Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.
Supreme Court briefSep 20, 2021
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No. 20-843
IN THE
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC.,
ROBERT NASH, BRANDON KOCH,
Petitioners,
v.
KEVIN P. BRUEN, in His Official Capacity as
Superintendent of New York State Police, and
RICHARD J. MCNALLY, JR., in His Official Capacity
as Justice of the New York Supreme Court, Third
Judicial District, and Licensing Officer for
Rensselaer County,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
BRIEF OF THE LEAGUE OF WOMEN
VOTERS AS AMICUS CURIAE IN SUPPORT
OF RESPONDENTS
KATHLEEN R. HARTNETT
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
CELINA STEWART
LEAGUE OF WOMEN
VOTERS OF THE UNITED
STATES
1233 20th St., NW
Washington, DC 20036
ADAM S. GERSHENSON
Counsel of Record
COOLEY LLP
500 Boylston St.
Boston, MA 02116
agershenson@cooley.com
(617) 937-2379
DANIEL GROOMS
COOLEY LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
Counsel for Amicus Curiae
Additional counsel:
LAURA L. BIERMAN
LEAGUE OF WOMEN VOTERS
OF NEW YORK
62 Grand Street
Albany, NY 12207
CECILE M. SCOON
LEAGUE OF WOMEN VOTERS
OF FLORIDA
P.O. Box 1911
Orlando, FL 32802
ADAM M. KATZ
COOLEY LLP
500 Boylston St.
Boston, MA 02116
ANDREW D. BARR
COOLEY LLP
1144 15th St., Suite 2300
Denver, CO 80202
i
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ................................... 1
INTRODUCTION ....................................................... 2
SUMMARY OF THE ARGUMENT ........................... 4
ARGUMENT ............................................................... 8
I.
II.
THE RIGHT TO VOTE AND ENGAGE
IN ELECTION-RELATED ACTIVITY
INCLUDES THE RIGHT TO DO SO
SAFELY............................................................ 8
A.
Threats and Force Have Long
Been Used to Intimidate Voters ........... 8
B.
Voter Intimidation Prohibitions
Are Widespread and Important
But Do Not Alone Secure
Electoral Safety ................................... 12
FIREARM PROLIFERATION
IMPERILS THE ELECTORAL
PROCESS ....................................................... 14
A.
Handgun Proliferation
Reasonably Creates Fear that
Voting-Related Conflict and
Unrest Will Turn Violent .................... 15
B.
The Intimidating Effect of
Firearms Potentially Disrupts
Every Phase of the Electoral
Process ................................................. 18
1.
Before Elections ......................... 20
ii
TABLE OF CONTENTS
(continued)
Page
III.
2.
During Elections ....................... 22
3.
After Elections ........................... 24
THE NEW YORK LAWS UNDER
REVIEW ADVANCE THE
COMPELLING INTEREST IN
SECURING THE ELECTORAL
PROCESS AND ARE CONSISTENT
WITH THE SECOND AMENDMENT .......... 27
A.
New York Law Furthers the WellEstablished Compelling Interest
in Securing the Electoral Process
from Intimidation and Disruption ...... 27
B.
New York’s Laws are
Constitutionally Permissible, But
Not Required ....................................... 30
CONCLUSION ......................................................... 33
iii
TABLE OF CITED AUTHORITIES
Page
Cases
Application of O’Connor,
585 N.Y.S.2d 1000 (Co. Ct. 1992) ........................ 32
Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n,
576 U.S. 787 (2015) ................................................ 4
Brigham City v. Stuart,
547 U.S. 398 (2006) .............................................. 30
Brnovich v. Democratic Nat'l Comm.,
141 S. Ct. 2321 (2021) .................................... 18, 29
Burdick v. Takushi,
504 U.S. 428 (1992) .......................................... 4, 28
Burson v. Freeman,
504 U.S. 191 (1992) .......................................passim
Citizens for Police Accountability Political Comm. v.
Browning,
572 F.3d 1213 (11th Cir. 2009) ............................ 19
Democratic Nat’l Comm. v. Republican Nat’l Comm.,
No. 18-1215, 2019 WL 117555 (3d Cir. Jan. 7,
2019)...................................................................... 11
District of Columbia v. Heller,
554 U.S. 570 (2008) .................................. 2, 3, 4, 28
iv
TABLE OF CITED AUTHORITIES
(continued)
Page
Dubuclet v. State of La.,
103 U.S. 550 (1880) ................................................ 5
Ex parte Yarbrough,
110 U.S. 651 (1884) ................................................ 8
Fisher v. Univ. of Tex. at Austin,
136 S. Ct. 2198 (2016) .......................................... 32
Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015) ............................ 7, 18
Galvan v. Super. Ct.,
452 P.2d 930 (Cal. 1969) ...................................... 32
Harper v. Va. State Bd. of Elections,
383 U.S. 663 (1966) ................................................ 8
Hill v. State,
53 Ga. 472 (1874) .................................................... 4
Illinois Bd. of Elections v. Socialist Workers Party,
440 U.S. 173 (1979) ................................................ 4
Kachalsky v. County of Westchester,
701 F.3d 81 (2nd Cir. 2012).................................... 2
McLaughlin v. United States,
476 U.S. 168 (1986) .......................................... 6, 15
Minn. Voters All. v. Mansky,
138 S. Ct. 1876 (2018) .......................................... 29
v
TABLE OF CITED AUTHORITIES
(continued)
Page
Munro v. Socialist Workers Party,
479 U.S. 189 (1986) .............................................. 14
New York v. Quarles,
467 U.S. 649 (1984) .............................................. 30
Northwest Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009) ................................................ 9
Paynes v. Lee,
377 F.2d 61 (5th Cir. 1967) .................................. 10
Spencer v. Pugh,
543 U.S. 1301 (2004) .............................................. 5
Storer v. Brown,
415 U.S. 724 (1974) .............................................. 28
Taylor v. Beckham,
178 U.S. 548 (1900) ................................................ 5
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) ................................................ 7
Trustees of Dartmouth College v. Woodward,
17 U.S. (4 Wheat.) 518 (1819) ................................ 4
United States v. New Black Panther Party for SelfDefense,
No. 09 Civ. 65-SD (E.D. Pa. May 18, 2009) ......... 11
vi
TABLE OF CITED AUTHORITIES
(continued)
Page
United States v. Salerno,
481 U.S. 739 (1987) .............................................. 30
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................... 8
Williams-Yulee v. Florida Bar,
575 U.S. 433 (2015) .............................................. 18
Wollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) ................................ 16
Statutes
U.S. Const.
amend. I .......................................................... 29, 30
amend. II........................................................passim
amend. IV ............................................................. 30
amend. V ............................................................... 30
amend. VIII........................................................... 30
Art. I, § 4, cl. 1 ...................................................... 28
18 U.S.C.
§ 245(b)(1)(A) ........................................................ 12
§ 592 ...................................................................... 13
§ 594 ...................................................................... 13
42 U.S.C. § 1985(3) .................................................... 12
vii
TABLE OF CITED AUTHORITIES
(continued)
Page
52 U.S.C.
§ 10101(a)(2)(B) .................................................... 13
§ 10307(b).............................................................. 13
§ 20511(1).............................................................. 13
D.C. Code § 7-2509.07................................................ 26
1795 Mass. Acts 436, ch. 2......................................... 17
N.Y. Penal Law
§ 265.01 ................................................................... 1
§ 400.00(2)(f) ........................................................... 1
Other Authorities
1 William Hawkins, A Treatise of the Pleas of the
Crown (1716) ........................................................ 17
ABA Resolution, Opposition to Guns in Polling Places
(July 23, 2021),
https://bit.ly/3ixjhYZ....................................... 21, 26
ABC News, Fight Breaks Out at Polling Place (Nov. 8,
2016), https://bit.ly/3jMYxw6 ............................... 22
ACLED, Demonstrations & Political Violence in
America: New Data for Summer 2020 (Sept. 2020),
https://bit.ly/38OEGqU ........................................ 10
Adam Winkler, Fatal in Theory and Strict in Fact: An
Empirical Analysis of Strict Scrutiny in the
Federal Courts, 59 Vand. L. Rev. 793 (2006) ...... 28
viii
TABLE OF CITED AUTHORITIES
(continued)
Page
Alexander Keyssar, The Right to Vote
(2d ed. 2009) ........................................................... 5
American Way, The Long Shadow of Jim Crow: Voter
Intimidation and Suppression in America Today
(Aug. 2004), https://bit.ly/3l05UAQ ..................... 10
Armed Assembly: Guns, Demonstrations, and
Political Violence in America, ACLED &
Everytown for Gun Safety Support Fund (Aug.
