State court standards of review for the right to arms

Forthcoming in a symposium issue of the Santa Clara Law Review, final version here. This 108-page article, which I wrote with Clayton Cramer, surveys the leading state constitution right to arms cases, from the Early Republic to the present. The article examines the various  standards of review that state courts have used in examining gun control laws under state constitutional right to arms provisions.

Some courts have used what, in modern terms, would be called “categoricalism.” In other words, is “X” within the right to arms or not? For example, some courts ruled that Bowie knives are not protected by a state constitutional provision because they are not the type of “arms” that the state constitution was meant to protect. The use of categoricalism is well-established in a First Amendment context (e.g., “the freedom of speech” includes political commentary, but does not include conspiracies in restraint of trade), and categoricalism is among the First Amendment tools that can be, and have been, used for state right to arms guarantees.

Likewise, some courts have used the First Amendment/Fourteenth Amendment tools of narrow tailoring, least restrictive alternative, and overbreadth. These are, of course, the tools of strict scrutiny.

Still other courts have employed balancing tests–sometimes in a fairly rigorous way that resembles intermediate scrutiny, at other times in a vague way that gives little guidance to future courts.

And there have been other courts (most notoriously, the Illinois Supreme Court in Kalodimos, upholding the Morton Grove handgun ban) which have been hostile to the constitutional right, and which have opined that as long as the right is not destroyed, any limitations short of destruction are acceptable.

Post-Heller, federal courts analyzing Second Amendment issues may look to state decisions for guidance. Our article explains how Heller itself shows which state cases can be useful to modern courts, and which cases are inconsistent with Heller (such as the cases which apply “rational basis” or some functional equivalent, or the cases which imply that a ban on most handguns would be constitutional).