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
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2014
DOCKET NO 666/14
STATE OF FROESSEL,
Petitioner,
-againstJEFF LIU,
Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit
BRIEF FOR RESPONDENT
Team # 74
QUESTIONS PRESENTED:
1.) Whether FCCL§ I, which has a “justifiable need” requirement in order to obtain a permit
to bear or carry a firearm, facially violates the Second Amendment right to bear arms for
self-defense, as recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), and
incorporated against the states in McDonald v. City of Chicago, 561 U.S. 542, 130 S. Ct.
3020 (2010)?
2.) Does FCCL § III, as applied to Jeff Liu violate his right to religious exercise under the
Froessel Religious Freedom Restoration Act (“RFRA”)?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………………………………………………..... i
TABLE OF CONTENTS………………………………………………………………………. ii
TABLE OF AUTHORITIES………………………………………………………………...... iv
OPIONIONS BELOW…………………………………………………………………………. 1
STATEMENT OF THE CASE………………………………………………………………… 2
Procedural History……………………………………………………………………… 2
Statement of the Facts…………………………………………………………..……… 3
SUMMARY OF THE ARGUMENT………………………………………………………….. 6
ARGUMENT……………………………………………………………………………………. 6
I.
THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I IS
UNCONSTITUTIONAL
A. THE RIGHT TO BEAR ARMS FOR SELF-DEFENSE EXTENDS OUTSIDE THE
HOME
B. THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I IS AN ABSOLUTE
VIOLATION OF THE SECOND AMENDMENT AND IS THEREFORE PER SE
UNCONSITUTIONAL
C. THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I DOES NOT AVAIL
THE HEIGHTENED LEVEL OF SCRUTINY APPLIED
D. EVEN ABSENT A SECOND AMENDMENT VIOLATION, FCCL § I VIOLATES
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
II.
THE TRAINING REQUIREMENT OF FCCL § II IS UNCONSTITUTIONAL
A. THE TRAINING REQUIREMENT OF FCCL § II DOES NOT SATISFY
HEIGHTENED SCRUTINY UNDER THE SECOND AMENDMENT
III.
FCCL III IS UNCONSTITUTIONAL AS APPLIED TO RESPONDENT JEFF LIU
A. THE RELIGIOUS FREEDOM RESTORATION ACT ENTITLES PERTITIONER
JEFF LIU TO A RELIGIOUS EXEMPTION FROM THE PUBLIC
ACCOMMODATION REQUIREMENT IMPOSED BY FCCL § III
ii
CONCLUSION……………………………………………………………………...… 23
APPENDIX…………………………………………………………………………….. 24
iii
TABLE OF AUTHORITIES
United States Supreme Court Cases
Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505 (June 30, 2014)…………………15
D.C. v. Heller, 554 U.S. 570 (2008) …..................................................................................passim
Employment Div. v. Smith, 494 U.S. 872 (1990) ……………………………………………….15
Nunn v. State, 1 Ga. 243, 251 (1846)……………………………………………………….7, 9, 11
Prince v. Massachusetts, 321 U.S. 158, 177 (1944)………………………………………..........17
Thomas v. Review Bd. of Indep. Employment Sec. Div., 450 U.S. 707, 716 (1981)……………..17 United States v. Ballard, 322 U.S. 78 (1944)……………………………………………………16
United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938)……………………….12
Wisconsin v. Yoder, 406 U.S. 205 (1972) ……………………………………………………….16
United States Court of Appeals Cases
Guillory v. County of Orange, 731 F.2d 1379 (9th Cir. 1984) …………………………………14
Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th Cir. 1995)..………………………………14
Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) .……………………11,12,13
United States v. Everist, 368 F.3d 517, 519 n.1 (5th Cir. 2004)………………………………..14
United States v. Masciandaro, 638 F.3d 458,475 (4th Cir. 2011)……………………………….8
U.S. v.Marzzarella, 614 F.3d at 97 (3rd Cir. 2010)……………………………………………...12
U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010)……………………………………………………12
State v. Chandler, 5 La. Ann. 489, 490 (1850)……………………………………………………9
United States District Court Cases
Elane Photography LLC v. Willock, 309 P.3d 53, 78 (N.M. 2013)……………………………17
iv
Constitutional Provisions
U.S. Const. amend. II …………………………………………………………………………… passim
U.S. Const. amend. XIV ………………………………………………………………………… 14 State Statutory Provisions
FCCL § § I, III……………………………………………………………………...……. passim
RFRA………..……………………………………………………………………….…… passim
Miscellaneous Provisions
v
OPINIONS BELOW
In September 2013, Respondent Jeff Liu filed an action against the State of Froessel
