NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION 38 ANNUAL CHARLES W. FROESSEL

NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION
38TH ANNUAL CHARLES W. FROESSEL
INTRAMURAL MOOT COURT COMPETITION
Docket No. 666/14
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM, 2014
STATE OF FROESSEL,
Petitioner,
-againstJEFF LIU,
Respondent.
ON WRITE OF CERTIORARI TO THE UNITED STATES
COURT OF APPELAS FOR THE THIRTEENTH CIRCUIT
BRIEF FOR PETITIONER
Team #13
QUESTIONS PRESENTED
I.
Whether FCCL § I, which regulates the open and conceal carry of handguns in public
by requiring applicants to demonstrate a “justifiable need”, violates the Second Amendment right to bear arms for self-defense as recognized in District of Columbia
v. Heller, 554 U.S. 570 (2008).
II.
Whether FCCL § III, which requires firing ranges to accommodate members of the
public without discriminating on the basis of, inter alia, religious affiliation, violates
the Religious Freedom Act (“RFRA”) as applied to Jeff Liu (“Respondent”).
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................................ i
TABLE OF CONTENTS .................................................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
OPINIONS BELOW ........................................................................................................... 1
STATEMENT OF THE CASE .......................................................................................... 1
Procedural History ........................................................................................................... 1
Statement of Facts .......................................................................................................... 2
SUMMARY OF THE ARGUMENT ................................................................................. 4
ARGUMENT ........................................................................................................ .……….5
I.
FCCL § I DOES NOT VIOLATE JEFF LIU’S SECOND AMENDMENT RIGHT TO BEAR ARMS, BECAUSE THE “JUSTIFIABLE NEED” REQUIREMENT ADVANCES AN IMPORTANT STATE INTEREST,
WHICH IS, TO COMBAT THE HIGH LEVELS OF HANDGUN
HOMICIDE IN GOTHAM; THUS, NOT IMPOSING A BURDEN UPON
SECOND AMENDMENT RIGHTS……………………………………………..5
A. THE THIRTEENTH’S CIRCUIT’S FOCUS ON HELLER LACKS RELEVANCY BECAUSE IT DID NOT EXPLAIN THE OUTER LIMITS
OF THE SECOND AMENDMENT RIGHTS…………………………….…7
B. THE “JUSTFIABLE NEED” REQUIREMENT DOES NOT BURDEN THE SECOND AMENDMENT RIGHT OF JEFF LIU FROM
CARRYING A CONCEALED WEAPON BECAUSE IT IS A
REASONABLE REGULATION THAT DOES NOT BAN THE USE OF
HANDGUNS…………………………………………………………….…...8
i. CONSIDERING THAT THE “JUSTIFIABLE NEED” REQUIREMENT BURDENS THE SECOND AMENDMENT
GUARANTEE, THE REQUIREMENT WILL BE DEEMED
CONSTIUTIONAL UNDER THE INTERMEDIATE
SCRUTINY TEST BECAUSE IT IS SUBSTANTIALLY
RELATED TO FROESSEL’S PUBLIC SAFETY INTEREST.….….9
II.
FCCL § III, WHICH REQUIRES FIRING RANGES TO ACCOMMODATE
MEMBERS OF THE PUBLIC WITHOUT DISCRIMINATING ON THE
BASIS OF RELIGION, INTER ALIA, DOES NOT VIOLATE THE
RELIGIOUS FREEDOM RESTORATION ACT (RFRA) AS APPLIED
ii
TO JEFF LIU BECAUSE THE STATE OF FROESSEL HAS A COMPELLING
INTEREST IN DECREASING FIREARM CRIME RATES IN GOTHAM,
AND ENFORCING THE FFCL § III IS THE LEAST RESTRICTIVE MEANS
OF ENSURING THAT PEOPLE OF ALL BACKGROUNDS HAVE AN
EQUAL OPPORTUNITY OF APPLYING FOR A CONCEAL-CARRY
PERMIT, POTENTIALLY ACQUIRING DESPERATELY NEEDED
PROTECTION AGAINST THE DANGERS OF GOTHAM CITY…………..……12
A. FCCL § III DOES NOT SUBSTANTIALLY BURDEN JEFF LIU’S RELIGIOUS EXERCISE OF CHRISTIANITY BECAUSE THE
PROVISION DOES NOT REQUIRE LIU TO MODIFY HIS BEHAVIOR
OR VIOLATE HIS CHRISTIAN BELIEFS; THUS, HE MAY CONTINUE
TO PRACTICE HIS RELIGIOUS BELIEFS IN MANY ASPECTS OF HIS
LIFE…………………………………………………………………………….12
B. EVEN IF FCCL § III DID IMPOSE A SUBSTANTIAL BURDEN ON
LIU’S RELIGIOUS EXERCISE, THE PROVISION STILL DOES NOT VIOLATE RFRA BECAUSE THE STATE HAS A COMPELLING
INTEREST IN DECREASING FIREARM VIOLENCE AND
DISCRIMINATION IN GOTHAM CITY AND FCCL § III IS
THE LEAST RESTRICTIVE MEANS OF AFFORDING ALL
CITIZENS AN EQUAL OPPORTUNITY TO APPLY FOR A
CONCEAL-CARRY PERMIT, THUS SATISFYING THE
COMPELLING INTEREST TEST……………………………………………...15
C. GRANTING JEFF LIU AN EXEMPTION UNDER RFRA IN THESE
CIRCUMSTANCES COMPLETELY VIOLATES THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT
BECAUSE THE RELIGIOUS FREEDOM RIGHTS OF MINORITY
GROUPS, LIKE SIGMUND YUNG’S SATANIST SECT, ARE DISREGARDED AND SACRIFICED FOR THE RELIGIOUS
RIGHTS OF MORE POPULAR CONGREGATIONS, LIKE
CHRISTIANITY………………………………………………………………...18
CONCLUSION………………………………………………………………………..………...19
iii
TABLE OF AUTHORITIES
United States Supreme Court Cases
