State Right to Bear Arms in Alabama

Article I, § 26 of the Alabama Constitution sets forth the right of a private individual to bear arms. In 2014, voters approved a radical amendment to this provision making it easier to challenge state and local gun laws in court. Article I, § 26 now reads:

“(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state.  Any restriction on this right shall be subject to strict scrutiny.

(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.”1

The 2014 amendment forces state courts to review gun laws under the technical and confusing judicial standard known as “strict scrutiny.” Laws evaluated under strict scrutiny—the toughest form of judicial review—are struck down more frequently by the courts because the standard is so high.

Very few courts in the nation apply this level of review to cases challenging gun laws. Using this standard, the court asks whether the law furthers a compelling government interest using the most narrowly tailored means to achieve that interest.

In the limited number of cases in which courts have applied strict scrutiny review to gun laws, the laws are most often struck down. Since the 2014 amendment, Alabama courts have yet to review a challenge to a gun law. Examples of measures outside of Alabama that have been invalidated under this standard include laws that:

  • ban transporting or possessing firearms outside of the home during a state of emergency2
  • ban guns in bars and other establishments where alcohol is sold or consumed on the premises3
  • ban possession of guns by individuals previously convicted of misdemeanor gun possession4
  • require that a person be a U.S. citizen to be eligible for a firearms license5
  • ban the sale or transfer of firearms within city limits6
  • ban the operation of shooting ranges within city limits7

Prior to the 2014 amendment, the Supreme Court of Alabama had long taken the position that the right to “bear arms” under the Alabama Constitution may be regulated by the state. In 1840, in State v. Reid, the court rejected an Article I, § 26 challenge to a statute authorizing criminal penalties for individuals convicted of carrying a concealed weapon.8 The court concluded, “The Constitution, in declaring that ‘every citizen has the right to bear arms in defense of himself and the state,’ has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne.”9

The Alabama Supreme Court has also rejected other Article I, § 26 challenges to state firearms statutes.10 However, whether those decisions will be followed in light of the 2014 amendment is an open question.

Notes
  1. Ala. Const., § 26. ⤴︎
  2. Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012). ⤴︎
  3. Taylor v. City of Baton Rouge, 2014 U.S. Dist. LEXIS 117919 (M.D. La., Aug. 25, 2014). ⤴︎
  4. Gowder v. City of Chicago, 923 F. Supp. 2d 1110 (N.D. Ill. 2012). ⤴︎
  5. Fletcher v. Haas, 851 F. Supp. 2d 287 (D. Mass. 2012). ⤴︎
  6. Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014). ⤴︎
  7. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). ⤴︎
  8. 1 Ala. 612 (Ala. 1840). ⤴︎
  9. Reid, 1 Ala. at 616 ⤴︎
  10. See Isaiah v. State, 58 So. 53 (Ala. 1911) (rejecting an Article I, § 26 challenge to a statute [Ala. Code § 13A-11-52] prohibiting a person from openly carrying a pistol while on another’s premises); Davenport v. State, 20 So. 971 (Ala. 1895) (rejecting an Article I, § 26 challenge to a state law barring any person from pointing a loaded or unloaded firearm at another person). See also Bristow v. State, 418 So. 2d 927 (Ala. Crim. App. 1982) (rejecting an Article I, § 26 challenge to a statute [Alabama Code § 13A-11-72(a)] prohibiting a person previously convicted of a violent crime from possessing a pistol); Dickerson v. State, 517 So. 2d 625 (Ala. Crim. App. 1986) (rejecting another Article I, § 26 challenge to Alabama Code § 13A-11-72(a), rev’d on other grounds by Ex parte Dickerson, 517 So. 2d 628 (Ala. 1987). ⤴︎

State Right to Bear Arms in Alaska

Article I, § 19 of the Alaska Constitution provides:

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.

Alaska courts have held that the right conferred by art. I, § 19 is not absolute and may be regulated by the state legislature. In Gibson v. State, the court of appeals rejected an art. I, § 19 challenge to Alaska Statutes § 11.61.210(a)(1), prohibiting persons from possessing a firearm on the person or having a firearm in the interior of a vehicle in which they are present, or when they are physically or mentally impaired by liquor or a controlled substance.1 The court found that art. I, § 19:

[W]as not intended to eliminate government regulation of people’s possession and use of firearms. Rather, the government retains the authority to enact and enforce laws prohibiting people from possessing firearms when there is a significant risk that they will use those firearms in a criminal or dangerous fashion.2

The court found that, since a statute criminalizing the possession of firearms while intoxicated “bears a close and substantial relationship to the state’s legitimate interest in protecting the health and safety of its citizens,” the statute was a proper use of the state’s police power.3

On similar grounds, the court of appeals also rejected an art. I, § 19 challenge to Alaska Stat. § 11.61.200(a)(10), which prohibits a convicted felon from residing in a dwelling knowing that there is a concealed firearm in the dwelling.4 The court held that art. I, § 19 was not intended to eliminate government regulation of an individual’s possession and use of firearms when there is a significant risk that a person will use a firearm in a criminal or dangerous fashion.5

In 2010, the Supreme Court of Alaska held once again that the right conferred by art. I, § 19 “is limited and does not invalidate laws that restrict convicted felons’ access to firearms.”6

Notes
  1. 930 P.2d 1300 (Alaska Ct. App. 1997). ⤴︎
  2. Gibson, 930 P.2d at 1301. ⤴︎
  3. Id. at 1302. ⤴︎
  4. Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997). ⤴︎
  5. Morgan, 943 P.2d at 1212. See also Wilson v. State, 207 P.3d 565, 566–568 (Alaska Ct. App. 2009) (rejecting an art. I, § 19 challenge to Alaska Stat. § 11.61.200(a)(1) which prohibits possession of a firearm by a felon, because art. I, § 19 does not limit the state’s authority to regulate firearms used in a criminal or dangerous fashion); Lapitre v. State, 233 P.3d 1125, 1128 (Alaska Ct. App. 2010) (rejecting a challenge to the felon-in-possession statute). ⤴︎
  6. Farmer v. State, Dep’t of Law, 235 P.3d 1012, 1016 (Alaska 2010). ⤴︎

State Right to Bear Arms in Arizona

Article II, § 26 of the Arizona Constitution states: “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.”1 In addition, Arizona Revised Statutes § 12-714 states that the legislature has found that “[t]he citizens of this state have the right, under . . . article II, § 26 of the Arizona Constitution, to keep and bear arms.”2

Arizona courts have held that the constitutional right to “bear arms” is qualified and subject to reasonable regulation by the state in its exercise of police power. In Dano v. Collins, the Arizona Court of Appeals rejected an article II, § 26 challenge to a state statute, Arizona Revised Statutes § 13-3102(A)(1), (2), which at that time prohibited the carrying of concealed weapons.3 The court noted that article II, § 26 does not grant “an absolute right to bear arms under all situations,” and emphasized that an individual’s right to bear arms in self-defense must be balanced with the state’s duty, under its police power, to make reasonable regulations to protect the health, safety and welfare of its citizens.4

Similarly, in State v. Moerman, the court rejected an article II, § 26 challenge to the former ban on concealed weapons, holding that the right to bear arms is not absolute but qualified, and the ban “regulates only the manner in which individuals may exercise their right to bear arms. . .” The court stated that, while the ban “may limit this right, it neither frustrates nor impairs it.”5

The Attorney General of Arizona has opined that section 13-3112, which at that time required persons to attend a training class and obtain a concealed weapons permit before carrying a concealed weapon, also does not infringe on the right to bear arms.6

In State v. Noel, the court held a statute prohibiting a felon from possessing a pistol does not violate article II, § 26.7 Citing Noel, the Supreme Court of Arizona, in State v. Rascon, held that prohibiting a convicted felon from having a firearm under his or her control as a condition of probation does not violate the right to bear arms.8

Lastly, in City of Tucson v. Rineer, the court rejected an article II, § 26 challenge to an ordinance that prohibited the use or possession of firearms within city parks, holding that the ordinance was a reasonable exercise of a city’s police power.9

 

 

Notes
  1. Ariz. Const. Art. II, § 26. ⤴︎
  2. Ariz. Rev. Stat. Ann. § 12-714. ⤴︎
  3. 802 P.2d 1021 (Ariz. Ct. App. 1990). ⤴︎
  4. Dano, 802 P.2d at 1022-24. ⤴︎
  5. 895 P.2d 1018, 1022 (Ariz. Ct. App. 1994). ⤴︎
  6. Op. Ariz. Att’y Gen. I98-005, 1998 Ariz. AG LEXIS 5 (July 8, 1998). ⤴︎
  7. 414 P.2d 162 (Ariz. Ct. App. 1966). ⤴︎
  8. 519 P.2d 37 (Ariz. 1974). ⤴︎
  9. 971 P.2d 207 (Ariz. Ct. App. 1998). ⤴︎

State Right to Bear Arms in Arkansas

Article II, § 5 of the Arkansas Constitution states: “The citizens of this State shall have the right to keep and bear arms, for their common defense.”

Several Supreme Court of Arkansas decisions have rejected Art. II, § 5 challenges to firearms regulations.1

Most recently, in Jones v. City of Little Rock, the Supreme Court of Arkansas held that Arkansas Code Annotated § 5-73-120, regulating the possession of a handgun in a vehicle, did not violate the Second Amendment to the U.S. Constitution.2 While appellant did not raise an Art. II, § 5 challenge to the statute, the court nevertheless emphasized that “[l]ong ago we made it clear that [Arkansas] may, as a matter of its police power, place appropriate restrictions on one’s right to bear arms.”3

Notes
  1. See e.g., Dabbs v. State, 39 Ark. 353, 357 (Ark. 1882) (prohibiting the sale of “pocket” pistols “does not abridge the constitutional right of citizens to keep and bear arms for the common defense”); Fife v. State, 31 Ark. 455 (Ark. 1876) (law prohibiting the carrying of concealed pistols was a valid exercise of the state’s police power); and Carroll v. State, 28 Ark. 99, 101 (Ark. 1872) (state constitutional right to “keep and bear arms” for defensive purposes does not prohibit the legislature from making police regulations that are necessary for the good of society, such as reasonable regulations prohibiting the concealed carrying of deadly weapons). See also Haile v. State, 38 Ark. 564, 565 (Ark. 1882) (rejecting constitutional challenge to statute prohibiting the public carrying of military pistols “except uncovered, and in the hand”); contra, Wilson v. State, 33 Ark. 557, 560 (Ark. 1878) (prohibiting the wearing or carrying of “war arms” except on the person’s premises, when on a journey, or when acting as or in aid of an officer, “is an unwarranted restriction upon his constitutional right to keep and bear arms”). ⤴︎
  2. 862 S.W.2d 273 (Ark. 1993). ⤴︎
  3. Jones, 862 S.W.2d at 275 (citing the Haile, Wilson, Fife and Carroll opinions). ⤴︎

State Right to Bear Arms in California

The California Constitution contains no provision regarding a “right to bear arms.”1

 

Notes
  1. See Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000) (holding that no “right to bear arms” exists under the California Constitution). ⤴︎

State Right to Bear Arms in Colorado

Article II, § 13 of the Colorado Constitution provides that “[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

Article II, § 13 has been interpreted by the courts of Colorado to allow reasonable regulation of this constitutional provision. In Robertson v. City and County of Denver, plaintiff gun owners challenged the constitutionality of a Denver ordinance banning the manufacture, sale, and possession of assault weapons on numerous grounds, including art. II, § 13.1 On plaintiffs’ motion for summary judgment, the trial court concluded that art. II, § 13 guarantees a “fundamental right to bear arms.”2 Although the trial court found that Denver had generally established a compelling governmental interest in regulating assault weapons, it nevertheless invalidated the ordinance after determining that certain unseverable provisions were vague or overbroad.3

On appeal, the Supreme Court of Colorado reversed most of the trial court ruling, finding only one severable portion of the ordinance to be unconstitutionally vague.4 In so holding, the supreme court stated:

While it is clear that [art. II, § 13] is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental…. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.5

The supreme court concluded that, in its judgment, “the evidence presented to the trial court undeniably demonstrates that the ordinance is reasonably related to a legitimate governmental interest and constitutes a valid exercise of the state’s police power on the right to bear arms in self-defense.”6 The case was then remanded to the trial court, and much of the ordinance was eventually upheld by the Court of Appeals of Colorado.7

The Supreme Court of Colorado has only applied art. II, § 13 twice to overturn a law. In People v. Nakamura, the supreme court struck down a statute prohibiting unnaturalized foreign-born residents from owning or possessing firearms.8 Although the court noted that it is a valid exercise of the police power for the Colorado Legislature to prohibit aliens from hunting or killing wild game (which was, ostensibly, the purpose of the law), “it cannot disarm any class of persons or deprive them of the right…to bear arms in defense of home, person or property…[u]nder this constitutional guaranty, there is no distinction between unnaturalized foreign-born residents and citizens.”9 Thirty-six years later, in City of Lakewood v. Pillow, a municipal ordinance barring the possession or use of any deadly weapon except in one’s home was found to be unconstitutionally overbroad, in part because the ordinance violated art. II, § 13 by prohibiting the possession of a firearm in a vehicle or at a place of business for self-defense purposes.10

In People v. Ford, the court held that a statute imposing a “flat prohibition” on firearm possession by certain felons violated art. II, § 13 as applied to a defendant presenting competent evidence that his or her purpose in possessing firearms was the defense of home, person, or property.11

In 2002, the Court of Appeals of Colorado considered a challenge to two Denver ordinances which precluded most citizens from carrying unconcealed firearms on their person, or from carrying concealed firearms in motor vehicles.12 After noting that the supreme court’s decision in Robertson (see above) did not expressly state whether the art. II, § 13 “right” to bear arms is a fundamental right, the court of appeals found that:

[B]y requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right.13

Using the rational basis test, the court found that “Trinen has not met his burden of establishing beyond a reasonable doubt that the restrictions are so severe as to render the ordinance unconstitutional.”14 The court also noted that the affirmative defenses in the Denver ordinances expressly allow the activities that the City of Lakewood v. Pillow case (see above) protected.15. In addition, the court rejected plaintiff’s preemption claims, holding that there was no conflict with Colorado law. Please see the Local Authority to Regulate Firearms in Colorado summary for further information.

More recently, the Court of Appeals of Colorado rejected the defendant’s argument that the U.S. Supreme Court’s decision in Heller would require Colorado courts to take a different approach with respect to art. II, § 13 of the Colorado Constitution.16 In People v. Cisneros, the court held that the increased risk of death or injury allowed a state to “reasonably regulate the combination of drugs and weapons,” and that “a statute limiting the right to bear arms in self-defense should be held unconstitutional under the Colorado Constitution only if the defendant establishes that the statute does not regulate ‘under [the state’s] police power in a reasonable manner.’”17

Colorado law states, in part, “Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms.”18 There are no cases construing this provision.

Notes
  1. 874 P.2d 325, 327 (Colo. 1994). ⤴︎
  2. Id. ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Id. at 328. ⤴︎
  6. Id. at 333. ⤴︎
  7. See Robertson v. City & County of Denver, 978 P.2d 156 (Colo. Ct. App. 1999). ⤴︎
  8. 62 P.2d 246 (Colo. 1936). ⤴︎
  9. Id. at 247. ⤴︎
  10. 501 P.2d 744, 745 (Colo. 1972). ⤴︎
  11. 568 P.2d 26, 28 (Colo. 1977). ⤴︎
  12. Trinen v. City and County of Denver, 53 P.3d 754 (Colo. Ct. App. 2002). ⤴︎
  13. Id. at 757. ⤴︎
  14. Id. at 758; but see Students for Concealed Carry on Campus, LLC v. Regents of the Univ. of Colo., 280 P.3d 18 (Colo. App. 2010) (distinguishing the “reasonable exercise test” in Robertson from the rational basis test; the former focuses on the balance of the interests at stake, while the latter only demands a conceivable rationale and noting that “[t]o the extent Trinen indicates that the Robertson court impliedly adopted rational basis review, we disagree.”). ⤴︎
  15. Id. at 757-58 ⤴︎
  16. People v. Cisneros, 2014 Colo. App. LEXIS 693 at *18 (Colo. Ct. App. 2014) (“we see no reason to speculate that our supreme court would modify its holding in Robertson in light of Heller.”). ⤴︎
  17. Id. at *18-19. ⤴︎
  18. Colo. Rev. Stat. § 29-11.7-101(1)(b). ⤴︎

State Right to Bear Arms in Connecticut

The Constitution of the State of Connecticut provides that “[e]very citizen has a right to bear arms in defense of himself and the state.”1

Connecticut courts have held that the right to bear arms is subject to reasonable regulation.  In Benjamin v. Bailey, the Supreme Court of Connecticut held that a ban on assault weapons did not infringe on the right to bear arms because the ban “represents a reasonable exercise of the state’s police power” and continued to permit access to a wide array of weapons.2

 

For further information about the right to bear arms in this state, contact the Law Center directly.