(“Froessel”) in the United States District Court for the Thirteenth Circuit, challenging three sections of the Froessel Conceal Carry Law. Liu brought a facial challenge to FCCL §§ I and II
claiming that the “justifiable need” and training requirements are unconstitutional because they infringe upon his Second Amendment right to bear arms for self-defense, as recognized in
District of Columbia v. Heller, 554 U.S. 570 (2008), and incorporated against the states in
McDonald v. City of Chicago, 561 US. 542, 130 S. Ct. 3020 (2010). Liu also brought an asapplied challenge to FCCL § III, claiming that the public accommodation requirement violates
his right to religious exercise under the Froessel Religious Freedom Restoration Act.
The State of Froessel moved for summary judgment on both claims. The District Court
ordered a briefing on the State’s summary judgment motion. The District Court granted summary judgment to the State of Froessel on January 28, 2014. The Court concluded that the
FCCL did not violate Respondent Liu’s rights under either the Second Amendment of the United States Constitution or the Froessel Religious Freedom Restoration Act. This is an unpublished
opinion.
The District Court held that the 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 Heller, 554 U.S. 570 (2008), to bear arms as a means of self-defense in
one’s home. The District Court also held that Respondent was not entitled to a religious
exemption from FCCL § III because the public accommodation requirement satisfies strict
scrutiny under RFRA. The court said that the public accommodation requirement, as applied to
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Respondent, serves the state’s compelling interest in preventing discrimination in public accommodations and is narrowly tailored to further that compelling interest.
Jeff Liu appealed the District Court’s judgment to the United States Court of Appeals
for the Thirteenth Circuit on February 17, 2014. The Court of Appeals reversed the judgment of
the District Court and remanded the case for further proceedings not consistent with this opinion.
The Court of Appeals for the Thirteenth Circuit held that the “justifiable need” requirement of FCCL § I is unconstitutional on its face, because it prevents law-abiding responsible citizens
from exercising their fundamental right to bear arms as guaranteed by the Second Amendment.
Further, the court held that the State of Froessel failed to show that the non-exemption of
Respondent Jeff Liu from FCCL § III’s anti-discrimination mandate satisfies strict scrutiny under
RFRA. The court found that FCCL § III is invalid as applied to Respondent Jeff Liu and that
granting the exemption is consistent with the Establishment Clause. Petitioner appealed the
judgment of the United States Court of Appeals for the Thirteenth Circuit and petitioned for writ
of certiorari. This Court granted its petition.
STATEMENT OF THE CASE
PROCEDURAL HISTORY
In September 2013, Respondent Jeff Liu filed an action against the State of Froessel
(“Froessel”) in the United States District Court for the Thirteenth Circuit. Liu challenged three
sections of the Froessel Conceal Carry Law. Liu challenged FCCL §§ I and II on its face
claiming that the “justifiable need” and training requirements are unconstitutional because they
infringe upon his Second Amendment right to bear arms for self-defense, as recognized in
District of Columbia v. Heller, 554 U.S. 570 (2008), and incorporated against the states in
McDonald v. City of Chicago, 561 US. 542, 130 S. Ct. 3020 (2010). Liu also brought an as-
2
applied challenge to FCCL § III. Under this claim, Liu argued that the public accommodation
requirement violates his right to religious exercise under the Froessel Religious Freedom
Restoration Act.
The State of Froessel moved for summary judgment on both claims. The District Court
ordered a briefing on the State’s summary judgment motion. The District Court granted
summary judgment to the State of Froessel on January 28, 2014. The Court concluded that the
FCCL did not violate Respondent Liu’s rights under either the Second Amendment of the United States Constitution or the Froessel Religious Freedom Restoration Act. This is an unpublished
opinion.