District of Columbia v. Heller, 554 U.S. 570, 635 (U.S. 2008)................................. passim
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal,
546 U.S. 418 (U.S. 2006).................................................................................................. 15
Ashcroft v. ACLU, 542 U.S. 656 (U.S. 2004) ................................................................... 15
Elane Photography, LLC v. Willock, 2013-NMSC-040 (U.S. 2013) ............................... 12
Hernandez v. Comm’r, 490 U.S. 680 (U.S. 1989) ............................................................ 13
Bob Jones Univ. v. United States, 461 U.S. 574 (U.S. 1983) ........................................... 13
Employment Div. v. Smith, 494 U.S. 872 (U.S. 1990) ...................................................... 15
Roberts v. United States Jaycees, 468 U.S. 609 (U.S. 1984)............................................ 15
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (U.S. 1985)…………………………...18
Court of Appeals Cases
United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. Va. 2011) ............................. 9
U.S. v. Marzzarella, 614 F. 3d 85 (3d Cir. Pa. 2010) ................................................ passim
Drake v. Filko, 724 F. 3d 426, 430 (3d Cir. N.J. 2013) ............................................. passim
Woollard v. Gallagher, 712 F.3d 865, 874 (4TH Cir. Md. 2013) .............................. passim
Kachalsky v. Cnty of Westchester, 701 F. 3d 81, 89 (2d Cir. N.Y. 2012) ................. passim
U.S. v. Chester, 628 F. 3d 673 (4th Cir. W. Va. 2010) ....................................................... 7
Otten v. Baltimore & Ohio R. Co., 205 F.2d 58 (2d Cir. N.Y. 1953)……………………18
State Cases
Mcdonald v. City of Chicago, 130 S. CT 3020, 3020 (U.S. 2010) ..................................... 8
Peruta v. Cnty of San Diego, 758 F. SUPP 2D 1106 (S.D. Cal. 2010) ............................ 10
Liu v. Froessel, 665 F. Supp. 3d 5321 (13th Cir. 2014).....................…………..........passim
Constitutional Provisions
U.S. Const. amend. II ………………………………………………………………………6
STATUTES
Froessel Conceal Carry Law (FCCL) § I, II, III, V…………………………………..….passim
iv
Religious Freedom Restoration Act (RFRA)…………………………………………….passim
v
OPINIONS BELOW
The United States District Court for the District of Froessel held that the Froessel
Conceal Carry Law (FCCL) does not burden conduct within the scope of the Second
Amendment, because the “justifiable need” and training requirements do not implicate the right
recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), to bear arms for the purpose
of self-defense in one’s home. Secondly, this Court found that Jeff Liu was not entitled to a religious exemption from FCCL § III because the public accommodation requirement satisfies
strict scrutiny under Religious Freedom Restoration Act (RFRA).
The opinion of the United States Court of Appeals for the Thirteenth Circuit is reported at
Liu v. Froessel, 665 F. Supp. 3d 5321 (13th Cir. 2014). This Court held that the “justifiable needs” requirement of FCCL § I is unconstitutional because it prohibits law-abiding citizens
from exercising their right to bear arms for self-defense as guaranteed by the Second
Amendment to the United States Constitution. Id. at 5326. As to the second issue, the Court of
Appeals held, that the FCCL § III violates RFRA, because the RFRA prohibits a state regulation
from substantially burdening the exercise of religion unless the regulation represents the “least
restrictive means” of furthering a “compelling” state interest. Id. at 5333.
STATEMENT OF THE CASE
A. Procedural History
On September 2013, respondent Jeff Liu filed an action against the State of Froessel
(“State”) in the United States District Court. Jeff Liu challenged three sections of the FCCL and
claimed an exemption under the Religious Freedom Restoration Act (RFRA). First, Jeff Liu
facially challenged FCCL §§ I and II, claiming that the “justifiable need” and training 1
requirements were unconstitutional because they infringed upon his Second Amendment right to
bear arms for self-defense. Second, he brought an as-applied challenge to FCCL § III, asserting
that the public accommodation requirement violated his right of religious exercise and he was
exempted from complying under RFRA. The State moved for summary judgment on both
issues. On January 28, 2014, the District Court granted summary judgment to the State. Liu v.
Froessel, 665 F. Supp. 3d 5321 (13th Cir. 2014). On February 17, 2014, Jeff Liu appealed the
judgment to the United States Court of Appeals for the Thirteenth Circuit. The Court of Appeals
found for Jeff Liu on both of his claims.
