Independence Institute amicus brief in Newsom v. Albermarle




RECORD NO. CA 03-1125


ALAN NEWSOM, a minor by and through FRED NEWSOM, his Parent and Next Friend, APPELLANT


ALBEMARLE COUNTY SCHOOL BOARD, by and through its School Board Members: CHARLES M. WARD, PAM MOYNIHAN, GORDON WALKER, KEN C. BOYD, STEPHEN H. KOLESZAR, DIANTHA H. MCKEEL, GARY GRANT, In their Official Capacities; KEVIN CASTNER, In his Official Capacity, as Division Superintendent, of the Albemarle County Public School System;

RUSSELL L. JARRETT, In his Official Capacity, as Principal, of Jack Jouett Middle School; BETTY PITT, both in her Individual Capacity and in her Official Capacity as Vice Principal, of Jack Jouett Middle School, Jointly and Severally,







Appellees' policy is unconstitutional because it is fails the Fourteenth Amendment's rational basis test. The policy is irrational because censorship of speech promoting safe and lawful youth participation in the shooting sports is inconsistent with Appellees' purported objective of preventing illegal gun misuse. The policy also fails the rational basis test because the policy's purpose is based on an illegitimate objective of suppressing speech about the exercise of constitutional rights.


I. To be Constitutional, the District's Policy Must be Rationally Related to a Legitimate Government Purpose

Appellant has brought a claim that Appellees are violating the Fourteenth Amendment. Assuming arguendo that the Appellees' sincere objective in censoring Appellant's speech is the prevention of illegal violence involving weapons at school, the district's censorship policy is irrational. The message conveyed by Appellant's speech was the promotion of youth participation in shooting sports, activities, such as those conducted by the National Rifle Association. These activities are wholesome and constructive, and promote just the opposite of criminal violence.

Hypothesize that the First Amendment were completely inapplicable in school settings, and that a school district adopted a censorship policy forbidding expression "promoting racial violence." Further hypothesize that the school district threatened to suspend a student because he wore a t-shirt with the words "Dr. Martin Luther King, Jr." and drawings of Dr. King speaking in three different poses.

Even without the First Amendment, the school district's censorship of the Martin Luther King t-shirt would be unconstitutional as a violation of the Fourteenth Amendment's equal protection clause, because the policy would be irrational.

The Fourteenth Amendment's rational basis test "is not a toothless one." Mathews v. De Castro, 429 U.S. 181, 185 (1976). See also Romer v. Evans, 517 U.S.620 (1996)(anti-gay rights ballot initiative fails rational basis test); Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (zoning regulations are irrational because they do not achieve their asserted, legitimate goals); Williams v. Vermont, 472 U.S. 14 (1985)(tax credit for purchasers of out-of-state cars is irrational); Hooper v. Barnalillo County Assessor, 472 U.S. 612 (1985) (tax exemptions based on date of residency is irrational); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 883 (1985) (tax preference to domestic insurance industries is irrational); Zobel v. Williams, 457 U.S. 55 (1982) (payment to state residents based on length of residence is irrational).

Of particular significance is Cleburne v. Cleburne Living Center, a case which illustrates some of the analytic techniques a court may use in evaluating whether a government action is "rationally related to a legitimate governmental purpose." Cleburne, at 446. The city of Cleburne had denied a special use zoning permit to a home for the mentally retarded. The Supreme Court overturned the holding of the lower federal court, and held that the mentally retarded were not a suspect or quasi-suspect class. Accordingly, the rational basis test was appropriate. In applying the rational basis test, the Court carefully examined each of the city's stated justifications for its decision. One basis—the negative attitudes and unsubstantiated fears of local residents—was found to be an illegitimate basis for government action. Id. at 448-49. The Court found other purported rationales—such as the building's location in a floodplain, potential, legal irresponsibility of the tenants, and crowding—to be inconsistent with other city actions that had allowed other group care homes to be built in floodplains, and had freely allowed construction of other group homes, such as fraternities. Id. at 449-50.


