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SUPREME COURT, STATE OF COLORADO Court Address: 101 West Colfax Avenue, Suite 800 Denver, Colorado 80202 Colorado Court of Appeals Case No. 09CA1230 Opinion by Judge Hawthorne; and Sternberg concur

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Judges Taubman

District Court, EI Paso County Case No. 08CV6492 Hon. G. David Miller, District Judge
Petitioners: THE REGENTS OF THE UNIVERSITY OF COLORADO, et al.

Respondents: STUDENTS FOR CONCEALED CARRYON CAMPUS, LLC, et al.
Counsel for Amicus Curiae Second Amendment Foundation: Anne Whalen Gill, # 1461 0 Highlands Ranch Law Center, P. C. 300 Plaza Drive, Suite 310 Highlands Ranch, CO 80129 Phone Number: 303-991-5214 Fax Number: 303-991-5250 E-mail: agill@l1rlcpc.com Mikolaj T. Tempski (pro hac vice)

Supreme Court Case Number: 201 OSC344

Second Amendment Foundation 12500 NE Tenth PI Bellevue, WA 98005 (425) 454-7012 Alan Gura (pro hac vice)
Gura & Possessky, P.L.L. C. , 101 N. Columbus Street, Suite 405 . Alexandria, Virginia 22314 (703) 835.9085

BRIEF OF THE SECOND AMENDMENT FOUNDATION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

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CERTIFICATE OF COMPLIANCE The brief complies with C.A.R. 28(g) because it contains 4,120 words. The brief complies with C.A.R. 28(k) because it adopts Respondents' standard of appellate review with citation to authority; and (2) contains no citations to the record.
~.._".,~
, ...... ~~..>.,:-

Respectfully submitted: Anne Whalen Gill Highlands Ranch Law Center P.C. 300 Plaza Drive, Suite 310 Highlands Ranch, CO 80129

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TABLE OF CONTENTS Table of Authorities INTEREST OF AMICUS CURIAE I. STATEMENT OF ISSUE ADDRESSED BY AMICUS CURIAE III. STATEMENT OF THE CASE. IV. ARGUMENT A. Second Amendment Jurisprudence May Provide a Useful Framework for Analyzing the Regulation At Hand "
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1 2 3 3

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B.

The Public Carrying of Firearms for Self-Defense Is Protected By the Right to Keep and Bear Arms.. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 5 Means-Ends Standards of Review Do Not Resolve All Second Amendment Questions 1. 2. 3. Resolving Cases by Defining the Right's Core Arms Prohibitions: The Common-Use Test.

C.

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Time, Place, and Manner Restrictions. . . . . . . . . . . . . . . . . .. 13

D.

The Second Amendment Rights of Law-Abiding, Responsible Individuals Are Subject to Strict Scrutiny Review. Neither Rational Basis Nor "Reasonable Exercise" May Be Employed in Second Amendment Cases

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E.

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F.

Respondents Would Prevail Under Second Amendment Standards.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 20
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V. CONCLUSION

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TABLE OF AUTHORITIES Cases Andrews v. State, 50 Tenn. 165 (1871) Ashcroft v. ACLU, 542 U.S. 656 (2004) Cent. Hudson Gas & Elec. Corp. v. Public Servo Comm 'n, 447 U.S. 557 (1980) Citizens United V. FEC, 130 S. Ct. 876 (2010) City of Cleburne V. Cleburne Living Ctr., 473 U.S. 432 (1985) City of Las Vegas V. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971) Clark
V.

8,9

14

15

14

16

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Jeter, 486 U.S. 456 (1988)

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District of Columbia V. Heller, 128 S. Ct. 2783 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. passim Eddie's Leaf Spring Shop and Towing LLC 218 P.3d 326 (Colo. 2009) In re Brickey, 70 P. 609 (Idaho 1902) Kala dim os V. Morton Grove, 470 N.E.2d266 (Ill. 1984)
V.