Notes
  1. Conn. Const. art. I, § 15. ⤴︎
  2. 234 Conn. 455 (1995). ⤴︎

State Right to Bear Arms in Delaware

Article I, Section 20 of the Delaware Constitution, enacted in 1987, states: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

In Bridgeville Rifle & Pistol Club v. Small, the Delaware Supreme Court held that Section 20 “is intentionally broader than the Second Amendment” and that it “protects a bundle of rights — including hunting, recreation, and the defense of self, family, and State,” including “a right of public carry for self-defense.”1 In Bridgeville Rifle, the Court ruled that because Section 20 protects a right to public carry, it was unconstitutional for state agencies to prohibit possession of firearms in Delaware’s parks and forests, with exceptions for some hunters or others who obtained approval to possess guns. The Court found that the “limited ability to have a hunting rifle or shotgun while engaged in a controlled hunt on state park or forest land does not fulfill — and cannot substitute for — the people’s right to have a firearm for defense of self and family while camping overnight in a State Park or hiking in the more remote acres of State Forests (assuming compliance with all other laws governing guns).”2 The Court clarified that “Delaware’s right to public carry for self-defense is fundamental but not absolute” and affirmed that in some instances that involved a regulation as opposed to a total prohibition on carrying guns, it would be appropriate to apply intermediate scrutiny to evaluate the regulation, as the Court did in the Doe case, described below.3

In Doe v. Wilmington Hous. Auth., the Delaware Supreme Court endorsed intermediate scrutiny as the appropriate level of review for challenges brought under article I, § 20.4  In ruling that a public housing authority could not prohibit the display or carry of firearms in common areas, or require residents to produce their permit or license upon request, the court found that “[a]lthough the right to bear arms under the Delaware Declaration of Rights is a fundamental right, we have already held that it is not absolute…[t]he General Assembly’s careful and nuanced approach [with respect to the right to bear arms] supports an intermediate scrutiny analysis that allows a court to consider public safety and other important governmental interests.5  Applying intermediate scrutiny, the court found the housing authority’s policies to be so overbroad as to “functionally disallow[] armed self-defense in areas that [r]esidents, their families, and guests may occupy as part of their living space.”6  As a result, the court concluded that these policies impermissibly infringed on “the fundamental right of responsible, law-abiding citizens to keep and bear arms for…defense.”7

With respect to concealed carry permitting laws, in Smith v. State, the Delaware Supreme Court rejected an article I, § 20 challenge to Del. Code Ann. tit. 11, § 1441, which requires a permit for the carrying of a concealed weapon.8  The court rejected defendant’s argument that article I, § 20 entitles a person to conceal the weapon that he or she carries, noting that “[the] provision contains no language that entitles a person to conceal the weapon he carries. Rather, any such entitlement involves only a privilege to carry a concealed weapon–a privilege that is regulated by statute.”9 In addition, in Griffin v. State, the Delaware Supreme Court adopted a balancing test for the specific context of as-applied challenges to the state’s concealed carry statute.10  Under this three part test, adopted from the Wisconsin Supreme Court opinion in State v. Hamden,11 “[f]irst, the court must compare the strength of the state’s interest in public safety with the individual’s interest in carrying a concealed weapon.  Second, if the individual interest outweighs the state interest, the court must determine, ‘whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute.’  Third, the individual must be carrying the concealed weapon for a lawful purpose.”12  In elaborating on this test, the court noted that while the individual interest in carrying a concealed weapon was strongest in one’s home, that interest shifts in favor of the State once public safety is implicated (here, because the police were present and asking about a concealed weapon in response to a report of a domestic dispute).13  The court remanded the case for further factual findings to determine whether the defendant was lying about the location of a concealed knife.

In a 1991 case, Short v. State, the Delaware Supreme Court rejected defendant’s article I, § 20 challenge to Del. Code Ann. tit. 11, § 1448, which prohibits the possession of a deadly weapon by a convicted felon.14  The court noted that “[c]ourts throughout the country…have uniformly ruled that the right to bear arms as guaranteed in various state constitutions…may be subject to reasonable restrictions for the public safety, including limitations on possession by persons with criminal records.”15

Notes
  1. 176 A.3d 632, 636, 652 (Del. 2017). ⤴︎
  2. Id. at 638. ⤴︎
  3. Id. at 652-56. ⤴︎
  4. 88 A.3d 654, 667-69 (Del. 2014). ⤴︎
  5. Id. at 667. ⤴︎
  6. Id. at 668-69. ⤴︎
  7. Id. at 667. ⤴︎
  8. Smith v. State, 882 A.2d 762 (Del. 2005). ⤴︎
  9. Id. at * 8 (emphasis in original). See also Application of Wolstenholme, No. 92M-04-006, 1992 Del. Super. LEXIS 341, *6 (Del. Super. Ct. Aug. 20, 1992) (holding that the “right to bear arms…does not include a right to carry a concealed deadly weapon”). ⤴︎
  10. Griffin v. State, 47 A.3d 487 (Del. 2011). ⤴︎
  11. 264 Wis. 2d 433 (2003). ⤴︎
  12. Griffin, 47 A.3d at 490. ⤴︎
  13. Id. at 491. ⤴︎
  14. Short v. State, 586 A.2d 1203 (Del. 1991). ⤴︎
  15. Id. at *2. See also Green v. Green, 702 A.2d 926 (Del. 1997) (rejecting defendant’s argument that a protective order limiting contact with his ex-wife and prohibiting the possession of a firearm for the duration of the order violated his “right to bear arms;” the opinion did not refer directly to article I, § 20). ⤴︎

State Right to Bear Arms in Florida

Article I, § 8(a) of the Florida Constitution provides: “[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”1

The Supreme Court of Florida has held that the Florida Legislature has broad authority to regulate firearms for public health and safety purposes. In Rinzler v. Carson, the court held that a statute prohibiting the possession of a short-barreled long gun or a machine gun, Florida Statutes Annotated § 790.221, was a constitutional exercise of the state’s police power.2 The court established that “the right to keep and bear arms is not an absolute right, but is one which is subject to the right of the people through their legislature to enact valid police regulations to promote the health, morals, safety and general welfare of the people.”3 The court concluded that “the Legislature may prohibit the possession of weapons which are ordinarily used for criminal and improper purposes and which are not among those which are legitimate weapons of defense and protection” within the meaning of Fla. Const. art. I, § 8(a).4

The court also held, however, that section 790.221 did not prohibit the possession of “weapons not concealed upon the person, which, although designed to shoot more than one shot semi-automatically, are commonly kept and used by law-abiding people for hunting purposes or for the protection of their persons and property, such as semi-automatic shotguns, semi-automatic pistols and rifles.”5 Although the court stated that an absolute ban on such weapons might violate the people’s ability to “keep and bear arms,” the court noted that the Legislature “can regulate the use and the manner of bearing certain specific weapons.”6

Other Supreme Court of Florida cases have rejected challenges based on the precursor to Fla. Const. art. 1, § 8(a) (former “§ 20” of the Declaration of Rights of the Florida Constitution (1885)).7

Notes
  1. Fla. Const. Art. I, § 8. ⤴︎
  2. 262 So.2d 661, 665 (Fla. 1972). ⤴︎
  3. Id. at 666. ⤴︎
  4. Id. ⤴︎
  5. Id. ⤴︎
  6. Id. at 665. ⤴︎
  7. See, e.g., Nelson v. State, 195 So.2d 853, 855-56 (Fla. 1967) (rejecting § 20 challenge to Florida Statutes Annotated § 790.23, which prohibits the possession of certain firearms by convicted felons, as “a reasonable public safeguard”); Davis v. State, 146 So.2d 892, 894 (Fla. 1962) (rejecting § 20 challenge to Fla. Stat. § 790.05 (later repealed by Fla. Laws ch. 87-24), which criminalized the possession or carrying of certain firearms without a license so as to protect the people “from the bearing of weapons by the unskilled, the irresponsible, and the lawless”); and Carlton v. State, 58 So. 486, 488 (Fla. 1912) (rejecting § 20 challenge to Fla. Laws § 3263 (now Fla. Stat. Ann. § 790.02), which banned the carrying of concealed weapons, because the provision was “not designed as a shield for the individual man who is prone to load his stomach with liquor and his pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society”). ⤴︎

State Right to Bear Arms in Georgia

The Georgia Constitution provides that “[t]he right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”1 In addition, Ga. Code Ann. § 1-2-6(a)(9) includes “the right to keep and bear arms” within a general list of citizens’ rights.

In the 1911 case Strickland v. State, the Supreme Court of Georgia determined that a statute prohibiting the carrying of a handgun without a license did not violate the state’s right to bear arms provision.2 The court held that the test for whether a law regulating firearms violates this constitutional provision is “whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts in effect to a deprivation of the constitutional right.”3 After reviewing the intent of the statute, as well as judicial interpretations of similar statutory provisions in other states, the court found that the statute at issue was “not so arbitrary or unreasonable as to amount, in effect, to a prohibition of the right to bear arms, or an infringement of that right as protected by the constitution.”4

In Carson v. State, a 1978 case, the Supreme Court of Georgia rejected a state right to bear arms challenge to a statute prohibiting the possession of a sawed-off shotgun.5 The court reaffirmed the test set forth in Strickland and found that the omission in the state constitution of the phrase “[a] well-regulated militia being necessary to the security of a free State” (which appears in the Second Amendment to the U.S. Constitution) did not affect the constitutionality of the statute, because it “can be sustained as a legitimate exercise of the police power of the state.”6

Five years later, in Landers v. State, the Supreme Court of Georgia rejected a state right to bear arms challenge to a statute prohibiting the possession of a firearm by a felon.7 Relying on Strickland and Carson, the court held that the statute was “a reasonable regulation authorized by the police power and thus not violative of our Constitution.”8

More recently, in 2009, in Moore v. Moore-McKinney, the Court of Appeals of Georgia rejected a state right to bear arms challenge to a court order prohibiting the possession of weapons by either parent when the parents were exchanging their children.9 The court stated that possession of a firearm was “not restricted except in the context of a narrowly tailored condition of visitation justified by the evidence.”10

Finally, in the 2013 case Hertz v. Bennett, the Supreme Court of Georgia examined whether denying a convicted felon a license to carry violated his rights under the Georgia Constitution.11 In finding that it did not, the court found that “Hertz acknowledged that he used an illegal weapon to commit forcible felonies that endangered the lives of other persons. Under these circumstances, we hold that denying him a license to carry a weapon outside his home, car, and place of business does not violate his state constitutional right to bear arms in Article I, Section I, Paragraph VIII of the Georgia Constitution. Therefore, this provision is constitutional as applied to him.”12

Notes
  1. Ga. Const. art. I, § I, para. VIII. ⤴︎
  2. 72 S.E. 260 (Ga. 1911). ⤴︎
  3. Id. at 263. ⤴︎
  4. Id. at 264. ⤴︎
  5. 247 S.E.2d 68, 72-73 (Ga. 1978). ⤴︎
  6. Id. at 73. ⤴︎
  7. 299 S.E.2d 707 (Ga. 1983). ⤴︎
  8. Id. at 710. ⤴︎
  9. 678 S.E.2d 152, 160 (Ga. Ct. App. 2009). ⤴︎
  10. Id. ⤴︎
  11. 751 S.E.2d 90 (Ga. 2013). ⤴︎
  12. Id. at 96. ⤴︎

State Right to Bear Arms in Hawaii

Article I, § 17 of the Hawaii Constitution states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

In State v. Mendoza, the Supreme Court of Hawaii rejected an art. I, § 17 challenge to Hawaii Revised Statutes Annotated § 134-4(b) which (along with § 134-2) requires a person to obtain a permit before acquiring any firearm.1 The court found that the state’s police power allows it to regulate the right to “bear arms” in a reasonable manner, and that the permitting requirement was “rationally related to the legitimate government interest of ensuring that only those who are mature, law abiding, competent citizens possess firearms.”2  Although the State v. Mendoza decision was overruled in light of Heller, Hawaii may continue to regulate the right to bear arms in a reasonable manner.3

Notes
  1. 920 P.2d 357 (Haw. 1996). ⤴︎
  2. Mendoza, 920 P.2d at 368. ⤴︎
  3. Lowe v. Kealoha, 2010 Haw. App. LEXIS 866 (Haw. Ct. App. Dec. 22, 2010). ⤴︎

State Right to Bear Arms in Idaho

Article I, § 11 of the Idaho Constitution provides:

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

As originally adopted, the provision read: “The people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law.” The provision was amended in 1978 to read as it now appears.

In State v. Woodward (a 1937 case), the Idaho Supreme Court discussed the ability to use a firearm for self-defense, and stated that under article I, § 11 (the original, pre-1978 version), the right to bear arms may not be denied by the state, but the legislature has the power to regulate this right and may prohibit the carrying of concealed weapons or prescribe “the kind or character of arms that may or may not be kept, carried or used, and various other things of a regulatory character.”1

Other case law examining the scope of the original version of article I, § 11 indicates that Idaho courts have treated the “right to keep and bear arms” as a personal, individual right, and held that while the legislature may not prohibit or deny the right completely, it has the authority to regulate the exercise of that right. For example, in the 1945 case State v. Hart, the court noted that it was “a reasonable exercise of the police power of a municipality to prohibit the carrying of concealed dangerous or deadly weapons.”2

There is little case law interpreting the current version of article I, § 11. In a 1984 case, State v. Grob, the Idaho Court of Appeals held that Idaho Code Ann. § 19-2520, which imposes an additional prison term for the commission of certain offenses while using a firearm, generally does not violate the state constitution. The court noted that, under the current version of article I, § 11, the legislature was expressly authorized to prescribe “minimum sentences for crimes committed while in possession of a firearm” and concluded that “whether examined against the 1978 or pre-1978 versions of Article 1, § 11, we believe [the challenged law] passes constitutional muster.”3

Finally, in 1979, the Idaho Attorney General opined that the current version of article I, § 11 does not: 1) “undermine the validity of the current Idaho Code prohibitions against the carrying of concealed weapons” under section 18-3302; or 2) affect the viability of state law on the seizure of firearms during searches incident to arrest.4

Notes
  1. 74 P.2d 92, 95 (Idaho 1937). ⤴︎
  2. 157 P.2d 72, 73 (Idaho 1945); see also In re Brickey, 70 P. 609 (Idaho 1902). ⤴︎
  3. 690 P.2d 951, 954 (Idaho Ct. App. 1984). ⤴︎
  4. 1979 Op. Att’y Gen. Idaho 31, 1979 Ida. AG LEXIS 45 at *4, *8. ⤴︎

State Right to Bear Arms in Illinois

Article 1, section 22 of the Illinois Constitution reads: “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.”1 Illinois case law provides support for the proposition that most reasonable firearms regulations are valid under art. I § 22.