In the hypothetical case of censorship of the Martin Luther King t-shirt, the censorship for the purpose of suppressing speech promoting racial hatred and violence would be irrational. Dr. King advocated (and, by extension, a t-shirt of Dr. King also advocates) racial harmony and non-violence. Accordingly, to censor an all-American icon such as Dr. King would be unconstitutionally irrational.

Exactly the same may be said about the district's censorship of a message promoting the National Rifle Association and youth sports programs. Youth involvement in the shooting sports fosters wholesome character development that helps overcome the temptations of juvenile delinquency. Appellees would be no less irrational if they claimed that they wanted to reduce teenage pregnancy—and then carried out the policy by censoring t-shirts promoting religious youth group chastity programs.

One of the first and greatest advocates of public education in Virginia was Thomas Jefferson. In a letter, Jefferson advised his nephew:

A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the Body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.

Letter from Thomas Jefferson to Peter Carr (Aug. 19, 1785), in The Portable Thomas Jefferson 382 (Merrill D. Peterson ed., 1977).

Appellees are apparently under the misimpression that there is some kind of causal connection between lawful participation in the shooting sports and criminal violence. In fact, scholarship suggests just the opposite. Erich Fromm, one of the greatest humanistic psychologists of the twentieth century, has explained that ethical hunting is not sadistic; rather, ethical hunting promotes for nature and for life. Erich Fromm, The Anatomy Of Human Destructiveness 155-63 (1992).

Fromm's views here reflect the scientific mainstream. Psychologist James Swan notes that that no major psychologist of the 20th century claims that ethical hunting encourages violence against human; rather, the consensus is that hunting fosters respect for life and ecological conservation. James Swan, The Sacred Art Of Hunting16 (2000).
In one of the classic books of sociobiology, Melvin Konner—a psychiatrist and anthropologist—explains that there is no correlation between interspecies aggression (such as hunting) and intraspecies aggression (such as criminal violence). Melvin Konner, The Tangled Wing 203 (1982).

University of Nebraska-Omaha Professor Chris Eskridge examined the relationship between hunting license sales and levels of violence. Professor Eskridge found that the relationship was inverse: the more hunting licenses sold, the lower the rates of violent crime. Christopher Eskridge, "Zero-Inverse Correlation Between Crimes of Violence and Hunting Licenses In The United States," Sociology & Social Res.55 (1986).

Ronald Stephens, director of the National School Safety Center (which was created in l984 to study school violence), states: "The notion that anyone who hunts is violent is nonsense. . . . There is no reason in my view to condemn hunting." Lance Morrow, "Should Kids Hunt?" Time, Nov. 30, 1998. Terri Royster, a FBI Academy instructor on juvenile violence, agrees that no research that links hunting and violence against humans. Id.

NRA and other youth shooting sports programs teach the skills which are the foundation of successful participation in sports, at a recreational or competitive level. In particular, these include quiet concentration, focus, and physical coordination. Compared to many other sports, raw strength and reflexes are relatively less important. The shooting sports are virtually the only intercollegiate sports in which males and females participate on the same team.

The President's Council on Physical Fitness has developed the Presidential Sports Award Program, which is administered by the Amateur Athletic Union. The program encourages Americans aged six years and up to earn awards by completing a certain amount of activity in various sports. A person who successfully completes the challenges will receive

1) A personalized certificate of achievement with facsimile signature of the current President of the United States.
2) Letter of congratulations from the Executive Director of the President's Council on Physical Fitness and Sports.
3) A blazer patch (embroidered emblem) signifying the sport/activity in which the award was earned.

Amateur Athletic Union U.S.A., "The President's Sports and Fitness Awards
Program" < >.