Colorado Public Utilities Com 'n, 4

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iii

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Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990) McDonaldv. City of Chicago, 130 S. Ct. 3020 (2010) Nunn v. State, 1 Ga. 243 (1846) Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) People v. Morales, 935 P.2d 936 (Colo. 1997) People v. Phillips, 594 P.2d 1053 (Colo. 1979) Peruta v. County of San Diego, 2010 U.S. Dist. LEXIS 130878 (S.D. Cal. Dec. 10,2010) Plyler v. Doe, . 457 U.S. 202 (1982) Robertson v. Baldwin, 165 U.S. 275 (1897) Robertson v. City and County of Denver, 874 P.2d 325 (Colo. 1994) Romer v. Evans, 517 U.S. 620 (1996) Sklar v. Byrne, 727 F.2d 633 (7th Cir.1984)

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1, 5,6, 14, 17

8,9

12, 13

4

4

9

16

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16, 18

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IV

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State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (1988); State v. Chandler, 5 La. Ann. 489 (1850) State v. Delgado, 692 P.2d 610 (Or. 1984) State v. Reid, 1 Ala. 612(1840) State v. Rosenthal, 55 A. 610 (Vt. 1903) United States v, Carolene Products Co., 304 U.S. 144 (1938)

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'"

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United States v. Chester, _ F.3d_, 2010 U.S. App. LEXIS 26508 (4th Cir. Dec. 30,2010) United States v. Engstrum, 609 F. Supp. 2d 1227 (D. Utah 2009) United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) United States v. Miller, 307 U.S. 174 (1939) United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en bane) United States v. Williams, 616 F.3d 685 (7th Cir. 2010)

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6, 12

6, 15

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United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) Ward v. Rock Against Racism, 491 U.S. 781 (1989)

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Other Authorities
BLACK'S LAW DICTIONARY

(6th Ed. 1998)

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INTEREST OF AMICUS CURIAE The Second Amendment Foundation, Inc. ("SAF") is a non-profit educational foundation that seeks to preserve the effectiveness of the Second Amendment through educational and legal action programs. SAF's primary activities include education, research, publishing and legal action focusing on the constitutional right to privately own and possess firearms, and the consequences of gun control. SAP has over 650,000 members and supporters residing in every State of the Union, including thousands in Colorado. Among many other successful legal challenges, SAF organized, and prevailed, in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). SAP has filed numerous amicus briefs in firearm rights cases throughout the nation. The Court's interpretation of Article II, § 13 of the Colorado Constitution directly impacts SAP's organizational interests, as well as SAP's members and supporters, who enjoy exercising their right to keep and bear arms. SAP, and its members and supporters, have a substantial interest in ensuring that all people are able to exercise their firearm rights without infringement by unconstitutional regulations.

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1. STATEMENT OF ISSUE ADDRESSED BY AMICUS CURIAE While the federal Second Amendment offers a level of protection that is not necessarily coextensive with Article II, § 13, the Second Amendment secures the public carrying of arms for self-defense. To the extent that the state and federal constitutional rights are coextensive, the Court may find it useful to consider Second Amendment jurisprudence in adopting a framework for analyzing right to arms cases arising under Colorado's analogous provision. As with cases involving other constitutional provisions, Second Amendment cases are not universally resolved by application of a means-ends standard of review. While such standards of review are helpful in some cases, they are a poor fit in others. The key is to first identify the nature of the restriction imposed by the challenged law. Where the challenged law so deeply infringes on the right that it can fairly be described a contradicting a constitutional guarantee, no analysis is required to strike down the enactment. Where the law prohibits an arm, the question posed is whether the arm at issue is constitutionally-protected under the

"common use" test. If licensing standards are at issue, typical prior restraint doctrines are most relevant (e.g., objective, narrowly-defined standards must prevail, not unfettered discretion).

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Yet in other cases, arms restrictions are analyzed under either a time, place, or manner analysis based on First Amendment jurisprudence, or upon the application of a heightened level of scrutiny. Multiple recent court decisions have applied First Amendment standards to Second Amendment cases. Using this analysis, and considering Respondents' limitation of their claim to firearms possession in vehicles, the University's regulation fails. Should this Court find more merit in a means-end scrutiny framework, the appropriate standard of review in this case, were it brought under the Second Amendment, would be strict scrutiny. Lower levels of review are inapplicable in cases involving fundamental rights. This regulation cannot survive the rigors of strict, or even intermediate scrutiny. III. STATEMENT OF THE CASE Amicus adopts the Statement of the Case presented by Respondents. IV. ARGUMENT A. Second Amendment Jurisprudence May Provide a Useful Framework for Analyzing the Regulation At Hand.

