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State Court Standards of Review for the Right to Keep and Bear Arms

108 Pages Posted: 26 Jan 2010 Last revised: 1 Apr 2015

David B. Kopel

Independence Institute; Denver University - Sturm College of Law

Clayton E. Cramer

College of Western Idaho

Date Written: May 12, 2010

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.

Keywords: Second Amendment, right to keep and bear arms, state constitutions, standard of review, strict scrutiny, reasonableness

JEL Classification: K14, K19

Suggested Citation

Kopel, David B. and Cramer, Clayton E., State Court Standards of Review for the Right to Keep and Bear Arms (May 12, 2010). Santa Clara Law Review, Vol. 50, pp. 1113-1220, 2010; U Denver Legal Studies Research Paper No. 10-02. Available at SSRN: https://ssrn.com/abstract=1542544

David B. Kopel (Contact Author)

Independence Institute ( email )

727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)

HOME PAGE: http://www.davekopel.org

Denver University - Sturm College of Law

2255 E. Evans Avenue
Denver, CO 80208
United States

HOME PAGE: http://www.davekopel.org

Clayton E. Cramer

College of Western Idaho ( email )

5500 East Opportunity Drive
Nampa, ID 83687
United States

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