B. Statement of Facts
The city of Gotham, capital of Froessel, took a turn for the worse in 2001 after the stock
market crash. Liu, 665 F. Supp. 3d at 5322. From 2001 to 2007, the rate of firearm-related
homicides steadily increased from 3,000 to 6,000 per year. Id. Gotham had the highest rate of
handgun violence and the slowest police response time in the country. Id. In an attempt to lessen
the crime epidemic, the State enacted the Froessel Conceal Carry Law (FCCL) in 2007. Id. The
State legislature aimed to decrease the amount of firearms in the public, subsequently reducing
the number of homicide resulting from handgun violence. Id. The FCCL regulation allowed
individuals to carry a concealed firearm in public if he or she demonstrated a “justifiable need” and obtained a Training Certificate from a firing range. Id. Since the FCCL enactment, the
handgun related homicides have not increased. The only firing range in Gotham that can issue a
Training Certificate for the CCP under the FCCL § II, the Peace Keeper, is owned by Jeff Liu. Id
at 5323. The second nearest firing range that can issue a CCP Training Certificate is about 4
hours away from Gotham. Id.
2
Jeff Liu’s Story
Jeff Liu (“Liu”) is a self-professed Christian and resident of Gotham. Liu owns the Peace
Keeper, the only firing range in the city, and possess a handgun in his apartment for self-defense.
In 2011, Liu was assaulted and robbed during two different instances. First, in September 2011,
he was attacked and robbed, at gunpoint, by drug addicts. Later in December, Liu and his
grandmother was in a car accident with a motorcyclist. After impact, the motorcyclist pulled a
gun and indiscriminately shot at Liu’s car, killing his grandmother. Consequently in January of 2012, Liu applied for a conceal-carry permit (CCP), only submitting police reports of the
incidents and the application. The superintendent of the State’s police department considered the evidence and determined that Liu did not have a “justifiable need” for the permit and denied the application.
Nonetheless, Liu continued to operate the Peace Keeper, advertising its services through
its website and local billboards. Jeff Liu uses the Peace Keeper as a way to promote his Christian
beliefs. He offers pro-life leaflets to protest abortion; and, at the entrance of the range, Liu
erected a monument of the Ten Commandments of the Bible. Jeff Liu believes that his Christian
faith prohibits him from engaging in business transactions with anyone whose faith offends his
Christian values, including Satanists.
Sigmund Yung’s Story
Sigmund Yung (“Yung”) is an ardent Satanist and an active member of Gotham’s
Satanist Church. In 2012, Yung was targeted and violently attacked multiple times. During the
first attack in October, Yung’s home was vandalized with spray paint that read “JESUS IS THE ONLY WAY.” A few weeks later, as Yung left a weekly meeting at his Church, he was
maliciously attacked by a group of ministers. The culprits struck Yung with bibles until he was
3
unconscious. When Yung awoke, his car was in flames. After these attacks, Yung feared for his
life and decided to apply for a CCP from the State.
Yung first sought to obtain a Training Certificate from the Peace Keeper. During his visit,
Yung encountered Liu and inquired about the next available training session. Liu noticed Yung’s necklace, which symbolized his faith, and immediately told Yung that he does not provide
services for Satanists, Wiccans, Atheists, and others whose faith offends his Christian beliefs.
Yung proceeded to inform Jeff Liu that under the FCCL he was required to provide his services
to anyone seeking a Training Certificate regardless of religious disagreement. Liu became
enraged and yelled, “There’s a place in Hell for you, boy. They may have a firing range there, but you sure ain’t welcome here. Get out!” Liu, 665 F. Supp. 3d at 5322. As Yung turned to
leave, Liu shouted, “And don’t you be bringing some white shoe lawyer around here! I have a right under RFRA to deny service to freaks like you, and there’s nothing you can do about it!” Id.
Consequently, Liu received a citation from the Law Department of the State, obligating
him to pay $15,000 for violating FCCL § III, the public accommodation provision. Liu
responded by pursuing legal action.
SUMMARY OF THE ARGUMENT
I.
This Court must reverse the decision of the United States Court of Appeals for the
Thirteenth Circuit and find that FCCL § I does not violate the Second Amendment right
to bear arms because the “justifiable need” requirement under FCCL § I does not impose a burden on conduct falling within the scope of the Second Amendment guarantee, as it is
4
a reasonable requirement that does not ban the citizens of the State from the use of
handguns. Further, this requirement is a safety measure that has controlled the level of
handgun-related homicides at the same rate since the regulation was enacted; thus, it has
advanced an important state interest. The United States Court of Appeals erred in finding
that FCCL § I is a violation of Jeff Liu’s Second Amendment right to bear arms. Therefore, this Court must find that FCCL § I is constitutional.
II.
This Court must reverse the decision of the United States Court of Appeals for the
Thirteenth Circuit and find that FCCL § III does not violate the Religious Freedom
Restoration Act (RFRA) because FCCL § III does not burden the religious exercise of
Jeff Liu, Respondent. Moreover, the State of Froessel has compelling interests in
ensuring the public safety of all of its citizens and preventing discrimination in the
community. FCCL § III is the least restrictive means of the guarantee that every citizen
has an equal opportunity to access a firing range in efforts of earning a training
certificate, thus being eligible to apply for a conceal and carry gun permit. Finally,
granting Jeff Liu, Respondent, an exception under RFRA would significantly burden
Satanists and other religious groups that Liu dislikes, which violates the Establishment
Clause of the First Amendment. Therefore, this Court must reverse the Thirteenth
Circuit’s decision and find for the State of Froessel.