In a 1982 case, Quilici v. Village of Morton Grove, the Seventh Circuit Court of Appeals rejected an article I, § 22 challenge to a local ordinance (No. 81-11) prohibiting the possession of handguns within the Village’s borders.2 The court affirmed the lower court decision upholding the ordinance, finding in relevant part “that the right to keep and bear arms in Illinois is so limited by the police power that a ban on handguns does not violate that right.”3 The court went on to note that:

[S]ection 22 simply prohibits an absolute ban on all firearms….There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control….Once a local government identifies a problem and enacts legislation to mitigate or eliminate it, that enactment is presumed valid and may be overturned only if it is unreasonable, clearly arbitrary, and has no foundation in the police power.4

Therefore, since Morton Grove presented “at least some empirical evidence” that gun control legislation may reduce deaths and accidents caused by handguns, the court held that the ordinance was a valid exercise of the Village’s police power.5

Just two years later, the Illinois Supreme Court reached the same conclusion in Kalodimos v. Village of Morton Grove, which also involved a challenge to Ordinance 81-11.6 The state supreme court concluded that article I, § 22 permits extensive regulation of firearms under the state’s police power and the municipal home rule power, including prohibitions on a particular class of firearms. The court upheld the Village’s ordinance, finding that it “bears a rational relation to the goal of reducing weapons-related injuries and accidents.”7

Notes
  1. Illinois Const., Art. I, § 22. ⤴︎
  2. 695 F.2d 261 (7th Cir. 1982). ⤴︎
  3. Id. at 267. ⤴︎
  4. Id. at 268. ⤴︎
  5. Id. at 268-269. ⤴︎
  6. 470 N.E.2d 266 (Ill. 1984). ⤴︎
  7. Id. at 279; see also City of Chicago v. Taylor, 774 N.E.2d 22 (Ill. App. Ct. 2002) (holding that Chicago’s firearms registration ordinance does not violate the state constitutional right to bear arms provision because it does not prevent a person from bearing arms, but rather allows an individual to legally possess a firearm once that firearm has been properly registered); Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984) (rejecting an article I, § 22 challenge to Chicago ordinances regulating handgun possession and registration, stressing that an individual’s right to bear arms is narrow and subject to extensive regulation); People v. Robinson, 964 N.E.2d 551, 556-57 (Ill. App. Ct. 2011) (refusing to revisit the Illinois Supreme Court’s holding from Kalodimos, which “applied the rational basis test and upheld a city ordinance absolutely prohibiting the possession of handguns.”). ⤴︎

State Right to Bear Arms in Indiana

Article I, § 32 of the Indiana Constitution provides that “[t]he people shall have a right to bear arms, for the defense of themselves and the State.” Indiana courts have interpreted this provision to allow an individual to possess firearms for purposes of self-defense and defense of the state, subject to reasonable police power regulation.

In Matthews v. State of Indiana, the Supreme Court of Indiana rejected an Article I, § 32 challenge to a provision of the state’s Uniform Firearms Act prohibiting the carrying of a pistol without a license except in the home or fixed place of business.1 The court observed that the Act is intended to maximize control over criminal and careless uses of certain types of firearms while at the same time making them available to persons when needed for protection.2 Noting that Article I, § 32 “does not say that people shall have a right to bear pistols, or any other specific kind or type of arms” the court concluded that the challenged provision was a reasonable regulation of the use of firearms that may be readily concealed, enacted in the interest of public safety and welfare, and did not violate the state constitution.3

In Schubert v. DeBard, the Indiana Court of Appeals relied on Matthews in holding that an applicant for a license to carry a handgun for self-protection could not be denied the license on the ground that self-protection was not a proper reason to be licensed, because the Indiana Constitution “provides our citizenry the right to bear arms for their self-defense.”4

In Lewis v. State of Indiana, the court of appeals held that Indiana Code Annotated § 35-47-2-24 does not unconstitutionally infringe upon the right to bear arms under Article I, § 32.5 Section 35-47-2-24 places upon a defendant accused of a handgun offense the burden of proving that he or she has a license to carry a handgun or is exempt from statutory requirements.6

Notes
  1. 148 N.E.2d 334 (Ind. 1958). ⤴︎
  2. Matthews, 148 N.E.2d at 338. ⤴︎
  3. Id. ⤴︎
  4. 398 N.E.2d 1339, 1341 (Ind. Ct. App. 1980). ⤴︎
  5. 484 N.E.2d 77 (Ind. Ct. App. 1985). ⤴︎
  6. Lewis, 484 N.E. 2d at 79. See also Baker v. State, 747 N.E.2d 633, 637 (Ind. Ct. App. 2001) (holding that Ind. Code § 35-47-4-5, which prohibits the possession of a firearm by a serious violent offender, does not unconstitutionally infringe upon the right to bear arms under Article 1, § 32), and Dozier v. State of Indiana, 709 N.E.2d 27 (Ind. Ct. App. 1999) (following Matthews, reaffirming the constitutionality of the state licensing statute, and rejecting Article I, § 32 challenges to statutes increasing the class of offense for a person carrying an unlicensed handgun on school property and prohibiting possession of a pistol by a person under age 18). ⤴︎

State Right to Bear Arms in Iowa

The Constitution of the State of Iowa contains no provision regarding the keeping or bearing of arms.

State Right to Bear Arms in Kansas

The Constitution of the State of Kansas provides that “A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.”1

There has not been much recent case law on this subject.  In 1905, the Supreme Court of Kansas, in the case of City of Salina v. Blaksley, held that Bill of Rights section 4 (“section 4”) does not confer an individual right to “bear arms.” Rather, it only protects the rights of a member of the state militia or other military organization provided for by law.2 The Blaksley court rejected a section 4 challenge to a state statute that prohibited the carrying of a handgun while under the influence of alcohol, stating that section 4 “refers to the people as a collective body.”3 The court emphasized that section 4 “deals exclusively with the military; individual rights are not considered in this section.”4 The court noted that the defendant in the case was not a member of an organized militia or other military organization, “and was therefore not within the provision of the bill of rights and was not protected by its terms.”5

In more recent cases, the Supreme Court of Kansas, consistent with Blaksley, has largely rejected section 4 challenges to state statutes and local ordinances regulating firearms.6

Notes
  1. Kan. Const. B. of R. § 4. ⤴︎
  2. City of Salina v. Blaksley, 83 P. 619 (Kan. 1905). ⤴︎
  3. Id. at 620. ⤴︎
  4. Id. ⤴︎
  5. Id. at 621. ⤴︎
  6. See State v. Bolin, 436 P.2d 978 (Kan. 1968) (rejecting section 4 challenge to a state law proscribing the ownership or possession of a pistol by any person convicted of burglary); Junction City v. Lee, 532 P.2d 1292 (Kan. 1975) (rejecting section 4 challenge to a local ordinance prohibiting certain use of handguns and knives);  see also State v. Knight, 241 P.3d 120, 133 (Kan. Ct. App. 2009), reh’g denied, 2011 Kan. LEXIS 391 (Kan. 2011) (rejecting section 4 challenge to a state regulation against carrying concealed weapons); but see Junction City v. Mevis, 601 P.2d 1145 (Kan. 1979) (striking down, as overbroad, a statute criminalizing most firearm possession). ⤴︎

State Right to Bear Arms in Kentucky

The Bill of Rights of the Constitution of Kentucky provides that “[a]ll men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:…The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.”1

In Posey v. Commonwealth, the Supreme Court of Kentucky rejected a state right to bear arms challenge to Ky. Rev. Stat. Ann. § 527.040, which criminalizes possession of a firearm by a convicted felon.2 The court reasoned that “the right [to bear arms] is conditioned on certain self-evident premises – that it be enjoyed lawfully and without undue interference with the rights of others.”3 Citing several other Kentucky statutes, the court rejected the defendant’s contention that the “right to bear arms” is absolute and thus firearms possession is completely exempt from legislative regulation. The court concluded that section 527.040 is constitutional because it “is not arbitrary or irrational and does not unduly infringe upon the right to bear arms” endorsed in the state constitution.4

Similarly, in Eary v. Commonwealth, the Supreme Court of Kentucky rejected defendant’s state right to bear arms challenge to former Ky. Rev. Stat. Ann. § 527.040, which at that time criminalized only possession of a handgun by a convicted felon.5 The court held that a statute regulating the possession of firearms by dangerous criminals is “reasonable legislation in the interest of public welfare and safety and that such regulation is constitutionally permissible as a reasonable and legitimate exercise of the police power.”6

In line with these cases, the Kentucky Attorney General has also opined that the right to bear arms is not absolute.7 The Attorney General has also noted, however, that “a person has a right to bear arms in his own defense as long as he does not conceal them.”8

However, in Brewer v. Commonwealth, the Supreme Court of Kentucky upheld a defendant’s challenge to the Commonwealth’s efforts to seek forfeiture of firearms seized from the defendant’s residence allegedly in connection with drug trafficking crimes under Ky. Rev. Stat. Ann. § 218A.410.9 The court rejected the Commonwealth’s argument that the firearms were subject to automatic forfeiture under the statute, deeming that this argument “cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law.”10

Notes
  1. Ky. Const. § 1, Seventh. ⤴︎
  2. 185 S.W.3d 170 (Ky. 2006). ⤴︎
  3. Posey, 185 S.W.3d at 180. ⤴︎
  4. Posey, 185 S.W.3d at 181. ⤴︎
  5. 659 S.W.2d 198 (Ky. 1983). ⤴︎
  6. Eary, 659 S.W.2d at 200. ⤴︎
  7. See 96 Ky. Op. Att’y Gen. 40, 1996 Ky. AG LEXIS 80 (stating that a University of Louisville policy prohibiting possession or storage of deadly weapons or destructive devices on any University campus or in any University facility does not violate section 1, Seventh); see also 94 Ky. Op. Att’y Gen. 14, 1994 Ky. AG LEXIS 27 (stating that a bill to prohibit the possession of a handgun by a minor would not violate section 1, Seventh). ⤴︎
  8. 78 Ky. Op. Att’y Gen. 25, 1978 Ky. AG LEXIS 713, at *2. ⤴︎
  9. 206 S.W.3d 343 (Ky. 2006). ⤴︎
  10. Id. at 347. ⤴︎

State Right to Bear Arms in Louisiana

Article I, § 11 of the Louisiana State Constitution currently provides: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.” This was the result of a constitutional amendment, enacted via ballot measure in 2012. Prior to this amendment, Article I, § 11 had read: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

In a 1977 case, State v. Amos, the Louisiana Supreme Court rejected a challenge based on the original version of Article I, § 11 to a state statute that prohibited individuals convicted of certain felonies from carrying firearms.1 The court held that the right to keep and bear arms is not absolute, and that the state may use its police power to regulate any of the rights present in the Louisiana Constitution “in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.”2

In State v. Blanchard, a 2001 case, the court reaffirmed its pronouncements in Amos when holding that a state statute providing enhanced penalties for the constructive possession of a firearm while committing a crime of violence, or while possessing or selling drugs, was a reasonable regulation under the Louisiana Constitution.3 The court found “a rational relationship between the statute’s scope, i.e., making it a felony for a person to possess a firearm in connection with a drug offense, even a misdemeanor drug offense, and its legitimate state purpose of preventing drug-related violence.”4

Following the 2012 amendment to Louisiana’s constitutional right to bear arms provision, which required the application of strict scrutiny, state courts faced a wave of litigation aimed at statutes regulating firearm possession by convicted felons.  Despite the removal of an explicit license to regulate concealed weapons, and the imposition of the highest standard of review, several statutes regulating firearm possession have thus far survived review in the Louisiana courts.

In 2013, the Louisiana Supreme Court held, in State v. Draughter, that the state’s felon-in-possession statute, as applied to a convicted felon under state supervision, survived strict scrutiny.5  The court ruled that “[f]or these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm.”6 The court found that the statute both served a compelling state interest and was narrowly tailored to achieve that interest.7

Similarly, in State v. Eberhardt, a 2014 decision, the Louisiana Supreme Court upheld the state felon-in-possession statute both facially and as applied to a defendant previously convicted of unauthorized entry of an inhabited dwelling.8 As required by the 2012 constitutional amendment, the court analyzed the challenged law using strict scrutiny. In upholding the felon-in-possession statute, the court held that the law “serves a compelling governmental interest that has long been jurisprudentially recognized and is grounded in the legislature’s intent to protect the safety of the general public from felons convicted of specified serious crimes…[and] is narrowly tailored in its application to the possession of firearms or the carrying of concealed weapons for a period of only ten years from the date of completion of sentence, probation, parole, or suspension of sentence, and to only those convicted of the enumerated felonies determined by the legislature to be offenses having the actual or potential danger of harm to other members of the general public.”9.

Finally, the Louisiana Supreme Court also held in 2014 that the legislature retained the ability to pass laws regarding the carrying of concealed weapons, despite the 2012 amendment to the state’s constitution.10  In ruling that the challenged statutes regulating concealed carry and prohibiting juvenile handgun possession except under certain circumstances passed review under strict scrutiny, the court held that “[t]he right to keep and bear arms, like other rights guaranteed by [the] state constitution, is not absolute.”11 The court found “‘a long history, a substantial consensus, and simple common sense’ to be sufficient evidence for even a strict scrutiny review.”12 The court concluded that “the drafters and ratifiers [of the 2012 constitutional amendment] did not intend to invalidate the existing law restricting the carrying of concealed weapons, or to restrict the legislature’s authority to pass laws on that subject.”13

Notes
  1. 343 So. 2d 166 (La. 1977). ⤴︎
  2. Id. at 168. ⤴︎
  3. 776 So. 2d 1165 (La. 2001). ⤴︎
  4. Id. at 1173. See also State v. Wiggins, 432 So. 2d 234, 237 (La. 1983) (upholding a felon-in-possession statute); State v. Hamlin, 497 So. 2d 1369, 1371 (La. 1986) (upholding a statute requiring the registration of “weapons whose customary use in times of peace was in perpetration of crime”). ⤴︎
  5. 130 So. 3d 855 (La. 2013). ⤴︎
  6. Id. at 867. ⤴︎
  7. Id. at 867-68. ⤴︎
  8. 145 So. 3d 377 (La. 2014); see also State v. Griffin, NO. 14-KA-450, 2014 La. App. LEXIS 3001 (La. Ct. App. Dec. 16, 2014) (upholding a felon-in-possession statute, as applied to a convicted felon still under state supervision); State v. Williams, 138 So. 3d 727 (La. Ct. App. 2014) (upholding a felon-in-possession statute, as applied to a convicted felon on parole). ⤴︎
  9. Eberhardt, 145 So. 3d at 385 ⤴︎
  10. State ex rel. J.M., 144 So. 3d 853 (La. 2014). ⤴︎
  11. Id. at 860. ⤴︎
  12. Id. at 861. ⤴︎
  13. Id. at 864. ⤴︎

State Right to Bear Arms in Maine

Article I, § 16 of the Maine Constitution provides: “Every citizen has a right to keep and bear arms and this right shall never be questioned.”

The Supreme Judicial Court of Maine has held that art. I, § 16 creates an individual “right to keep and bear arms,” but this right is not absolute. Rather, it is subject to the reasonable exercise of constitutionally granted police powers. In State v. Brown, the court reversed a trial court dismissal of an indictment against a defendant charged with violating the state’s felon in possession of a firearm statute, holding that a statute banning the possession of firearms by felons, including those who committed non-violent felonies, was a reasonable exercise of the police power.1 “It has long been settled law that the State possesses ‘police power’ to pass general regulatory laws promoting the public health, welfare, safety, and morality.”2 The court found that statutes regulating the possession of firearms by convicted felons serve the public welfare and “bear a rational relationship to the legitimate governmental purpose of protecting the public from the possession of firearms by those previously found to be in…serious violation of the law…”3

Similarly, in Hilly v. City of Portland, the Supreme Judicial Court of Maine held that a statute requiring a permit to carry a concealed weapon did not violate art. I, § 16 because the statute was “a reasonable response to the justifiable public safety concern engendered by the carrying of concealed firearms.”4

Notes
  1. 571 A.2d 816, 820 (Me. 1990). ⤴︎
  2. Id. ⤴︎
  3. Id. at 821. ⤴︎
  4. 582 A.2d 1213, 1215 (Me. 1990). ⤴︎

State Right to Bear Arms in Maryland

The Maryland Constitution contains no explicit provision conferring a “right to bear arms.” Article 28 of the Maryland Declaration of Rights provides “[t]hat a well regulated Militia is the proper and natural defence [sic] of a free Government.”

