Amicus Curiae Brief — Nathan Cooper, Petitioner v. United States

No. 24-5381

IN THE

Supreme Court of the United States

_________________________________________________

NATHAN COOPER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Cynthia Fleming Crawford

Counsel of Record

Lee A. Steven

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-2227

(571) 329-1716

ccrawford@afphq.org

lsteven@afphq.org

Counsel for Amicus Curiae

September 23, 2024

QUESTION PRESENTED

Whether the Court should overrule the frisk

holding of Terry v. Ohio, 392 U.S. 1 (1968), which allows police officers to search people absent probable

cause to arrest.

i

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. I

TABLE OF AUTHORITIES .............................................. iii

INTEREST OF AMICUS CURIAE .......................................1

SUMMARY OF ARGUMENT ..............................................1

ARGUMENT....................................................................2

I.

THE FOURTH AMENDMENT IS A SHIELD

AGAINST THE UNBRIDLED, ARBITRARY

EXERCISE OF THE POLICE POWER. .......................2

A. The Fourth Amendment protects

against all physical invasions of

people and their property. .......................3

B. A trespass without probable cause or

a particularized warrant violates the

common law core of the Fourth

Amendment. .............................................7

II.

THE COURT SHOULD GRANT THE PETITION

BECAUSE TERRY V. OHIO WAS WRONGLY

DECIDED AND VIOLATES THE COMMON LAW

CORE OF THE FOURTH AMENDMENT. ................ 13

CONCLUSION ............................................................... 15

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Boyd v. United States,

116 U.S. 616 (1886) .......................................... 8–10

Byrd v. United States,

584 U.S. 395 (2018) ............................................ 3, 6

Carpenter v. United States,

585 U.S. 296 (2018) .................................. 3, 4, 8, 10

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765).................................. 7

Dunaway v. New York,

442 U.S. 200 (1979) .............................................. 12

Florida v. Jardines,

569 U.S. 1 (2013) ................................................ 4, 6

Henry v. United States,

361 U.S. 98 (1959) .......................................... 10, 11

Horton v. Goose Creek Indep. Sch. Dist.,

690 F.2d 470 (5th Cir. 1982) ............................... 5–6

Hudson v. Michigan,

547 U.S. 586 (2006) ............................................ 4–5

Katz v. United States,

389 U.S. 347 (1967) ................................................ 3

Payton v. New York,

445 U.S. 573 (1980) ................................................ 8

iii

Smith v. Maryland,

442 U.S. 735 (1979) ................................................ 3

Soldal v. Cook Cty,

506 U.S. 56 (1992) .............................................. 3, 6

Stanford v. Texas,

379 U.S. 476 (1964) ............................................ 7, 9

Terry v Ohio,

392 U.S. 1 (1968) .................................... 1, 5, 11–15

Union Pac. Ry. Co. v. Botsford,

141 U.S. 250 (1891) ................................................ 5

United States v. Jones,

565 U.S. 400 (2012) .................................. 4, 6, 7, 11

United States v. Knotts,

460 U.S. 276 (1983) ................................................ 6

United States v. Miller,

425 U.S. 435 (1976) ................................................ 3

Warden, Md. Penitentiary v. Hayden,

387 U.S. 294 (1967) .............................................. 11

Constitutional and Other Authorities

U.S. Const., amend. IV ......................................... 2, 4

3 Joseph Story,

Commentaries on the Constitution of the

United States (1833) ................................................ 9

James Otis,

Against Writs of Assistance (1761) ......................... 8

iv

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner. 1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit organization committed to educating and training Americans to be courageous advocates for the ideas, principles, and policies of a free and open society. Those key

ideas include the freedoms and rights protected by the

Fourth Amendment to the United States Constitution, including in particular the freedom from unreasonable searches and seizures as understood by the

original framers of the amendment. As part of its mission, AFPF appears as amicus curiae before federal

and state courts.

AFPF is committed to defending the constitutional

principles of liberty enshrined in the Bill of Rights. It

believes all Americans should be shielded from the arbitrary exercise of the police power, a principle directly implicated in the present case.

SUMMARY OF ARGUMENT

This case does not concern the authority of the police to search an individual incident to a lawful arrest.

Instead, the governmental power in question, recognized by the Court in Terry v Ohio, 392 U.S. 1 (1968),

1 All parties received timely notice of AFPF’s intent to file this

amicus curiae brief. No counsel for a party authored this brief in

whole or in part and no person other than amicus curiae or its

counsel made any monetary contributions intended to fund the

preparation or submission of this brief.