ARGUMENT
I.
FCCL § I DOES NOT VIOLATE JEFF LIU’S SECOND AMENDMENT RIGHT
TO BEAR ARMS, BECAUSE THE “JUSTIFIABLE NEED” REQUIREMENT ADVANCES AN IMPORTANT STATE INTEREST, WHICH IS, TO COMBAT
THE HIGH LEVELS OF HANDGUN HOMICIDE IN GOTHAM; THUS, NOT
IMPOSING A BURDEN UPON SECOND AMENDMENT RIGHTS.
5
The Second Amendment states, “A well-regulated militia, which is necessary for the security
of a State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. In District of Columbia v. Heller, 554 U.S. 570, 635 (2008), the United States Court
of Appeals interpreted the Second Amendment’s “right of the people to keep and bear Arms” to mean that the right was not limited to militia services, and that it is unconstitutional to regulate
the use of handguns at home. Therefore, the State in Heller violated the people’s Second Amendment right to bear Arms. Heller, 554 U.S. 570, 635 (2008).
Heller was a landmark case because for the first time this Court defined the right to bear
arms as constitutionally guaranteed to all private citizens rather than a right restricted only to the
military. Id. Since then many states have applied a variety of laws that regulate the use of
handguns whether open carry or concealed. However, there is still an unresolved aspect of the
interpretation of the Second Amendment that has initiated multiple lawsuits, all addressing the
issue of when a regulation of carrying a handgun infringes upon a person’s right to bear Arms.
Unfortunately, Heller did not determine the standards of review for laws that burden Second
Amendment rights when carrying an open or a concealed weapon. Thus, the Supreme Court and
other lower courts have analyzed these types of cases by determining the level of scrutiny that is
applicable to the challenged law.
The Court in Heller asserts that sensible restrictions on the right to bear arms are
constitutional because, like most rights, the Second Amendment is not unlimited; it is not a right
to keep and carry any weapon, in any manner, for whatever purpose. Id. at 636. For this exact
reason many states including the State of Froessel, have imposed reasonable requirements for
citizens seeking a permit to carry a concealed weapon. See Kachalsky v. Cnty of Westchester,
6
701 F.3d 81(2012) (noting that Georgia criminalized the sale of concealable weapons, effectively
moving toward their complete prohibition).
In determining the constitutionality of the requirement enacted by the State, the Court first
has to determine whether or not the law imposes a burden on conduct described within the
Second Amendment guarantee. See U.S. v. Marzzarella, 614 F.3d 85 (2010). In other words,
does the law infringe upon the citizens right. If the law does not burden the conduct within the
Second Amendment guarantee, than the law is deemed as constitutional. Marzzarella, 614 F.3d
85. However, if the Court determines that that the challenged regulation burdens conduct within
the scope of the Second amendment, but would pass a constitutionality test, then the second step
is to apply an appropriate form of means-end scrutiny to validate the law. See Marzzarella, 614
F.3d 85; U.S. v. Chester, 628 F.3d 673 (2010).
Here, the “justifiable need” requirement does not impose a burden on Jeff Liu’s Second Amendment right, assuming arguendo that it did, the law would be considered constitutional
under the intermediate scrutiny evaluation. Therefore, this Court must reverse the Court of
Appeals decision and find that FCCL § I does not violate Jeff Liu’s the Second Amendment right to bear arms.
A. THE THIRTEENTH’S CIRCUIT’S FOCUS ON HELLER LACKS RELEVANCY
BECAUSE IT DID NOT EXPLAIN THE OUTER LIMITS OF THE SECOND
AMENDMENT RIGHTS.
Second Amendment guarantees an individual the right to use arms in defense of “hearth and home”. See Heller, 554 U.S. at 576. The Court in Heller stated that “longstanding,
presumptively lawful” regulations affecting the right to bear Arms fall beyond the scope of the Second Amendment. See Heller, 554 U.S. at 576. As a consequence, many Courts have opined
that Heller, did not establish a standard to determine whether or not certain State regulations
7
violate the Second Amendment, because it its holding focuses on the right of individuals to use
Arms, without addressing the issues of regulations pertaining to concealed weapons.
In 2010, the United States Supreme Court held that the Second Amendment right
articulated in Heller is a Fourteenth Amendment issue. See McDonald v. City of Chicago, 130 S.
Ct 3020, 3050. Therefore, There may or may not be a Second Amendment right in some places
beyond the home because these two landmark cases, especially Heller do not address the
regulations of handguns outside of one’s home. See Drake v. Filko, 724 F.3d 426, 430.
Consequently the Court of Appeals erred in making a determination of the
constitutionality of the State’s regulation based on Heller, because no grounds exist in that case
for guidance. In this case, Jeff Liu has a licensed handgun in his home. If the State were to enact
a law that strictly regulated the carry or bearing of handguns in one’s home then perhaps Jeff Liu would have had a Second Amendment issue under Heller. Here, the “justifiable need” requirement pertains to concealed carry of weapons, which does not violate Jeff Liu’s Second Amendment as described in Heller because it does not touch on the subject of handgun
prohibitions or regulations in his home.
B. THE “JUSTFIABLE NEED” REQUIREMENT DOES NOT BURDEN THE SECOND AMENDMENT RIGHT OF JEFF LIU FROM CARRYING A CONCEALED WEAPON
BECAUSE IT IS A REASONABLE REGULATION THAT DOES NOT BAN THE
USE OF HANDGUNS.
