Scrutinizing 'strict scrutiny' judicial review for the right to bear arms.

AuthorBoyd, Benjamin


The Second Amendment and its state counterparts have experienced a remarkable resurgence in recent years. The Supreme Court of the United States led the way with District of Columbia v. Heller in 2008, which held that the Second Amendment protects an individual's right to possess a firearm for self-defense within the home. (1) Heller was based on the "text and history" of the Second Amendment, (2) and did not employ or establish a level of scrutiny (i.e., strict scrutiny, intermediate scrutiny, rational basis) for evaluating restrictions on the Second Amendment right to bear arms. (3) Two years after Heller, in the case McDonald v. City of Chicago, the Supreme Court of the United States considered whether the Second Amendment fully applied to the States. (4) McDonald asked whether the right to keep and bear arms is "deeply rooted in this Nation's history and tradition" and, based on a review of history and tradition, held that the "Second Amendment right is fully applicable to the States." (5) McDonald, relying on Heller, expressly rejected the argument "that the scope of the Second Amendment right should be determined by judicial interest balancing." (6) Several federal courts of appeal have followed Heller's and McDonald's textual and historical approach to the Second Amendment without applying any particular level of judicial interest balancing, further fueling the resurgence of the Second Amendment. (7)

On the state level, in spite of Heller's and McDonald's reticence to establish or apply any level of judicial scrutiny for evaluating laws that burden the Second Amendment, efforts have been made to shore up state constitutional rights to bear arms with "strict scrutiny" constitutional amendments. In 2012, the people of Louisiana passed a constitutional amendment providing that "[t]he right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny." (8) Louisiana's firearms rights amendment passed quite comfortably, by nearly a 3-to-l margin. (9) In 2014, the people of Missouri passed a constitutional amendment providing, among other things, that the rights to keep and bear arms, ammunition, and related accessories "shall be unalienable" and that any restriction of these rights would be subject to strict scrutiny. (10) The Missouri Amendment passed with a wide 60-40 margin. (11) On November 5, 2014, Alabama's voters passed the Alabama Right to Bear Arms Amendment with over 70% of the vote. (12) In Oklahoma, however, a legislative proposal for a "strict scrutiny" constitutional amendment has failed in conference committee in both the 2014 and 2016 legislative sessions. (13)

Before these States began passing "strict scrutiny" constitutional amendments for the right to bear arms, Justice Antonin Scalia gave this warning about applying various levels of judicial scrutiny to enumerated constitutional rights:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. (14) This Article is a case study that applies Justice Scalia's warning to Alabama's Right to Bear Arms Amendment and considers whether that Amendment's required strict scrutiny review subjects the right to bear arms to "future judges' assessments of its usefulness," (15) rendering Alabama's constitutional right to bear arms no guarantee at all.

Part I. of this Article evaluates what Alabama's Right to Bear Arms Amendment's promise of "strict scrutiny" review means in application and considers what level of judicial scrutiny Alabama's judges applied to the right to bear arms before the Amendment's enactment. Then, the Article examines both the good and bad that may come from the Amendment requiring strict scrutiny for laws that burden the right to bear arms. Parts II. and III. focus on the Amendment's apparent ignorance of the constitutional text and history of Alabama's right to bear arms and demonstrates what Alabama's legislators and voters missed by neglecting Heller's text and history paradigm as applied to Alabama's right to bear arms. (16) After analyzing the text of Alabama's original constitutional right to bear arms in Part II., and the history of Alabama's right to bear arms in Part III., this Article argues that Alabama's original right to bear arms secured the individual right for every citizen of Alabama to possess and carry weapons in case of armed confrontation. That original right, together with [section] 36 of Alabama's Declaration of Rights, provided much stronger protections for the right to bear arms than the Right to Bear Arms Amendment. Part IV. considers the reasons why Alabama passed the Right to Bear Arms Amendment. To answer that question, this Article examines the United Nations' Arms Trade Treaty and examines how Alabama's judges have handled the right to bear arms over the past two hundred years.

This Article concludes that Alabama did not need the Right to Bear Arms Amendment because strict scrutiny review subjects the right to bear arms "to future judges' assessments of [the right to bear arms'] usefulness," (17) which is precisely the problem that plagued Alabama's right to bear arms for nearly two centuries. Instead, Alabama needed a rigorous textual exposition and historical defense of the right to bear arms.


    1. What does Alabama's Right to Bear Arms Amendment Actually Mean?

      As amended by the Alabama Right to Bear Arms Amendment, [section] 26 of Alabama's Declaration of Rights now reads:


      1. Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.

      (b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution. (18) Alabama voters were assured that with the passage of the Alabama Right to Bear Arms Amendment, the right to bear arms would become a fundamental right, (19) receive strict scrutiny judicial review, and obtain protection from potential interference by foreign treaties and international law. (20) Voters were told that while the right would still exist if the proposed amendment failed, it would not be declared a fundamental right, might not receive strict scrutiny review, and would not be protected from international laws and treaties. (21)

      The Alabama House Republicans explained that the Right to Bear Arms Amendment would position 'Alabama to have the strongest gun ownership safeguards of any state constitution in the country" and explained that strict scrutiny "is the highest level available in the American judicial system. Overcoming strict scrutiny is difficult--if not impossible--which will protect the right of Alabamians to bear arms more than ever before." (22) Chris W. Cox of the National Rifle Association stated that the Alabama Right to Bear Arms Amendment "would strengthen the current Alabama right to keep and bear arms amendment by ensuring the highest level of constitutional protection." (23) What does the language of the Amendment mean, practically, for Alabama's people?

    2. Strict Scrutiny and the Right to Bear Arms

      The Right to Bear Arms Amendment requires Alabama's judges to apply the judge-made rule of strict scrutiny judicial review to laws that restrict the fundamental right to bear arms. As a general rule, courts presume that legislation is constitutional. (24) Under the Amendment's strict scrutiny review, legislation that burdens the right to bear arms loses that presumption of constitutionality. The Alabama Supreme Court has explained strict scrutiny: "[s]tate action that limits a fundamental right is generally subject to strict scrutiny Strict scrutiny generally requires that the state show a compelling interest, advanced by the least restrictive means." (25) Further, "[s]tatutes that infringe upon fundamental rights... 'are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.'" (26) A statute is narrowly tailored only if the statute targets and eliminates the exact problem or evil it allegedly seeks to remedy. (27) The United States Supreme Court has assured that "it is the rare case... that a law survives strict scrutiny." (28)

      The Amendment's strict scrutiny review for laws that restrict the right to bear arms may best be understood in contrast with other levels of judicial scrutiny. Under intermediate scrutiny, "[t]he proper standard of review is the 'substantial relationship' test; i.e., is the [state's] action arbitrary and unreasonable, or is it authorized and substantially related to the maintenance of the public health, safety, morals, and general welfare." (29) Under rational-basis review, which is the lowest level of judicial scrutiny, "[a] statute is constitutional under rational basis scrutiny so long as 'there is any reasonably conceivable state of facts that could provide a rational basis for the' statute." (30)

      If these three standards of judicial review (strict scrutiny, intermediate scrutiny, and rational...

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