The District Court held that the 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 Heller, 554 U.S. 570 (2008), to bear arms as a means of self-defense in
one’s home. Jeff Liu appealed the District Court’s judgment to the United States Court of Appeals for the Thirteenth Circuit on February 17, 2014. The Court of Appeals reversed the judgment of
the District Court and remanded the case for further proceedings not consistent with this opinion.
STATEMENT OF FACTS
Gotham is the capital of the State of Froessel. Gotham was once a thriving metropolis
with a booming economy. In 2001, the crime rate in Gotham raised following the stock market
crash. Since 2001, Gotham had become a haven for narcotics, sex trade, and other riff-raff.
Froessel has had the highest rate of handgun violence in the country since 2001, as well as the
slowest police response rate of all the states.
3
In 2007, the State enacted the Froessel Conceal Carry Law (“FCCL”), its first and only
firearm regulation in response to the crime epidemic. The FCCL prohibits residents from openly
carrying firearms in public and requires residents to demonstrate a “justifiable need” and to obtain a Training Certificate from a firing range in order to receive a conceal-carry permit. This
permit allows individuals to carry a concealed firearm in public.
Jeff Liu has lived in Gotham for his entire life. He is a “law-abiding, responsible
citizen” within the meaning of Heller, regardless of any alleged violation of FCCL § III. He is a
Christian and has a sincerely held religious belief that requires him to refrain from any
transaction, commercial or otherwise, with Satanists and other persons whose faith offends his
Christian values. Jeff Liu owns the Peace Keeper, which is the only firing range in the city of
Gotham. Liu purchased a handgun to keep in his apartment for self-defense in 2008. Liu
attempted to obtain a conceal-carry permit following two harrowing experiences in 2011.
During the first incident he was assaulted and thrown down a public stairway and robbed at
gunpoint by several drug addicts. Three months later Jeff was in a car accident with a
motorcycle. When Jeff pulled over to stop and see if the motorcyclist was hurt, the motorcyclist
pulled out a gun and shot at Jeff’s car. Jeff’s grandmother was shot several times. Jeff and his
grandmother barely escaped, and his grandmother died later at the hospital. Both of these
incidents, which occurred in 2011, were documented in police reports.
Jeff submitted tan application for a conceal-carry permit along with the police reports to
the superintendent of the Froessel State Police, Alex Noble. Jeff’s application was denied because the submitted evidence did not demonstrate a “justifiable need” for Jeff to carry a handgun in public.
4
The Froessel legislature sought to prohibit firing ranges from discriminating against
customers on the basis of race, gender, and religious affiliation, which reflects the State’s interest in ensuring the public’s equal access to the commercial marketplace. Peace Keeper is the only
firing range in the city of Gotham and thus the only place that can issue the Training Certificate
required by FCCL § II. The Peacekeeper uses its website and local billboards to advertise its
services. The other firing ranges in Froessel that are authorized to issue the certification are at
least 120 miles from Gotham.
Jeff seeks to promote his Christian beliefs through the Peace Keeper via offering his
customers pro-life leaflets. He also has a monument at the entrance of the Peace Keeper listing
the Ten Commandments from the Bible. Jeff thinks that his religion prohibits him from
transacting business with Satanists and similarly situated people whose faith offends his
Christian values.