The State furthered a compelling government interest by imposing the justifiable need
requirement. Justifiable need is the urgent necessity for self-protection, as evidenced by specific
threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot
be avoided by means other than by issuance of a permit to carry a handgun. FCCL. § I. In
8
McDonald this court held that Self-protection is the central component of the individual right to
keep and bear arms and that this right is "fundamental." See City of Chicago, 130 S. Ct. at 3036.
Here, the State does not infringe on the right of citizens to carry and bear arms because it
issues permits to carry concealed weapons, and further allows people to bear weapons in the
home. Outside the home, firearm rights have always been more limited, because public safety
interests often outweigh individual interest in self-defense. Masciandaro, 638 F.3d at 475. This
State has had the highest handgun homicide rate for years because the people were able to obtain
firearms without restrictions and shoot to kill as pleased in “self-defense”. Therefore, the State created a regulation that allows for people who have experienced threats or attacks to obtain a
concealed handgun, because it is important to the State to make sure the people feel secure in
their everyday activities.
It is evident that Jeff Liu understands the significance of carrying a handgun for selfdefense as the owner of a firing range and the owner of a licensed handgun in his home. In some
states it is prohibited to carry a concealed and open weapon in its totality thus not validating the
idea of self-defense. See Cnty of Westchester, 701 F.3d 81. Therefore, the fact that the State
requires individualized determinations as to which applicant may carry a concealed firearm in
public is not burdening the Second Amendment. See Cnty of Westchester, 701 F.3d 81 (noting
that showing of “proper cause” as interpreted by courts to require that these individuals demonstrate a special need for self-protection distinguishable from that of the general
community, did not violate the Second Amendment).
i. CONSIDERING THAT THE “JUSTIFIABLE NEED” REQUIREMENT BURDENS THE SECOND AMENDMENT GUARANTEE, THE REQUIREMENT WILL BE
DEEMED CONSTIUTIONAL UNDER THE INTERMEDIATE SCRUTINY TEST
BECAUSE IT IS SUBSTANTIALLY RELATED TO FROESSEL’S PUBLIC SAFETY INTEREST.
9
When a law burdens a citizen’s Second Amendment right, the law is evaluated under the appropriate standard of constitutional scrutiny. Marzzarella, 614 F.3d at 92. There are two levels
of scrutiny that apply in this case: strict and intermediate scrutiny. Under strict scrutiny, the
Court must ensure that the legislature’s chosen means (law) is “narrowly tailored” or the least restrictive available means to serve the stated governmental interest. However, for intermediate
scrutiny, the Court must determine that the challenged law is “significantly, substantially or importantly” related to State’s public safety interest. Id. Additionally, "the fit" between the
asserted interest and the challenged law must be "reasonable" and "may not burden more
[conduct] than is reasonably necessary. Id.
In similar cases this Court has applied intermediate scrutiny because strict scrutiny is
usually used in first amendment cases that involve the prohibition of one’s right of freedom of speech. Woollard v. Gallagher, 712 F.3d 865, 874. For a law to be substantially related to a
state’s public safety interest that law must be closely related with the police’s intervention and prevention of crime to offset the fatal consequences before they can occur. See Cnty of
Westchester, 701 F.3d 81
Here, the justifiable need requirement qualifies as a “longstanding” “presumptively lawful” regulatory measure that regulates conduct falling outside the scope of the Second Amendment's
guarantee under the Heller analysis. See Filko, 724 F.3d at 430. However, when applying an
appropriate standard of constitutional scrutiny to the “justifiable need” requirement, it mandates an analysis under intermediate scrutiny, as the requirement does not impose a restriction on the
core of the Second Amendment right, the right to possess usable handguns in the home for selfdefense. See Peruta v. Cnty of San Diego, 758 F. Supp. 2d 1106 (2010) (noting that the “good cause” requirement falls under intermediate scrutiny, the government has an important interest in
10
reducing the number of concealed handguns in public because of their disproportionate
involvement in life-threatening crimes of violence, particularly in streets and other public
places). In 2007 the State was invested in eradicating the crime epidemic, thus enacting a law
that would prevent further bloodshed in the communities with the goal to take the State back to a
civilized position. Liu, 665 F. Supp. 3d at 5322.
Handguns are the weapons of choice for criminal activity therefore, it is the State’s duty to regulate them by applying reasonable measures. Gallagher, 712 F.3d 865, 874 (Holding that
under the applicable intermediate scrutiny standard, the State has demonstrated that the goodand-substantial-reason requirement is reasonably adapted to Maryland’s significant interest in protecting public safety and preventing crime). Filko, 724 F.3d 426, 430 (noting that New
Jersey's legislature "has continually made the reasonable inference that given the obviously
dangerous and deadly nature of handguns, requiring a showing of particularized need for a
permit to carry one publicly serves the State's interests in public safety). The “justifiable need” requirement was enacted to further a substantial public interest by allowing the citizens who truly
believe it is necessary for them to carry a handgun for their own protection to do so.
