18 Pages Posted: 17 May 2006
This article examines the state constitutional law doctrine that has developed around the right to bear arms. Although the Second Amendment has been likened to a constitutional ghost town, the right to bear arms at the state level is more like a bustling metropolis. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms, and these provisions have been the subject of hundreds of published state court decisions. Yet, the state constitutional doctrine is remarkably consistent and uniform. Without exception, the state courts apply an extremely deferential form of judicial scrutiny to laws restricting gun ownership that requires only that such laws be reasonable regulations. Under that test, which accepts vastly overinclusive laws, only gun measures so extreme as to amount to a complete destruction or evisceration of the underlying right are deemed constitutionally impermissible. As a result, of the hundreds of published state court decisions concerning the right to bear arms, only six have invalidated a gun control law or its application to a particular individual in the past half-century. If that same test is adopted for the Second Amendment, then we can expect that any decision by the Supreme Court reinterpreting that provision to include an individual right to bear arms will have, at best, a marginal impact on the constitutionality of gun control.
Keywords: Second Amendment, state constitutional law, restriction of gun ownership
Suggested Citation: Suggested Citation
Winkler, Adam, The Reasonable Right to Bear Arms. Stanford Law and Policy Review, 2006; UCLA School of Law Research Paper No. 06-27. Available at SSRN: https://ssrn.com/abstract=902679