2021).......................................................... 16, 21, 22
Anthony A. Braga, et al., Firearm Instrumentality: Do
Guns Make Violent Situations More Lethal? ....... 16
Ben Cady & Tom Glazer, Voters Strike Back:
Litigating Against Modern Voter Intimidation, 39
N.Y.U. Rev. L. & Soc. Change 173 (2015) ... 8, 9, 11
Brady Center to Prevent Gun Violence, Guns at
Polling Places: Preventing Armed Voter
Intimidation (2020), https://bit.ly/3yOYtRU ....... 20
Brentin Mock, How Voter Intimidation Could Get
Uglier, Bloomberg CityLab (Oct. 7, 2020),
https://bloom.bg/3fM8uZl ............................... 11, 24
Cassidy McDonald, Handguns, Crowbars, Tasers and
Tomahawk Axes: Dozens of Capitol Rioters
Wielded “Deadly or Dangerous” Weapons,
Prosecutors Say, CBS News (May 27, 2021),
https://cbsn.ws/3lxLxek ........................................ 26
ix
TABLE OF CITED AUTHORITIES
(continued)
Page
Charles C. Branas, et al., Investigating the Link
Between Gun Possession and Gun Assault .......... 16
Clare Hymes, et al., What We Know About the
“Unprecedented” Capitol Riot Arrests, CBS News
(Aug. 11, 2021), https://cbsn.ws/3yFwXa0 ........... 25
Coalition to Stop Gun Violence, Guns Down at the
Polls: How States Can and Should Limit
Firearms at Polling Places (2020) ........................ 10
Dep’t of Homeland Sec., Homeland Threat
Assessment (Oct. 2020) ......................................... 22
Dep’t of Justice, Federal Prosecution of Election
Offenses (Dec. 2017).............................................. 14
Evan Hill, et al., Officer Brian Sicknick Died After the
Capitol Riot—New Videos Show How He was
Attacked, N.Y. Times (Mar. 24, 2021).................. 25
Everytown For Gun Safety Support Fund, Election
Protection: Preventing and Responding to Illegal
Armed Voter Intimidation and Election
Interference (Oct. 6, 2020),
https://bit.ly/3kjO7Eq ........................................... 15
Giffords Law Center, Preventing Armed Voter
Intimidation: A State-by-State Analysis
(Sept. 2020) ............................................................. 9
x
TABLE OF CITED AUTHORITIES
(continued)
Page
Hampton Stall, et al., Standing By: Right-Wing
Militia Groups & the US Election ........................ 23
James Densley & Jillian Peterson, We’ve Analyzed 53
Years of Mass Shooting Data: Attacks Aren’t Just
Increasing, They’re Getting Deadlier, L.A. Times
(Sept. 1, 2019), https://lat.ms/3EAKUd0 ............. 17
Jelani Cobb, Our Long, Forgotten History of ElectionRelated Violence, The New Yorker (Sept. 14,
2020), https://bit.ly/3huCj1j ................................... 9
Joseph Blocher & Alan Chen, Why Do States Ban
“Electioneering” but Allow Guns at Polling
Places?, Slate (Jan. 5, 2021),
https://bit.ly/3yQyB92 .......................................... 19
Joseph Blocher, Firearm Localism, 123 Yale L. J. 82
(2013) ................................................................ 7, 31
Joseph Blocher & Reva Siegel, When Guns Threaten
the Public Sphere: A New Account of Public Safety
Regulation Under Heller, 116 N.W. L. Rev. 1
(2021) ...................................................................... 3
League of Women Voters, Voting Rights
Organizations Celebrate Important Victory in Case
to Stop Illegal Voter Intimidation in Minnesota
(Oct. 24, 2020), https://bit.ly/3DgbG9R ............... 11
Mao Tse-Tung, Problems of War and Strategy,
Selected Works Vol. II (Nov. 6, 1938) .................... 4
xi
TABLE OF CITED AUTHORITIES
(continued)
Page
Mark D. Rosen, When Are Constitutional Rights NonAbsolute? McCutcheon, Conflicts, and the
Sufficiency Question, 56 William & Mary L. Rev.
1535 (2015) ....................................................... 2, 28
Minn. Attorney General, Attorney General Ellison
Wins Assurance Atlas Aegis Will Not Recruit or
Provide Private Security for Minnesota Elections
(Oct. 23, 2020), https://bit.ly/2XUov9y ................ 12
Mike Giglio, A Pro-Trump Militant Group has
Recruited Thousands of Police, Soldiers, and
Veterans, The Atlantic (Nov. 2020),
https://bit.ly/2VLEDcB ................................... 24, 25
Nicholas Reimann, Voter Intimidation Ramping Up
as Election Day Approaches—Here are the Claims
Being Investigated, Forbes (Oct. 21, 2020),
https://bit.ly/3EchWQj .......................................... 10
Philip Bump, 2021 Has Already Been a Very Bad
Year for Mass Shootings, Wash. Post (July 7,
2021), https://wapo.st/3mVGWVA ....................... 17
Ryan J. Reilly, A Guy in a Trump Shirt Carried a
Gun Outside of a Virginia Polling Place—
Authorities Say That’s Fine, Huff. Post (Nov. 4,
2016), https://bit.ly/38I3AJ5 ................................ 20
Ryan Lucas, Who Are the Oath Keepers? Militia
Group, Founder Scrutinized in Capitol Riot Probe,
NPR (Apr. 10, 2021), https://n.pr/3ySbEkS ......... 25
xii
TABLE OF CITED AUTHORITIES
(continued)
Page
Tess Owen, We Tracked the Shocking Amount of Gun
Violence at U.S. Protests, Vice (Oct. 1, 2020),
https://bit.ly/2X0tmFS .......................................... 21
Tom Driesbach & Tim Mak, Yes, Capitol Rioters Were
Armed, NPR (Mar. 19, 2021),
https://n.pr/3lS9QFU ............................................ 25
4 William Blackstone, Commentaries on the Laws of
England 149 (1796) ................................................ 3
WREG Memphis, Video Shows Candidate,
Campaigner in Ballot Brawl at Mississippi Polling
Site (Nov. 4, 2020), https://bit.ly/3xz8Pof ............ 23
STATEMENT OF INTEREST1
The League of Women Voters (the “League”) is a
nonpartisan, community-based organization that
promotes political responsibility by encouraging
Americans to participate in the electoral process.
Founded in 1920 as an outgrowth of the struggle to win
voting rights for women, the League now has more
than 500,000 members and supporters, and is
organized in more than 750 communities and in every
State. Over the last 100 years, the League has actively
engaged in advocacy asserting that voting rights are
essential to a functioning democracy.
The League has long recognized that the right to
vote is meaningless without the right to vote safely.
