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Abstract
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Among legal scholars, the Second Amendment to the United States Constitution[1] has received ever-increasing attention over the last decade.[2] (p.1178) (p.1179) From being ignored as "the Embarrassing Second Amendment,"[3] the Constitution's right to keep and bear arms is now discussed by the most prestigious law journals[4] and by the most important constitutional law professors.[5] Yet the increased scholarly attention paid to the Second Amendment has not been matched by commensurately increased judicial attention.
The Supreme Court in the last five years has offered dicta twice which suggest that the Court shares the academy's view of the Second Amendment as an individual right.[6] Yet the number of cases (two) which have relied on the Second Amendment to declare a law unconstitutional is no higher today than it was twenty years ago.[7] During this period, the only law which was (p.1180) even (slightly) judicially jeopardized by the Second Amendment was the federal Gun-Free School Zones Act of 1990.[8] In declaring the law outside the scope of the Congressional power over interstate commerce,[9] the Fifth Circuit suggested in passing that the law might also be problematic on Second Amendment grounds.[10] The Supreme Court, affirming the Commerce Clause holding, did not mention the Second Amendment.[11]
The story of the right to keep and bear arms under state constitutions is just the opposite. From the 1820s until the present, courts have used state constitutional rights to arms to strike down various gun control laws. Altogether, twenty weapons laws have been declared void as a result of a state right to keep and bear arms.[12] Forty-three state constitutions contain some kind of right to bear arms provision, making the right to arms among the more ubiquitous civil liberties guaranteed by state constitutions.[13] (p.1181) (p.1182) (p.1183)
Yet popular debate over gun control, which focuses intensely on the federal Second Amendment, largely neglects state constitutional provisions, provisions which are usually far more relevant to proposed state and local gun controls than the Second Amendment. Compared to the Second Amendment, legal scholarship has paid relatively little attention to state constitutional arms provisions.[14](p.1184)
This article attempts to redress the imbalance, at least a little. It examines three recent major state constitutional decisions dealing with the right to arms, in particular municipal bans or controls on so-called "assault weapons."
Language: en |