, either in support of Heller or D.C.
For the PDF version, click here.
No. 07-290
================================================================
In The
Supreme Court of the United States
——————————— ♦ ———————————
DISTRICT OF COLUMBIA AND ADRIAN M. FENTY,
MAYOR OF THE DISTRICT OF COLUMBIA,
Petitioners,
v.
DICK ANTHONY HELLER,
Respondent.
——————————— ♦ ———————————
On Writ Of Certiorari To The
United States Court Of Appeals
For The District Of Columbia Circuit
——————————— ♦ ———————————
AMICUS CURIAE BRIEF OF THE
LIBERTARIAN NATIONAL COMMITTEE, INC.
IN SUPPORT OF RESPONDENT
——————————— ♦ ———————————
BOB BARR
LAW OFFICES OF EDWIN MARGER, LLC
44 N. Main Street
Jasper, Georgia 30143
(770) 836-1776
Attorney for Amicus Libertarian
National Committee, Inc.
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
TABLE OF CONTENTS
Page
Interest of the Amicus…………………………………….. 1
Summary of Argument……………………………………. 2
Argument………………………………………………………. 3
I. The Solicitor General Misinterprets the
Standard it Proposes…………………………….. 3
II. The Standard Proposed Is and Should Be
Restricted to the Unique Area of Regula-
tion of Certain Electoral Activities………….. 6
III. Even If the Proposed Standard Were
Adopted, the Appropriate Result Would Be
Affirmance, not Remand………………………… 7
Conclusion……………………………………………………… 8
ii
TABLE OF AUTHORITIES
Page
CASES
Anderson v. Celebreeze, 460 U.S. 780 (1983)……………5
Burdick v. Takushi, 504 U.S. 428 (1992)………2, 3, 4, 6
California Democratic Party v. Jones, 530 U.S.
567 (2000)………………………………………………….4, 5, 7
Clingman v. Beaver, 544 U.S. 581 (2005)…………….3, 4
Eu v. San Francisco Democratic Comm., 489
U.S. 218 (1989)………………………………………………….4
Munroe v. Socialist Workers Party, 479 U.S.
189 (1986)…………………………………………………………4
Rosario v. Rockefeller, 410 U.S. 752 (1973)……………..7
San Francisco County Democratic Cent. Comm.
v. Eu, 826 F.2d 814 (9th Cir. 1987)………………………5
Storer v. Brown, 415 U.S. 724 (1974)………………………6
Tashjian v. Republican Party, 479 U.S. 208
(1986)……………………………………………………………5, 7
Timmons v. Twin City Area New Party, 520
U.S. 351 (1997)…………………………………………..2, 3, 4
OTHER AUTHORITIES
U.S. Const., Art. I, §4…………………………………………….6
ST. GEORGE TUCKER, BLACKSTONE’S COMMENTAR-
IES, WITH NOTES OF REFERENCE TO THE CON-
STITUTION AND LAWS 300 (1803)……………………………8
1
INTEREST OF THE AMICUS
1
Amicus Libertarian National Committee is the
national organization of the third largest political
party in the United States, founded in 1971 as an
alternative to the two main political parties. Its
interest in the present case is twofold.
First, Amicus is an established political party
dedicated to a strict adherence to the Constitution
and the protection of rights both natural and enu-
merated, including the right of an individual to keep
and bear arms in the defense of life, liberty and
property.
Second, as America’s third largest political party,
it has considerable experience with litigation involv-
ing parties gaining ballot access, which is the subject
of the precedent invoked by the Solicitor General in
proposing a standard of review.
——————————— ♦ ———————————
1
No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than amicus, its members, or its counsel made any
such monetary contributions. This brief is filed with the written
consent of the parties. Amicus complied with the conditions by
providing seven days advance written notice to both parties.
2
SUMMARY OF ARGUMENT
Amicus the Solicitor General proposes a deferen-
tial standard of review, which it describes as a bal-
ancing test involving heightened scrutiny. It invokes
for this proposition two prior decisions of this Court:
Burdick v. Takushi, 504 U.S. 428, 434 (1992) and
Timmons v. Twin City Area New Party, 520 U.S. 351,
358-359 (1997). Sol. Gen. Br. at 8, 24, 30-31.