This standard allows people to regain confidence in their community by accepting that
the public is justified to act upon the risk and danger borne to the person seeking to carry a
handgun. See Filko, 724 F.3d 426, 430. Since the enactment of FCCL § I, the handgun homicide
rates have not increased and the number of handguns sold has significantly decreased; because
the people of the State have accepted the regulation and allowed the state to implement
reasonable measures that will decrease the crime rate. Liu, 665 F. Supp. 3d at 5322. Even though
the State allows its citizens, who demonstrate a “justifiable need” to obtain a conceal carry permit, the government is not straying away from its public safety mission: to decrease the
11
amount of firearm violence in Gotham City.
Under the intermediate scrutiny test the FCCL § I substantially advances the State’s public safety interest because the goal of the law was to prevent and intervene in the high crime rate that
the State was experiencing. Therefore, Jeff Liu’s Second Amendment right to bear arms has not
been violated, thus this Court should reverse the lower Court’s decision.
II.
FCCL § III, WHICH REQUIRES FIRING RANGES TO ACCOMMODATE
MEMBERS OF THE PUBLIC WITHOUT DISCRIMINATING ON THE BASIS OF
RELIGION, INTER ALIA, DOES NOT VIOLATE THE RELIGIOUS FREEDOM
RESTORATION ACT (RFRA) AS APPLIED TO JEFF LIU BECAUSE THE STATE
OF FROESSEL HAS A COMPELLING INTEREST IN DECREASING FIREARM
CRIME RATES IN GOTHAM, AND ENFORCING THE FFCL § III IS THE LEAST
RESTRICTIVE MEANS OF ENSURING THAT PEOPLE OF ALL BACKGROUNDS
HAVE AN EQUAL OPPORTUNITY OF APPLYING FOR A CONCEAL-CARRY
PERMIT, POTENTIALLY ACQUIRING DESPERATELY NEEDED PROTECTION
AGAINST THE DANGERS OF GOTHAM CITY.
The government of the United States sincerely values the inherent rights of all citizens
which is evident through the Constitution and its amendments. This country’s founders prioritized religious rights and beliefs, given the tumultuous history of that era. Although every
individual has a religious liberty, that freedom is constitutionally limited when it imposes upon
the religious beliefs of others. Elane Photography, LLC v. Willock, 2013-NMSC-040 (U.S.
2013). Religious exercise and/or accommodation must be appropriately balanced against
potential burdens on third parties. One must consider all parties involved in a religious burdenshifting scenario, comparing the ideals of majority rules but minority rights. Thus, this Court
must reverse the Thirteenth Circuit’s decision and find that Jeff Liu should not be granted an exemption pursuant to RFRA, in efforts to guarantee the inherent civil rights of minority
religious groups, like Sigmund Yung’s Satanist Church. A. FCCL § III DOES NOT SUBSTANTIALLY BURDEN JEFF LIU’S RELIGIOUS EXERCISE OF CHRISTIANITY BECAUSE THE PROVISION DOES NOT REQUIRE
12
LIU TO MODIFY HIS BEHAVIOR OR VIOLATE HIS CHRISTIAN BELIEFS; THUS,
HE MAY CONTINUE TO PRACTICE HIS RELIGIOUS BELIEFS IN MANY
ASPECTS OF HIS LIFE.
Business ventures are independent from personal, religious beliefs. A business can be
economically impacted by a regulation, but continue to maintain its personal philosophies. This
Court has recognized such a distinction. The Supreme Court has held that free exercise clause of
the first amendment is a complete prohibition against the government’s regulation of religious beliefs, but limitations on such beliefs are appropriate when “it is essential to accomplish an overriding governmental interest.” Bob Jones Univ. v. United States, 461 U.S. 574, 605 (U.S.
1983). Therefore, this Court must find that the FCCL § III does not substantially burden Jeff
Liu’s exercise of his Christian faith.
In Bob Jones Univ. v. United States, two private religious schools applied for an IRS
exemption that rewarded educational institutions that discouraged discrimination. 461 U.S. 574
(1983). The schools promoted the Christian faith and interpreted the Bible to forbid interracial
dating or marriage, thus creating discriminatory admission policies. The Supreme Court affirmed
the appellate court’s decision denying an exemption to the schools because the policies violated
the federal IRS policy to discourage racial discrimination. Bob Jones Univ., 461 U.S. 574 (1983).
The Court stated that an exemption “must serve a public purpose and not be contrary to established public policy.” Despite the denial of the exemption, the schools were still permitted to execute their religious beliefs; the denial did not interfere with the schools’ free exercise of its
Christian values.
Similarly in Hernandez v. Comm’r, the IRS denied tax deductions to members of the
Scientology Church because their requested deductions did not constitute charitable
contributions. 490 U.S. 680 (U.S. 1989). The church members paid fees to branches of the
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Scientology Church in exchange for “auditing” and training services. Hernandez, 490 U.S. 680
(1989). This Court affirmed the IRS’s denial and held that the repudiation did not impede upon the members’ right to free exercise of religion. Id at 695-698. The IRS regulation was neutral in
design and purpose, not discouraging or advancing any religion or religious entity. Furthermore,
the denial did not represent the government endorsing a particular religion or prohibiting the
Scientology Church from conducting its “auditing” and training services. Id. The central
practice of Scientology was unaffected by the IRS regulation and the denial.
Here, Jeff Liu claims that the FCCL § III interferes with his freedom of exercise of
Christianity, altering or violating his actions and beliefs in some matter. The FCCL § III reads:
“It shall be unlawful for any person or facility operating a firing range which provides the training necessary to obtain a Training Certificate, to refuse, or deny service to any individual or
group, directly or indirectly, because of race, gender, or religious affiliation.” Froessel Conceal
Carry Law § III, (2007). If § III is violated, then a $15,000 fine is administered to the culprit. Id.