Sigmund Yung is a Satanist and an active member of Gotham’s Satanist Church. He attempted to obtain a conceal-carry permit after receiving an ominous threat and being the victim
of a violent attack in 2012. A few weeks after, he was stopped by a group of ministers and
beaten unconscious with bibles. His car was also set on fire. Following these incidents,
Sigmund applied for a conceal-carry permit in accordance with the FCCL, because he feared that
the next attack would prove fatal. Sigmund went to the Peace Keeper in January 2013 to receive
the Training Certificate. During a conversation with Jeff about obtaining the certificate, Jeff
noticed Sigmund’s necklace of the distinctive five-pointed star of Satan, which is the symbol of
LaVeyan Satanism and codified in The Satanic Bible. Jeff quickly informed Sigmund that he
does not provide services to Satanists, Atheists, Wiccans or others whose faith offends his
Christian values. Sigmund told Jeff that he was required to accommodate any individual seeking
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a Training Certificate under the FCCL, regardless of religious disagreement. Jeff replied by
saying that there was a place for Sigmund in hell but not there and told him to get out. As
Sigmund was leaving Jeff continued to shout and said that he shouldn’t be bringing lawyers around and that he had a right under the RFRA to deny service to people like him. Jeff received
a citation in the mail from the Department of the State of Froessel requiring him to pay $15,000
for violating the public accommodation provision of FCCL § III two weeks later.
SUMMARY OF THE ARGUMENT
I.
This Court should uphold the decision of the Court of Appeals for the Thirteenth Circuit
and find that the “justifiable need” requirement of FCCL § I is unconstitutional on its face
because it infringes upon the fundamental right to bear arms for self-defense that is laid out in
the Second Amendment and is recognized in Heller and nor, arguendo, does the “justifiable need” requirement under FCCL § I satisfy heightened scrutiny under the Second Amendment.
II.
This Court should uphold the decision of the Court of Appeals of the Thirteenth Circuit
and find that FCCL § III is unconstitutional as it applies to Jeff Liu because the State’s interest in
public safety is important and compelling and the government has a compelling interest in
preventing crime and the RFRA entitled Respondent to a religious exemption from the public
accommodation requirement imposed by FCCL § III.
POINT I
THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I IS UNCONSTITUTIONAL
The Second Amendment plainly guarantees a fundamental, individual right to carry
firearms for the purpose of self-defense. U.S. Const. amend. II; See also D.C. v. Heller, 554 U.S.
6
570, 612, (2008) citing Nunn v. State, 1 Ga. 243, 251 (1846).
This Court has already held,
regarding the Second Amendment, that “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’” District of Columbia v. Heller, 554 U.S. 570, 584 (2008) (citations omitted). In
endorsing and discussing a broad array of historical material and lower court decisions, this
Court confirmed, in dicta, that there was an indisputable right to bear arms outside of the home.
See also McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
Respondent recognizes a state may regulate the right to bear arms in the interest of public
safety. See 37 A.L.R. Fed. 696 (commenting that regulating firearms have been upheld against a
Second Amendment challenge in almost every case). History suggests that this right states may
regulate this right in so far that the state may limit firearms from being carried in certain
sensitive places and restrict and regulate persons obtaining a firearm such that law-abiding
citizens may be required to obtain a permit or license. However, when a constitutional right to
engage in an activity requires a permit or license, issuance of that permit is not to be based on the
subjective determination of a government agency or official.
The issuance of a permit to carry and conceal a firearm under FCCL § I cannot be
conditioned on the government’s subjective determination whether the person seeking the permit had a “justifiable need” for such a permit. To allow the State of Froessel to engage in such subjective determinations does not merely regulate but effectively prohibits this fundamental
right, such that it destroys the core meaning of the Second Amendment.
Petitioner, through FCCL § I, established a near-complete prohibition on the carrying of
handguns for self-defense by law-abiding individuals. This prohibition is not consistent with
Respondent’s rights under the Second and Fourteenth Amendments. The law on this subject is 7
clear – law-abiding individuals are entitled to carry handguns for self-defense and regulations,
not prohibitions, may be imposed by the state. Permits to carry arms may not be denied to lawabiding citizens, such as Respondent, who can demonstrate basic competence with a firearm and
who wish to carry a handgun for self-defense. The justifiable need requirement per FCC § I
effectively prohibits law abiding citizens to obtain and carry handguns for self-defense.
Prohibiting this fundamental right is unconstitutional.