It then asks for reversal, since the Circuit ap-
plied strict scrutiny, id. at 30-31, and goes so far as to
suggest that to apply its standard would require
individual fact-finding: the “right of the people”
apparently would mean different things for different
people, depending upon their size, strength and even
whether they had two arms. Id. at 33 n.9.
Burdick and Timmons evolved in a unique corner
of the First Amendment, an area in which Amicus has
considerable experience – that of regulation of politi-
cal party activities and ballot access. We will first
discuss how the Solicitor General misinterprets the
standard it proposes, then show the unusual features
of that arena and why its standards should not be
applicable to the Second Amendment. Finally, we will
demonstrate that even if its standards were applica-
ble, affirmance would be the proper response.
3
ARGUMENT
I. The Solicitor General Misinterprets the
Standard it Proposes.
The Solicitor General treats the precedent it
invokes as if it establishes that some manner of
general balancing test was involved. In fact, the
situation is considerably more complex. Burdick,
Timmons, and their progeny are ballot access cases,
and apply a un
ique, two-tiered approach to review.
Under their teachings, only party-neutral regulations
that have minor impact on First Amendment rights
receive a lessened standard of review; regulations
that significantly impact such rights receive strict
scrutiny.
Burdick v. Takushi, 504 U.S. 428, 434 (1992),
involved a First Amendment challenge to Hawaii’s
refusal to allow write-in votes; the challenger alleged
that he desired to vote for a person who had not filed
a nominating petition and thus was not on the ballot.
The Court treated this as the converse of a ballot-
access challenge, and concluded that Hawaii’s system
posed only minimal barriers to the entry of a poten-
tial candidate.
Discussing the standard of review, the Burdick
majority indicated that ballot-access laws that impose
“severe” burdens on constitutional rights require
strict scrutiny, while “reasonable, nondiscriminatory”
limitations can be justified by a State’s “important
regulatory interests.” 504 U.S. at 434.
In Clingman v. Beaver, 544 U.S. 581 (2005),
upholding a ban on parties inviting members of other
4
parties into their primaries, this Court drew a dis-
tinction between “minimal infringement” and “severe”
burdens,
2
a paraphrase of the Burdick test. Clingman
held that requiring voters to register with a party
before voting in its primary was a minimal barrier to
so voting. Cf. Munroe v. Socialist Workers Party, 479
U.S. 189, 195-96 (1986) (requirement that candidate
receive 1% of total primary votes to gain ballot access
in general election upheld: State may respond to
anticipated electoral problems so long as they “do[]
not significantly impinge on constitutionally pro-
tected rights”).
Timmons applied the same standard to a ban on
“fusion” candidates (those running as candidates of
two or more parties). A small political party was
disabled from selecting a major party candidate as its
joint standard-bearer, but it was still free to run
anyone else on its ticket.
2
In some subsequent cases, however, this Court does not
appear to have applied either test. See Eu v. San Francisco
Democratic Comm., 489 U.S. 214, 222 (1989) (Statute exten-
sively regulating internal party activities: “If the challenged law
burdens the rights of political parties and their members, it can
survive constitutional scrutiny only if the state shows that it
advances a compelling state interest . . . ”); California Democ-
ratic Party v. Jones, 530 U.S. 567 (2000) (statute forcing a
“blanket primary” upon parties, in which nonparty members
could vote). As the burdens upon associational freedoms were
quite apparent in those cases, the Court may have seen no
necessity of beginning with the two-tier test.
5
The test is thus a unique, two-tiered one; the
impact upon the right involved itself determines
which level of review is employed. It is emphatically
not a simple balancing test, and in fact justifies strict
scrutiny if serious impairment of the right is in-
volved. Thus this Court applied strict scrutiny in
Tashjian v. Republican Party, 479 U.S. 208, 217
(1986) (party desired to allow independents to vote in
its primary, which State law forbade), and in Califor-
nia Democratic Party v. Jones, 530 U.S. 567 (2000)
(mandatory “blanket” primary).
Moreover, even the lesser test of the “important
regulatory interests of the State” does not reflect a
regulatory blank check. In Anderson v. Celebreeze,
460 U.S. 780, 788 n.9 (1983), for example, this Court
defined these as “generally applicable and even-
handed restrictions that protect the integrity and
reliability of the electoral process itself.” See also San
Francisco County Democratic Cent. Comm. v. Eu, 826
F.2d 814, 831 (9th Cir. 1987) (“[A]ny state regulation
of political parties beyond that necessary to further
orderly elections must be viewed with great skepti-
cism.”).