The unchecked carrying of concealed firearms imperils
the electoral process at multiple stages, from the
threat of violence at registration to voter intimidation
at the polls.
The New York laws under review simply require
individuals interested in carrying a concealed firearm
in public to obtain a license. N.Y. Penal Law §§ 265.01
(prohibiting “possess[ing] any firearm”); 265.20(a)(3)
(excepting from that prohibition individuals who hold
a “license”). A concealed carry license “shall” be issued
to “any person” when “proper cause exists.” N.Y. Penal
Law § 400.00(2)(f). In line with New York’s “interest
in regulating handgun possession for public safety,”
the “proper cause” requirement has been interpreted
to require applicants to show more than a “speculative
1 No counsel for a party authored this brief in whole or in part,
and no person other than amicus and its counsel made a
monetary contribution to this brief’s preparation and submission.
All parties have consented to the filing of this brief.
2
or specious—need for self-defense.” Kachalsky v.
County of Westchester, 701 F.3d 81, 98 (2nd Cir. 2012).
Because this case concerns the ability of state and
local governments to adopt reasonable, commonsense
firearm regulations that guard the safety of the voting
process, it implicates a core component of the League’s
mission.
INTRODUCTION
Amicus agrees with Respondents that the New
York laws are consistent with the Second Amendment.
Moreover, the laws protect and advance a core
government interest that this Court has repeatedly
recognized. By requiring New Yorkers to show proper
cause before allowing them to carry concealed weapons
throughout the state—including in politically charged
scenarios—the laws vindicate the State’s compelling
interest in promoting public order to safeguard the
integrity of the electoral process.
In Heller, this Court held that, “[l]ike most rights,
the right secured by the Second Amendment is not
unlimited.” District of Columbia v. Heller, 554 U.S.
570, 626 (2008) (emphasis added). Indeed, from
“Blackstone through the 19th-century cases,
commentators and courts routinely explained that the
right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for
whatever purpose.” Id. This holding exemplifies the
well-established principle that core constitutional
rights may at times be cabined in service of other
compelling interests. See generally Mark D. Rosen,
When Are Constitutional Rights Non-Absolute?
3
McCutcheon, Conflicts, and the Sufficiency Question,
56 William & Mary L. Rev. 1535, 1541 n.15 (2015).
Heller’s recognition of “longstanding prohibitions
on the possession of firearms,” 554 U.S. at 573, derives
from an enduring and robust common law tradition of
regulating firearms, including to protect public order.
Under the 14th century’s Statute of Northampton,
Englanders were forbidden from bringing “arms” to
“fairs” and “markets.” Statute of Northampton 1328,
2 Edw. 3, c. 3 (Eng.). Blackstone attributed that
Statute’s ban on public arms to even deeper roots,
traceable to the “laws of Solon,” under which any
“Athenian was finable who walked about the city in
armour.” 4 William Blackstone, Commentaries on the
Laws of England 149 (1769). This “ancient common
law” prerogative “in regulating weapons to . . .
preserve public order” has been accepted by “all sides
of the modern gun debate.” Joseph Blocher & Reva
Siegel, When Guns Threaten the Public Sphere: A New
Account of Public Safety Regulation Under Heller, 116
N.W. L. Rev. 1, 28 (2021).
Laws that reasonably restrict the proliferation of
guns in public places—like the New York laws at issue
here—“protect against disruption, intimidation, or
other injury to the . . . activities that are critical to the
survival and health of the social order as a whole,”
from “child-rearing to education, commerce, worship,
. . . and governing.” Id. at 37, 40. In referencing the
longstanding and “presumptively lawful” regulations
“forbidding the carrying of firearms in sensitive
places,” Heller specifically noted laws banning guns in
“schools” and “government buildings”—public settings
4
that house activities vital to a functioning democratic
society, including election-related activities. 554 U.S.
at 626; see also Hill v. State, 53 Ga. 472, 475 (1874)
(describing the “practice of carrying arms at courts,
elections, and places of worship” as “so improper in
itself, so shocking to all sense of propriety, so wholly
useless and full of evil”). The New York laws under
review, which advance public order in light of local
conditions, including with respect to elections, is fully
consistent with this centuries-long tradition.
SUMMARY OF THE ARGUMENT
The right to vote lies at the heart of our
democracy. See Burdick v. Takushi, 504 U.S. 428, 433
(1992) (“It is beyond cavil that ‘voting is of the most
fundamental significance under our constitutional
structure.’”) (quoting Illinois Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 184 (1979));
Trustees of Dartmouth College v. Woodward, 17 U.S. (4
Wheat.) 518, 701 (1819) (describing the right to vote as
“sacred”). This is perhaps the greatest distinction
between our Nation, where it is a “fundamental
premise that all political power flows from the people,”
Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787, 824 (2015), and countries
where “[p]olitical power grows out of the barrel of a
gun,” Mao Tse-Tung, Problems of War and Strategy,
Selected Works Vol. II (Nov. 6, 1938).
Yet, for as long as the right to vote has existed,
some have sought to undermine or overpower those
who seek to exercise that right. See, e.g., Dubuclet v.
Louisiana, 103 U.S. 550, 552 (1880) (“citizens of color
. . . were prevented, hindered, and controlled and
5
intimidated from voting . . . by threats of violence to
them or their families”)); Taylor v. Beckham, 178 U.S.
548, 552 n.1 (1900) (gubernatorial candidate alleged
his opponent “intimidated and alarmed” voters by
instructing persons “armed with rifles, bayonets, and
gatling guns” to appear in and around polling places);
see also Alexander Keyssar, The Right to Vote 84
(Revised ed. 2009) (a “wave” of voter-intimidation
“terror” swept the South in the late nineteenth
century, during which time “military, or paramilitary
. . . organizations such as the Ku Klux Klan mounted
violent campaigns against blacks who sought to vote
or hold office”); id. (“In 1870 alone, hundreds of
freedmen were killed, and many more badly hurt, by
politicized vigilante violence.”). More recent precedent
makes clear that such threats are hardly a thing of the
past. See Burson v. Freeman, 504 U.S. 191, 206 (1992)
(“[A]n examination of the history of election regulation
in this country reveals a persistent battle against” the
“evil[]” of “voter intimidation”); Spencer v. Pugh, 543
U.S. 1301, 1302 (2004) (the “threat of voter
intimidation” is “undoubtedly serious”).
Given the intolerable threat to our democratic
process posed by voter intimidation, federal and state
laws uniformly posit that such intimidation has no
place in our electoral process. Federal law punishes
voter intimidation through an array of civil and
criminal penalties. See infra at pp. 12–14. All fifty
States and the District of Columbia also criminalize
voter intimidation. See infra at p. 13.
But, as this Court has recognized, such laws “deal
with only the most blatant and specific attempts to
6
impede elections.”
Burson, 504 U.S. at 206–07
(quotation marks omitted). A State is well within its
rights to recognize that firearms indiscriminately
distributed—for example, on a “speculative or
specious” basis, as New York law prohibits—can
intimidate and exclude voters and other participants
in the democratic process. Just as the “display of a gun
instills fear in the average citizen,” McLaughlin v.
United States, 476 U.S. 16, 17–18 (1986), so does
knowledge that guns have been widely dispersed—and
then concealed.
Such fears are well-founded. Empirical evidence
demonstrates that guns can turn ordinary
disagreements into deadly ones. As conflicts arise at
every phase of the electoral process—between voters
who support opposing candidates, between protesters
and counter-protesters at politically charged rallies, or
with election officials counting votes—voters frightful
of mixing guns with unrest may limit voting-related
activity or even sit out of the electoral process entirely.