1

authorizes the police to frisk an individual they have

stopped for questioning absent probable cause that

any crime has been committed or that the individual

concerned is connected to a crime. A frisk, recognized

by the Terry court as a search within the meaning of

the Fourth Amendment, is an authorization of a physical trespass of a person on the mere suspicion that

the individual might be carrying a weapon, leaving it

to the subjective whim of the police officer whether to

conduct the frisk. The Court’s decision in Terry was

not grounded in the text of the Fourth Amendment or

the framers’ understanding of the amendment’s scope.

In fact, the holding directly contradicts the protections

enshrined in the Fourth Amendment. The Court

should grant the Petition so that it may revisit the

Terry frisk doctrine and overturn it.

ARGUMENT

I. THE FOURTH AMENDMENT IS A SHIELD AGAINST

THE UNBRIDLED, ARBITRARY EXERCISE OF THE POLICE POWER.

The Fourth Amendment to the U.S. Constitution

lies at the heart of individual liberty, privacy, and the

protection of private property. In full, it provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

The fundamental purpose of the Fourth Amendment is “to secure the privacies of life against arbitrary power . . . [and] to place obstacles in the way of

2

a too permeating police surveillance.” Carpenter v.

United States, 585 U.S. 296, 305 (2018) (cleaned up);

see Soldal v. Cook Cty, 506 U.S. 56, 69 (1992) (“What

matters is the intrusion on the people’s security from

governmental interference.”).

“Few protections are as essential to individual liberty as the right to be free from unreasonable searches

and seizures,” this Court affirmed in Byrd v. United

States, stating further that:

The Framers made that right explicit in the Bill of

Rights following their experience with the indignities and invasions of privacy wrought by general

warrants and warrantless searches that had so alienated the colonists and had helped speed the

movement for independence. Ever mindful of the

Fourth Amendment and its history, the Court has

viewed with disfavor practices that permit police

officers unbridled discretion to rummage at will

among a person’s private effects.

584 U.S. 395, 402–03 (2018) (cleaned up). But it is precisely a police officer’s “unbridled discretion to rummage at will,” not merely in a person’s home but on

the person himself, that is at issue in this case.

A. The Fourth Amendment protects against

all physical invasions of people and their

property.

Beginning with Justice Harlan’s concurrence in

Katz v. United States, 389 U.S. 347 (1967), Fourth

Amendment jurisprudence became rooted in the idea

of “reasonable expectations of privacy.” See, e.g.,

United States v. Miller, 425 U.S. 435 (1976); Smith v.

Maryland, 442 U.S. 735 (1979). More recently, however, this Court has emphasized that the proper

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means to vindicate the text and purpose of the Fourth

Amendment is to return to first principles and focus

on the Amendment’s common law foundations in trespass.

The Fourth Amendment protects the “right of the

people to be secure in their persons, houses, papers,

and effects.” U.S. Const., amend. IV (emphasis added).

That text, explained the Court in United States v.

Jones, “reflects [the Amendment’s] close connection to

property, since otherwise it would have referred

simply to ‘the right of the people to be secure against

unreasonable searches and seizures’; the phrase ‘in

their persons, houses, papers, and effects’ would have

been superfluous.” 565 U.S. 400, 405 (2012).

As the Court later explained, Jones was decided

“based on the Government’s physical trespass of the

vehicle” upon which the FBI had placed a tracker.

Carpenter, 585 U.S. at 307 (emphasis added). Similarly, in Florida v. Jardines, the Court emphasized

that the Fourth Amendment “establishes a simple

baseline, one that for much of our history formed the

exclusive basis for its protections: When the Government obtains information by physically intruding on

persons, houses, papers, or effects, a search within the

original meaning of the Fourth Amendment has undoubtedly occurred.” 569 U.S. 1, 5 (2013) (cleaned up)

(emphasis added).

In his concurrence in Hudson v. Michigan, Justice

Kennedy likewise explained:

As to the basic right in question, privacy and security in the home are central to the Fourth Amendment’s guarantees as explained in our decisions

and as understood since the beginnings of the Republic. This common understanding ensures

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respect for the law and allegiance to our institutions, and it is an instrument for transmitting our

Constitution to later generations undiminished in

meaning and force. It bears repeating that it is a

serious matter if law enforcement officers violate

the sanctity of the home by ignoring the requisites

of lawful entry.