In Scherr v. Handgun Permit Review Board, an appellate court held that article 28 creates no individual right to bear arms.1 The court stated: “[t]he Maryland Declaration of Rights is silent as to the right to bear arms. [There is no case that] supports the proposition that the mere fact that a constitution provides for the establishment of a militia means that the citizens have a right to bear arms.”2

The Maryland Attorney General also has discussed the scope of article 28.3 The Attorney General was asked to opine whether a certain bill would violate Article 28. That bill would have required the licensing of handgun purchasers and placed restrictions on the purchase of handguns and ammunition and on the manufacture or transfer of assault weapons. The Attorney General concluded that the proposed bill was not inconsistent with article 28, stating that “[g]iven the omission of any language referring to a right to bear arms,” a court would likely construe Article 28 “as nothing more than a directive to the General Assembly to provide for a militia.”4

Under Maryland law, “[a]n opinion of the Attorney General construing a statute will not be disregarded, except for strong reasons…. While not binding on this Court, the opinions of the Attorney General are, nevertheless, generally entitled to careful consideration.”5

Notes
  1. 880 A.2d 1137 (Md. Ct. Spec. App. 2005). ⤴︎
  2. Id. at 1156. ⤴︎
  3. 79 Op. Att’y Gen. 206 (1994), 1994 Md. AG LEXIS 76. ⤴︎
  4. 79 Op. Att’y Gen. 206 (1994), 1994 Md. AG LEXIS 76, *5-*6. ⤴︎
  5. Scott v. Clerk of the Circuit Court For Frederick County, 684 A.2d 896, 899 (Md. Ct. Spec. App. 1996), citing Dodds v. Shamer, 339 Md. 540, 556, 663 A.2d 1318 (1995). ⤴︎

State Right to Bear Arms in Massachusetts

Article XVII of the Constitution of the Commonweath of Massachusetts provides:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

For further information about the right to bear arms in this state, contact the Law Center directly.

State Right to Bear Arms in Michigan

Article I, § 6 of the Constitution of the State of Michigan provides that “[e]very person has a right to keep and bear arms for the defense of himself and the state.”

The Supreme Court of Michigan and the state’s other appellate courts have repeatedly held that Article I, § 6 is subject to the reasonable exercise of the state’s police power.1

In 2014, the Court of Appeals of Michigan ruled, in People v. Wilder, that a conviction for “possession of a firearm while intoxicated” did not violate the state right to bear arms.2 In doing so, the court noted that the right to bear arms was not universal, and that “there are constitutionally acceptable categorical regulations of gun possession.”3 Wilder distinguished an earlier case, People v. Deroche, 829 N.W.2d 891 (Mich. Ct. App. 2013), which had affirmed the dismissal of a charge for possession of a firearm while intoxicated, by observing that the possession of the firearm in Wilder was actual, rather than simply constructive.4

Michigan courts have also held that Article I, § 6 applies only to the possession of arms for the purpose of self-defense and provides no right regarding the use of firearms for hunting or sport.5

Notes
  1. See People v. Brown, 235 N.W. 245, 246-47 (Mich. 1931) (rejecting an Article I, § 6 challenge to a statute criminalizing possession of a blackjack, a weapon of “urban gangsters,” noting that Article I, § 6 provides no right to arms “whose customary employment by individuals is to violate the law”); Eaton County Deputy Sheriffs Association v. Smith, 195 N.W.2d 12 (Mich. Ct. App. 1971) (rejecting an Article I, § 6 challenge to a statute giving sheriffs the power to prohibit deputies from carrying guns while off duty); People v. Perry, 326 N.W.2d 437, 439 (Mich. Ct. App. 1982) (defendant’s conviction for possession of a firearm during commission of a felony did not violate Article I, § 6); People v. Graham, 335 N.W.2d 658, 661 (Mich. Ct. App. 1983) (Article I, § 6 “does not encompass the possession of a firearm during the commission of a felony.”); People v. Smelter, 437 N.W.2d 341, 342 (Mich. Ct. App. 1989) (upholding defendant’s conviction for possession of a stun gun as a “reasonable and constitutional” prohibition by the legislature); People v. Swint, 572 N.W.2d 666, 671 (Mich. Ct. App. 1997) (rejecting an Article I, § 6 challenge to a state law prohibiting possession of a firearm by a convicted felon); and People v. Green, 580 N.W.2d 444, 449 (Mich. Ct. App. 1997) (noting that a felon-in-possession statute did not violate Michigan’s constitutional right to bear arms provision);  but see People v. Yanna, 824 N.W.2d 241, 245 (Mich. Ct. App. 2012) (calling into question the holding from Smelter with respect to stun guns). ⤴︎
  2. 861 N.W.2d 645, 648 (Mich. Ct. App. 2014). ⤴︎
  3. Id. at 649. ⤴︎
  4. Wilder, 861 N.W.2d at 649. ⤴︎
  5. Kampf v. Kampf, 603 N.W.2d 295, 298 (Mich. Ct. App. 1999) (statute prohibiting firearm possession by an individual subject to a domestic abuse restraining order does not violate Article I, § 6 and is a reasonable exercise of police power, even though the individual wished to possess a firearm for hunting and sporting events); see also People v. Zerillo, 189 N.W. 927 (Mich. 1922) (holding that while a state law could prohibit non-U.S. citizens from possessing handguns for the purpose of hunting, the law would violate Article I, § 6 (previously codified as Mich. Const. art. II, § 5) if it prevented non-U.S. citizens from possessing a handgun to defend themselves or their property). ⤴︎

State Right to Bear Arms in Minnesota

The Minnesota Constitution does not contain a provision regarding a right “to bear arms.”

The Minnesota Supreme Court has held that even if such a right did exist, it is not absolute. In a case challenging a a statute requiring a permit to carry a loaded handgun under a claimed “common law right to bear arms,” the Minnesota Supreme Court held, without deciding whether such a right existed, that “[w]hatever the scope of any common-law or constitutional right to bear arms, we hold that it is not absolute and does not guarantee to individuals the right to carry loaded weapons abroad at all times and in all circumstances.”1

Notes
  1. In re Application of Atkinson, 291 N.W.2d 396, 399 (Minn. 1980). ⤴︎

State Right to Bear Arms in Mississippi

Article III, § 12 of the Constitution of the State of Mississippi states: “[t]he right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.”

There is little case law on this subject.

In a 1902 case, Wilson v. State, the Supreme Court of Mississippi rejected a challenge under the Mississippi Constitution of 1890, section 12 (identical to the current article III, § 12) to a former law forbidding the carrying of a concealed weapon in the home.1 The defendant testified that he was acting in defense of property because on nights previous to the violation a window had been broken and chickens on his property had been disturbed.2 The court found this testimony insufficient to support the claim that the defendant was acting in self-defense.3

In James v. State, the Supreme Court of Mississippi held, in 1999, that Miss. Code Ann. § 97-37-5, which prohibits convicted felons from possessing firearms, did not violate article III, § 12.4 The court reviewed legal authority from other jurisdictions concerning their exercise of police power in limiting state constitutional provisions that guarantee a “right to bear arms.” Following this review, the court found that the right to “keep and bear arms” in Mississippi is not absolute, but subject to reasonable exercise of the police power.5 Further, the court emphasized that “[i]n limiting the possession of firearms by those persons who have been shown to present a threat to public safety, peace and order, the state is reasonably exercising its power to protect in the interest of the public.”6

Notes
  1. 33 So. 171 (Miss. 1902). ⤴︎
  2. Id. at 171-72 ⤴︎
  3. Id. at 172; but see Patterson v. State, 170 So.2d 635, 638 (Miss. 1965) (holding that an individual, on a legitimate journey which took him beyond the scope of his friends, related solely to his business, did not violate any statutes related to the carrying of a concealed weapon). ⤴︎
  4. 731 So.2d 1135 (Miss. 1999). ⤴︎
  5. Id. at 1137. ⤴︎
  6. Id. ⤴︎

State Right to Bear Arms in Missouri

Article 1, § 23 of the Missouri Constitution sets forth the right of a private individual to bear arms. In 2014, voters approved a radical amendment to this provision making it easier to challenge state and local gun laws in court. Article I, § 26 now reads: “That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.”1

The 2014 amendment forces state courts to review gun laws under the technical and confusing judicial standard known as “strict scrutiny.” Laws evaluated under strict scrutiny—the toughest form of judicial review—are struck down more frequently by the courts because the standard is so high.

Very few courts in the nation apply this level of review to cases challenging gun laws. Using this standard, the court asks whether the law furthers a compelling government interest using the most narrowly tailored means to achieve that interest.

In the limited number of cases in which courts have applied strict scrutiny review to gun laws, the laws are most often struck down. Since the 2014 amendment, Missouri courts have yet to review a challenge to a firearms regulation under strict scrutiny. Examples of measures outside of Missouri that have been invalidated under this standard include laws that:

  • ban transporting or possessing firearms outside of the home during a state of emergency2
  • ban guns in bars and other establishments where alcohol is sold or consumed on the premises3
  • ban possession of guns by individuals previously convicted of misdemeanor gun possession4
  • require that a person be a U.S. citizen to be eligible for a firearms license5
  • ban the sale or transfer of firearms within city limits6
  • ban the operation of shooting ranges within city limits7

Prior to the 2014 amendment, the Supreme Court of Missouri had rejected various challenges to state statutes. The Supreme Court of Missouri has held that article 1, § 23 protects an individual’s right to possess or use firearms. However, the court has held such a right is limited to “defense of home, person or property” and is subject to the authority of the Missouri General Assembly to enact laws which regulate the time, place and manner of bearing firearms. In State v. Wilforth, the Missouri Supreme Court rejected a constitutional challenge to a statute prohibiting the carrying of a firearm into a church or place of worship.8 Similarly, in State v. Shelby, the Missouri Supreme Court rejected a challenge to a statute prohibiting the carrying of a weapon in certain places where persons are assembled or while intoxicated.9 The court in Shelby also rejected a challenge to a statute prohibiting the carrying of concealed weapons.10

In State v. Keet, the Missouri Supreme Court rejected a challenge to a statute prohibiting the carrying of concealed weapons.11 The court rejected the defendant’s argument that, since he had a “reasonable apprehension of danger” and was acting in self-defense, he had a right to carry a concealed weapon.12 The court distinguished between weapons carried openly and weapons carried concealed, and held that the state right to bear arms in self-defense does not protect a person carrying a concealed weapon.13

In State v. White, the Missouri Supreme Court rejected a challenge to a statute prohibiting the exhibition of a deadly weapon in a rude, angry or threatening manner.14 In State v. Plassard, the Missouri Supreme Court held that the state “right to bear arms” required that a defendant charged with unlawfully exhibiting a weapon be given an opportunity to prove that he had a right to possession of the property where he was at the time of the offense.15 The court stated that “[i]f the defendant was defending his home and property, he had a constitutional right to bear arms” and could not be convicted.16

In Brooks v. State, the Supreme Court of Missouri rejected a novel article 1, § 23 challenge to a state law, adopted in September 2003, that authorized the carrying of a concealed firearm.17 A group of citizens challenged the law, claiming that the carrying of a concealed firearm violates the last clause of article 1, § 23, which states that the article “shall not justify the wearing of concealed weapons.” The court stated that article 1, § 23 “means simply that the constitutional right does not extend to the carrying of concealed weapons, not that citizens are prohibited from doing so, or that the General Assembly is prohibited from enacting statutes allowing or disallowing the practice.”18

In City of Cape Girardeau v. Joyce, the Missouri Court of Appeals rejected an article 1, § 23 challenge to a municipal ordinance prohibiting the open carrying of a firearm readily capable of lethal use.19 The court also rejected an article 1, § 23 challenge to Mo. Rev. Stat. § 21.750.3, the statutory provision which delegated to political subdivisions the power to enact such ordinances.20

See the Local Authority to Regulate Firearms in Missouri summary for further information.

Notes
  1. Mo. Const. Art. I, § 23. ⤴︎
  2. Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012). ⤴︎
  3. Taylor v. City of Baton Rouge, 2014 U.S. Dist. LEXIS 117919 (M.D. La., Aug. 25, 2014). ⤴︎
  4. Gowder v. City of Chicago, 923 F. Supp. 2d 1110 (N.D. Ill. 2012). ⤴︎
  5. Fletcher v. Haas, 851 F. Supp. 2d 287 (D. Mass. 2012). ⤴︎
  6. Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014). ⤴︎
  7. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). ⤴︎
  8. 74 Mo. 528, 530 (1881). ⤴︎
  9. 2 S.W. 468 (1886). ⤴︎
  10. Id. at 469. ⤴︎
  11. 190 S.W. 573 (1916). ⤴︎
  12. Id. at 574. ⤴︎
  13. Id. at 576. ⤴︎
  14. 253 S.W. 724 (1923). ⤴︎
  15. 195 S.W. 2d 495 (1946). ⤴︎
  16. Id. at 497. ⤴︎
  17. 128 S.W.3d 844 (2004). ⤴︎
  18. Brooks, 128 S.W.3d at 847. ⤴︎
  19. 884 S.W.2d 33, 34 (1994). ⤴︎
  20. Id. ⤴︎

State Right to Bear Arms in Montana

Article II, § 12 of the Montana Constitution provides that “[t]he right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

Originally enacted as Article III, § 13 of the Montana Constitution, this provision has been interpreted by state courts to protect an individual right to possess arms in defense of self and property. This right has been interpreted to be subject to regulations by the state that are “reasonably necessary to preserve the public welfare.”1

In a 2012 case, State v. Fadness, the Supreme Court of Montana rejected the argument that the state’s felon-in-possession law violated article 2, section 12 of the Montana Constitution.2 In addressing this matter, the court ruled that the state right to bear arms “is not unlimited,”((Id. at 25.)) that “the right of a felon to keep or bear arms may be regulated in the interest of public safety,”3 and that “the right to bear arms is subject to the police power of the state.”4 In reaching these conclusions, the court looked to a Fifth Circuit ruling, which declared that “[a convicted felon] may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens.”5

Notes
  1. See State v. Rathbone, 100 P.2d 86, 91 (Mont. 1940) (stating that the exercise of police power may infringe upon private rights only to the extent reasonably necessary to preserve the public welfare, and holding that the right “to keep or bear arms” protects a fundamental right to defend one’s own property); and United States v. Brooks, 890 P.2d 759, 761 (Mont. 1995) (holding that while a convicted criminal offender may be deprived of his or her constitutional rights, including the right “to keep or bear arms,” such deprivation must be specifically enumerated and included in the sentencing order). ⤴︎
  2. 268 P.3d 17 (Mont. 2012). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Id. at 26, quoting United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004). ⤴︎

State Right to Bear Arms in Nebraska

Article I, § 1 of the Nebraska Constitution incorporates the right to keep and bear arms for lawful purposes as one of the “inherent and inalienable” rights of its citizens: “All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”

Notwithstanding Article I, § 1, the right keep and bear arms is subject to reasonable regulation in Nebraska.  In State v. Comeau, the Supreme Court of Nebraska rejected an article I, § 1 challenge to Neb. Rev. Stat. §§ 28-1207 (prohibiting possession of a firearm with altered identification marks) and 28-1206 (prohibiting possession of a deadly weapon by a felon).1 The court held that the “right to keep and bear arms” is not absolute and the state may adopt reasonable regulations concerning firearms.2

The Supreme Court of Nebraska rejected another article I, § 1 challenge to section 28-1206 in State v. Mowell.3 The defendant argued that section 28-1206 violated his article I, § 1 “right to defend himself.”  Consistent with earlier case law, the court found the statute to be a “reasonable, and constitutional, restriction on the right to bear arms.”4

 

Notes
  1. 448 N.W.2d 595 (Neb. 1989). ⤴︎
  2. Comeau, 448 N.W.2d at 597, 600. ⤴︎
  3. 672 N.W.2d 389 (Neb. 2003). ⤴︎
  4. Mowell, 672 N.W.2d at 401. See also State v. LaChapelle, 451 N.W.2d 689, 691 (Neb. 1990) (rejecting an article I, § 1 challenge to section 28-1203(1) (prohibiting possession of a machine gun, short rifle or short shotgun), holding that the section “is a valid exercise of the State’s police power in reasonable regulation of certain firearms”); State v. Harrington, 461 N.W.2d 752 (Neb. 1990), overruled on other grounds by State v. Woodfork, 478 N.W.2d 248 (Neb. 1991) (rejecting an article I, § 1 challenge to section 28-1206); and State v. Blank, 474 N.W.2d 689 (Neb. 1991) (also rejecting an article I, § 1 challenge to section 28-1206). ⤴︎

State Right to Bear Arms in Nevada

The Constitution of the State of Nevada, Article 1, § 11(1) provides that “[e]very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

There is little case law interpreting Article 1, § 11(1).