Facially, this is a general law that does not, in any matter, alter, command, or undermine the
Christian faith. Like Hernandez, FCCL § III does not endorse Christianity or prohibit Liu from
practicing his faith. Rather, subsection three reflects how the State values civil liberties by
employing a supporting clause that invokes a monetary fine for a violation of FCCL § III. Liu
has not demonstrated how FCCL § III specifically burdens his Christian beliefs. He has not
referenced or highlighted a Christian principle or practice that prohibits Liu from providing
every person with an equal opportunity or encourages him to discriminate against those of whom
he chooses. Based on the circumstances of this case, there is no evidence of Liu’s alleged Christianity morals forbidding him from engaging in business with Satanists and other opposing
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and/or religious groups. FCCL § III does not substantially burden Liu’s freedom of exercise of religion or the central principles of Christianity.
B. EVEN IF FCCL § III DID IMPOSE A SUBSTANTIAL BURDEN ON LIU’S RELIGIOUS EXERCISE, THE PROVISION STILL DOES NOT VIOLATE RFRA
BECAUSE THE STATE HAS A COMPELLING INTEREST IN DECREASING
FIREARM VIOLENCE AND DISCRIMINATION IN GOTHAM CITY AND FCCL §
III IS THE LEAST RESTRICTIVE MEANS OF AFFORDING ALL CITIZENS AN
EQUAL OPPORTUNITY TO APPLY FOR A CONCEAL-CARRY PERMIT, THUS
SATISFYING THE COMPELLING INTEREST TEST.
The Religious Freedom Restoration Act (RFRA) was created in response to the
government’s unfettered discretion to impose neutral laws that burdened religion. Employment
Div. v. Smith, 494 U.S. 872 (U.S. 1990). RFRA protects the rights of religious entities and
persons by employing a compelling interest test that balances religious liberty against
government interests. The government cannot substantially burden a person’s exercise of religion unless the State demonstrates that the burden furthers a compelling governmental
interest and is the least restrictive means of furthering that interest. Religious Freedom
Restoration Act (1993). Here, the State has successfully demonstrated that it has a compelling
interest in the safety of its citizens and communities and enforcing the FCCL § III is the least
restrictive means of assuring everyone a fair opportunity to protection.
This Court has heard cases where the government has and has not satisfied the
compelling interest test. Historically, the State’s interests in the economic advancement and
social integration of all people has been held as compelling. Roberts v. United States Jaycees,
468 U.S. 609 (U.S. 1984). The State has a legal and moral obligation to remove obstacles that
hinder or target disadvantaged groups’ access to public amenities. Furthermore, courts must
determine that the compelling interest is the least restrictive means among available alternatives.
Ashcroft v. ACLU, 542 U.S. 656 (U.S. 2004). In Gonzales v. O Centro Espirita Beneficente
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Uniao do Vegetal, the Court held that the State failed to demonstrate a compelling interest that
was the least restrictive means available. 546 U.S. 418 (U.S. 2006). Both prongs must be
satisfied in order for the RFRA exemption to be applied to the State.
In this case, the State has satisfied the compelling interest test. Here, the State has two
compelling interests: ensure the personal public safety of its citizens and eliminating
discriminatory barriers. The State legislature intently observed and tracked the crime rate in
Gotham city from 2001 to 2007 before enacting the FCCL. In 2001, there were approximately
3,000 firearm homicides; this figure steadily increased to 6,000 per year by 2007. The State
sought to “prevent further bloodshed in [the] communities,” Liu v. Froessel, F. Supp. 3d 5321
(13th Cir. 2014) (statement of Ali Jaffery, bill sponsor of FCCL). The government also extended
the second amendment right to bear and keep arms to outside of the home by allowing eligible
citizens to conceal and carry a firearm in public. Unlike those who want to decrease the gun
violence by permitting any citizen to carry a gun in public, the State sought to monitor who may
invoke such a privilege and how many guns may legally be carried outside the home. Since the
enactment of the FCCL, the number of firearms sold in Froessel has decreased from 70,000 to
10,000 and the homicide rate has not increased. The State aims to lessen the crime rate while
also making sure citizens feel protected and safe in the community.
The State also has an interest in eliminating all forms of discrimination, giving all
citizens an equal opportunity to invoke his or her legal rights. In a city plagued with gun
violence, a stray bullet doesn’t discriminate. The FCCL grants anyone a conceal-carry permit as
long as the individual demonstrates a “justifiable need” and a Training Certificate from a firing
range. As aforementioned, the government has a compelling interest in the economic advantage
and social integration of all people, regardless of his or her background. As citizens of Froessel,
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each individual has an inherent right to take advantage of the FCCL. It is common in many
societies that opposing views exists amongst people. The State legislature proactively addressed
the potential confrontation by including § III, promoting anti-discrimination policies that are
prevalent in many states and the federal government. Thus, the State has met its burden to
satisfy the first prong, a compelling governmental interest.