547 U.S. 586, 603 (2006) (Kennedy, J., concurring).

But it is not only protection against the physical

intrusion of one’s home or property that is central to

the Fourth Amendment. The Amendment also protects against the physical trespass of persons. Indeed,

protection against unreasonable searches or seizures

of persons arguably is the most important since the

Amendment lists “[t]he right of the people to be secure

in their persons” first among the four items expressly

included. Even the Court in Terry v. Ohio, recognized

the heighted necessity under the common law and the

Fourth Amendment of protecting persons:

This inestimable right of personal security belongs

as much to the citizen on the streets of our cities as

to the homeowner closeted in his study to dispose

of his secret affairs. For, as this Court has always

recognized, “No right is held more sacred, or is

more carefully guarded, by the common law, than

the right of every individual to the possession and

control of his own person, free from all restraint or

interference of others, unless by clear and unquestionable authority of law.’”

Terry, 392 U.S. at 8–9 (quoting Union Pac. Ry. Co. v.

Botsford, 141 U.S. 250, 251 (1891)); see Horton v.

Goose Creek Indep. Sch. Dist., 690 F.2d 470, 478 (5th

Cir. 1982) (“[S]ociety recognizes the interest in the integrity of one’s person, and the fourth amendment

5

applies with its fullest vigor against any intrusion on

the human body.”).

Thus, where there is a physical trespass or invasion—whether of “persons, houses, papers, or effects”—the question of “reasonable expectations of privacy” is not the primary test to apply in adjudicating

claims of Fourth Amendment violations. The reasonable-expectations-of-privacy test is in addition to the

core, common-law trespass test contained in the express text of the Amendment, and the former is unnecessary to address when the search or seizure in

question involves a physical trespass. As Jardines explained:

The Katz reasonable-expectations test has been

added to, not substituted for, the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the

government gains evidence by physically intruding

on constitutionally protected areas.

569 U.S. at 11 (cleaned up); see id. (“Thus, we need not

decide whether the officers’ investigation of Jardines’

home violated his expectation of privacy under Katz.

One virtue of the Fourth Amendment’s propertyrights baseline is that it keeps easy cases easy. That

the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”);

accord Jones, 565 U.S. at 406–08; Byrd, 584 U.S. at

403–04; Soldal, 506 U.S. at 64–70; United States v.

Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring).

6

B. A trespass without probable cause or a

particularized warrant violates the common law core of the Fourth Amendment.

To help make the point that the Fourth Amendment is rooted in the common law of trespass—and

applies with especial force in the context of searches

of both persons and homes—the Jones court quoted

Lord Camden’s famous opinion in Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765). See 565 U.S. at 405.

Entick was one of a series of English cases decided in

the mid-1760s that condemned the use of general warrants that had allowed the seizure of individuals, and

all of their books and papers, based on the allegation

of seditious libel for advocating political views disfavored by the Crown. This Court summarized this history and context in Stanford v. Texas:

It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and

eighteenth centuries. In Tudor England officers of

the Crown were given roving commissions to

search where they pleased in order to suppress and

destroy the literature of dissent, both Catholic and

Puritan. In later years warrants were sometimes

more specific in content, but they typically authorized the arrest and search of the premises of all

persons connected with the publication of a particular libel, or the arrest and seizure of all the papers

of a named person thought to be connected with a

libel. It was in the context of the latter kinds of

general warrants that the battle for individual liberty and privacy was finally won—in the landmark

cases of Wilkes v. Wood and Entick v. Carrington.

7

379 U.S. 476, 482–83 (1964); see Carpenter, 585 U.S.

at 303 (“The Founding generation crafted the Fourth

Amendment as a response to the reviled general warrants and writs of assistance of the colonial era, which

allowed British officers to rummage through homes in

an unrestrained search for evidence of criminal activity.”) (cleaned up); Payton v. New York, 445 U.S. 573,

583 n.21 (1980) (“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils

that motivated the framing and adoption of the

Fourth Amendment.”). 2

In Boyd v. United States, this Court quoted the

judgment of Lord Camden in Entick verbatim and at

length. It characterized the case “as one of the landmarks of English liberty,” 116 U.S. 616, 626 (1886),

and further explained its importance to the U.S. Constitution:

[Lord Camden’s judgment] was welcomed and applauded by the lovers of liberty in the colonies as

well as in the mother country. It is regarded as one

of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time.

As every American statesmen, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English

freedom, and considered it as the true and

2 Cf. James Otis, Against Writs of Assistance (1761) (“Now one of

the most essential branches of English liberty is the freedom of

one’s house. A man’s house is his castle; and whilst he is quiet,

he is as well guarded as a prince in his castle. This writ, if it

should be declared legal, would totally annihilate this privilege.”).