In 1968, the Supreme Court of Nevada held, in a case interpreting the Second Amendment to the United States Constitution, that “the authority to regulate weapons comes from a state’s police powers.”1 However, Hardison predated the 1982 enactment of Article 1, § 11(1).

More recently, in the 2012 case Pohlabel v. State, the Supreme Court of Nevada upheld a felon-in-possession statute against a defendant who argued that the statute violated his right to bear arms under article 1, § 11(1) by barring him from possessing a black powder rifle.2  The court held that the right to bear arms was not unlimited,3 and that barring a convicted felon from possessing firearms is rational because of the increased potential for danger.4  The court further concluded that “unpardoned felons are not included among those to whom the Nevada Constitution guarantees the right to keep and bear arms.”5

Notes
  1. Hardison v. State, 437 P.2d 868, 871 (Nev. 1968) (rejecting a Second Amendment challenge to a state law prohibiting a convicted felon from possessing a concealable firearm). ⤴︎
  2. 268 P.3d 1264 (Nev. 2012). ⤴︎
  3. Id. at 1268 (quoting District of Columbia v. Heller, 554 U.S. 570 (2008). ⤴︎
  4. 268 P.3d at 1268. ⤴︎
  5. Id. at 1272. ⤴︎

State Right to Bear Arms in New Hampshire

Part 1, Article 2-a of the New Hampshire Constitution, adopted in 1982, provides that “[a]ll persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state.”

The New Hampshire Supreme Court rejected an Article 2-a challenge to New Hampshire Revised Statutes Annotated § 159:3 (prohibiting possession of firearms by convicted felons) in State v. Smith.1 The Smith court found that the state “right to keep and bear arms” is not absolute, and concluded that a restriction of the right is valid as long as it “narrowly serves a significant governmental interest.”2 The court held that the interests served by the statute were the protection of human life and property, and the statute narrowly served these interests “by prohibiting a category of persons likely to be dangerous from possessing dangerous weapons.”3

The New Hampshire Supreme Court also rejected an Article 2-a substantive due process challenge to N.H. Rev. Stat. Ann. § 159:6-b (authorizing the suspension or revocation of a license to carry a concealed weapon), in Bleiler v. Chief, Dover Police Dep’t.4 The Bleiler court declined to subject gun regulations to strict scrutiny, and held that “the reasonableness test is the correct test for evaluating a substantive due process challenge to gun control legislation.”5 The court emphasized, however, that this test “focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote public welfare.”6 The court held that the statute was reasonable limitation, noting that it “does not prohibit carrying weapons; it merely regulates the manner of carrying them.”7 The court concluded that, “[i]n view of the benefit to public safety and in light of the lack of restriction on possession of loaded weapons in one’s home or business,” the statute did not “‘subvert unduly’ the self-defense aspect of the state constitutional right to bear arms.”8

Notes
  1. State v. Smith, 571 A.2d 279 (N.H. 1990). ⤴︎
  2. Id. at 281 (citation omitted). ⤴︎
  3. Id. ⤴︎
  4. Bleiler v. Chief, Dover Police Dep’t.927 A.2d 1216 (N.H. 2007). ⤴︎
  5. Id. at 1223. ⤴︎
  6. Id. ⤴︎
  7. Id. ⤴︎
  8. Id. ⤴︎

State Right to Bear Arms in New Jersey

The New Jersey Constitution contains no provisions relating to the keeping or bearing of arms.  However, New Jersey courts have generally upheld in-state firearm regulations that were otherwise challenged on Second Amendment grounds.

In the 2010 case Crespo v. Crespo, 989 A.2d 827 (N.J. 2010), the Supreme Court of New Jersey held that the “seizure of a defendant’s firearms upon a finding of domestic violence” did not violate an individual’s Second Amendment right to bear arms.1  The court noted that the Second amendment right to keep and bear arms “is incorporated as against the States by the Fourteenth Amendment,” and that “the right to possess firearms clearly may be subject to reasonable limitations.”2

In 2013, the Superior Court of New Jersey concluded that a statute requiring a showing of justifiable need prior to the issuance of a firearm permit did not violate the Second Amendment right to bear arms.3  The court held that “[the] state law governing permits to carry handguns does not ‘burden any protected conduct’ under the Second Amendment,”4 and noted that it was unclear, in the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), whether the Second Amendment right extended outside the home.5

Notes
  1. 989 A.2d at 828. ⤴︎
  2. Id. ⤴︎
  3. In re Patano, 60 A.3d 507 (N.J. Super. Ct. App. Div. 2013). ⤴︎
  4. Id. at 513, quoting Piszczatoski v. Filko, 840 F.Supp.2d 813, 829 (D.N.J. 2012). ⤴︎
  5. 60 A.3d at 514.  See also In re Wheeler, 81 A.3d 728 (N.J. Super. Ct. App. Div. 2013) (upholding a similar standard of justifiable need for permits authorizing certain retired law enforcement officers to carry handguns). ⤴︎

State Right to Bear Arms in New Mexico

Last Updated March 15, 2011

Article II, § 6 of the Constitution of New Mexico provides:

No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

In State v. Rivera, the Court of Appeals of New Mexico held that regulations that are reasonably related to the public health, welfare and safety do not violate article II, § 6.1 The court found that New Mexico Statutes Annotated § 30-7-4, which criminalizes negligent use of a deadly weapon, was a reasonable use of the state’s police power and did not violate the state constitution.2

Similarly, in State v. Dees, the court of appeals rejected an article II, § 6 challenge to former section 30-7-3, prohibiting the carrying of a firearm into a licensed liquor establishment.3 The court found that section 30-7-3 is “not an infringement upon the right to bear arms.”4

Conversely, in City of Las Vegas v. Moberg, the court of appeals held that a local ordinance banning the carrying of all firearms, concealed or unconcealed, violated article II, § 6.5 In Moberg, the court distinguished between laws that merely regulate the carrying of firearms, and laws that completely prohibit the carrying of firearms.6 The court stated that a law prohibiting the carrying of concealed firearms is a permissible regulation of article II, § 6. The ordinance at issue, however, prohibited the carrying of all firearms and was therefore a violation of article II, § 6.7

See also United States v. Romero, in which the court stated, in dicta, that the right conferred under article II, § 6 is not absolute and is subject to reasonable regulation.8

In 2004, the Supreme Court of New Mexico interpreted the meaning of the last phrase of the first sentence of article II, § 6, which reads “nothing herein shall be held to permit the carrying of concealed weapons.” In State ex rel. New Mexico Voices for Children, Inc. v. Denko, the court upheld a statute allowing license holders to carry concealed handguns (N.M. Stat. Ann. §§ 29-19-1 – 29-19-13),9 rejecting the argument that the phrase prohibits the carrying of concealed weapons.10 The court held:

The [New Mexico] Constitution neither forbids nor grants the right to bear arms in a concealed manner. Article II, Section 6 is a statement of neutrality, leaving it to the Legislature to decide whether, and how, to permit and regulate the carrying of concealed weapons.11

See Local Authority to Regulate Firearms in New Mexico for a summary for cases that have analyzed the preemptive effect of art. II, § 6.

Notes
  1. 853 P.2d 126 (N.M. Ct. App. 1993). ⤴︎
  2. Rivera, 853 P.2d at 129. ⤴︎
  3. 669 P.2d 261, 264 (N.M. Ct. App. 1983). ⤴︎
  4. Dees, 669 P.2d at 264. ⤴︎
  5. 485 P.2d 737 (N.M. Ct. App. 1971). ⤴︎
  6. Id. at 738. ⤴︎
  7. Id. ⤴︎
  8. 484 F.2d 1324, 1327 (10th Cir. 1973). ⤴︎
  9. 2004-NMSC-11, 135 N.M. 439, 90 P.3d 458, ⤴︎
  10. Id. at ¶¶ 5-13. ⤴︎
  11. Denko, at ¶ 8. ⤴︎

State Right to Bear Arms in New York

New York Civil Rights Law article II, § 4 provides that “[a] well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.”

New York courts have held that the rights conferred by this provision are co-extensive with the rights conferred by the Second Amendment to the U.S. Constitution.1

In 1943, an appellate court in New York affirmed a trial court decision denying petitioner’s application for a concealed carry license.2 The court ruled that “authoritative Federal decisions construing the Second Amendment may properly be applied to the State statute,”3 and noted that “local authorities, having in view considerations of public safety and the maintenance of law and order in their community, shall ascertain whether ‘proper cause exists for the issuance’ of the desired license.”4

More recently, in the 2009 case People v. Perkins, a New York trial court rejected a section four challenge to New York’s pistol permit requirement.5 The defendant relied on the Supreme Court’s decision in District of Columbia v. Heller, which held that the District of Columbia’s ban on handgun possession in the home violated the Second Amendment.6 The court rejected this challenge to the state permit requirement, pointing out that the defendant in this case was not in his home at the time of the crime, and did not have a valid pistol permit.7 According to the court, the right conferred by the Second Amendment—and, by extension, section four—“is not absolute and may be limited by reasonable governmental restrictions.”8 The court reasoned that the state law “does not effect a complete ban on handguns and is, therefore, not a ‘severe restriction’ improperly infringing upon defendant’s Second Amendment rights. Moreover, in our view, New York’s licensing requirement remains an acceptable means of regulating the possession of firearms … and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner.”9

Second Amendment challenges to various New York gun laws have been rejected in recent years.  For example, in the 2012 case Kachalsky v. County of Westchester, the Second Circuit upheld  the “proper cause” requirement of New York’s concealed carry permitting laws.10 Noting that there was “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety,”11 the court applied intermediate scrutiny, and found that “[r]estricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.” As such, the court concluded that the challenged law did not violate the Second Amendment.12

Similarly, in 2013, the Second Circuit held, in Kwong v. Bloomberg,13 that a statute requiring a fee for a residential handgun license was constitutional.  Among other reasons, the court found that the $340 fee for a three-year license was nothing more than a “marginal, incremental or even appreciable restraint on [plaintiff’s] Second Amendment rights.”14  The court found that “the licensing fee is designed to allow the City of New York to recover the costs incurred through operating its licensing scheme, which is designed to promote public safety and prevent gun violence.”15  In light of this, the court concluded that the challenged fee “easily survives intermediate scrutiny.”16

For more on how federal courts have interpreted the scope of the Second Amendment, see the Law Center’s Post-Heller Litigation Summary.

Notes
  1. See, e.g., Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 198 (N.Y. Sup. Ct. 1994) (noting that the Second amendment is identical in its language to article 2, section 4 of the Civil Rights Law, and that the Second Amendment “should be used in interpreting the provisions of this State law); Guida v. Dier, 375 N.Y.S.2d 826, 828 (N.Y. Sup. Ct. 1975), modified on other grounds, 387 N.Y.S.2d 720 (N.Y. App. Div. 1976) (noting that the “right guaranteed by the Second Amendment” is “further defined in section 4 of article 2 of the Civil Rights Law”). ⤴︎
  2. Moore v. Gallup, 45 N.Y.S.2d 63 (N.Y. App. Div. 1943). ⤴︎
  3. Id. at 66. ⤴︎
  4. Id. at 67. ⤴︎
  5. 880 N.Y.S.2d 209 (N.Y. Sup. Ct. 2009). ⤴︎
  6. 554 U.S. 570 (2008). ⤴︎
  7. 880 N.Y.S.2d at 210. ⤴︎
  8. Id. ⤴︎
  9. Id. ⤴︎
  10. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). ⤴︎
  11. Id. at 94-95. ⤴︎
  12. Id. at 98. ⤴︎
  13. Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013). ⤴︎
  14. Id. at 167 (quotations omitted). ⤴︎
  15. Id. at 169. ⤴︎
  16. Id. (quotations omitted). ⤴︎

State Right to Bear Arms in North Carolina

Article I, § 30 of the North Carolina State Constitution, entitled “Militia and the right to bear arms,” provides:

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

North Carolina courts have held that art. I, § 30 protects the ability of individuals to bear arms for defense of self and property.1 However, as the Supreme Court of North Carolina observed in State v. Dawson, the decisions construing the scope of art. I, § 30 (then art. I, § 24) have consistently pointed out that the right conferred by art. I, § 30 is not absolute, but is subject to reasonable regulation.2 The court held that regulation must be “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”3 The court upheld convictions under the common law prohibition against going “armed to the terror of the people.”4

Additional relevant decisions include Britt v. State, 681 S.E.2d 320 (2009) (holding that a state statue prohibiting felons from possessing firearms violated art. I, § 30 as applied to the plaintiff, but declining to strike down the constitutionality of the statute on its face); State v. Johnson, 610 S.E.2d 739, 744, 746 (N.C. Ct. App. 2005) (stating that a state statute prohibiting possession of a firearm by a felon is reasonably related to securing the public’s safety); Fennell, 382 S.E.2d at 233 (rejecting an art. I, § 30 challenge to a state statute prohibiting possession of any “weapon of mass death and destruction” as applied to possession of a sawed-off shotgun by the defendant.)

Finally, in State v. Oaks, a court of appeals upheld a trial court’s decision to order the destruction of firearms found in the home of a defendant who admitted to habitual drug use.5 However, the court found that it was an unreasonable infringement on art. I, § 30 for the trial court to conclude that the defendant and his wife could not “possess firearms or ammunition on [their] own premises, even for [their] own protection” without any time limitation.6 The court found it was unreasonable for the trial court to assume the defendant and his wife would always be habitual drug users and thus would be barred from possessing firearms indefinitely.7

Notes
  1. State v. Fennell, 382 S.E.2d 231 (N.C. Ct. App. 1989). ⤴︎
  2. 159 S.E.2d 1, 10-12 (N.C. 1968). ⤴︎
  3. Dawson, 159 S.E.2d at 10. ⤴︎
  4. Id. at 11. ⤴︎
  5. 594 S.E.2d 788 (N.C. Ct. App. 2004). ⤴︎
  6. Oaks, 594 S.E.2d at 793. ⤴︎
  7. Id. ⤴︎

State Right to Bear Arms in North Dakota

Article I, § 1 of the North Dakota Constitution states that all individuals have certain “inalienable rights,” and includes among them the right “to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.”1 This provision was added to the state constitution in 1984 by an “initiated amendment.”