Laws like the New York laws at issue here prevent
voter intimidation and protect the democratic process
by assuring citizens that the electoral process is safe.
See Friedman v. City of Highland Park, 784 F.3d 406,
412 (7th Cir. 2015) (explaining that if a law regulating
firearms “reduces the perceived risk from a mass
shooting, and makes the public feel safer as a result,
that’s a substantial benefit”); Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997) (“States
may, and inevitably must, enact reasonable
regulations of parties, elections, and ballots to reduce
election- and campaign-related disorder.”). And as
7
this Court has held, “preventing” the “evil[]” of “voter
intimidation” qualifies as a “compelling” governmental
interest that can justify imposing limits on other
constitutional rights. Burson, 504 U.S. at 206.
That is not to say that New York’s approach is
required or even suitable in every locality. New York’s
laws protect New Yorkers’ right to vote and provide
those voters confidence that they can safely participate
in the electoral process. But regionalism has always
featured prominently in the states’ varied approaches
to regulating guns, reflecting the flexibility enabled by
federalism. See Joseph Blocher, Firearm Localism,
123 Yale L. J. 82, 99–100 (2013) (“It is no surprise,
then, that the vast majority of gun control regulations
in the United States are local, and are tailored to the
particular risks of gun use in densely populated
areas.”). Thus, this case is not about whether the
Constitution compels New York’s specific approach to
regulating firearms; no one is arguing that. Rather,
this case concerns whether the Second Amendment
prohibits New York—a State with some of the most
densely populated areas in the world—from adopting
a regime designed to advance public safety, which,
among other things, helps secure the electoral process.
It does not, and the decision below should be affirmed.
8
ARGUMENT
I.
THE RIGHT TO VOTE AND ENGAGE
IN
ELECTION-RELATED
ACTIVITY
INCLUDES THE RIGHT TO DO SO SAFELY
A. Threats and Force Have Long Been Used
to Intimidate Voters
The right to vote is the right from which all other
rights flow. See Wesberry v. Sanders, 376 U.S. 1, 17
(1964) (“No right is more precious in a free country
than that of having a voice in the election of those who
make the laws under which, as good citizens we must
live. Other rights, even the most basic, are illusory if
the right to vote is undermined.”); Harper v. Va. State
Bd. of Elections, 383 U.S. 663, 667 (1966) (“[S]ince the
right to exercise the franchise in a free and unimpaired
manner is preservative of other basic civil and political
rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously
scrutinized.”) (quotation marks omitted).
Nonetheless, voter intimidation has been a
“recurring problem throughout the history of the
United States.” Ben Cady & Tom Glazer, Voters Strike
Back: Litigating Against Modern Voter Intimidation,
39 N.Y.U. Rev. L. & Soc. Change 173, 177 (2015); see
Ex parte Yarbrough, 110 U.S. 651, 666 (1884) (“In a
republican government, like ours, where political
power is reposed in representatives of the entire body
of the people, chosen at short intervals by popular
elections, the temptations to control these elections by
violence . . . is a constant source of danger.”). In
response to early Reconstruction-era voting reforms,
9
for example, minority voters faced a “sustained
campaign of voter intimidation through terrorism and
violence,” in which “[e]ven the simple act of voting
could provoke violence.” Cady & Glazer, Voters Strike
Back, at 184–85; see Northwest Austin Mun. Util. Dist.
No. One v. Holder, 557 U.S. 193, 218–19 (2009)
(Thomas, J., concurring in the judgment) (“Almost
immediately
following
Reconstruction,
blacks
attempting to vote were met with coordinated
intimidation and violence.”). Intimidation in the form
of “violence and harassment” also has long been
deployed along and across political lines, for example,
to target and frighten known supporters of the
opposing political party. Cady & Glazer, Voters Strike
Back, at 184–85. In 1874, “more than five thousand
men fought in the streets of New Orleans, in a battle
between supporters of Louisiana’s Republican
governor . . . [and] a group allied with the Democrats.”
Jelani Cobb, Our Long, Forgotten History of ElectionRelated Violence, The New Yorker (Sept. 14, 2020),
https://bit.ly/3huCj1j.
In the 20th century and onward, voter
intimidation has continued to plague the electoral
process, Cady & Glazer, Voters Strike Back, at 215,
often through the use of firearms to threaten or imply
the risk of violence. See, e.g., Giffords Law Center,
Preventing Armed Voter Intimidation: A State-by-State
Analysis (Sept. 2020), at 3 (explaining that “attempts
to disenfranchise and intimidate voters with firearms
[have] continue[d]” into 2020 (cleaned up)); Paynes v.
Lee, 377 F.2d 61, 63 (5th Cir. 1967) (two white men
“assailed” a black citizen “and threatened to destroy or
annihilate [him], his possessions and his family should
10
he . . . attempt to become a registered voter”); People
for the American Way, The Long Shadow of Jim Crow:
Voter Intimidation and Suppression in America Today
(Aug. 2004), at 1 (“In every national American election
since Reconstruction, . . . voters . . . have faced
calculated and determined efforts at intimidation.”),
https://bit.ly/3l05UAQ; Coalition to Stop Gun Violence,
Guns Down at the Polls: How States Can and Should
Limit Firearms at Polling Places (2020), at 6
(documenting “instances of armed intimidation” at
state “polling locations” in 2016 and 2018),
https://bit.ly/3Cq80kl; ACLED, Demonstrations &
Political Violence in America: New Data for Summer
2020 (Sept. 2020), at 14 (noting the “growing presence
of armed individuals” in 2020 at issue-based rallies,
which
“intimidate
perceived
‘enemies’”),
https://bit.ly/38OEGqU; Nicholas Reimann, Voter
Intimidation Ramping Up as Election Day
Approaches—Here are the Claims Being Investigated,
Forbes (Oct. 21, 2020) (reporting that in 2020, several
Republican voters in New Hampshire “received letters
. . . threatening to have their houses burned down” if
the Republican nominee would not concede the
election, and further reporting that a man in Maryland
was “arrested after . . . telling his Biden-supporting
neighbors, ‘This is a warning to anyone reading this
letter if you are a Biden[] supporter you will be
targeted”), https://bit.ly/3EchWQj.
For example, in 2009, a federal district court
entered a default judgment against a member of the
New Black Panther Party who stood outside of a
polling place, heavily armed, and yelled racial slurs at
voters. See United States v. New Black Panther Party
11
for Self-Defense, No. 09 Civ. 65-SD (E.D. Pa. May 18,
2009). In a similar example from the 1980s, a group
called the “National Ballot Security Task Force” hired
individuals, at the behest of political actors, to visit the
polls and “openly flash[] their guns” in front of voters.
Brentin Mock, How Voter Intimidation Could Get
Uglier, Bloomberg CityLab (Oct. 7, 2020),
https://bloom.bg/3fM8uZl. That particular episode led
to a federal consent decree that for a time largely
prohibited “ballot security” groups from conducting
such activities. Id.
That federal consent decree expired in 2017. See
generally Democratic Nat’l Comm. v. Republican Nat’l
Comm., No. 18-1215, 2019 WL 117555 (3d Cir. Jan. 7,
2019). So-called ballot security groups and other
organized armed groups have since reemerged en
masse. Even before the consent decree was lifted,
many of these groups “defined their mission in
confrontational, militaristic terms.” Cady & Glazer,
Voters Strike Back, at 225. Such efforts led amicus to
file suit in 2020 against a “private mercenary
contractor . . . for voter intimidation in Minnesota,”
after it discovered that the contractor stood to “hire
and deploy armed [persons] to polling sites in the
state.” League of Women Voters, Voting Rights
Organizations Celebrate Important Victory in Case to
Stop Illegal Voter Intimidation in Minnesota (Oct. 24,
2020), https://bit.ly/3DgbG9R. Minnesota’s Attorney
General intervened and obtained a court order
prohibiting armed personnel from congregating at or
near polling places. See Office of Minn. Attorney
General, Attorney General Ellison Wins Assurance
Atlas Aegis Will Not Recruit or Provide Private
12
Security for Minnesota Elections (Oct. 23, 2020),
https://bit.ly/2XUov9y.