The Solicitor General thus erroneously treats
this Court’s rulings, establishing a two-tiered stan-
dard of review in certain election law situations, as if
they simply established the lower tier as the univer-
sal rule.
6
II. The Standard Proposed Is and Should Be
Restricted to the Unique Area of Regula-
tion of Certain Electoral Activities.
State-organized elections are unique, in that they
involve First Amendment protected activities that can
only be meaningfully exercised if subject to a variety
of controls, many rather arbitrary in nature. Burdick,
504 U.S. at 435. We can think of no other First
Amendment activity that can be exercised only upon
rare occasions, with the State determining its “time,
place, and manner.” U.S. Const., Art. I, §4. As this
Court has noted, “there must be a substantial regula-
tion of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accom-
pany the democratic processes.” Storer v. Brown, 415
U.S. 724, 730 (1974).
Moreover, the regulations often must be rather
arbitrary. One cannot justify with reasons why an
election is held on one day rather than another, at
one place rather than elsewhere, why a political party
should need to have 1% rather than 2% of total voter
registrations to gain a place on the ballot, or why
candidate petition deadlines were put at ninety
rather than sixty days before an election. Choices
have to be made, and one choice is as good as the
other, so long as a fair and neutral result ensues.
The two-tiered test evolved within this unique
legal environment. The test’s double standard, and its
“important regulatory interests of the State,” branch
are, to the best of our knowledge, to be found nowhere
7
else in this Court’s teachings. The two-tier standard
functions simply to avoid imposing a “compelling
state interest” standard on fixing deadlines or picking
a number, even though the deadline or number might
have some minor First Amendment impact. See
Rosario v. Rockefeller, 410 U.S. 752 (1973) (deadline
for voter registration alleged to have restricted voting
rights).
These principles are simply inapplicable here.
The right of the American people to keep and bear
arms is not a right that cannot be practically exer-
cised absent considerable, and often arbitrary, regula-
tion.
III. Even If the Proposed Standard Were
Adopted, the Appropriate Result Would
Be Affirmance, not Remand.
As we have noted, this Court has applied strict
scrutiny under the two-tiered test when the statute at
issue significantly affected the underlying rights.
Tashjian v. Republican Party; California Democratic
Party v. Jones.
We would suggest that a ban on all handguns,
applicable to all persons, no matter how law-abiding,
is by definition a significant impairment of “the right
of the people to keep and bear arms.” In California
Democratic Party v. Jones, by way of comparison, this
Court rejected the Circuit’s finding that the burden of
allowing cross-over primary voting was minor. The
Circuit fou
nd that very few races would be affected,
8
but this Court responded that winning or losing a
single major race might be sufficient to create or
destroy a political party. If applied here by analogy,
we would suggest the ordinance at issue clearly
passes the threshold for strict scrutiny.
The D.C. Circuit applied strict scrutiny. The
Solicitor General’s proposed test would likewise
require strict scrutiny. Were this test applied here,
the result would be affirmance, with perhaps a note
that strict scrutiny is not inevitable in contexts where
a statute minimally burdens the underlying right.
——————————— ♦ ———————————
CONCLUSION
The Solicitor General cites certain precedent of
this Court without noting that they are applicable
only to a narrow subset of First Amendment situa-
tions – those involving access to the ballot. This, in
turn, involves the unique situation in which a First
Amendment right can only be exercised, in a practical
manner, with extensive government regulation. Even
if those standards were applied here, strict scrutiny
would be required, and the ruling below therefore
affirmed.
To Americans of the Framing Period, the Second
Amendment was no “second class right.” On the
contrary, St. George Tucker described it as “the true
palladium of liberty.” BLACKSTONE’S COMMENTARIES,
WITH NOTES OF REFERENCE TO THE CONSTITUTION AND
9
LAWS 300 (1803). Its infringement here, by an ordi-
nance outlawing possession of a large class of arms by
citizens, no matter how law-abiding, clearly requires
strict scrutiny.
The ruling of the District of Columbia Circuit
should be affirmed.
Respectfully submitted,
BOB BARR
Attorney for the Amicus
