The (new) new judicial federalism: state constitutions and the protection of the individual right to bear arms.

• Author: de Leeuw, Michael B.
• Position: Introduction through I. A Fine Mess: The Post-Heller/McDonald World, p.1449-1474 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. A Fine Mess: The Post-Heller/McDonald World A. What Is the Scope of the Second Amendment Post-Heller? B. Uncertainty Regarding the Scope of the Second Amendment Is Disappointing Whether One Is Pro-Gun Rights or Pro-Gun Control C. Heller and McDonald Have Left Open Many More Questions Than They Have Answered 1. What Is the Proper Standard of Review for Gun Control Laws? 2. Which Laws, if Any, Limiting Gun Rights Are Constitutional? II. Can State Constitutions Offer Better Clarity About Gun Rights? A. State Constitutions and the Right to Keep and Bear Arms B. What Would a Particularly Pro-Gun Rights State Constitutional Provision Look Like? C. Potential Sources of Federal Law that Could Counteract State Constitutional Provisions D. Current Federal Laws that Would Limit the Ability for a State to Grant Broad Gun Rights Through Its State Constitution E. If a State Did Amend Its Constitution, What Deference Would Other States Have to Pay to Constitutional Provisions of Sister States on, E.g., Carry Laws? Conclusion INTRODUCTION

Although the Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) were hailed as watershed moments for the gun rights movement as they resolved two major uncertainties, these cases also created scores of additional important questions regarding the scope of the protections that the Second Amendment affords. No one currently has any firm idea about who the Second Amendment protects, what the Second Amendment protects, where those protections exist, and--to the extent that they do exist--why they exist. Without question, we are at the very beginning of Second Amendment jurisprudence; the precise rights guaranteed by the Second Amendment will be debated, litigated, appealed, interpreted, redebated, re-litigated and re-appealed for the next generation. There likely will be important Supreme Court opinions written on the Second Amendment by Justices who currently are still in high school, choosing prom dresses, or learning how to drive.

In the face of this uncertainty, an old idea, formerly championed by quite a different side of the political spectrum, may be of some use to the pro gun lobby in its desire to expand--or at least define the scope of--gun rights. A consequence of Heller's holding that the right to bear arms is an individual as opposed to a collective right is that state constitutions can at least theoretically confer greater protections of individual gun rights than the federal Constitution--though state constitutions cannot go below the guarantees afforded by the Second Amendment. (3) The idea that the federal Constitution creates a floor but not a ceiling for individual rights was called "the new judicial federalism" when it took root in the mid-twentieth century. (4)

This Article, which is based on my portion of the panel discussion at the Fordham Urban Law Journal Symposium on Gun Control and the Second Amendment on March 9, 2012, begins with an overview of the post-Heller/McDonald world, arguing that there is no consensus on what rights the Second Amendment confers and analyzing the possible scopes of the Second Amendment. The second part of this Article examines the new judicial federalism to see if there is any potential for state constitutions to define, in a more substantial way, which rights are conferred by state constitutional gun rights provisions; and examines how, in the face of the Supremacy Clause, a state could confer greater individual gun rights than the federal Constitution.

1. A FINE MESS: THE POST-HELLER/MCDONALD WORLD

Although the Supreme Court's ruling in Heller has been analyzed ad nauseam in the popular press, in law review articles, and by the lower courts, (5) there are a few key points that bear repeating. First, although Heller is, and will remain, the lodestar for Second Amendment jurisprudence, the Court in essence decided one--and only one--major issue: it determined that the right to keep and bear arms is an individual--not a collective--right. Beyond that, the Court did little to delineate the scope of that individual right to bear arms.

In reaching the conclusion that the Second Amendment's right to keep and bear arms is an individual right, Justice Scalia attempts to chart the purpose and "core" of the Second Amendment. The opinion, at the outset, analyzes the use of the term "the people" in the Second Amendment and concludes that its use leads to the "strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." (6) The opinion gradually buttresses this conclusion with additional historical evidence, including analogous state provisions, (7) drafting history, (8) and various post-ratification sources. (9)

In attempting to determine the "core" of the Second Amendment, Justice Scalia engages in a classic process of selective (10) reasoning. Starting with his "strong presumption that the Second Amendment right is exercised individually," (11) he then concludes that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." (12) The opinion then states that "the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons,'" and that certain historical sources support the idea that keeping arms was meant to be "an individual right unconnected with militia service," (13) and that in other historical sources "'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia." (14)

Taken together, Justice Scalia concludes that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." (15) In a pivotal passage of the opinion, Justice Scalia writes, "the inherent right of self-defense has been central to the Second Amendment right." (16) In this light, the District of Columbia's prohibitions never stood a chance, as they "extend[ed], moreover, to the home, where the need for defense of self, family, and property is most acute." (17) The opinion concludes that "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to "keep" and use for protection of one's home and family,' [i.e., a handgun] would fail constitutional muster." (18)

Justice Scalia takes this point even further, stating that because "handguns are the most popular weapon chosen by Americans for self-defense in the home, ... a complete prohibition of their use is invalid." (19) Putting aside (for the moment) the selective historical analysis and the fact that handguns were not in popular use in the founding era and would have been radically impractical as instruments for defending homes and families, the holding in the Heller case is actually quite narrow:

[T]he District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. (20) The majority reasons that, because the District of Columbia prevented Dick Heller from having an operable handgun in his home for the purposes of self-defense, it violated the Second Amendment. But this assessment says very little about what the Second Amendment actually means; it only defines one extreme case on the margins. (21) In fact, the Heller Court makes clear that even this narrow holding is not a complete and correct statement of the law. Rather, the majority opinion excludes at least two areas from even this "core" Second Amendment coverage:

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (22) This statement is, itself, problematic. For example, bans on possession by convicted felons did not come into existence until the twentieth century and are therefore not clearly long-standing. (23) Indeed...