Among the sports for which a participant can earn awards are Pistol (fire at least 2,000 rounds; no more than 100 rounds credited daily; various minimum distances for various pistol types); Rifle (same rules as pistol; various minimum distances); and Skeet-Trap (fire at 800 targets, no more than 50 credited per day). Id. Appellees' policy would punish students who display the blazer patch they earn for participation in The President's Sports and Fitness Awards Program. Students could also be punished for displaying their achievement certificate from the from the President of the United States.

Another government program which encourages character-building youth participation in the shooting sports is the 4-H Clubs, which were created by the United States Department of Agriculture's Cooperative Extension Service. The clubs' name comes from the objective of the clubs, which is:

Head: thinking critically, solving problems; Heart: respecting self, others, and the environment, communicating; Hands: preparing for a career, serving others; Health: choosing healthy lifestyles, managing change and challenges.

National 4-H, "What is 4-H? The joy of 4-H is seeing young people grow through their accomplishments" < > (punctuation inserted for clarity).

The 4-H Clubs sponsor an extensive array of programs designed to teach young people how to use firearms safely, as detailed on the 4-H Shooting Sports website. < > . 4-H Shooting Sports explains that

Our programs are valuable for helping young people develop self-confidence, personal discipline, responsibility, teamwork, self esteem and sportsmanship. The discipline and self-control required for responsible firearms use carries over into many other aspects of life….

The 4-H shooting sports program is designed to teach good self-concept and character, and to promote the highest standards of safety and ethical behavior.

National 4-H Shooting Sports Committee, "Kids 'n' Guns" (Position Statements)(2002) < > .

Appellees' irrationally overbroad policy would punish students for wearing clothing or patches from the 4-H's shooting safety programs—even though such programs are sponsored by a non-profit organization carrying out a program for the United States government. See "National 4-H Shooting Sports Order Form" (2002) < >.

The Boy Scouts promote youth participation in shooting sports and shooting safety programs. See Boy Scouts of America, National Council, "Guns and Firearms" in Guide to Safe Scouting, sect. VIII, < >.

According to the Olympic Charter:

The goal of Olympism is to place everywhere sport at the service of the harmonious development of man, with a view to encouraging the establishment of a peaceful society concerned with the preservation of human dignity. To this effect, the Olympic Movement engages, alone or in cooperation with other organizations and within the limits of its means, in actions to promote peace….
The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.

International Olympic Committee, "Fundamental Principles," Olympic Charter8-9 (2001) <>

The sport which best fulfills these peaceful Olympic ideals is shooting. Shooting sports were part of the first modern Olympics in 1896, and today there are 18 different shooting sports in the Summer Olympics (including the shooting event in the Modern Pentathlon), and 8 biathlon (shooting plus cross-country skiing) events in the Winter Olympics. In both the Summer and the Winter Olympics, more nations participate in the shooting sports events than in any other. After all, not every poor nation can afford to build a speed skating practice rink, but the equipment for sport shooting and target range is much more affordable.

Notably, the International Paralympics feature 16 shooting sport events.

International Paralympic Committee, Rulebook—Shooting11-12 (2002) < >

Appellees' policy makes it illegal for a student to wear a jacket patch supporting our nation's Olympic competitors from the United States Shooting Team, or to carry a notebook with a cover depicting a Paralympic shooter in a wheelchair. Indeed, many other Olympic depictions are likewise censored, since so many Olympic sports involve the use of ancient or modern "weapons", such as archery, boxing, discus, fencing, hammer throw, and javelin.

The President's Council on Physical Fitness, the 4-H Clubs, the Boy Scouts, the Olympics, the Paralympics: these are the organizations whose displays must be driven out of public schools, according to Appellees' perverse and irrational policy. It is quite plainly irrational to prohibit student clothing with messages which extol programs like the Olympics and others which promote peace and good character through sports.