Article II, § 13 of the Colorado Constitution and the Second Amendment to the United State Constitution both protect the right to keep and bear arms. However, the protections offered by each provision may not be identical. When

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analyzing provisions of the Colorado Constitution with corresponding protections in the United States Constitution, the rights protected are not necessarily coextensive. See Eddie's Lea/Spring Shop and Towing LLC v. Colorado Public

Utilities Com'n, 218 P.3d 326, 333-334 (Colo. 2009) ("[T]he Colorado Constitution provides a greater reasonable expectation of privacy than the U.S. Constitution"); People v. Phillips, 594 P.2d 1053, 1054 (Colo. 1979) ("[D]efense counsel would have us read the Fourth, Fifth, and Sixth Amendments to the United States Constitution as conferring rights which are coextensive and totally overlapping in their protection. We decline to do so.") The extent to which the rights overlap, varies by the right in question. Compare Phillips; Spring Shop; and People v. Morales, 935 P.2d936 (Colo. 1997). Yet there clearly exists an overlap between the federal and state constitutional rights to keep and bear arms. To the extent that the right to keep and bear arms is again being considered, Second Amendment standards offer a clear set of standards by which to evaluate the regulation at hand. Indeed, Petitioners acknowledge that Second Amendment frameworks come into play by invoking the "sensitive places" argument drawn from District a/Columbia 2783,2816-17 v. Heller, 128 S. Ct.

(2008), the Supreme Court's leading Second Amendment

precedent. Pet. Br. 38.
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B.

The Public Carrying of Firearms for Self-Defense Is Protected By the Right to Keep and Bear Arms.

Petitioners and their Amici erroneously argue that the right to keep and bear arms under both the state and federal constitutions does not include carrying handguns in public. See Petitioners' Brief at 16; Brady Brief at 12. At least under the Second Amendment, the right to carry a firearm outside the home is wellrecognized. Considering that the Second Amendment's language predated that of Article II, Section 13, it is fair to suppose that the Framers of the latter provision had the former in mind when drafting Colorado's analogous right. Heller observed that "Americans valued the ancient right [to keep and bear arms] ... for self-defense and hunting." Heller, 128 S. Ct. at 2801 (emphasis added). "The settlers' dependence on game for food and economic livelihood, moreover, undoubtedly undergirded ... state constitutional guarantees [of the right to arms]." McDonald, 130 S. Ct. at 3042 n.27. Hunting does not occur inside the home. And even the Heller dissenters recognized the majority to have secured a right to arms for "self-defense, recreation, and other lawful purposes." Heller, 128 S. Ct. at 2845 n.38 (Stevens, J., dissenting); id. at 2869 (Breyer, J., dissenting). Recreational firearms use typically occurs outside the home. Further, . The Second Amendment's application outside the home dates back to United

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States v. Miller, 307 U.S. 174 (1939), which remanded for further proceedings the
question of whether a sawed-off shotgun qualified as a constitutionally-protected arm. The shotgun came within federal purview because it had allegedly been transported from Claremore, Oklahoma to Siloam Springs, Arkansas, id. at 175obviously outside Miller's home, yet potentially within the Second Amendment's protection. Thus, the right to keep and bear arms applies "most notably for self-defense within the home," McDonald, 130 S. ct. at 3044 (plurality opinion) (emphasis added), "where the need for defense of self, family, and property is most acute,"

Heller, 128 S. Ct. at 2717, but not exclusively so. "[T]he Second Amendment
creates [sic] individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open [in Heller]." United

States v. Skoien, 614 F.3d 638,640 (7th Cir. 2010) (en bane) (emphasis added).
"[T]he core right identified in Heller [is] the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense." United States v. Chester, _ F.3d _,2010 U.S. App, LEXIS 26508 at *26 (4th Cir. Dec. 30, 2010)

(emphasis removed and added).