Put simply, the Nation remains vulnerable to
voter intimidation. And as demonstrated below, there
is a long history of states implementing regulatory
measures to combat outright voter intimidation, see
infra at pp. 12–14, and of this Court recognizing that
states have a compelling interest in securing the
integrity of the electoral process through additional
measures, see infra at pp. 28–29.
B. Voter Intimidation Prohibitions Are
Widespread and Important But Do Not
Alone Secure Electoral Safety
Reflecting the broad, clear consensus that voter
intimidation should not be tolerated at any stage of the
electoral process, federal law has long provided an
array of civil and criminal penalties for voter
intimidation. Many of these provisions designate force
and threats of force as dangers to the voting process.
See, e.g., 42 U.S.C. § 1985(3) (prohibiting any
conspiracy “to prevent by force, intimidation, or threat,
any citizen who is lawfully entitled to vote, from giving
his support or advocacy in a legal manner, toward or
in favor of the election of any lawfully qualified
person”); 18 U.S.C. § 245(b)(1)(A) (imposing criminal
penalties on anyone who, “by force or threat of force
willfully injures, intimidates or interferes with, or
attempts to injure, intimidate or interfere with . . . any
person because he is or has been . . . voting or
qualifying to vote”). Recognizing the acute risk of
coercion when the threat of gun violence is implied,
federal law forbids even trained federal officers from
13
being present at a polling site while armed. See 18
U.S.C. § 592 (“troops or armed” officers may not be
present “at any place where a general or special
election is held”). Notably, federal voter intimidation
laws are not limited to behavior occurring at the polls;
Congress has sensibly recognized that intimidation
can and does take place at any stage of the voting
process.
See, e.g., 52 U.S.C. § 10101(a)(2)(B)
(prohibiting interference with “registration” or any
“other act requisite to voting”); 18 U.S.C. § 594 (not
limiting violations to intimidation at the polls); 52
U.S.C. § 10307(b) (same); 52 U.S.C. § 20511(1) (same).
Likewise, voter intimidation—at any phase in the
electoral process—is a crime in all fifty states as well
as the District of Columbia. See Everytown For Gun
Safety Support Fund, Election Protection: Preventing
and Responding to Illegal Armed Voter Intimidation
and
Election
Interference
(Oct.
6,
2020),
https://bit.ly/3kjO7Eq (collecting laws).
Despite this consensus on the evils of voter
intimidation, this Court has recognized that
“[i]ntimidation and interference laws” can “fall short
of serving a State’s . . . interests” in preventing
intimidating tactics, as such laws “deal only with the
most blatant and specific attempts to impede
elections.” Burson, 504 U.S. 206–07. The Department
of Justice, too, has recognized that while “[v]oter
intimidation warrants prompt and effective redress by
the criminal justice system,” these cases are “difficult
to prosecute.” Dep’t of Justice, Federal Prosecution of
Election Offenses (Dec. 2017), at 50. That is because,
among other things, intimidation can occur “subtl[y]”
14
or “without witnesses” and because victimized voters
“must testify, publicly and in an adversarial
proceeding, against the very person who intimidated
them.” Id.
Thus, despite the widespread agreement that
voter intimidation has no place in our democracy,
voter intimidation laws alone cannot alone secure the
vote and prevent intimidation. Indeed, when citizens
who are fearful of being exposed to threats, force, and
armed violence decline to participate in the voting
process in the first place, then the damage of voter
intimidation can be done without a crime ever being
committed.
By requiring more than a specious basis for a
concealed-carry license, New York laws help prevent
the unchecked carrying of guns in public places. That
approach thwarts not only criminally actionable
intimidation at the polls, but also the chilling effect on
voters concerned for their safety from the widespread
availability of concealed firearms, which would
interfere with citizens’ right to vote. Cf. Munro v.
Socialist Workers Party, 479 U.S. 189, 195–96 (1986)
(“[States] should be permitted to respond to potential
deficiencies in the electoral process with foresight,
rather than reactively.”).
II. FIREARM PROLIFERATION
THE ELECTORAL PROCESS
IMPERILS
The electoral process relies on, and in turn
sustains, public order. Citizens fearful of gun violence
in electoral-related public spaces like voting booths
and campaign rallies may well be deterred from
15
participating. As discussed below, this Court has
recognized that the sight of a gun may be enough to
intimidate and it is widely accepted in the empirical
literature that the mere presence of a gun—whether
visible or concealed—can turn commonplace
disagreements deadly.
Accordingly, firearms left to proliferate freely—
that is, absent measures of the kind New York has put
in place to regulate the issuance of concealed carry
licenses—may undermine citizens’ confidence in
public order. As demonstrated below, firearms have
the potential to disrupt—and in many documented
cases, have already disrupted—each and every phase
of the voting process: from rallies that occur before an
election, to the voting booth on election day, to ballotcounting centers after-the-fact. In short, firearm
proliferation imperils the electoral process.
A. Handgun
Proliferation
Reasonably
Creates
Fear
that
Voting-Related
Conflict and Unrest Will Turn Violent
No one disputes that the “display of a gun instills
fear in the average citizen.” McLaughlin v. United
States, 476 U.S. 16, 17–18 (1986). Indeed, every state
and the District of Columbia criminalizes displaying
“a gun to threaten or intimidate a member of the
public.” Everytown Law, Election Protection (Oct. 6,
2020), https://bit.ly/3ABx5b4.
Non-brandished firearms can also intimidate, and
when firearms are permitted to proliferate in public
spaces, citizens may rightfully become fearful that
commonplace altercations will turn deadly.
See
16
Wollard v. Gallagher, 712 F.3d 865, 879 (4th Cir. 2013)
(“[r]educ[ing] the number of handguns carried in
public” helps “lessen[] the likelihood that basic
confrontations between individuals . . . turn deadly,”
as incidents that might “end with people upset, but not
lethally wounded, take on deadly implications when
handguns are involved.”); see also, e.g., Anthony A.
Braga, et al., Firearm Instrumentality: Do Guns Make
Violent Situations More Lethal?, 4 Ann. Rev. of
Criminology 147 (Jan. 2021) (reviewing “considerable
evidence” supporting the unremarkable fact that
“guns contribute to fatalities that would otherwise
have been nonfatal assaults”). The mere act of
carrying a firearm in public makes it several times
more likely that the individual will be shot during an
assault when compared to a victim not wielding a
firearm. See Charles C. Branas, et al., Investigating
the Link Between Gun Possession and Gun Assault, 99
Am. J. Pub. Health 2034, 2037 (Nov. 2009). And a
recent comprehensive analysis of firearms at political
rallies found that “armed demonstrations are nearly
six times as likely to turn violent or destructive
compared to unarmed demonstrations.”
Armed
Assembly: Guns, Demonstrations, and Political
Violence in America, ACLED & Everytown for Gun
Safety Support Fund (Aug. 2021), at 2 (emphasis
added); see also infra at pp. 19–22 (discussing armed
violence at issue-based rallies).