A. THE RIGHT TO BEAR ARMS FOR SELF-DEFENSE EXTENDS OUTSIDE THE
HOME
There is substantial evidence demonstrating that the scope of the Second Amendment
extends outside the home. See District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783
(2008); United States v. Masciandaro, 638 F.3d 458,475 (4th Cir. 2011). To “bear arms,” per the Second Amendment, is to “wear, bear, or carry... upon the person or in the clothing or in a pocket, for the purpose... of being armed and ready for offensive or defensive action in a case of
conflict with another person.” District of Columbia v. Heller, 128 S. Ct. 2783, 2793 (2008)
(quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting);
Black's Law Dictionary 214 (6th Ed. 1998)).
Under the Court’s approach in Heller, emphasizing the need to refer to the “normal meaning” of text, the text of the Second Amendment appears to guarantee a right to public possession of firearms. The Court interprets “keep Arms” to mean “have weapons” and “bear” to mean “carry”. Heller, 128 S. Ct. at 2792-93. Moreover, the Court, in undertaking a historical
evaluation of the constitutional right set forth in the Second Amendment, opined that the
founding generations of this country valued firearms for self-defense and hunting more so than
they valued such arms for military use. Heller, 128 S. Ct. at 2801. While the Court in Heller
8
limited its conclusion and holding based on the as-applied challenge before it, the
constitutionality of keeping arms within one’s home, clearly, the underlying cases the Court
referred to through laborious discussion denotes the right of carrying of weapons outside of the
home. Heller, 128 S. Ct. at 2809 citing Nunn v. State, 1 Ga. 243, 251 (1846) and State v.
Chandler, 5 La. Ann. 489, 490 (1850).
Further evidencing the extension of the holding in Heller to include weapons outside the
home, the Court provides a number of examples regarding the types of regulatory statutes that
would pass under any standard, including “laws forbidding laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings” Id. at 2817 (noting that
the list is not exhaustive.) The Court, while employing the “normal meaning of language” to analyze rights under the Second Amendment, would certainly not compose a list of sensitive or
public places as places where a state may limit or forbid carrying fire arms because those places ,
schools and buildings, are clearly outside of the home. The Court clearly left open the possibility
of further regulations regarding carrying firearms in open, public spaces. The Court did not open
the possibility for any state to engage in a complete ban of firearms outside the home.
Further, explaining that this right is “not unlimited,” in that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Heller, 128 S. Ct. at
2816 (citations omitted), the Court confirmed that there is a right to carry at least some weapons,
in some manner, for some purpose. The logic and language of Heller extend to the possession
and use of firearms outside of the home. There could be exceptions to the right of public
carriage, but a complete ban on carrying firearms outside the home is unconstitutional under the
Second Amendment, as affirmed in Heller.
9
B. THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I IS AN ABSOLUTE
VIOLATION OF THE SECOND AMENDMENT AND IS THEREFORE PER SE
UNCONSITUTIONAL
Having established that there is a Second Amendment right to carry guns, and that this
right may be regulated by the state, the question turns to Petitioner’s policies with respect to what constitutes “justifiable need” for the issuance of carry conceal permits. Requiring individuals who seek to obtain gun permits to demonstrate a “justifiable need” in order to
exercise a constitutional right is in and of itself unconstitutional.
Petitioners adopted a requirement holding that applicants for a conceal and carry permit
must show they have a “justifiable need” and “generalized desire to carry a concealed weapon to
protect one’s person or property;; generalized fear of living in a dangerous society;; and living or being employed in a high crime area” are insufficient “justifiable need[s]” to seek a permit. See
FCCL § I. This requirement, which expressly and completely rejects self-defense as a valid
purpose for seeking a permit to carry a firearm, is an absolute violation of the Second
Amendment.
The Supreme Court has made clear that self-defense is at the core of the Second
Amendment right to bear arms. “[T]he inherent right of self-defense has been central to the
Second Amendment right.” Heller, 128 S. Ct. at 2817. Self-defense “was the central component
of the right itself.” Heller, 128 S. Ct. at 2801 (emphasis added) (citations omitted). The core
component of the Second Amendment is to carry a fire arm for self-defense. The issuance of a
permit to carry and conceal a firearm under FCCL § conditioned on the government’s subjective determination whether the person seeking the permit had a “justifiable need” for such a permit
deprives the citizen of his natural right of self-defense and thus offends and destroys the core,
central component of the Second Amendment. The destruction of the purpose of the rights
10
which the Second Amendment seeks to protect is per se unconstitutional. See Heller, 128 S. Ct.
at 2818 (“A statute which, under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of
defense, would be clearly unconstitutional.”)(internal citations omitted) citing Nunn v. State, 1
Ga. 243 at 251 (1846) (noting that a carrying restriction “valid, inasmuch as it does not deprive
the citizen of his natural right of self-defence, or of his constitutional right to keep and bear
arms”) (emphasis added).