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The Supreme Court confirmed that "keep and bear," U.S. Const. amend. II, refers to two distinct concepts, rejecting the argument that "keep and bear arms" was a unitary concept referring only to a right to possess weapons in the context of military duty. "At the time of the founding, as now, to 'bear' meant to 'carry.'" Heller, 128 S. Ct. at 2793 (citations omitted). To "bear arms," as used in the Second Amendment, is to "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person." Heller, 128 S. Ct. at 2793 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)); BLACK'S LAWDICTIONARY 214 (6th Ed. 1998)); see also Heller, 128 S. Ct. at 2804 ("the Second Amendment right, protecting only individuals' liberty to keep and carry arms arms"). "[B]ear arms means at 2796. Having defined the Second Amendment's language as including a right to "carry" guns for self-defense, the Supreme Court helpfully noted several exceptions that prove the rule. Explaining that this right is "not unlimited," in that there is no right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose," Heller, 128 S. Ct. at 2816 (citations omitted), the Court
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"); id. at 2817 ("the right to keep and carry simply the carrying of arms ... " Heller, 128 S. Ct.

confirmed that there is a right to carry at least some weapons, in some manner, for some purpose. In upholding the right to carry a handgun under the Second Amendment, Heller broke no new ground. See e.g., Nunn v. State, 1 Ga. 243, 251 (1846); In re Brickey, 70 P. 609 (Idaho 1902) (Second Amendment right to carry handgun); Kelloggv. City of Gary, 562 N.E.2d 685 (Ind. 1990); State ex rel. City of .

Princeton v. Buckner, 377 S.E.2d 139 (1988); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Rosenthal, 55 A. 610 (Vt. 1903) (striking down ban on concealed carry); Andrews v. State, 50 Tenn. 165 (1871); see also State v. Delgado, 692 P.2d 610 (Or. 1984) (right to carry a switchblade knife). Petitioners erroneously suggest that Article II, § 13's limitation that "nothing herein contained shall be construed to justify the practice of carrying concealed weapons" precludes all protection for the right to bear arms. But the right to bear arms is not abrogated by recognition of the fact it may be regulated. At least in the Second Amendment context, precedent approving of the government's ability to regulate the carrying of handguns-including the concealed carrying of handguns-confirms by banning

the general rule to which it

establishes exceptions. Traditionally, "the right of the people to keep and bear arms (Article 2) is not infringed by laws prohibiting the carrying of concealed
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weapons ... " Robertson v. Baldwin, 165 U.S. 275,281-82

(1897) (emphasis

added). Bans on the concealed carrying of weapons are valid only where open carrying is tolerated. Heller discussed, with approval, four state supreme court opinions that referenced this conditional rule. See Heller, 128 S. Ct. at 2818 (discussing Nunn, 1 Ga. 243; Andrews, 50 Tenn. 165; and State v. Reid, 1 Ala. 612,616-17 (1840» and 128 S. Ct. at 2809 (citing State v. Chandler, 5 La. Ann.

489,490 (1850». More recently, a federal court upheld California's discretionary permitting system for carrying concealed handguns because California law permits unlicensed citizens to carry unloaded handguns in plain view. See Peruta v. County of San Diego, 2010 U.S. Dist. LEXIS 130878 at *15-16 (S.D. Cal. Dec. 10,2010). "[N]ot all concealed weapons bans are presumptively lawful." Id. at

Article II, § 13' s limiting statement merely confmns that the government may ban a form of carrying arms, but this regulatory exception does not swallow

'The carrying of non-functional handguns may be necessarily incidental to the keeping and bearing of arms (e.g., transporting guns to range or repair facilities), but does not constitute bearing arms, as such, within the Second Amendment's meaning. Heller, 128 S. Ct. at 2793 ("being armed and ready for offensive or defensive action in a case of conflict with another person") (emphasis added).
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the basic constitutional rule, providing that some form of carry outside the home is protected. As Petitioners' policy bans all forms of carry, it cannot be saved by the validity of a hypothetically narrower rule. C. Means-Ends Standards of Review Do Not Resolve All Second Amendment Questions.

