That’s that title of a forthcoming article in a Santa Clara Law Review symposium, by Clayton Cramer and me. We examine, in detail, scores of important cases, from Bliss v. Commonwealth in 1822 up to the present. We explain which cases can provide useful guidance to modern courts which must interpret the Second Amendment (and which cases use an approach is plainly inapplicable to Second Amendment analysis, post-Heller).
Our Article also addresses Adam Winkler’s influential and well-written 2007 Michigan Law Review article, which surveyed post-WW II state cases. Our article studies a broader range of cases, and gets into more depth on those csases, so it’s 93 pages long. It was even longer until the editors changed the typeface from Century Schoolbook to Times New Roman. Here’s the abstract:
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of “reasonableness,” this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying “reasonableness,” many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of “police power,” are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.
The article is founded on the tremendous research on state cases which Clayton conducted for his 1994 book For the Defense of Themselves and the State. That book was cited by the Washington Supreme Court in its new decision State v. Sieyes.
J. Aldridge says:
I don’t know how that is possible when a state supreme court can rule one thing one year, and rule something else later. State courts can be just as mixed up about their own armsbearing amendments as can the NRA over the federal 2A.
If you want to understand state armsbearing amendments you need to read the purpose they were included in their constitutions and not what a specific court might want it to mean 100 years later.
February 18, 2010, 9:37 pmKharn says:
If that is the standard you want to use, then the right would be restricted to only white men…
February 18, 2010, 10:14 pmFederal Farmer says:
Bingo
February 19, 2010, 12:10 amState court standards of review for the right to arms | Liberal Whoppers says:
[...] link: State court standards of review for the right to arms [...]
February 19, 2010, 6:03 amohwilleke says:
As a Michigan law alumn, I speak with authority when I say that all sensible people always use Times New Roman font in law review articles, although Courier font is acceptable in pleadings filed in court by people who can’t afford decent word processors. Don’t they teach these things at other law schools?
February 19, 2010, 4:43 pmthreesmommy says:
When an airplane is used offensively to kill IRS workers in a suicide, is it an “arm” under the “right to bear arms”?
February 19, 2010, 7:15 pmbob says:
There is that pesky 14th amendment that deals with that exact issue.
But the 14th does not protect rights only for racial minorities and men. It applies them to everyone.
February 20, 2010, 9:57 amKharn says:
bob:
February 20, 2010, 12:47 pmJ. Aldridge isn’t a very big fan of the 14th Amendment, believing it means precisely zilch for expanding rights and protecting them from state infringement.
Kevin P. says:
This makes sense. The 14th Amendment was passed by a 2/3rds majority in Congress and by three quarters of the states and it was obviously meant to have no meaning at all.
February 21, 2010, 1:10 amKevin P. says:
Dave, there appears to be some duplicate text on page 52. This sentence is repeated:
February 21, 2010, 1:27 amJ. Aldridge says:
How does the 14A expand rights when Bingham said every word found under the first section can be found under the original constitution?
Me thinks it never expanded “rights” but allowed for enforcement against the organic act of a state that deprives citizens of the United States under Article IV, Section II (like Oregon did under its constitution). That is exactly what the civil rights bill of 1866 did and the loyal union states desired to protect by attaching to the constitution.
You gotta admit the entire first section is nothing more than a nullity against state action that provides zero legislative authority over anything. You know, like no state shall impair the obligation of contracts….
February 22, 2010, 5:26 amKharn says:
I would consider Congress saying the states cannot infringe anyone’s (even citizens that reside in that state) rights to be a large expansion of those rights.
February 22, 2010, 6:00 amJ. Aldridge says:
But that isn’t how P&I’s work under federalism, and Bingham clearly said doesn’t protect citizens against themselves under their own local governments.
February 22, 2010, 5:27 pmKharn says:
The 14th Amendment changed the relationship between the feds, the states and the citizens. Its like you’re complaining that I’m not following the rules to checkers, when the board between us has been laid out with chess pieces for 150 years.
February 22, 2010, 10:00 pm