The second prong of the compelling interest test is that the interest must be the least
restrictive means among other available alternatives. The State has satisfied this prong because
the FCCL is the first and only firearm regulation in the Froessel. Before 2007, no legal
regulation existed to monitor gun crimes throughout the State. The FCCL is the first piece of
legislation to regulate firearm crime, in hopes that “Froessel rejoins the ranks of [a] civilized
society.” Liu v. Froessel, F. Supp. 3d 5321 (13th Cir. 2014) (statement of Ali Jaffery, bill
sponsor of FCCL). Considering that no alternatives existed, the FCCL was the least restrictive
means of furthering the State’s first interest, with FCCL § III furthering the State’s second, antidiscriminatory interest.
Some, like Liu, may argue that the State can further its second interest by creating
separate firing range facilities for people who may not be welcomed at the Peace Keeper and
other established firing ranges. However, this alternative is unreasonable for several reasons.
First, building new firing ranges would be costly for the State in finding a location, purchasing
the necessary equipment and hiring trained personnel to manage. Consequently, the State may
try to compensate these costs by establishing or raising state taxes, thus diminishing the income
of citizens. Additionally, the state-owned firing ranges would be in competition with the
privately owned firing ranges, which may negatively impact the latter. Finally, there should be
no need for the State to build firing ranges when there are already five ranges that are
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functioning and fully capable of providing the training and services that the FCCL requires. It
would be completely redundant for the State to engage in such a task. Thus, the FCCL is the
least restrictive means in furthering the State’s compelling interest in public safety and antidiscrimination among available alternatives.
C. GRANTING JEFF LIU AN EXEMPTION UNDER RFRA IN THESE
CIRCUMSTANCES COMPLETELY VIOLATES THE ESTABLISHMENT CLAUSE
OF THE FIRST AMENDMENT BECAUSE THE RELIGIOUS FREEDOM RIGHTS
OF MINORITY GROUPS, LIKE SIGMUND YUNG’S SATANIST SECT, ARE DISREGARDED AND SACRIFICED FOR THE RELIGIOUS RIGHTS OF MORE
POPULAR CONGREGATIONS, LIKE CHRISTIANITY.
When founding the United States, leaders recognized the diversity of immigrant groups
and wanted to ensure everyone be granted the same rights and privileges. Thus arose the
democratic ideal of majority rules, but minority rights. The Establishment Clause of the first
amendment prohibits accommodations that impede on the constitutional rights of another. In
regards to religion, the Establishment Clause precludes the government from making religious
accommodations that trample a third party. “The First Amendment . . . gives no one the right to
insist that in pursuit of their own interests others must conform their conduct to his own religious
necessities.” Otten v. Baltimore & Ohio R. Co., 205 F.2d 58 (2d Cir. N.Y. 1953). Here, Jeff
Liu’s actions discriminate against Sigmund Yung, thus granting an exemption for Liu impose religious accommodations that disregard Yung’s religious rights and violate the Establishment Clause.
In Estate of Thornton v. Caldor, an employee sought an exemption, pursuant to a
Connecticut statute, from working on Sundays in observance of his Sabbath. 472 U.S. 703 (U.S.
1985). His employer demoted the employee because of his unavailability. Estate of Thornton v.
Caldor, Inc., 472 U.S. 703 (U.S. 1985). On appeal, the court found the statute violated the
Establishment Clause because it provided Sabbath observers “an absolute and unqualified right 18
not to work…” Id. Therefore, the government cannot accommodate a religion to the detriment
of a secular interest.
Granting an exemption to Jeff Liu under RFRA is a prime example of an Establishment
Clause violation. Although Liu would be permitted to continue is discriminatory practices for
the alleged sake of his Christian faith, Sigmund Yung would be significantly burdened from
exercising his rights as a citizen of Froessel. Yung, who has recently survived tragic, lifethreatening attacks, would have to travel a hundred and twenty miles to potentially obtain a
Training Certificate at the next closest firing range. However, if the owner of that range also
dislikes Satanists, then Yung is furthered burdened to invoke his right under the FCCL by having
to travel a longer distance to the next range. The same wicked cycle of injustice would occur
with other Satanists, Wiccans, Atheists and other minority religious groups that Liu may oppose.
The blatant disregard for the religious rights of a secular group undoubtedly violates the
Establishment Clause of the First Amendment. Thus, this Court, whose duty is to interpret and
uphold long-standing constitutional values, must reverse the decision of the appellate decision
and find for the State of Froessel.
CONCLUSION
FCCL § I does not violate the Second Amendment right to bear arms because the
“justifiable need” requirement under FCCL § I does not impose upon conduct within the scope
of the Second Amendment; citizens of Froessel are still entitled to the use of handguns. Further,
the Training Certificate requirement is a safety measure that has controlled and prevented an
increase of the level of handgun-related homicides.
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Additionally, FCCL § III does not burden the religious exercise of Jeff Liu. The State of
Froessel has compelling interests in ensuring the public safety of all of its citizens and preventing
discrimination in the community. FCCL § III is the least restrictive means of the guarantee that
every citizen has an equal opportunity to access a firing range in efforts of earning a training
certificate. Finally, granting Jeff Liu an exception under RFRA would significantly burden
Satanists and other religious groups that Liu dislikes, which violates the Establishment Clause of
the First Amendment.
Based on the aforementioned reasons, this Court must reverse the judgment of the
appellate division and find for the State of Froessel.
Respectfully Submitted,
Attorneys for Petitioner (State)
Submitted: August 08, 2014
Attorneys for Petitioner
New York Law School
185 West Broadway
New York, NY 10013
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