There is not much case law interpreting article I, § 1.  In the 1987 case State v. Ricehill.2, the defendant was convicted under a state law prohibiting the possession of a firearm by a convicted felon. He challenged the conviction, arguing, among other things, that the statute violated his state constitutional right to “keep and bear arms.” The Supreme Court of North Dakota rejected the argument that the phrase “shall not be infringed” should be interpreted as precluding the Legislature from placing any limits on the possession of arms, stating:

We disagree with such a broad reading of the provision. Instead, we believe our Constitution’s protection of the right to keep and bear arms is not absolute; although it prevents the negation of the right to keep and bear arms, that right nevertheless remains subject to reasonable regulation under the State’s police power.3

The court went on to find the challenged law to be “patently reasonable” and thus within the legitimate scope of the state’s police power.4

In 1998, the same court ordered that an application for a concealed weapon license must be approved, by the sheriff, “within a reasonable time, unless the applicant has objectively failed the ‘testing procedure’ specified [by statute].”5 North Dakota law enumerates the two conditions which must be met, after which the sheriff must approve an application: 1) a background check, and 2) attendance at a testing procedure.6 While noting the ruling in Ricehill that the right to keep and bear arms “remains subject to reasonable regulation under the State’s police power,”7 the Kasprowicz court nevertheless concluded that “the legislature did not intend to give sheriffs discretionary authority to deny licenses.”8

Notes
  1. N.D. Const. Art. I, § 1. ⤴︎
  2. 415 N.W.2d 481 (1987). ⤴︎
  3. Id. at 483. ⤴︎
  4. Id. at 483-84. ⤴︎
  5. Kasprowicz v. Finck, 574 N.W.2d 564, 568 (N.D. 1998). ⤴︎
  6. N.D.C.C. § 62.1-04-03(1)(c). ⤴︎
  7. 574 N.W.2d at 566 (quoting Ricehill, 415 N.W.2d 481). ⤴︎
  8. 574 N.W.2d at 567. ⤴︎

State Right to Bear Arms in Ohio

Article I, § 4 of the Ohio Constitution provides: “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.” The Supreme Court of Ohio held this provision “secures to every person a fundamental individual right to bear arms for ‘their defense and security.'” (Emphasis omitted.)1 The right to bear arms under Article I, § 4 is not unlimited, however, but is subject to the reasonable exercise by municipalities of their police power under article XVIII, § 3 of the Ohio Constitution.2

In Arnold, the supreme court rejected a challenge to Cleveland’s ordinance banning the possession and sale of assault weapons, holding that although a municipality could not ban all firearms, Cleveland’s ban on assault weapons was reasonable and did not violate article I, § 4.3

Ten years later, in Klein v. Leis, the court held that Ohio Rev. Code Ann. §§ 2923.12 and 2923.16, which at the time prohibited the carrying of concealed firearms, were constitutional notwithstanding article I, § 4.4 The court opined that while article I, § 4 does create a fundamental right, the right is subject to reasonable limitations, and “there is no constitutional right to bear concealed weapons.”5 Sections 2923.12 and 2923.16 regulated the manner in which firearms could be carried, and the court noted that such regulations have long been accepted as reasonable limitations under article I, § 4.6  Subsequent to Klein, the Ohio Legislature amended the law regarding concealed weapons, and under current law an individual may be licensed to carry a concealed handgun. For more information, please see the Concealed Weapons Permitting in Ohio section.

In addition to rejecting article I, § 4 challenges to Cleveland’s ban on assault weapons and the state ban on carrying concealed weapons, Ohio courts have rejected similar challenges to the following regulations:

  • Dayton’s requirement that owners and purchasers of handguns obtain identification cards;7
  • Cincinnati’s prohibition on possession of semiautomatic firearms and high-capacity magazines;8
  • Cleveland’s prohibition of the manufacture, possession, sale, or purchase of .32 caliber (or less) handguns with barrel-lengths of less than three inches;9
  • Akron’s prohibition on firearm possession by convicted felons;10 and
  • Toledo’s extensive firearms ordinance prohibiting certain classes of persons from possessing firearms, requiring identification cards to acquire or possess handguns, requiring firearms dealers to be licensed and keep certain records, and prohibiting the carrying of firearms in vehicles.11

Finally, the United States Court of Appeals for the Sixth Circuit rejected an article I, § 4 challenge to a Columbus ordinance banning assault weapons (although the ordinance was overturned on other grounds).12

Notes
  1. Arnold v. City of Cleveland, 616 N.E.2d 163, 169 (Ohio 1993). ⤴︎
  2. Id. at 171-173. ⤴︎
  3. Id. at 173. ⤴︎
  4. 99 Ohio St. 3d 537, 2003-Ohio-4779, 795 N.E.2d 633. ⤴︎
  5. Klein v. Leis, 99 Ohio St. 3d 537, 2003-Ohio-4779, 795 N.E.2d 633, at ¶ 15. ⤴︎
  6. Id. at ¶ 8 – ¶ 15. ⤴︎
  7. Mosher v. City of Dayton, 358 N.E.2d 540 (Ohio 1976). ⤴︎
  8. City of Cincinnati v. Langan, 640 N.E.2d 200 (Ohio Ct. App. 1994). ⤴︎
  9. City of Cleveland v. Turner, 1977 Ohio App. LEXIS 9391 (Ohio Ct. App. 1977) (unreported decision). ⤴︎
  10. City of Akron v. Williams, 177 N.E.2d 802 (Ohio Ct. App. 1960). ⤴︎
  11. Photos v. City of Toledo, 19 Ohio Misc. 147, 151-2 (Ct. Com. Pl. 1969). ⤴︎
  12. Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 538 (6th Cir. 1998). ⤴︎

State Right to Bear Arms in Oklahoma

Article II, § 26 of the Oklahoma Constitution provides: “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

In a 1998 case, State ex rel. Oklahoma State Bureau of Investigation v. Warren, the Supreme Court of Oklahoma held that “there is no absolute common-law or constitutional right to carry loaded weapons at all times and in all circumstances.”1 The court rejected various challenges to Okla. Stat. tit. 21, § 1290.11(A), which prohibits an individual arrested for a felony from obtaining a concealed handgun license. The court concluded that “[a]n individual’s right to keep and bear arms under a State Constitution…remains subject to reasonable regulation under the State’s police power.”2 In March 2004, the Oklahoma legislature amended the state’s Self-Defense Act to prohibit any “person, property owner, tenant, employer, or business entity [from establishing]…any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.”3

In the 1908 case Ex Parte Thomas, the Supreme Court of Oklahoma rejected an article II, § 26 challenge to a state law prohibiting the carrying of a concealed pistol.4 The court found that while the right to “bear arms” is a general right to be exercised by the people for their common defense, a pistol is not within “the character of arms in contemplation of the constitutional convention and of the people of the state” when they declared a right to “keep and bear arms,” and “bear arms” does not refer to “wearing them about the person as part of the dress.”5 The court stated that “the arms defendant had a right to bear, and which right could never be prohibited him, relates [sic] solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.”6

Similarly, in the 1929 case, Pierce v. State, the Court of Criminal Appeals of Oklahoma  rejected an article II, § 26 challenge to a law prohibiting the carrying of a concealed revolver.7 With respect to weapons not “recognized in civilized warfare,” the court stated that the Legislature has the power to not only prohibit their carrying “concealed or unconcealed,” but also “the power to even prohibit the ownership or possession of such arms.”8

Notes
  1. 975 P.2d 900, 902 (Okla. 1998). ⤴︎
  2. Id. at 902-03. See also Bastible v. Weyerhaeuser, 437 F.3d 999 (10th Cir. 2006) (citing Warren and rejecting an article II, § 26 challenge to former Okla. Stat. tit. 21, § 1290.22, which at that time preserved the right of an employer to prohibit weapons on its property, including in a car within a parking lot). ⤴︎
  3. Okla. Stat. tit. 21, § 1290.22(B). ⤴︎
  4. 97 P. 260 (1908). ⤴︎
  5. Id. at 262-264. ⤴︎
  6. Id. at 265. ⤴︎
  7. 275 P. 393 (Okla. Crim. App. 1929). ⤴︎
  8. Id. at 395;see also Beard v. State, 122 P. 941 (Okla. Crim. App. 1912) (rejecting an article II, § 26 challenge to a law prohibiting carrying a concealed pistol); Mathews v. State, 244 P. 56 (Okla. Crim. App. 1926) (rejecting an article II, § 26 challenge to a law prohibiting carrying a concealed revolver). ⤴︎

State Right to Bear Arms in Oregon

Article 1, Section 27 of the Oregon Constitution states: “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

In State v. Kessler, the Supreme Court of Oregon held that a state statute, which in the court’s words prohibited the “mere possession” of a billy club, among other bladed and blunt weapons, violated an individual’s constitutional right to bear arms under article 1, § 27.1 The court found that article 1, § 27 applies to an individual’s use of arms to protect himself or herself and his or her home as well as the use of arms by members of the militia.2 The court examined, in detail, what the drafters of the Oregon Constitution understood the term “arms” to mean, concluding that “arms” encompasses both weapons commonly used for defending the State as well as those commonly used for an individual’s self-defense.3 Importantly, however, the court emphasized that “the right to ‘bear arms’ does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances,” concluding that “[t]he reasoning of the courts is generally that a regulation is valid if the aim of public safety does not frustrate the guarantees of the state constitution.”4

In State v. Delgado, the Supreme Court of Oregon held that whether a ban on a particular weapon violates article 1, § 27 depends on “whether [the] kind of weapon, as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary and post-revolutionary era.”5 The court held that a statute prohibiting the possession and carrying of a switchblade knife violates article 1, § 27, although the court stated that individuals do not have “an unfettered right to possess or use constitutionally protected arms in any way they please. The legislature may, if it chooses to do so, regulate possession and use.”6

However, in State v. Smoot, the Court of Appeals of Oregon rejected an article 1, § 27 challenge to a law prohibiting the possession of a concealed switchblade because the statute was reasonably related to public safety and interfered only with the manner of possession, and not possession itself.7

In State v. Hirsch, the Supreme Court of Oregon rejected a challenge under article 1, § 27 to Oregon Revised Statutes § 166.270, which prohibits possession of a firearm by a person convicted of a felony.8 The court held that article 1, § 27 does not deprive the legislature of the authority to restrict the exercise of the state “right to bear arms” by designated groups of persons posing identifiable threats to public safety.9 Since the objective of section 166.270 was to protect the public from a group posing such a threat, it was not unconstitutionally overbroad.10

The court rejected the reasoning of its earlier cases, State v. Robinson11 and State v. Cartwright12, which had upheld laws against article 1, § 27 challenges by relying on the “police power” doctrine, which generally seeks to determine whether a legislative enactment reasonably “is in the interests of the public health, safety, and general welfare.” Citing Kessler, the court also rejected the state’s argument that article 1, § 27 created a communal, rather than an individual, right.13 In passing, the court pointed out that article 1, § 27 is not implicated when the bearing of arms is for a non-defensive purpose because the constitutional guarantee extends only to the bearing of arms for purposes of defense.14

Oregon courts have also rejected article 1, § 27 challenges to local ordinances regulating firearms. In Oregon State Shooting Ass’n v. Multnomah County, the Court of Appeals of Oregon held that the “right to bear arms” does not apply to a local ordinance banning assault weapons because, consistent with Delgado and Kessler, those weapons were not the sort of weapon in existence, of common use, and designed for personal defense in the mid-nineteenth century when article 1, § 27 was adopted.15

In State v. Boyce, the Court of Appeals of Oregon rejected an article 1, § 27 challenge to a Portland ordinance banning the possession of a concealable, loaded firearm in public or in a vehicle, stating that the ordinance was a reasonable exercise of the police power.16 The court noted that the ordinance does not regulate the “mere possession” of firearms or ammunition, but regulates the manner of possession.17

Note that subsequent to the Oregon State Shooting Ass’n and Boyce decisions, the Oregon Legislature adopted legislation preempting local jurisdictions from regulating certain firearm-related areas of the law. Please see the Local Authority to Regulate Firearms in Oregon summary for further information.

Notes
  1. 614 P.2d 94 (Or. 1980). ⤴︎
  2. Kessler, 614 P.2d at 98. ⤴︎
  3. Id. ⤴︎
  4. Id. at 99. See also State v. Blocker, 630 P.2d 824, 826 (Or. 1981) (holding that, consistent with Kessler, the possession of a billy club outside as well as inside the home is constitutionally protected because, under article 1, § 27, the legislature is prohibited by the constitution from outlawing the possession of a billy club). ⤴︎
  5. 692 P.2d 610, 612 (Or. 1984). ⤴︎
  6. Delgado, 692 P.2d at 614. See also State v. Stevens, 833 P.2d 318, 319 (Or. Ct. App. 1992) (holding that article 1, § 27 protects the carrying of a concealed switchblade inside the home). ⤴︎
  7. 775 P.2d 344, 345 (Or. Ct. App. 1989). ⤴︎
  8. 114 P.3d 1104 (Or. 2005). ⤴︎
  9. Hirsch, 114 P.3d at 1135. ⤴︎
  10. Hirsch, 114 P.3d at 1136. ⤴︎
  11. 343 P.2d 886 (Or. 1959). ⤴︎
  12. 418 P.2d 822 (Or. 1966). ⤴︎
  13. Id. at 1110-1111. ⤴︎
  14. Id. at 1108. See also Robinson, supra (rejecting an article 1, § 27 challenge to a former state statute prohibiting felons and non-naturalized aliens from possessing firearms capable of concealment upon the person); State v. Owenby, 826 P.2d 51 (Or. Ct. App. 1992) (rejecting an article 1, § 27 challenge to a state law prohibiting the purchase or possession of firearms by a person found by the court by clear and convincing evidence to be mentally ill). ⤴︎
  15. 858 P.2d 1315, 1318-22 (Or. Ct. App. 1993). ⤴︎
  16. 658 P.2d 577 (Or. Ct. App. 1983). ⤴︎
  17. Id. at 578-79. ⤴︎

State Right to Bear Arms in Pennsylvania

Article I, section 21 of the Pennsylvania State Constitution states: “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

In 1875, in the case of Wright v. Commonwealth, the Supreme Court of Pennsylvania rejected a challenge to a statute prohibiting the carrying of concealed weapons, summarily holding that the defendant had “no protection under the 21st section of the Bill of Rights, saving the right of the citizens to bear arms in defence [sic] of themselves and the state.”1 More recently, in the 2003 case Lehman v. Pennsylvania State Police, the Court held that the denial of appellant’s application to purchase a rifle due to a conviction for larceny decades earlier was not a violation of article 1, section 21, stating that “[w]hile the right to bear arms enjoys constitutional protection, like many other constitutional rights, it is not beyond regulation.”2

Pennsylvania’s lower courts have also consistently rejected article I, section 21 challenges to gun laws. For example:

  • In Minich v. County of Jefferson, a court upheld an ordinance prohibiting the possession of weapons in county buildings, noting that the right to bear arms may be restricted “for the good order of society and the protection of the citizens.”3
  • In Morley v. City of Phila. Licenses & Inspections Unit, a court upheld the denial of a firearms license, stating that “although the right to bear arms is a constitutional right, it is not unlimited, and restrictions are a proper exercise of police power if they are intended to protect society.”4
  • In Gardner v. Jenkins, a court held that “[t]he right to bear arms…is not unlimited and may be restricted in the exercise of the police power.”5
  • In In re Firearms, Eleven, a court held that the right to bear arms is lost through a felony conviction.6
  • In H.S. v. Allegheny County Dep’t of Human Servs., a court noted that “the right to bear arms is not unlimited; it may be restricted in the exercise of police power for the good order of society and protection of citizens.”7
  • In Commonwealth v. McKown, a court held that a Pennsylvania resident could not carry a concealed firearm without a valid Pennsylvania concealed carry license, even if he had a concealed carry license from a state that has reciprocity with Pennsylvania.8
  • In Stewart v. FedEx Express, a court held that neither the Second Amendment, nor the Pennsylvania Constitution, grants the right to carry a concealed firearm, or transport a loaded firearm in a vehicle.9
Notes
  1. Wright v. Commonwealth, 77 Pa. 470, 471 (1875). ⤴︎
  2. Lehman v. Pennsylvania State Police, 839 A.2d 265, 273 (Pa. 2003). ⤴︎
  3. Minich v. County of Jefferson, 919 A.2d 356, 361 (Pa. Commw. Ct. 2007); see also Perry v. State Civil Serv. Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942 (Pa. Commw. Ct. 2011) (holding that the Pennsylvania Department of Labor and Industry’s prohibition on the possession of weapons in the workplace was constitutional, because the right to bear arms was not unlimited, and could be restricted for the good of the order of society and the protection of citizens. ⤴︎
  4. Morley v. City of Phila. Licenses & Inspections Unit,844 A.2d 637, 641 (Pa. Commw. Ct. 2004); see also Caba v. Weaknecht, 64 A.3d 39 (Pa. Commw. Ct. 2013) (holding that the revocation of a firearm license based on a finding that the licensee was “a person whose character/reputation indicated danger to public safety” did not violate the state right to bear arms). ⤴︎
  5. Gardner v. Jenkins, 541 A.2d 406, 409 (Pa. Commw. Ct. 1988). ⤴︎
  6. In re Firearms, Eleven, 922 A.2d 906 (Pa. Super. Ct. 2007). ⤴︎
  7. R.H.S. v. Allegheny County Dep’t of Human Servs., 936 A.2d 1218, 1229 (Pa. Commw. Ct. 2007). ⤴︎
  8. Commonwealth v. McKown, 79 A.3d 678 (Pa. Super. Ct. 2013). ⤴︎
  9. Stewart v. FedEx Express, 114 A.3d 424 (Pa. Super. Ct. 2015). ⤴︎

State Right to Bear Arms in Rhode Island

Article I, § 22 of the Constitution of the State of Rhode Island and Providence Plantations provides that “[t]he right of the people to keep and bear arms shall not be infringed.” Article I, § 24 states that “[t]he enumeration of the foregoing rights [of the Constitution] shall not be construed to impair or deny others retained by the people. The rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States.”