Petitioners’ reasoning is deeply illogical in holding that FCCL §I is mere regulation and opining that it is reasonable regulation to refuse to issue a permit to carry a handgun until being
provided evidence that there was a specific threat to one’s life or specific previous attacks “which demonstrate special danger.” Conversely to Plaintiff’s irrational reasoning, this Court has affirmed that bearing arms, within the meaning of the Second Amendment, includes carrying
handguns “for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, 128 S. Ct. at 2793 (citations omitted).
The Second Amendment does not exist merely to increase the security of previously
victimized individuals. If the conflict has already occurred, the unarmed would-be permit
applicant might be dead or gravely injured. Criminal attacks are often random, as evidenced by
the two encounters of Respondent with two different, unaffiliated gun wielding persons, and as
such there is no particular reason to expect that a person who has previously been victimized
might be more likely to need a gun than someone who has yet to be victimized. The Second
Amendment is no less “destroyed when [the] exercise of the right is limited to a few people.” See
Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) citing Heller, 128 S.Ct. 2783.
11
Thus, FCCL §I is per se unconstitutional as it operates as a prohibition on the right to
carry arms on public ground and, more strikingly, deprives law-abiding citizens of their right to
carry arms without first presenting a justifiable need, undermining the Second Amendments
central component of the right to bear arms for self-defense. Thus, FCCL §I must be invalidated
as it is per se unconstitutional.
C. THE “JUSTIFIABLE NEED” REQUIREMENT OF FCCL § I DOES NOT AVAIL
THE HEIGHTENED LEVEL OF SCRUTINY APPLIED
Assuming, arguendo, that FCCL § I does not destroy the core guarantee of the Second
Amendment, applying apply strict or intermediate scrutiny would nonetheless invalidate
FCCL§I.
This Court has made clear that the rational basis test “could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of
speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear
arms.” Heller, 128 S. Ct. at 2818 n.27 (citing United States v. Carolene Products Co., 304 U.S.
144, 152, n. 4 (1938)) (emphasis added). “[I]t remains certain that the federal government may
not restrain the freedom to bear arms based on mere whimsy or convenience.” United States v.
Everist, 368 F.3d 517, 519 n.1 (5th Cir. 2004).
The majority of the courts have employed an intermediate scrutiny standard when
evaluating gun regulations that do not touch on the “core” Second Amendment right: possession in the home. Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) (citing U.S. v.
Skoien, 614 F.3d 638 (7th Cir. 2010); U.S. v.Marzzarella, 614 F.3d at 97 (3rd Cir. 2010)
(surveying post-Heller decisions in deciding to join “the majority of courts,” holding that 12
“intermediate scrutiny is the most appropriate standard”). Under intermediate scrutiny, “the degree of fit between the registration scheme in this case and the well-established goal of
promoting public safety need not be perfect;; it must only be substantial.” Peruta, 742 F.3d at
1176. Thus, applying intermediate scrutiny to FCCL § I calls for a determination if the statute is
substantially related to important government objectives. Respondent does not contest that
promoting public safety and reducing violence are important government objectives. However,
FCCL§I is not substantially related to that objective.
The two empirical studies relied on by Petitioners by Gotham University’s Institute of Statistics (“GUIS”) reveal that a decrease in handgun sales had no effect on the number of gun
related homicides between the years of 2007 and 2013. According to the study, the number of
guns sold between 2007-2013 reduced from 70,000 to 10,000. Between 2001 and 2013 the gun
related homicide toll remained at 6,000. Petitioner’s argument that the “justifiable need” requirement reduced violence proves mathematically erroneous. The study did not indicate
whether the sales customers had obtained permits or had existing permits or whether the guns
were purchased for the home only. Moreover, the lack of information about whether the
purchasers lawfully obtained permits begs the question of whether the guns were purchased
illegally, thus leaving law-abiding citizens without a means to purchase and carry a firearm for
the means of self-defense and protection.