There is an undeniably a significant problem in the United States involving illegal gun violence. However, responsible shooting sports programs, including those run by the NRA, promotes just the opposite. Such programs foster a culture of conscientious safety regarding firearms. It is irrational for Appellees to attempt to prevent irresponsible behavior involving firearms by censoring speech which encourages responsible behavior. "The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." Cleburne, 473 U.S. at 446.


In Cleburne, one reason the Court found the local government's policy to be irrational was because the policy was based on prejudice against retarded people (even though retarded people were not a protected class, the Court emphasized). The government could not rely on "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable…" Cleburne, 473 U.S. at 448. To base policy on "vague, undifferentiated fears is again permitting some portion of the community to validate what would otherwise be an equal protection violation." Id. at 449.

The bigotry and irrational phobia on which Appellees' censorship is based is precisely what began the instant case. The teacher who censored Appellant's shirt (depicting lawful participation in the sport of target shooting) claimed that the shirt reminded her of Columbine (a sadistic mass murder in a high school), because guns were an element of both the shirt and the murders. This is akin to a teacher censoring a student's Beethoven shirt, because the teacher is reminded of the Holocaust, since the Holocaust and Beethoven both involve Germans.

In the instant case, Appellees' irrational prejudice is especially unacceptable, as a matter of constitutional law, because the censorship is directed against a person specifically for having exercised a constitutional right in an entirely lawful manner.

As this Court has pointed out, in an en banc decision, the Second Amendment protects an individual right: "Neither gathering in a group nor carrying a firearm are one of the major life activities under the ADA [Americans with Disabilities Act], though individuals have the constitutional right to peaceably assemble, see U.S. Const. amend. I; and to 'keep and bear Arms,' U.S. Const. amend. II." Runnebaum v. Nationsbank of Maryland, N.A., 123 F.3d 156 n. 8 (4th Cir. 1997) (en banc, plurality opinion). The state of the Virginia also guarantees Appellant's personal state constitutional right to keep and bear arms, and to hunt. Vir. Const., art. I, sect. 13; art. XI, sect. 4; see also Stephen P. Halbrook, "Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the United States," 96 W.Va. L. Rev.1 (1993)(history of the individual right to arms in Virginia and West Virginia).

It has long been established in the United States that the Second Amendment right includes the right of young people such as Appellant to train with firearms. The first American case to discuss the Second Amendment in detail explained that the right encompassed,

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree.

Nunn v. State, 1 Ga. 243, 251 (1846)(emphasis in original).

One of the major 19th century cases interpreting the Second Amendment was Andrews v. State, in which the Tennessee Supreme Court explained that the right to arms:

involves the right to practice their use, in order to attain to this efficiency. The right and use are guaranteed to the citizen, to be exercised and enjoyed in time of peace, in subordination to the general ends of civil society; but, as a right, to be maintained in all its fullness….

Andrews v. State, 50 Tenn. (3 Heisk.) 165 (1871).

Judge Thomas Cooley was the greatest constitutional scholar of the latter half of the 19th century. In his treatise The General Principles of Constitutional Law, he explained that the Second Amendment right belongs to all people, not merely to those enrolled in the militia. Moreover:

to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282 (1998, reprint of 2d ed. 1891).

"To meet for voluntary discipline in arms, observing in doing so the laws of public order" is precisely what Appellant was doing. Participating in a shooting sports camp, Appellant was acting as an especially good citizen, by going out of his way to improve his ability to exercise an important right and duty of citizenship. To attend a civic group's classes on how to be an educated voter, to attend a bar association's classes on how to serve responsibly on a jury, and to attend a NRA class on how to bear arms in a safe and responsible manner are all admirable efforts to improve one's contribution as a citizen. For a public school—an institution whose very purpose is to promote good citizenship—to punish a student for encouraging people to be better citizens is outrageous and irrational.

Respectfully Submitted,


David B. Kopel, Esq.

Independence Institute

14142 Denver West Parkway, Suite 185

Golden, CO 80401


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