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ultimate expression of constitutional law, it may

be confidently asserted that its propositions were

in the minds of those who framed the Fourth

Amendment to the Constitution, and were considered as sufficiently explanatory of what was meant

by unreasonable searches and seizures.

Id. at 626–27; see 3 Joseph Story, Commentaries on

the Constitution of the United States § 1895 (1833) (the

Fourth Amendment “seems indispensable to the full

enjoyment of the rights of personal security, personal

liberty, and private property. It is little more. than the

affirmance of a great constitutional doctrine of the

common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the

subject of general warrants almost upon the eve of the

American Revolution.”); Stanford, 379 U.S. at 486

(“Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day.

The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which

Lord Camden might find hard to understand. But the

Fourth and Fourteenth Amendments guarantee to

John Stanford that no official of the State shall ransack his home and seize his books and papers under

the unbridled authority of a general warrant—no less

than the law 200 years ago shielded John Entick from

the messengers of the King.”).

In further explaining the relevance of Entick in the

American context, the Boyd court explained that, although the searches and seizures at issue in Entick

had been violent, that was not the essence of the violation. Rather, it was the unjustified physical trespass of a person and his property:

9

The principles laid down in this opinion affect the

very essence of constitutional liberty and security.

. . . [T]hey apply to all invasions on the part of the

government and its employes [sic] of the sanctity

of a man’s home and the privacies of life. It is not

the breaking of his doors, and the rummaging of

his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right

of personal security, personal liberty and private

property, where that right has never been forfeited

by his conviction of some public offence,—it is the

invasion of this sacred right which underlies and

constitutes the essence of Lord Campden’s judgment.

116 U.S. at 630 (emphasis added); see Carpenter, 585

U.S. at 303 (“The basic purpose of this Amendment,

our cases have recognized, is to safeguard the privacy

and security of individuals against arbitrary invasions by government officials.”) (cleaned up); Henry v.

United States, 361 U.S. 98, 100–01 (1959) (“The requirement of probable cause has roots that are deep

in our history. The general warrant, in which the

name of the person to be arrested was left blank, and

the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of

allowing the police to arrest and search on suspicion.

Police control took the place of judicial control, since

no showing of ‘probable cause’ before a magistrate was

required. [The colonies] rebelled against that practice . . . [and] [t]hat philosophy later was reflected in

the Fourth Amendment. And as the early American

decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even

strong reason to suspect was not adequate to support

10

a warrant for arrest. And that principle has survived

to this day.”) (footnotes omitted).

Thus, the meaning of Entick, and the numerous

Supreme Court cases since then that have hearkened

back to it to explain the Fourth Amendment, is that

government acts illegitimately when, without a

proper nexus to an actual crime or alleged wrongdoing

(that is, probable cause), or a properly particularized

warrant, 3 it intrudes on an individual or his property

in an attempt to find or secure evidence. See Jones,

565 U.S. at 408 n.5.

In such circumstances, there is no need to assess

whether a plaintiff’s reasonable expectations of privacy have been violated or any other standards are

applicable because the protections identified in the

Constitution—the supreme law of this Republic—are

immediately applicable. Cf. Henry, 361 U.S. at 102 (“It

is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set

by the Constitution protects both the officer and the

citizen.”); Terry, 392 U.S. at 39 (Douglas, J., dissenting) (“Until the Fourth Amendment, which is closely

allied with the Fifth, is rewritten, the person and the

effects of the individual are beyond the reach of all

government agencies until there are reasonable

3 See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U.S. 294,

309 (1967) (“But if its rejection [of the ‘mere evidence’ rule] does

enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of ‘a neutral and detached magistrate.”); Henry, 361 at

100 (“[I]t is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except ‘upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to

be seized.”).

11

grounds to believe (probable cause) that a criminal

venture has been launched or is about to be

launched.”).

The Fourth Amendment, in other words, precludes

any intrusion or trespass unless the government can

justify its action with probable cause. Mere suspicion,

even strong suspicion, is not enough. This Court summarized this core of the Fourth Amendment in Dunaway v. New York:

The requirement of probable cause has roots that

are deep in our history. Hostility to seizures based

on mere suspicion was a prime motivation for the

adoption of the Fourth Amendment, and decisions

immediately after its adoption affirmed that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest. The familiar threshold standard of

probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the reasonableness

requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary

to the implementation of a workable rule.