Many Second Amendment cases may be resolved without employing a means-ends balancing standard of review. In Heller, the Supreme Court declined to adopt any "level of scrutiny" in striking down two laws-a functional firearm ban-and handgun ban and a

directing the application of a third law-· a functional

carry-permit requirement, under the Second Amendment. Washington's

firearm ban and home-carry permit scheme simply conflicted with the Second Amendment's core. The city's handgun ban failed a "common use" test for protected arms. And separately, the Court advised that the right to carry guns included an inherent time, place and manner test. These approaches warrant study. Before addressing which level of scrutiny to apply, this Court should first determine whether a level of scrutiny is required at all. And if the provision must be analyzed with reference to a standard of review, this Court should first clarify why such an approach, as opposed to the other approaches demonstrated by Heller, is to be followed.

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1.

Resolving Cases by Defining the Right's Core.

With respect to Washington, D.C. 's complete ban on the possession of functional firearms within the home, the Court offered only that the ban "makes it impossible for citizens to use [guns] for the core lawful purpose of self-defense and is hence unconstitutional." Heller, 128 S. Ct. at 2818. That law stood at the opposite end of the spectrum from "longstanding prohibitions" that "the full scope of the Second Amendment" might not reach. Id. at 2816. The Court made clear that historical analysis guided its understanding of what would lie at the right's core, and what conduct might be outside the scope of its protection. Laws conflicting with the Second Amendment right's core protections could not survive. Laws reflecting historical practices would be presumptively valid. This same process, identifying whether a regulation conflicts with a "core protection" of the Amendment without resort to interest-balancing, resolved

Heller's challenge to a requirement that he obtain an unavailable permit to move a handgun inside his horne.' The D.C. Circuit found the restriction violated the Second Amendment's core:

2Heller did not request a public-carry permit.
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It is sufficient for us to conclude that just as the District may not flatly ban the keeping of a handgun in the home, obviously it may not prevent it from being moved throughout one's house. Such a restriction would negate the lawful use upon which the right was premised-i.e, self-defense. Parker v. District a/Columbia, 478 F.3d 370,400 (D.C. Cir. 2007), aff'd sub nom,

Heller. The Supreme Court affirmed using the same approach, concluding the city had no discretion to refuse issuance of the permit: "Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must peimit him to register his handgun and must issue him a license to carry it in the home." Heller, 128 S. Ct. at 2822. 2. Arms Prohibitions: The Common-Use Test.

Heller employed a categorical, non-balancing approach to resolved the constitutionality of a handgun ban. First, "arms" as used in the Second Amendment are "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another," including "all firearms." Heller, 128 S. Ct. at 2791 (citations onritted). Second, "the sorts of weapons protected [by the Second Amendment are] those 'in common use at the time. '" Heller, 128 S. Ct. at 2817 (quoting Miller, 307 U.S. at 179). "[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Heller, 128 S. Ct. at 2815-16.

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Using this two-step approach-first,

is the object an "ann," second, would it

be expected in common use by law-abiding people-s the handgun ban was easily resolved with a categorical common-use test, not with a standard of review. Heller, 128 S. Ct. at 2818. 3. Time, Place, and Manner Restrictions.

As discussed supra, the Second Amendment tolerates bans on the concealed carrying of arms so long as open carrying is allowed, and vice-versa. The right to carry has certain inherent categorical limitations: the right is "not unlimited," as there is no right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, 128 S. Ct. at 2816. And "laws forbidding the carrying of firearms in sensitive places" are "presumptively lawful." Id. at 2817 & n.26. In other words, the act of carrying a gun is subject to a time, place, and manner regime. The D.C. Circuit had reached this conclusion explicitly. See Parker, 478 F.3d at 399 (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)). The availability of time, place and manner review in Second Amendment cases evaluating carry restrictions is confirmed by the decisions of two additional circuits explicitly adopting First Amendment frameworks for Second Amendment analysis. Chester, 2010 U.S. App. LEXIS 26508 at *24 ("we agree with those who
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advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment") (citations omitted); United States v.