In State v. Storms, the Supreme Court of Rhode Island rejected an article I, § 24 (then article I, § 23) challenge to R.I. Gen. Laws § 11-47-8, which prohibits the carrying of handguns in most circumstances without a license or permit.1 In Storms, the defendant attempted to reverse his conviction for carrying a handgun without a permit, but the court held that article I, § 23 (now article I, § 24) did not guarantee a right of self-defense.2 The defendant did not raise an argument under the state right to bear arms provision in article I, § 22. However, the court noted, in dicta:

[E]ven had [the defendant]…relied upon art. I, sec. 22 of the state constitution which safeguards the right of the people to keep and bear arms, [the defendant] might not be on sound ground. Then he would have been burdened with persuading us of the weakness of what is apparently the prevailing view, viz., that a constitutional guarantee to keep and bear arms is not infringed upon by legislation which, in broad terms, forbids the unlicensed carrying of a pistol or revolver upon one’s person excepting only in his home and place of business or upon his land.3

In Mosby v. Devine, the Supreme Court of Rhode Island rejected an article I, § 22 challenge to the state Firearms Act, in particular section 11-47-18, the state statute authorizing permits to carry concealed weapons.4 Referencing its decision in Storms, the court held that “art. 1, sec. 22 provides individuals with a right to keep and bear arms, subject, however, to reasonable regulation by the state in exercising its police power.”5 The court went on to conclude “that the licensing scheme set forth in the Firearms Act is reasonable legislative regulation of weapons that falls squarely within the state’s police power.”6

The court also found that “although the Firearms Act regulates and prohibits the ownership and possession of numerous weapons, including handguns, the statute includes both mandatory and discretionary licensing provisions that satisfy the constitutional guarantee to keep and bear arms.”7

Notes
  1. 308 A.2d 463 (R.I. 1973). ⤴︎
  2. Id. at 464. ⤴︎
  3. Storms, 308 A.2d at 464 (citations omitted). ⤴︎
  4. 851 A.2d 1031 (R.I. 2004). ⤴︎
  5. Mosby, 851 A.2d at 1039. ⤴︎
  6. Id. at 1043. ⤴︎
  7. Id. at 1049. ⤴︎

State Right to Bear Arms in South Carolina

Article I, § 20 of the South Carolina Constitution provides, in part, that “[a] well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

There are not many cases interpreting Article 1, § 20. In the 1907 case State v. Johnson, the Supreme Court of South Carolina rejected a challenge to a Charleston ordinance prohibiting the discharge of firearms within the city limits.1 The court reasoned that the ordinance did not run afoul of the state constitutional right to bear arms by prohibiting an individual from possessing a firearm on his or her premises, but merely prohibited him or her from discharging the gun within the city limits. Thus, the court held that the ordinance was a reasonable exercise of the city’s police power.2

More recently, in the 2008 case State v. Bolin, the Supreme Court of South Carolina rejected a defendant’s article I, § 20 challenge to his conviction for possession of a pistol by a person under age 21 per S.C. Code Ann. § 16-23-30.3 Because article I, § 20 granted him the right to bear arms, defendant argued, he could not be charged with a crime for handgun possession.4 The court held that S.C. Code Ann. § 16-23-30 did not violate the state right to bear arms because, although state law prohibits a person under age 21 from possessing a handgun, this does not “prevent a person under the age of 21 from possessing other types of guns.”5

Notes
  1. 56 S.E. 544 (S.C. 1907). ⤴︎
  2. Id. at 545. ⤴︎
  3. 662 S.E.2d 38, 40 (S.C. 2008). ⤴︎
  4. Id. at 39. ⤴︎
  5. Id. ⤴︎

State Right to Bear Arms in South Dakota

Article VI, Section 24 of the Constitution of South Dakota provides that “[t]he right of the citizens to bear arms in defense of themselves and the state shall not be denied.”

There are no cases directly construing Art. VI, § 24. The Supreme Court of South Dakota has noted in dicta, however, that the state generally recognizes self-defense as a legitimate defense, citing Art. VI, § 24.1

Notes
  1. Conaty v. Solem, 422 N.W.2d 102, 104 (S.D. 1988). ⤴︎

State Right to Bear Arms in Tennessee

Article I, Section 24 of the Constitution of the State of Tennessee states “[t]hat the sure and certain defense of a free people, is a well regulated militia; and, as standing armies in time of peace are dangerous to freedom, they ought to be avoided as far as the circumstances and safety of the community will admit; and that in all cases the military shall be kept in strict subordination to the civil authority.” Article I, Section 26 provides “[t]hat the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

Tennessee law also provides, in a statute related to concealed handgun permits, that “[t]he citizens of this state have a right to keep and bear arms for their common defense; but the general assembly has the power, by law, to regulate the wearing of arms with a view to prevent crime.”1

In the 1871 case Andrews v. State, the Supreme Court of Tennessee examined the scope of article I, § 26 in connection with a statute prohibiting the carrying of “a dirk, swordcane, Spanish stiletto, belt or pocket pistol or revolver.”2 The case arose in the context of several criminal defendants’ motions to quash their indictments under this law, where the indictments charged that each of the defendants carried a pistol. Defendants argued that the prohibition on the carrying of deadly weapons violated their rights under article I, § 26.

The court held that the challenged statute did not violate article I, § 26, upholding the right of the Legislature to prohibit the carrying of firearms. The court distinguished between the keeping of arms, which cannot be prohibited, and the right to use them, in light of the second clause of article I, § 26 (providing that the Legislature has the power to regulate the wearing of arms with a view to prevent crime).3 Referencing this clause, the court concluded that the wearing or carrying of arms may be restricted, provided the regulation bears “some well defined relation to the prevention of crime.” [Italics in original.]4

In 1928, however, the Supreme Court of Tennessee revisited the scope of the state “right to keep and to bear arms” in the context of a municipal ordinance prohibiting the carrying of a pistol. In Glasscock v. City of Chattanooga,5 the court, relying on Andrews, concluded that the ordinance amounted to a complete prohibition on the constitutional right, given that the ordinance prohibited the carrying of any pistol.6 The court rejected Chattanooga’s argument that the ordinance merely charged a violation of the same activity that was prohibited under a state statute, noting that the court had previously held that the exception for possession of an “Army or Navy pistol carried openly in the hand” must be read into the state statute to sustain its constitutionality, and therefore an indictment under the state law was invalid unless it charged that the pistol carried was not such a weapon.7

In 2009, the Tennessee Attorney General opined that article 1, § 26’s provision granting the state the power to regulate the wearing of arms with a view to prevent crime “affords the legislature with substantial latitude” to pass laws that regulate the wearing of firearms.8

More recently, in 2013, the Court of Appeals of Tennessee upheld the constitutionality of Tenn. Code Ann. § 39-17-1307(a)(1), a law “restricting the carrying of firearms in Tennessee.”9 The court found “no historical or legal basis for [plaintiff’s] … contention that the state may not regulate the carrying of firearms,” holding that “longstanding Tennessee law is such that the legislature may regulate the carry of firearms with an intent to prevent crime.”10 The court noted the rights recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), but distinguished Embody by noting that “[b]oth Heller and McDonald involved highly onerous restrictions on gun ownership,” whereas Tenn. Code Ann. § 39-17-1307(a)(1) does not.11 The court further noted that there are numerous defenses to the statute, for example firearm possession in one’s residence12, or by acquiring a handgun carry permit.13

Notes
  1. Tenn. Code Ann. § 39-17-1351(a). ⤴︎
  2. 50 Tenn. 165, 171 (Tenn. 1871). ⤴︎
  3. Id. at 181. ⤴︎
  4. Id.; but see Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (noting that Andrews, along with several other older cases, is based on an interpretation of the Second Amendment that conflicts with the Supreme Court’s current interpretation). ⤴︎
  5. 11 S.W.2d 678 (Tenn. 1928). ⤴︎
  6. Id. at 678. ⤴︎
  7. Id. at 679, citing Wehnut v. State, 188 S.W. 939 (Tenn. 1916). ⤴︎
  8. Op. Att’y Gen. 09-158, 2009 Tenn. AG LEXIS 212, *8-*10 (Sept. 22, 2009). ⤴︎
  9. Embody v. Cooper, 2013 Tenn. App. LEXIS 343 (May 22, 2013), appeal denied Embody v. Cooper, 2013 Tenn. LEXIS 885 (Oct. 31, 2013). ⤴︎
  10. Id. at *17. ⤴︎
  11. Id. at *17-*18. ⤴︎
  12. Id. at *18-*19. ⤴︎
  13. Id. at *20. ⤴︎

State Right to Bear Arms in Texas

Article 1, § 23 of the Texas Constitution states: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

In English v. State1 and State v. Duke,2 the Supreme Court of Texas held that laws prohibiting the carrying of a pistol in specified situations did not violate the right to “bear arms” provision in the state constitution (formerly article I, § 13 of the Texas Constitution).

Since English and Duke, Texas civil and criminal appellate courts have repeatedly upheld the Legislature’s power to regulate firearms, holding that the right to bear arms is not absolute, provided such laws have, per art. 1, § 23, “a view to prevent crime.”3

Notes
  1. 35 Tex. 473, 478-81 (Tex. 1872) ⤴︎
  2. 42 Tex. 455, 458-59 (1874), ⤴︎
  3. See, e.g., Wilson v. State, 44 S.W.3d 602, 604-605 (Tex. App. 2001) (rejecting an art 1, § 23 challenge to a state law criminalizing the possession of a firearm by a felon); Ford v. State, 868 S.W.2d 875, 878 (Tex. App. 1993) (rejecting an art. 1, § 23 challenge to a statute prohibiting possession of short-barreled firearms); Masters v. State, 685 S.W.2d 654, 655 (Tex. Crim. App. 1985) (rejecting a challenge under art. 1, § 23 to a statute prohibiting the unlawful carrying of a weapon); Shepperd v. State, 586 S.W.2d 500, 502 (Tex. Crim. App. 1979) and McGuire v. State, 537 S.W.2d 26, 28-29 (Tex. Crim. App. 1976) (both rejecting art. 1, § 23 challenges to a law banning possession of a firearm by a felon); Collins v. State, 501 S.W.2d 876, 877-878 (Tex. Crim. App. 1973) (rejecting an art. 1, § 23 challenge to a statute prohibiting the unlawful possession of a pistol); Webb v. State, 439 S.W.2d 342, 344 (Tex. Crim. App. 1969) (rejecting an art. 1, § 23 challenge to a law prohibiting the possession of a handgun after a felony conviction for a crime of violence); and Morrison v. State, 339 S.W.2d 529, 532 (Tex. Crim. App. 1960) (rejecting an art. 1, § 23 challenge to a statute banning the possession of a machine gun). ⤴︎

State Right to Bear Arms in Utah

Article I, § 6 of the Utah Constitution, as originally drafted (in effect from 1896 until 1984), provided: “The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.” The Supreme Court of Utah interpreted this language to allow the state legislature to regulate firearms extensively.1

Article I, § 6 was amended in 1984. It now states that “[t]he individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.”

In the 2004 case State v. Willis, the Supreme Court of Utah rejected defendant’s article I, § 6 challenge to Utah Code Ann. § 76-10-503(2)(a), which bars certain persons from possessing firearms.2 The court held that while the term “use” in article I, § 6 is ambiguous, the intent of the legislature and the voting public in adopting the amendment in no way sought to “endow felons with a right to possess guns.”3 To accept defendant’s absolute reading of article I, § 6, the court stated, would lead to “absurd results” where classes of persons such as prison inmates, mental incompetents and minor children would have a constitutional right to possess arms.4

In that same year, in Hansen v. America Online, Inc., the Supreme Court of Utah addressed whether Utah has a strong interest  in favoring the keeping and bearing of arms as an individual, constitutionally-protected right flowing from article I, § 6, and whether that right prevents an employer from prohibiting employees’ possession of firearms in the workplace.5 While this case was pending the state legislature adopted section 53-5a-102, which states that the individual right to “keep and bear arms” is a constitutionally-protected right under article I, § 6. Nevertheless, the Supreme Court of Utah, reviewing section 53-5a-102 and its legislative history, held that the State’s  interest regarding the keeping and bearing of arms was not strong enough to prevent employers from restricting the possession of weapons in the workplace.6 The court read the language of section 53-5a-102(7) (which states that “[n]othing in [section 53-5a-102] restricts or expands private property rights”) to “indicate that the legislature has purposefully declined to give the right to keep and bear arms absolute preeminence over the right to regulate one’s own private property.”7

Notes
  1. See, e.g., People v. Beorchia, 530 P.2d 813, 814 (Utah 1974) (holding that the state right to “bear arms” did not invalidate a statute prohibiting non-citizens from possessing firearms). ⤴︎
  2. 100 P.3d 1218 (Utah 2004). ⤴︎
  3. Id. at 1220. ⤴︎
  4. Id. at 1222.  See also State v. Wacek, 703 P.2d 296 (Utah 1985) (upholding a conviction for possession of a dangerous weapon by a restricted person, statutorily defined by Utah Code Ann. § 76-10-503 as a felon, illegal alien, or controlled substance user). ⤴︎
  5. 96 P.3d 950 (Utah 2004). ⤴︎
  6. Id. at 955. ⤴︎
  7. Id. ⤴︎

State Right to Bear Arms in Vermont

Chapter I, Article 16 of the Vermont Constitution states:

That the people have a right to bear arms for the defence [sic] of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.1

The Vermont Supreme Court has asserted that Chapter 1, article 16 “does not suggest that the right to bear arms is unlimited and undefinable.”2 In State v. Duranleau, the Vermont Supreme Court rejected an article 16 challenge to Vt. Stat. Ann. tit. 10, § 4705(b), which prohibits the possession of a loaded rifle or shotgun in a vehicle on a public highway without a permit.3 The court noted that section 4705(b) does not “literally prohibit the ‘bearing’ of any arms, but only requires that, when rifles and shotguns are carried in…vehicles on public highways…they be unloaded.”4 Accordingly, the court ruled that the law was not “such an infringement on the constitutional right to bear arms as to make the statute invalid.”5

Notes
  1. Vt. Const. Ch. I, Art. 16. ⤴︎
  2. State v. Duranleau, 260 A.2d 383, 386 (Vt. 1969). ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Id. ⤴︎

State Right to Bear Arms in Virginia

Article I, § 13 of the Virginia Constitution states:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

In the 1988 case Stallings v. Wall, the Supreme Court of Virginia, citing Va. Code Ann. § 15.1-839 (enumerating municipal powers, and subsequently recodified as Va. Code Ann. § 15.2-1102), ruled that an ordinance requiring a permit to buy a handgun was not “expressly prohibited by the [Virginia] Constitution and the general laws of the Commonwealth.”1

More recently, in the 2011 case Digiacinto v. Rector & Visitors of George Mason Univ., the Supreme Court of Virginia rejected an art. I, § 13 challenge to a public university’s regulation restricting the possession and carrying of firearms inside campus buildings and at campus events.2 The Court held that “the protection of the right to bear arms expressed in [art. I, § 13] is co-extensive with the rights provided by” the Second Amendment of the United States Constitution. The Court pointed out that the regulation was tailored, restricting weapons only in those places where people congregate and are most vulnerable. Individuals could still carry or possess weapons on the open grounds of the university, and in other places on campus not enumerated in the regulation. Accordingly, the Court upheld the regulation, because the restriction only affected “sensitive places” as that phrase was used in District of Columbia v. Heller.3

In 1993, the Attorney General of Virginia concluded that art. I, § 13 would not prevent the state from restricting handgun purchases to one per person within a 30-day period (a law previously codified in Section 18.2-308.2:2(P)).4 The Attorney General based this conclusion on legislative history indicating art. I, § 13 was intended to be synonymous with the Second Amendment.5 The restriction was repealed in 2012.