442 U.S. 200, 213 (1979) (cleaned up); cf. Terry, 392

U.S. at 37 (Douglas, J., dissenting) (“In other words,

police officers up to today have been permitted to effect arrests or searches without warrants only when

the facts within their personal knowledge would satisfy the constitutional standard of probable cause. . . .

The term ‘probable cause’ rings a bell of certainty that

is not sounded by phrases such as ‘reasonable suspicion.’ Moreover, the meaning of ‘probable cause’ is

deeply imbedded in our constitutional history.”).

12

II. THE COURT SHOULD GRANT THE PETITION BECAUSE TERRY V. OHIO WAS WRONGLY DECIDED

AND VIOLATES THE COMMON LAW CORE OF THE

FOURTH AMENDMENT.

The Petition presents a compelling argument for

why this particular case presents the Court with an

appropriate opportunity to revisit Terry v. Ohio and

thus why it should grant certiorari here. Amicus curiae AFPF agrees with that presentation and adds its

support to it. In further support of the Petition, AFPF

notes the following.

Terry v. Ohio expands the right of the government

over and against—and at the expense of—the right of

individuals to be secure from governmental intrusion.

It expressly found that the police frisk at issue was a

search within the meaning of the Fourth Amendment

and conducted without probable cause, Terry, 392

U.S. at 15–19, 4 and yet it nevertheless found the practice (both generally and in Terry) to be constitutional

under a totality of the circumstances test. Id. at 20–

31. For the expansion of such government power to the

detriment of individual freedom, the opinion is notable for its failure to ground its holding in a rigorous

examination of the meaning of the Fourth Amendment’s text, its historical context, or the framers’ intent. Indeed, the Court made a virtue of its failure,

explaining that “[g]iven the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman’s

4 See, e.g., Terry, 392 U.S. at 19 (“We therefore reject the notions

that the Fourth Amendment does not come into play at all as a

limitation upon police conduct if the officers stop short of something called a ‘technical arrest’ or a ‘full-blown search.’”).

13

power when he confronts a citizen without probable

cause to arrest him.” Id. at 16.

It is therefore unclear on what ground, other than

the majority’s preferred policy outcome, the Court

made its decision. Indeed, in his dissent, Justice

Douglas found the majority opinion unfathomable:

But it is a mystery how that ‘search’ and that ‘seizure’ can be constitutional by Fourth Amendment

standards, unless there was ‘probable cause’ to believe that (1) a crime had been committed or (2) a

crime was in the process of being committed or

(3) a crime was about to be committed. . . . We hold

today that the police have greater authority to

make a ‘seizure’ and conduct a ‘search’ than a

judge has to authorize such action. We have said

precisely the opposite over and over again.

Id. at 35–36; see id. at 38 (“The infringement on personal liberty of any ‘seizure’ of a person can only be

‘reasonable’ under the Fourth Amendment if we require the police to possess ‘probable cause’ before they

seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge

which would convince a reasonable man that the person seized has committed, is committing, or is about

to commit a particular crime.”).

In addition, it appears the Terry court not only ignored the common-law principles at the core of the

Fourth Amendment but relied to some degree on its

then recently announced “expectations-of-privacy”

test. See id. at 9 (noting that the Court “recently held

that the Fourth Amendment protects people, not

places, and wherever an individual may harbor a reasonable expectation of privacy, he is entitled to be free

14

from unreasonable governmental intrusion.”) (cleaned

up); id. at 34 (Harlan, J., concurring) (the circumstances justified the police officer’s “right to interrupt

Terry’s freedom of movement and invade his privacy[.]”); id. at 31 (“Mr. Justice Black concurs in the

judgment and the opinion except where the opinion

quotes from and relies upon this Court’s opinion in

Katz v. United States and the concurring opinion in

Warden v. Hayden.”).

But as outlined above, where there is a physical

invasion by the police of a person’s body, reliance on

expectations of privacy to the exclusion of the common

law of trespass is not warranted. The Fourth Amendment protects both person and places against trespass, and expectations of privacy are superfluous

when the police physically invade the person or his

property. Absent probable cause or a particularized

warrant, such intrusions categorically are prohibited.

Terry v. Ohio misapplied and misunderstood the

full scope of the protections afforded by the Fourth

Amendment. This Court should revisit that holding

and reaffirm the Amendment’s core common-law

foundations.

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition.

Respectfully submitted,

Cynthia Fleming Crawford

Counsel of Record

Lee A. Steven

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

15

Arlington, VA 22203

(571) 329-2227

(571) 329-1716

ccrawford@afphq.org

lsteven@afphq.org

Counsel for Amicus Curiae

September 23, 2024

16