Marzzarella, 614 F.3d 85, 89 n.4 (3d Cir. 2010).
D. The Second Amendment Rights of Law-Abiding, Responsible Individuals Are Subject to Strict Scrutiny Review. appropriate test does not answer

To the extent some other, more-specifically

Second Amendment questions, the appropriate means-ends standard of review in Second Amendment cases is strict scrutiny. The Second Amendment secures a fundamental right. McDonald, 130 S. Ct. at 3042 (plurality opinion) & 3059 (Thomas, J., concurring). "[C]lassifications affecting fundamental rights are given the most exacting scrutiny." Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). Under this analysis, the government carries the burden of proving the law "furthers a compelling interest and is narrowly tailored to achieve that interest," Citizens United v. FEe, 130 S. Ct. 876, 898 (2010) (citation omitted), a burden that cannot be met where less restrictive alternatives are available to achieve the same purpose. Ashcroft v. ACLU, 542 U.S. 656,666 (2004); see also United States v. Engstrum, 609 F. Supp. 2d 1227, 133132 (D. Utah 2009) (applying strict scrutiny in Second Amendment analysis).

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At least two appellate courts apply intermediate scrutiny in Second Amendment cases questioning laws of the type Heller identified as presumptively lawful. Chester, 2010 U.S. App. LEXIS 26508 at *26-27; Skoien, 614 F.3d at 641. But these courts have not reserved for peaceful, law-abiding people a lower level of review than that which is employed for violent felons, drug abusers, and other dangerous individuals arguably covered by a presumptive exception. To the contrary, the Fourth Circuit applied intermediate, rather than strict scrutiny, to a domestic violence misdemeanant only because it viewed the Second Amendment's core as reaching "law-abiding, responsible citizen[s]," Chester, 2010 U.S. App. LEXIS 26508 at *26 (emphasis original). The opinion clearly indicates that strict scrutiny must apply in Second Amendment cases involving ordinary individuals. And the Seventh Circuit has suggested overbreadth is a possible alternative mode of analysis. United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); cf United States v. Yancey, 621 F.3d 681,685 (7th Cir. 2010) ("felon-in-possession laws could be criticized as 'wildly overinclusive"'). These

determinations are consistent with the understanding that intermediate scrutiny applies to an enumerated right only under circumstances where the right's exercise is "ofless constitutional moment." Cent. Hudson Gas & Elec. Corp. v. Public Servo Comm 'n, 447 U.S. 557, 563 n.5 (1980).
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Indeed, intermediate scrutiny is not a reduced form of strict scrutiny; it is an enhanced version of rational basis review. '''[I]ntermediate' scrutiny permits us to

evaluate the rationality of the legislative judgment ... we employ this standard to aid us in determining the rationality of the legislative choice." Plyler v. Doe, 457 U.S. 202,217 n.16 (1982). This aid is invoked in "quasi-suspect" cases, City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432,442 (1985), where the government's classifications do not relate to enumerated rights or suspect classes, and would thus trigger only un-enhanced rational basis review in the absence of intermediate scrutiny's boost. Romer v. Evans, 517 U.S. 620, 631 (1996). This Court has previously rejected a lower court's application of strict scrutiny based on the determination that the right to keep and bear arms was fundamental. Robertson v. City and County of Denver, 874 P.2d 325 (Colo. 1994). This Court decided not to overtly reach the question of whether the right was fundamental, but by default found that it was not. At the time of that decision, however, it was not yet definitively established in case law that the Second Amendment right to keep and bear arms is fundamental to the American scheme of justice. Indeed, Robertson relied in part on at least two cases that have been explicitly or implicitly disapproved of by the Supreme Court: Kalodimos v.
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Morton Grove, 470 N.E.2d 266 (Ill. 1984), disapproved of as guidance in the Second Amendment context, McDonald, 130 S. Ct. at 3047; and Sklar v. Byrne, 727 F.2d 633 (7th Cir.1984), upholding the Chicago handgun ban struck down in McDonald, on a rationale squarely contradicted by McDonald's right to arms is fundamental. Regardless of whether Robertson correctly applies Article II, § 13 of the Colorado Constitution, its analysis would be incompatible with the modem law of the Second Amendment. teaching that the

E.

Neither Rational Basis Nor "Reasonable Exercise" May Be Employed in Second Amendment Cases.