Regardless of the statistical data wrongly relied upon by Petitioner, there is no substantial
relationship between the “justifiable need” requirement and the government’s interest in public safety. Law abiding citizens who cannot show a justifiable need for the carrying a handgun are
unfairly disadvantaged than those who have either been victimized or those who illegally obtain
a handgun. Subjectively depriving citizens of their right to self-defense is not substantially
13
related to Petitioner’s interest in public safety and reduction of violence. Put differently, the
subjective nature of the requirement only puts law-abiding citizens at more risk to be victims of
violence without providing a means or an option for these citizens to engage in self-defense to
curtail victimization and even death.
D. EVEN ABSENT A SECOND AMENDMENT VIOLATION, FCCL § I VIOLATES
THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
Even absent a Second Amendment right, the policies and regulations of handgun regulations
may fail under the Equal Protection Clause. See Guillory v. County of Orange, 731 F.2d 1379
(9th Cir. 1984).
Strict scrutiny applies to government classifications that “impinge on personal rights protected by the Constitution.” Id., 473 U.S. at 440 (citations omitted). “Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might
invade or restrain them must be closely scrutinized.” Hussey v. City of Portland, 64 F.3d 1260,
1265 (9th Cir. 1995) (quoting Harper v. Virginia Board of Elections, 383 U.S. 663, 670 (1966)).
Petitioner’s “justifiable need requirement” facially violates the Equal Protection Clause. This
Court has explained, as discussed above, that there is an interest in self-defense which composes
the central component of the right to bear arms under the Second Amendment. Presumably,
everyone who seeks a permit to carry a handgun in Froessel does so for the purpose of being able
to exercise this Second Amendment right. However, certain citizens of Froessel who have this
interest (Respondent) are denied a permit, while others, are granted permits on subjective
grounds of review of what the Froessel deems is a “justifiable need.” This effectively classifies
people as those who have a subjective “justifiable need” and those who do not. By illustration, Respondent Jeff Lui was twice a victim of gun violence, one resulting in the death of a family
14
member. This was not a justifiable need as subjectively reviewed by Froessel thus dividing him
for some reason apart from those who experienced a higher level of pain, suffering, and fear of
bodily harm. There is no important or compelling government interest in denying the interest in
self-defense Thus, a strict level of scrutiny must be applied here and this Court must find that
FCCL § I unduly classifies people into those with a justifiable need and those who they
subjectively deem do not, and therefore violates the Fourteenth Amendment Equal Protection
Clause.
POINT II
FCCL § III IS UNCONSTITUTIONAL AS APPLIED TO RESPONDENT JEFF LIU
A. THE RELIGIOUS FREEDOM RESTORATION ACT ENTITLES PETITIONER
JEFF LIU TO A RELIGIOUS EXEMPTION FROM THE PUBLIC
ACCOMMODATION REQUIREMENT IMPOSED BY FCCL § III
FCCL § III’s public accommodation mandate substantially burdens Respondent Jeff
Liu’s religious exercise. 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.” Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505
(June 30, 2014) held that companies who operate for-profit and whose owners are devout and
oppose certain forms of contraception on religious grounds, are entitled to an exemption
under the RFRA from the Affordable Care Act’s contraceptive mandate whereas the mandate required those companies to provide their female employees health insurance coverage in
clear violation of the owners’ religious beliefs. The RFRA was enacted by the Froessel legislature in response to Employment Div. v.