Historically, firearm regulations have long been
justified as an established means of preventing guns
from terrorizing the public. See, e.g., 1 William
Hawkins, A Treatise of the Pleas of the Crown (1716),
134—35, §§ 1, 4 (explaining that the Statute of
17
Northampton sought to prevent carrying weapons in a
manner that would “naturally cause a Terror to the
People”); 1795 Mass. Acts 436, ch. 2 (making it illegal
for anyone to “ride or go armed . . . to the fear or terror
of the good citizens of this Commonwealth”). Although
Petitioners dispute the types of firearms likely to have
caused such terror, they accept that firearms have long
been limited in public spaces to prevent intimidating
the populace. Pet. Br. at 8.
Thus, and particularly given the rise in mass
shooting events over the last twenty years, citizens
may be increasingly reluctant to enter public spaces
where they risk being caught in crossfire. See, e.g.,
James Densley & Jillian Peterson, We’ve Analyzed 53
Years of Mass Shooting Data: Attacks Aren’t Just
Increasing, They’re Getting Deadlier, L.A. Times (Sept.
1, 2019) (“Our research spans more than 50 years, yet
20% of the . . . cases in our database occurred in the
last five years,” and “[m]ore than half . . . occurred
since 2000”), https://lat.ms/3EAKUd0. As of this July,
“there have been more than 1,800 people injured or
killed in mass shootings so far in 2021” and the
“number of mass shootings in the country is 20 percent
higher than where we were in 2020, which itself was
30 percent higher than the previous high.” Philip
Bump, 2021 Has Already Been a Very Bad Year for
Mass Shootings, Wash. Post (July 7, 2021),
https://wapo.st/3mVGWVA.
Indeed, this Court and others have upheld laws
that maintain the public’s confidence in core
governmental objectives—even if the ill sought to be
avoided would not otherwise affect all those at risk.
18
See, e.g., Brnovich v. Democratic Nat'l Comm., 141 S.
Ct. 2321, 2340 (2021) (recognizing the “legitimate
state interest” in maintaining “public confidence” in
the electoral process); Williams-Yulee v. Florida Bar,
575 U.S. 433, 444–55 (2015) (upholding law preventing
judicial candidates from soliciting campaign funds
under strict scrutiny, finding that the law advanced
the “State’s compelling interest in preserving public
confidence in the integrity of the judiciary”) (emphasis
added); Friedman, 784 F.3d at 412 (upholding firearm
regulation and explaining that if the law “makes the
public feel safer” that is a “substantial benefit”).
In sum, the prospect of firearms in the public
square, particularly in the often charged context of
voting, reasonably frightens the average citizen. This
Court has recognized as much, empirical research
substantiates that this fear is justified, and history
confirms that addressing this fear has long been a goal
of firearms regulations.
B. The Intimidating Effect of Firearms
Potentially Disrupts Every Phase of the
Electoral Process
The presence of firearms—brandished or hidden—
increases the risk that conflict turns deadly. And
conflict inheres at every stage of the electoral process.
Throughout the life cycle of an election, an engaged
citizenry is invited to disagree on matters of the
utmost importance. Vigorous disagreement signals a
democracy’s health, but can also precipitate heated
confrontations. Absent the involvement of firearms,
such confrontations generally end unremarkably. But
where firearms are introduced into the equation,
19
citizens rightly begin to fear that ordinary electoralrelated conflicts pose danger. Even “one violent
incident,” or the risk thereof, “could not only claim
lives but deter countless would-be voters from
venturing to polling places in the future.” Joseph
Blocher & Alan Chen, Why Do States Ban
“Electioneering” but Allow Guns at Polling Places?,
Slate (Jan. 5, 2021), https://bit.ly/3yQyB92; see
Citizens for Police Accountability Political Comm. v.
Browning, 572 F.3d 1213, 1221 (11th Cir. 2009) (“The
cost of a disturbed election is too high to allow the
State only to react to disturbances but not to prevent
disturbances.”).
Those with interests antithetical to our democracy
have long recognized that the threat of violence can be
deployed to intimidate participants in the electoral
process. In the early days of our Republic, “[s]ham
battles were frequently engaged in to keep away
elderly and timid voters of the opposition.” Burson,
504 U.S. at 202. These tactics have bled into the
modern era. In 2020, several states saw armed groups
appear at election facilities and events and interfere
with the electoral process. See infra at pp. 20–27.
Further, and importantly, a suppressive effect is
not necessarily dependent on suppressive intent—
particularly “in a nation where 58% of American
adults report that they or someone they care for has
been impacted by gun violence.” Brady Center to
Prevent Gun Violence, Guns at Polling Places:
Preventing Armed Voter Intimidation (2020),
https://bit.ly/3yOYtRU. For instance, in 2016, a man
carrying a firearm stood outside of a Virginia polling
20
place. A woman who saw the man while voting told a
reporter, “I had my 9-year-old son with me. I felt
intimidated.” When the man was informed that his
gun was frightening others, he “felt really bad,” but by
that time the damage was done. See Ryan J. Reilly, A
Guy in a Trump Shirt Carried a Gun Outside of a
Virginia Polling Place—Authorities Say That’s Fine,
Huff. Post (Nov. 4, 2016), https://bit.ly/38I3AJ5.
Intentional or not, firearms have the potential to
disrupt every phase of the electoral process.
1. Before Elections
The electoral activities that occur before
elections—including rallies, protests, debates, and
registration events—are ripe for disruption by gunrelated intimidation. The American Bar Association
recognized in 2020 that armed groups have started to
“become fixtures at demonstrations around the
country.” ABA Resolution, Opposition to Guns in
Polling Places (July 23, 2021), https://bit.ly/3ixjhYZ;
see also Armed Assembly: Guns, Demonstrations, and
Political Violence in America, ACLED & Everytown for
Gun Safety Support Fund, at 1 (“In the past year and
a half, the sight of demonstrators and counterdemonstrators armed with firearms has become more
common, and the risk of violent escalation has
remained high.”).
This armed presence has, in too many cases,
caused death. During the past election cycle, “guns
carried by individuals with a diverse range of political
views have featured at protests on at least 70
occasions, and they have been involved in at least 21
21
incidents that left 22 Americans dead.”
ABA
Resolution, Opposition to Guns in Polling Places (July
23, 2021), https://bit.ly/3ixjhYZ. The presence of
firearms, concealed or otherwise, does not bode well for
peaceful yet contentious protests; the “presence of
guns . . . has raised the stakes” of potential deadly
violence occurring at these otherwise peaceful
demonstrations. Tess Owen, We Tracked the Shocking
Amount of Gun Violence at U.S. Protests, Vice (Oct. 1,
2020), https://bit.ly/2X0tmFS. When “you have groups
of protesters and counterprotesters of hotly contested
issues, with one or both sides bringing guns into the
mix, it’s just a volatile combination.” Id.
Between January 2020 and June 2021, there were
“at least 560 demonstrations” that “included the
presence of an armed individual,” and “one out of every
six” of those demonstrations “included reports of
violent or destructive activity.” Armed Assembly:
Guns, Demonstrations, and Political Violence in
America, ACLED & Everytown for Gun Safety Support
Fund, at 3. In short, the presence of guns turned
demonstrations deadly. While a fatality was reported
at only “one out of every 2,963 demonstrations where
no firearm was identified,” that ratio jumped to “one
out of every 62 demonstrations where there was a
firearm identified.” Id.
For example, at a July 2020 get-out-the-vote rally,
“armed men . . . attacked a rally” for a congressional
candidate, injuring his aide.
Id.
Commenting
generally on get-out-the-vote efforts and other public
election events, the Department of Homeland Security
recently concluded that “[o]pen-air, publicly accessible
22
parts of physical election infrastructure, such as
campaign-associated mass gatherings . . . and voter
registration events, would be the most likely
flashpoints for potential violence.” Dep’t of Homeland
Sec., Homeland Threat Assessment (Oct. 2020), at 18.
