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

• Author: de Leeuw, Michael B.
• Position: II. Can State Constitutions Offer Better Clarity About Gun Rights? through Conclusion, with footnotes, p.1474-1502 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

2. CAN STATE CONSTITUTIONS OFFER BETTER CLARITY ABOUT GUN RIGHTS?

In his seminal 1977 Harvard Law Review article, State Constitutions and the Protection of Individual Rights, Justice William Brennan persuasively argued that, although the Supreme Court had slowed down significantly in its recognition and broadening of federal civil rights, "state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law." (138) Justice Brennan noted that recent state court opinions that had expanded individual rights based on the texts of state constitutions resulted from the fact "that these state courts discern, and disagree with, a trend in recent opinions of the United States Supreme Court to pull back from, or at least suspend from the time being, the enforcement" of expansive federal constitutional rights. (139)

Justice Brennan noted that even where state constitutions recognize a substantially different right from that which the United States Constitution recognizes, "the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law." (140) That is to say, although the United States Constitution, as interpreted by the Supreme Court, necessarily establishes a floor below which no state may fall when guaranteeing individual rights, it by no means should be construed as setting a ceiling on those individual rights. (141) This recognition of the power of state constitutions came to be known as the New Judicial Federalism. (142)

As noted above, the key holding in Heller was that the right to bear arms that the United States Constitution guarantees is an individual--as opposed to a collective--right. (143) A necessary corollary to this observation is that state constitutions can, pursuant to New Judicial Federalism, confer broader individual gun rights than the United States Constitution.

Before getting too excited about the prospect of unfettered broad access to aircraft carriers and Pershing cruise missiles, one must account for the slight matter of the Supremacy Clause of the United States Constitution, which, of course, would act as a limit on a state's ability to offer the broadest possible gun right protections through its constitution. As Richard Fallon and his colleagues have noted, "the state courts are obliged under the Supremacy Clause to disregard state law if it conflicts with federal law, and that failure to do so is subject to review in the Supreme Court." (144) The Supremacy Clause provides that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (145) Of its own terms, then, the Supremacy Clause allows federal law and the U.S. Constitution to preempt not only state statutes, but state constitutions as well. Indeed, the Supreme Court has recognized this fact, not only noting that "[t]he nullity of any act ... inconsistent with the [federal] constitution is produced by the declaration, that the constitution is the supreme law," (146) but also striking down state constitutional provisions that conflict with federal laws, the U.S. Constitution, or the pronouncements of federal judges. (147)

Professor Stephen McAllister puts it well: "even if states were to recognize broader individual rights to possess and use firearms, such recognition may be rendered ineffective by the preemptive operation of federal statutory and regulatory law." (148) McAllister points out that even if a state were to amend its constitution, the amendment may lack any meaning in the face of federal constitutional and/or statutory preemption. (149) But McAllister may be overestimating the zeal with which Congress would attempt to enact gun control laws to limit the scope of state constitutional protections--the gun lobby, as we all know, is very active in trying to remove politicians who enact pro-gun-control laws. (150) That minor inconvenience, along with the current legislative paralysis in Washington, makes it less likely that a new federal law would preempt specific, broader rights written into a state constitution.

1. State Constitutions and the Right to Keep and Bear Arms

   States actually vary quite significantly in the extent to which their constitutions confer the right to bear arms. Some of the state constitutional provisions are identical (or nearly identical) to the Second Amendment; interestingly, these seem to include some of the first states, and the most recent states to enter the Union. (151) Others go quite a bit further. For example, Connecticut's constitution specifically conferred an individual right to bear arms (by contrast, of course, it took the Heller decision to determine that the Second Amendment's right to bear arms was an individual right). (152) The Connecticut constitution provides, "[e]very citizen has a right to bear arms in defense of himself and the state." (153) Kansas amended its constitution in 2010 to incorporate the individual view of the right and delineate the purposes for which the right was secured: "A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose...." (154) On the other hand, six state constitutions do not contain any reference to a right to bear arms, and citizens of those states currently can only rely on statutory and federal constitutional law. (155)

   Perhaps most importantly, a number of state constitutions go so far as to limit the right explicitly, delegating authority to the legislature to enact laws covering concealed carry or the manner in which the arms may be borne. Eight states--Colorado, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, and New Mexico--expressly allow the legislature to regulate the concealed carrying of arms. (156) An additional five states--Florida, Georgia, Oklahoma, Tennessee, and Texas--carve out a more general swath of permissible legislative regulation on how arms are "borne" or carried. (157)

   There are a number of state constitutions with built-in limitations on the right to keep and bear arms (some of which ultimately may be found to be unconstitutional if they provide for less expansive individual rights that a theoretical future Supreme Court interpretation of the Second Amendment), but could states amend their constitutions either to remove existing limitations, or dramatically to expand gun rights? Although amending the federal Constitution currently may be next to impossible as a practical and political matter, amending state constitutions may not present the same roadblocks, depending on the state. (158) This leads to another thought experiment.

2. What Would a Particularly Pro-Gun Rights State Constitutional Provision Look Like?

   The logical place to start seems to be captured in statements by the NRA's Institute for Legislative Action (NRA-ILA), the lobbying arm of the NRA. (159) The NRA-ILA relies not only on the importance to the framers that "the whole body of people always possess arms," (160) but also suggests that many gun control measures, such as licensing, assault weapons bans, and even safety-training requirements, are of little real value in comparison to the degree to which they infringe on the right--and the ability--of law-abiding citizens to possess arms. (161)

   It follows, at least according to the NRA-ILA, that the state constitutional measure most likely to preserve the right to bear arms to its maximum extent is one that prevents any of the myriad infringements and limitations on that right that have been constructed over the last two centuries. Such a proposal might look something like this:

   The State may not infringe on the individual right of any resident of the State, and all persons present therein, to keep and bear arms and weapons of any kind whatsoever for the security and defense of the person and property of one's self or of others, the common defense, hunting, recreation, or any otherwise-lawful purpose. No criminal penalty may work an infringement of the right to bear arms, and any person imprisoned shall have his full right to bear arms restored immediately upon release. The State may provide penalties for crimes committed by the unlawful use of arms, but may not provide additional penalties on the basis that a crime is committed by means of any arm. The State shall not in any way limit the right of any person to own arms for any reason; nor shall any limitation be placed on the right of any person not engaged in unlawful activity to stand one's ground and to use deadly force in defense of one's self or others if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to any person or to prevent the commission of a forcible felony; nor shall any limitations be placed on how arms may be carried in any public place or other property subject to the jurisdiction of the state, or by the proprietor of any public business. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms, and to the extent that the selling, manufacture, or use of arms occurs entirely within the state, it shall not be subject to regulation by any other authority. What is immediately striking about this proposed amendment is its length; to say the least, it lacks the pithiness of the Second Amendment to the United States Constitution. Although brevity is the soul of wit, over two centuries...