Smith, 494 U.S. 872 (1990), which upheld a penalty on the use of peyote although the law
substantially burdened the religious use of the drug. The Supreme Court in Smith held that
15
the First Amendment’s Free Exercise Clause does not entitle a religious claimant to an
exemption from a law neutral in terms of religion although the law substantially burdens the
claimant’s religious exercise. Prior to this case, a religious claimant was constitutionally
entitled to an exemption from a neutral law burdening his religion unless the State could
show that the law was narrowly tailored to further a “compelling” state interest. Laws that burdened religion, even if neutral and generally applicable, were reviewed under strict
scrutiny. For example, see Wisconsin v. Yoder, 406 U.S. 205 (1972). By enacting the
RFRA, the Froessel legislature tried to return to the level of scrutiny used before Smith, that
laws that were neutral toward religion may burden religious exercise just as much as laws
targeting religious practice and restored the compelling interest test. Thus, under the RFRA,
the state may not substantially burden the exercise of religion, even if the burden results from
a neutral law of general applicability. In order to deny a claimed religious exemption under
the RFRA, the State must show that enforcing the challenged law is the least restrictive
means of furthering a compelling state interest.
The public accommodation requirement of FCCL § III requires Jeff Liu to engage in
conduct that violates tenants of his Christian faith, or face onerous penalties. This forces Jeff
Liu to face the very difficult choice of violating the law or compromising his religious
beliefs.
An exemption under the RFRA must be motivated by a “sincerely-held” religious belief. See generally United States v. Ballard, 322 U.S. 78 (1944). So long as the religious belief is
sincerely held, it does not need to be shared by the other members of the relevant religious
sect. See id., 450 U.S. at 714 (stating that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others” to merit protection).
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The public accommodation requirement of FCCL § III requires Respondent Jeff Liu to
operate his business in a way that violates his religious beliefs. This requirement requires
poses a substantial burden on Jeff Liu’s religious exercise because it compels him to engage in conduct that his religion forbids, such as conducting business transactions with Satanists.
The RFRA does not define what a “substantial burden” is but courts have interpreted it. According to Thomas v. Review Bd. of Indep. Employment Sec. Div., 450 U.S. 707, 716
(1981), a substantial burden on religion exists whenever the State compels an individual,
under threat of penalties, to engage in conduct that his religion forbids.
Whereas the FCCL demands that Respondent engage in conduct that would violate his
religious beliefs, by engaging in business transactions with Satanists, this regulation is a
burden on the free exercise of his religion. This in and of itself is a burden on the free
exercise of his religion. The burden on Jeff Liu is substantial because the State demands
compliance by giving him a difficult choice of abiding by his religious beliefs and being
fined $15,000-which would most likely cause his business to go under-or he could become
complicit in what he considers a grave religious wrong. According to the government,
“religious beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits.” Elane Photography LLC v. Willock, 309 P.3d 53, 78 (N.M. 2013).
Further, the Establishment Clause of the US Constitution protects religious liberty in that it
protects one’s liberty to live free from the religious commitments of others. See Prince v.
Massachusetts, 321 U.S. 158, 177 (1944) (Jackson, J., concurring). While the State may not
restrict a person’s freedom to exercise their religion, neither may that same exercise restrict others in practicing their own religious beliefs.
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FCCL § III’s public accommodation provision violates RFRA in that Respondent Liu is
entitled to a religious exemption if he is substantially burdened. Whereas FCCL§ III forces Liu
to either break the law and face a substantial fine or go against his strong religious beliefs, it is
unconstitutional as applied to Respondent Liu.
CONCLUSION:
The Court of Appeals decision should be upheld because the “justifiable need” requirement of FCCL § I is unconstitutional on its face as it infringes upon the fundamental right
to bear arms for self-defense that is laid out in the Second Amendment and is recognized in
Heller and neither the “justifiable need” requirement under FCCL § I nor the training requirement of FCCL § II satisfy heightened scrutiny under the Second Amendment.
The Court should also uphold Court of Appeals’ decision that FCCL § III is
unconstitutional as it applies to Jeff Liu because the State’s interest in public safety is important and compelling and the government has a compelling interest in preventing crime and the RFRA
entitled Respondent to a religious exemption from the public accommodation requirement
imposed by FCCL § III.
Respectfully Submitted,
/s/
Team 74
.
Attorneys for the Respondent
Submitted August 10, 2014
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APPENDIX:
37 A.L.R. Fed. 696 (original published in 1976)
Gotham University’s Institute of Statistics (“GUIS”) (2014)
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