League of Women Voters amicus brief in New York State Rifle & Pistol Association v. Bruen

The Supreme Court is set to hear a case involving gun rights and the Second Amendment this term, New York State Rifle & Pistol Association v. Bruen. Over at SCOTUSblog, you can see the briefs in the case. One jumped out at me this week, as it was unexpected (to me, at least!)–a brief from the League of Women Voters. Here’s the 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 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 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 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.

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