2. During Elections
The actual voting period—from the start of early
voting through election day—is a critical point at
which intimidation and gun-related threats affect
voters. This may occur in one-off skirmishes as well as
through organized, politically motivated group efforts.
Spontaneous political skirmishes at polling sites
are regular occurrences. Absent firearms, contentious
encounters are much more easily controlled. See, e.g.,
ABC News, Fight Breaks Out at Polling Place (Nov. 8,
2016), https://bit.ly/3jMYxw6 (voters arrived to “loud
screams” at a polling place in Florida after an
argument between a voter and campaign volunteer
“escalated into a fight,” wherein a voter charged the
volunteer and the volunteer pepper sprayed the voter);
WREG
Memphis,
Video
Shows
Candidate,
Campaigner in Ballot Brawl at Mississippi Polling
Site (Nov. 4, 2020), https://bit.ly/3xz8Pof (a candidate
and a “rival campaign supporter” “got into a fist fight”
and “brawl” at a Mississippi polling place). But when
guns are present, whether brandished or concealed,
the political fray may quickly escalate into tragedy.
This is all the more true when organized groups—
especially groups known for being heavily armed—
congregate for the purpose of intimidating voters to
either stay away or vote a certain way. For example.
23
experts have “identified a major realignment of militia
movements in the US from anti-federal government
writ large to mostly supporting one candidate.”
Hampton Stall, et al., Standing By: Right-Wing Militia
Groups & the US Election, ACLED (Oct. 2020), at 5.
This fervent support for a particular candidate has
rendered these groups more inclined toward “violent
action aimed at dominating public space around []
election[s].” Id. at 2. A study tracking over 80 such
militias found that while many were “latent” (in that
they “threaten[ed] more violence than they
commit[ted]”), many were not. Id. at 7. In one
instance, members of the “Michigan Wolverine
Watchman militia,” were arrested in connection with
an attempt, in the runup to the 2020 election, to
kidnap and perhaps assassinate Michigan’s Governor.
See id. at 21.
These organized groups do not hide their violent
objectives. A former FBI counterintelligence specialist
commented that many of these militia groups use “the
language of violent conflict in both their public and in
their private communications online.” Brentin Mock,
How Voter Intimidation Could Get Uglier, Bloomberg
(Oct. 7, 2020), https://bloom.bg/3fM8uZl. They are
“calling for a physical response and presence to polling
places,” such that “the specter of people who are
violent in nature and have violent agendas and often
come armed with guns is . . . a very real possibility.”
Id. To take one example, the leader of one such militia
said the following at a rally, on the subject of his
perceived political opponents: “We’re going to make
these people fear us again. We should have been
shooting a long time ago instead of standing off to the
24
side.” Mike Giglio, A Pro-Trump Militant Group has
Recruited Thousands of Police, Soldiers, and Veterans,
The Atlantic (Nov. 2020), https://bit.ly/2VLEDcB.
3. After Elections
Once votes have been submitted, concealed
firearms continue to pose a threat to the electoral
process, as they threaten to turn unrest into violence
during the vote-counting process and in response to
the announced results.
One member of the Oath Keepers, currently one of
the largest anti-government extremist groups, was
asked how he would respond if his preferred candidate
lost the election. He responded he would accept the
result, “as long as we believe the vote was fair. And if
both sides can’t come to an agreement, then you’re
going to have a conflict.” Mike Giglio, A Pro-Trump
Militant Group has Recruited Thousands of Police,
Soldiers, and Veterans, The Atlantic (Nov. 2020),
https://bit.ly/2VLEDcB.
On January 6, 2021, America watched as “rioters”
responded to the reported election results by storming
the U.S. Capitol, “crushing through windows, pressing
up stairways, and sending lawmakers and law
enforcement running for their lives.” Clare Hymes, et
al., What We Know About the “Unprecedented” Capitol
Riot Arrests, CBS News (Aug. 11, 2021),
https://cbsn.ws/3yFwXa0.
Thus far, over 570
individuals have been arrested. Id. Several police
agencies “made arrests of people allegedly carrying
guns.” Tom Driesbach & Tim Mak, Yes, Capitol
Rioters Were Armed, NPR (Mar. 19, 2021),
25
https://n.pr/3lS9QFU. A member of the Capitol Police
was assaulted during the violent outburst, collapsed
later that evening, and died the next day. See Evan
Hill, et al., Officer Brian Sicknick Died After the
Capitol Riot—New Videos Show How He was Attacked,
N.Y. Times (Mar. 24, 2021), https://nyti.ms/3yQD1M6.
At least “a dozen members or associates of the Oath
Keepers are facing conspiracy charges in connection
with the siege.” Ryan Lucas, Who Are the Oath
Keepers? Militia Group, Founder Scrutinized in
Capitol Riot Probe, NPR (Apr. 10, 2021),
https://n.pr/3ySbEkS.
This insurrection was destructive, both in terms of
physical harm and harm to public confidence in the
security of election-related gatherings. Without the
District of Columbia’s strict limitations on concealed
carry, the damage on all sides could have been far
worse.2 See, e.g., Cassidy McDonald, Handguns,
Crowbars, Tasers and Tomahawk Axes: Dozens of
Capitol Rioters Wielded “Deadly or Dangerous”
Weapons, Prosecutors Say, CBS News (May 27, 2021)
(reporting that some “riot defendants said they
refrained from bringing firearms to the city that day,
citing D.C.’s strict gun laws”), https://cbsn.ws/3lxLxek.
The events of January 6 did not arise out of whole
cloth, and the circumstances that led to those events
2 See, e.g., D.C. Code § 7-2509.07 (prohibiting concealed carry
in a number of public spaces, including, the capitol, within 1,000
feet of public demonstrations, near the White House, on public
transit, or any “location or circumstance that the [Police Chief]
determines by rule”); id. at § 22-4504.1 (prohibiting open carry
throughout the District of Columbia).
26
have not vanished.
“[T]he possibility of armed
violence” arose “in the context of attempts to
intimidate election officials,” including with respect to
counting ballots in the November 2020 election. ABA
Resolution, Opposition to Guns in Polling Places (July
23, 2021), https://bit.ly/3ixjhYZ. In the days and weeks
after the 2020 election:
• Around 100 individuals in Phoenix, some
armed, protested outside a building where
officials were counting votes. Id.
• Vermont election officials received a voice
message threatening them with “execution by
firing squad.” Id.
• Armed individuals went to the home of
Michigan’s Secretary of State and shouted
obscenities. Id.
• The Arizona Secretary of State reported that
a “man called my office saying I deserve to die
and wanting to know ‘what [I was] wearing so
[I would] be easy to get.’ It was one of at least
three such threats today.” Election Officials
Under Attack, Brennan Center for Justice
(June 16, 2021), at 6.
In short, “[n]o one should be under the illusion that
this is a problem that will fade as 2020 recedes into the
rearview mirror.” Id.
A recent survey from June 2021 found that “one in
three election officials feel unsafe because of their job,
and nearly one in five listed threats to their lives as a
27
job-related concern.” Id. at 3–4. These threats of
violence coupled with the unchecked proliferation of
guns threatens a crisis in staffing elections. Id. at 5.
III. THE NEW YORK LAWS UNDER REVIEW
ADVANCE THE COMPELLING INTEREST
IN SECURING THE ELECTORAL PROCESS
AND ARE CONSISTENT WITH THE
SECOND AMENDMENT
A. New York Law Furthers the WellEstablished Compelling Interest in
Securing the Electoral Process from
Intimidation and Disruption
No constitutional right exists in a vacuum.