The Supreme Court has made clear that the rational basis test "could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double
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jeopardy, the right to counsel, or the right to keep and bear arms." Heller, 128 S. Ct. at 2818 n.27 (citing United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (193 8) (emphasis added)). "If a rational basis were enough, the Second Amendment would not do anything." Skoien, 614 F.3d at 641. "[R]ational-basis review ... has been rejected by Heller." Chester, 2010 U.S. App. LEXIS 26508 at *17.

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While the "reasonable exercise" or "reasonableness" tests as set forth by Petitioners and their amici are not federal standards, neither could be utilized in a Second Amendment context as these do not appear very different from the impermissible rational basis test. Petitioners assert, for example, that "[t]here can be no doubt that an ordinance, intended to prevent crime, serves a legitimate governmental interest sufficiently strong to justify its enactment." Pet. Br. 49 (citing Robertson, 874

P.2d at 332); see also Pet. Br. 53. Under this line of reasoning, any law intended to limit crime would be constitutional. After all, the government would never , claim that any of its laws was enacted with anything but a benevolent purpose. Were that assertion of good intentions sufficient to defeat the limitations on government power set out by the enumeration of a fundamental right, it would be pointless to constitutionally enshrine any rights. F. Respondents Would Prevail Under Second Amendment Standards.

Petitioners complain that were Respondents to prevail, "accused criminals could routinely demand that the state provide a factual justification supporting the enactment of the criminal statutes under which they are charged, whether involving firearms possession or otherwise." Pet. Br. at 50. But why should the state not be forced to justify the criminalization of conduct that is affected with a
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constitutionally-secured

interest? After all, since the people enjoy a right to keep

and bear arms, it should not be too much to ask of the government to prove that criminal enactments touching upon the right to keep and bear arms are consistent with the American people's traditional acceptance of this fundamental right. Indeed, were there truly a compelling state interest at stake, and were the law narrowly tailored to address that interest in the least restrictive possible way, it would be upheld. But the assertion of a state interest, regardless of how compelling, is not an excuse to override all constitutional checks on government power and rubber-stamp any imposition of police authority. Petitioners and their amici attack gun ownership and use as an inherently unmitigated harm and social evil, but that is not consistent with the constitutional guarantee of an individual right to keep and bear arms. Treating the right to keep and bear arms like a normal part of the Bill of Rights, instead of as a mistake, the challenged regulation cannot be upheld. It is true that unlawful shootings and gun crimes generally are incompatible with an academic setting, but then, such criminal conduct is incompatible with any setting within the state. The possible misuse of firearms does not demonstrate that the otherwise lawful, constitutionally protected use of firearms is incompatible with a given setting. The prospect of misuse cannot justify a time and place restriction, because the same logic would
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justify gun prohibition in all times and places. And under a means-ends standard of review, the challenged provisions are hardly narrowly-tailored. V. Conclusion For the foregoing reason, Amicus supports the position of the Respondents in this case.

CL_

Respectfully submitted on this 24th day of January, 2011.

/s/ Anne Whalen G· Anne Whalen Gill Highlands Ranch Law Center P .C. 300 Plaza Drive, Suite 310 Highlands Ranch, CO 80129

/s/ Mikolaj T. Tempski Mikolaj T. Tempski Second Amendment Foundation 12500 NE 10th Place Bellevue, WA 98005

/s/ Alan Gura Alan Gura Gura & Possessky, PLLC 101 N. Columbus Street, Suite 405 Alexandria, VA 22314

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of January, 2011, true and correct copies of the foregoing BRIEF OF THE SECOND AMENDMENT FOUNDATION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS were placed in the United States Mail, first class postage prepaid, addressed to the following:

Patrick T. O'Rourke (Petitioners) Margaret Wilensky, Office of University Counsel 1800 Grant Street, Suite 700 Denver, CO 80203 James M. Manley (Respondents) Mountain States Legal Foundation 2596 S. Lewis Way Denver, CO 80227 Edward T. Ramey (Amici Curiae) Isaacson Rosenbaum PC 1001 17th Street, Suite 1800 Denver, CO 80202

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Nanc~ings

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