Rather, most constitutional rights, including the
Second Amendment, have the potential to interfere
with other fundamental rights and compelling
interests, such as the right to vote. See Heller, 554
U.S. at 626; see also Mark D. Rosen, When Are
Constitutional Rights Non-Absolute? McCutcheon,
Conflicts, and the Sufficiency Question, 56 William &
Mary L. Rev. 1537, 1555 (2015) (“[I]f rights can
conflict, then one or both rights must give way.”
(emphasis omitted)). That is why legislatures may
enact laws designed to align the coexistence of
constitutional rights with other important objectives.
Such “laws can (and do) survive” even “strict scrutiny
with considerable frequency.” Adam Winkler, Fatal in
Theory and Strict in Fact: An Empirical Analysis of
Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev.
793, 797 (2006).
28
The Constitution provides that States may
prescribe “[t]he Times, Places and Manner of holding
Elections for Senators and Representatives.” U.S.
Const. Art. I, § 4, cl. 1. Accordingly, this Court has
held that “[c]ommon sense, as well as constitutional
law, compels the conclusion that the government must
play an active role in structuring elections,” Burdick,
504 U.S. at 433, and that “substantial regulation of
elections” is necessary if elections “are to be fair and
honest and if some sort of order, rather than chaos, is
to accompany the democratic processes,” Storer v.
Brown, 415 U.S. 724, 730 (1974).
This Court has long recognized that States—in
keeping with their role as the primary guardians of
elections—have a compelling interest in preventing
voter intimidation, alleviating other disruptions that
unduly influence voters, and protecting the integrity
of the voting process. See, e.g., Burson, 504 U.S. at
199, 206 (upholding a state law that banned
electioneering near polling places against a First
Amendment challenge, and holding that states have a
“compelling
interest[]”
in
“preventing
voter
intimidation,” “protecting voters from . . . undue
influence,” and “preserving the integrity of [the]
election process”) (quotation marks omitted); Minn.
Voters All. v. Mansky, 138 S. Ct. 1876, 1887 (2018)
(confirming that states have a compelling interest in
preserving the voting booth as “an island of calm in
which voters can peacefully contemplate their choices”
and ensuring “that partisan discord not follow the
voter” into a “polling place”) (quotation marks
omitted); Brnovich, 141 S. Ct. at 2340 (“Ensuring that
29
every vote is cast freely, without intimidation or undue
influence, is . . . a valid and important state interest”).
Those precedents addressing the boundaries of
constitutional rights demonstrate that New York can
enact firearm regulations that serve the compelling
interest of securing the right to vote without violating
the Second Amendment. As detailed supra, the
proliferation of firearms in electoral-related spaces
threatens the right to vote, including by deterring
participation for fear of harm and violence. If states
may preserve the integrity of the electoral process by
regulating the intimidating effects of speech without
running afoul of the First Amendment, then they may
similarly do so by regulating the intimidating effects
of guns without running afoul of the Second. Guns are
deadlier than speech, easier to conceal, capable of
inflicting harm at greater distances, and can
undermine the public safety that states have a
compelling interest in protecting. See, e.g., Brigham
City v. Stuart, 547 U.S. 398, 403–04 (2006) (public
safety justified restrictions on the Fourth Amendment
right to protection of the home); New York v. Quarles,
467 U.S. 649, 655 (1984) (public safety justified
restrictions on Fifth Amendment Miranda rights);
United States v. Salerno, 481 U.S. 739, 755 (1987)
(public safety justified restrictions on the Eighth
Amendment right to bail).
The challenged New York laws promote one
compelling interest (public order) in furtherance of
securing another (the integrity of the democratic
process).
Imposing reasonable constraints on
concealed carry does not render the Second
30
Amendment a second-class right; to the contrary, it
comports with this Court’s long-held recognition that
constitutional rights may sometimes be regulated in
order to preserve and protect the electoral process.
B. New York’s Laws are Constitutionally
Permissible, But Not Required
Importantly, this case is not about any limitation
on concealed carry in the home or whether the
measures New York has adopted to regulate concealed
carry are compelled. No party, including amicus,
argues for that. Rather, this case stands only for the
point that that the Second Amendment does not
prohibit New York from passing laws tailored to local
conditions that preserve public order, public
confidence in such order, and the fundamental rights
dependent on that order—such as the fundamental
right to vote.
To be sure, New York’s concealed carry law may
not be desired by every locality nationwide. But that
is why the United States has long been home to
significant regional variation in firearm regulation:
[P]erhaps no characteristic of gun control in
the United States is as ‘longstanding’ as the
stricter regulation of guns in cities than in
rural areas. In the Founding era, many
cities—Philadelphia, New York, and Boston
prominent among them—regulated or
prohibited the firing of weapons and storage
of gunpowder within city limits, even while
the possession and use of guns and
gunpowder were permitted in rural areas.
31
Joseph Blocher, Firearm Localism, 123 Yale L. J. 82,
85 (2013). One need not even assume that guns pose
a greater risk of physical harm in urban areas to
appreciate the possibility that “urban residents have
concluded . . . that gun control will make them safer,”
or that the differences may just boil down to culture:
where “members of the rural gun culture see firearms
as a positive and beneficial part of life, members of the
urban gun culture see them as threats.” Id. at 102–03.
Variation in firearm laws is not a constitutional
defect; it is a virtue. Indeed, “even if it is impossible to
bridge gun culture and gun control culture, it is also
unnecessary.” Id. Our system of federalism is built to
encourage New York to enact regulations consistent
with the needs of New York and, in so doing, act as a
“laborator[y] for experimentation.” Fisher v. Univ. of
Tex. at Austin, 136 S. Ct. 2198, 2214 (2016). The
Constitution wisely does not require New York, with
20 million people packed into 54,000 square miles, to
pass a law suitable to Wyoming’s 580,000 people
spread out over nearly 100,000 square miles. Cf.
Galvan v. Super. Ct., 452 P.2d 930, 938 (Cal. 1969)
(“That problems with firearms are likely to require
different treatment in San Francisco County than in
Mono County should require no elaborate citation of
authority.”). Even within New York, the local officers
who assess concealed carry applications consider local
“population density” and other “geographical”
variations: “The circumstances which exist in New
York City are significantly different than those which
exist in Oswego or Putnam Counties.
Such
circumstances must be considered in the exercise of
32
the licensing officer’s discretion.” Application of
O’Connor, 585 N.Y.S.2d 1000, 1003–04 (Co. Ct. 1992).
New Yorkers may own and bear a firearm in a
variety of settings: at home, in connection with a job,
out hunting, and, when “proper cause” is shown, in
public. New York thus ensures that—given local
circumstances—the right to bear arms can coexist
with public order and New Yorkers’ right to vote
without fear of encountering firearms obtained on
“speculative or specious” grounds.
33
CONCLUSION
The judgment below should be affirmed.
Respectfully submitted,
DANIEL GROOMS
COOLEY LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
CELINA STEWART
LEAGUE OF WOMEN VOTERS
OF THE UNITED STATES
1233 20th St., NW
Washington, DC 20036
LAURA L. BIERMAN
LEAGUE OF WOMEN VOTERS
OF NEW YORK
62 Grand Street
Albany, NY 12207
CECILE M. SCOON
LEAGUE OF WOMEN VOTERS
OF FLORIDA
P.O. Box 1911
Orlando, FL 32802
ADAM S. GERSHENSON
Counsel of Record
ADAM M. KATZ
COOLEY LLP
500 Boylston St.
Boston, MA 02116
agershenson@cooley.com
(617) 937-2379
KATHLEEN R. HARTNETT
COOLEY LLP
3 Embarcadero Center
San Francisco, CA 94111
ANDREW D. BARR
COOLEY LLP
1144 15th St., Suite 2300
Denver, CO 80202
Counsel for Amicus Curiae
September 20, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.