Later, in 2006, Virginia’s Attorney General also opined that art. I, § 13 and the Second Amendment together prevent the University of Virginia from generally prohibiting firearms on campus.6 However, these provisions do not prevent the University from prohibiting students and University employees from carrying firearms on campus, even if those individuals hold state permits to carry concealed handguns, since specific statutes grant the University authority to regulate the conduct of students and University employees.7

In 2010, the Attorney General subsequently issued an opinion stating that, despite art. I, § 13, a private entity leasing government property for an event generally may regulate or prohibit the carrying or possession of firearms on that property for such event.8

Finally, in 2011, the Attorney General of Virginia opined that art. I, § 13 would not invalidate an ordinance prohibiting the discharge of weapons in or along roads or within one hundred yards of a building.9 Citing Digiacinto, the Attorney General reiterated that the protections afforded by art. I, § 13 are co-extensive with those of the Second Amendment. The Attorney General reasoned that the ordinance does not implicate the core concerns of the right to bear arms, because it specifically exempts from its scope actions taken in defense of self, others or property. Second, it does not preclude anyone from carrying a firearm, but simply prohibits certain uses of a firearm. Moreover, the ordinance “serves a proper purpose, to protect the public safety, by prohibiting firearm discharges on roads or near occupied buildings.”10

The Attorney General of Virginia also cited art. I, § 13 and the Second Amendment in issuing an opinion stating that carrying a weapon for personal protection constitutes a sufficient reason under Virginia law to carry a weapon into a place of worship while a meeting for religious purposes is being held there.11 The Attorney General noted, however, that the Second Amendment acts as a restraint on government, not private parties, so churches, synagogues, mosques and other religious entities can, like any other owner of property, restrict or ban the carrying of weapons onto their private property.12

Notes
  1. 367 S.E.2d 496, 498 (Va. 1988). ⤴︎
  2. 704 S.E.2d 365, 369 (Va. 2011). ⤴︎
  3. 554 U.S. 570, 626 (2008). ⤴︎
  4. Op. Att’y Gen. Va. 13 (1993), 1993 Va. AG LEXIS 9, *9. ⤴︎
  5. Id. at *3- *9. ⤴︎
  6. Op. Att’y Gen. Va. 78 (2006), 2006 Va. AG LEXIS 3, *6. ⤴︎
  7. Id. ⤴︎
  8. 2010 Va. AG LEXIS 10, *6. ⤴︎
  9. 2011 Va. AG LEXIS 35, *5. ⤴︎
  10. Id. at *8-9. ⤴︎
  11. 2011 Va. AG LEXIS 23, *4. ⤴︎
  12. Id. at *4-5. ⤴︎

State Right to Bear Arms in Washington

Article I, Section 24 of the Washington State Constitution states: “[t]he right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”1

Washington courts have held that the right to bear arms is not absolute and is subject to reasonable regulation by the state under its police power. The Supreme Court of Washington has repeatedly rejected article I, § 24 challenges to state and local firearms regulations.2 The Courts of Appeals have also followed this approach.3

In its most comprehensive discussion to date of the scope of article I, § 24, the Supreme Court of Washington held, in City of Seattle v. Montana, that article I, § 24 is not absolute and is subject to reasonable regulation by the state under its police power.4 The court rejected an article I, § 24 challenge to a Seattle ordinance prohibiting the carrying of dangerous knives. In analyzing the challenge, the court noted that:

[A]n arms regulation must be a ‘reasonable limitation,’ one that is reasonably necessary to protect public safety or welfare, and substantially related to legitimate ends sought. This analysis requires balancing the public benefit from the regulation against the degree to which it frustrates the purpose of the constitutional provision. The constitutional text indicates the right is secured not because arms are valued per se, but only to ensure self-defense or defense of state. This suggests the constitutional right should be viewed in such a light. (citations omitted).5

The court upheld the Seattle ordinance as a “reasonable exercise of the police power to promote safety, peace and good order.”6

However, in State v. Spiers, a Washington appellate court struck down a law criminalizing firearm ownership by a person merely charged with a serious offense who has relinquished possession but retains ownership of a firearm.7 The court reasoned that the public does not derive any additional benefit from depriving a person free on bond or personal recognizance of ownership of a firearm if they have relinquished possession.8 As a result, this regulation failed the Montana balancing test.9

The Supreme Court of Washington has also reconciled the state right to bear arms with enhanced sentences for possession of firearms. In State v. Schelin, the Supreme Court of Washington held that requiring a nexus between the defendant, a weapon, and the crime for a sentence enhancement for being armed with a deadly weapon adequately protects the defendant’s “right to bear arms,” and noted that although defendant’s “right to bear firearms in his home is constitutionally protected, that right ceases when the purpose of bearing firearms is to further the commission of a crime.”10 Similarly, in State v. Eckenrode, the court upheld a deadly weapons enhancement, but stated, “In order to harmonize the legitimate state interest in imposing enhanced sentences on those who commit armed crimes and the constitutional guaranty of the right to bear arms, the State must establish a connection between the defendant, the crime, and the weapon.”11 Finally, in State v. Brown, the court vacated a deadly weapons sentence enhancement because there was an insufficient nexus between the defendant, a weapon, and the crime, stating, “Though the use of a weapon in the commission of a crime is not constitutionally protected, adherence to the nexus requirement is… important in harmonizing the mandatory sentence enhancements with the constitutional right to bear arms.”12

Notes
  1. Wash. Const. Art. I, § 24. ⤴︎
  2. See, e.g., Morris v. Blaker, 821 P.2d 482, 488 (Wash. 1992) (rejecting article I, § 24 challenge to revocation of defendant’s concealed weapons permit after defendant was involuntarily committed to a mental facility, stating that “[w]hile article 1, section 24 of the Washington State Constitution confers upon individuals of this state the right to bear arms, that right is not absolute and is subject to reasonable regulation by the State under its police power”); State v. Krantz, 164 P.2d 453, 454 (Wash. 1945) (rejecting defendant’s article I, § 24 challenge to the Uniform Short Firearms Act, noting that “[i]t has long been recognized that this constitutional guarantee is subject to reasonable regulation by the state under its police power”); and State v. Tully, 89 P.2d 517, 518 (Wash. 1939) (rejecting an article I, § 24 challenge to the Uniform Firearms Act because “[n]o authorities [were] cited in support of the contention that [the relevant statutory provisions] mentioned are violative of” article I, § 24). ⤴︎
  3. See, e.g., Estes v. Vashon Maury Island Fire Protection District No. 13, 2005 Wash. App. LEXIS 2575 (Wash. Ct. App. 2005) aff’d mem., 129 Wash. App. 1042 (Wash. 2005) (the benefit to public safety of fire protection district’s policy of prohibiting firearm possession by visitors on district property outweighs its effect on “the general right to bear arms” under article I, § 24); State v. Krzeszowski, 24 P.3d 485 (Wash. Ct. App. 2001) (statute prohibiting felons possessing firearms does not violate article I, § 24); State v. Spencer, 876 P.2d 939 (Wash. Ct. App. 1994) (conviction for brandishing a weapon did not violate article I, § 24); Second Amendment Found. v. City of Renton, 668 P.2d 596 (Wash. Ct. App. 1983) (ordinance prohibiting possession of firearms where alcohol is dispensed by the drink does not violate article I, § 24). ⤴︎
  4. 919 P.2d 1218 (Wash. 1996). ⤴︎
  5. Montana, 919 P.2d at 1224. ⤴︎
  6. Id. at 1223. ⤴︎
  7. 79 P.3d 30 (Wash. Ct. App. 2003). ⤴︎
  8. Id. at 35. ⤴︎
  9. Id. ⤴︎
  10. 55 P.3d 632, 639 (Wash. 2002). ⤴︎
  11. 150 P.3d 1116, 1120 (Wash. 2007). ⤴︎
  12. 173 P.3d 245, 250-251 (Wash. 2007). ⤴︎

State Right to Bear Arms in West Virginia

Article III, § 22 of the Constitution of West Virginia, which was approved by the voters on November 4, 1986, states: “A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.”

In the 1988 case State ex rel. City of Princeton v. Buckner, the West Virginia Supreme Court of Appeals (the state’s highest court) held that a state statute universally requiring a license in order to carry a deadly weapon violated art. III, § 22, because it infringed on the ability to “keep and bear arms” for defensive purposes.1 Importantly, however, the court also held that the “right to keep and bear arms” under art. III, § 22 “is not unlimited,” and must be balanced with the “State’s duty, under it [sic] police power, to make reasonable regulations for the purpose of protecting the health, safety and welfare of its citizens.”2

In State v. Daniel, the supreme court of appeals held, in 1990, that a statute prohibiting persons from brandishing or using weapons in a manner that causes or threatens a breach of the peace was a valid exercise of the police power.3 The court found that art. III, § 22 does not give a “citizen the right to use [a] weapon unlawfully.” Thus, the claim that the statute violated appellant’s rights under art. III, § 22 was “without merit.”4

In the 1995 case In re Metheney, the supreme court of appeals rejected an art. III, § 22 challenge to a statute permitting only qualified citizens to obtain a license to carry a concealed weapon.5See also In re Dailey, 465 S.E.2d at 613 (Workman, J., concurring) (“nothing in our opinion precludes the Legislature from expanding on the requirements of the law for a license to carry a concealed weapon”).))

In State ex rel. West Virginia Div. of Natural Resources v. Cline, the supreme court of appeals held, in 1997, that a statute prohibiting the transportation of loaded firearms in vehicles and other conveyances was a legitimate and reasonable exercise of the police power and did not violate art. III, § 22.6 The court found the state restriction reasonable because it did not infringe upon a sportsperson’s ability to possess firearms for hunting purposes, but merely regulated the manner in which firearms may be transported for such purposes.7

In the 2004 case Rohrbaugh v. State of West Virginia, the supreme court of appeals rejected an art. III, § 22 challenge to a statute prohibiting a convicted felony sexual offender from regaining the ability to possess a firearm.8 The court held that the statutory restrictions were a “proper exercise of the Legislature’s police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms.”9

In Hartley Hill Hunt Club v. County Comm’n, the supreme court of appeals, in 2007, rejected an art. III, § 22 challenge to a statute prohibiting hunting on public land on Sundays, and allowing counties to hold an election to determine whether to prohibit hunting on private land.10 The court concluded that art. III, § 22 preserves the state’s right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful.11

Notes
  1. 377 S.E.2d 139, 144-45 (W. Va. 1988). ⤴︎
  2. Id. at 148-49. ⤴︎
  3. 391 S.E.2d 90 (W. Va. 1990). ⤴︎
  4. Id. at 97.  Overruled on other grounds by Daniel v. West Virginia, 964 F. Supp. 1050 (S.D. W. Va. 1997). ⤴︎
  5. 391 S.E.2d 635, 637-38 (W. Va. 1990) (overruled on other grounds by In re Dailey, 465 S.E.2d 601, 609 (W. Va. 1995 ⤴︎
  6. 488 S.E.2d 376 (W. Va. 1997). ⤴︎
  7. Id. at 382. ⤴︎
  8. 607 S.E.2d 404, 412-14 (W. Va. 2004). ⤴︎
  9. Id. at 414.  See also Perito v. County of Brook, 597 S.E.2d 311 (W. Va. 2004) (requiring persons convicted of felonies to obtain approval before possessing a firearm). ⤴︎
  10. 647 S.E.2d 818 (W. Va. 2007). ⤴︎
  11. Id. at 824-25. ⤴︎

State Right to Bear Arms in Wisconsin

Article I, § 25 of the Wisconsin Constitution, adopted in 1998, states: “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”1

Although the Supreme Court of Wisconsin has found that the state right to bear arms is a fundamental right, it has also held that the right is subject to reasonable regulation. In State v. Cole, the court upheld a law prohibiting the carrying of concealed weapons because the law was “a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised.”2

However, in  State v. Hamdan, a companion case to Cole, the supreme court carved out an exception to this law and reaffirmed the constitutional right to bear arms for the purpose of security.3 The court emphasized that the state may regulate firearms under its police power, noting that “only if the public benefit in . . . exercise of the police power [to regulate firearms] is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied.”4

Following an extensive review of statutory and case law from other jurisdictions pertaining to both the carrying of concealed weapons and the right to “bear arms,” the court found that the defendant had a constitutional right under Article I, Section 25 to “keep and bear arms for the lawful purpose of security at the time he carried his concealed weapon . . . .” and reversed the defendant’s conviction.5

The court noted that “[i]f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.”6

In determining if an Article I, § 25 challenge to a concealed weapons prosecution may be raised, however, the court held that a defendant will be required to affirmatively answer whether: 1) under the circumstances, the defendant’s interest in concealing a firearm to “facilitate exercise of his or her right to keep and bear arms” substantially outweighed the state’s interest in enforcing the concealed weapons statute; and 2) the defendant concealed the firearm because concealment was “the only reasonable means under the circumstances to exercise his or her right to bear arms.”7

Following the principles of Cole and Hamdan , the Supreme Court of Wisconsin dismissed another constitutional challenge to a concealed weapons prosecution under § 941.23 in State v. Fisher.8 The defendant, a tavern owner, argued that he kept a loaded gun in the center console of his car for security purposes because he routinely transported large amounts of cash generated by his business. The supreme court balanced the defendant’s interest in exercising his right to bear arms by concealing a firearm for purposes of security against the state’s interest in enforcing the concealed weapons statute, and concluded that “carrying a concealed and dangerous weapon in a vehicle will generally be contrary to the state’s interest in protecting the health, safety, and welfare of Wisconsin citizens.”9 The court upheld the defendant’s concealed weapons conviction and noted that this state regulation generally will not present any constitutional challenge, “except in extraordinary circumstances.”1011

Notes
  1. Wis. Const. art I, § 25. ⤴︎
  2. State v. Cole, 2003 WI 112, ¶ 28, 264 Wis. 2d 520, ¶ 28, 665 N.W.2d 328, ¶ 28. ⤴︎
  3. 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785 (2003). ⤴︎
  4. State v. Hamdan, 2003 WI 113, ¶ 46, 264 Wis. 2d 433, ¶ 46, 665 N.W.2d 785, ¶ 46. ⤴︎
  5. Id. at ¶ 46 (emphasis added). ⤴︎
  6. Id. at ¶ 68. ⤴︎
  7. Id. at ¶ 86. ⤴︎
  8. 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495. ⤴︎
  9. Id. at 148-49. ⤴︎
  10. Id. at 149. ⤴︎
  11. See also State v. Thomas, 2004 WI App 115, ¶¶ 8-12, 274 Wis. 2d 513, ¶¶ 8-12, 683 N.W.2d 497, ¶¶ 8-12 (2004) (rejecting an Art. I, § 25 challenge to Wis. Stat. § 941.29, which prohibits a felon from possessing a weapon, on the ground that the legislative history of the constitutional provision indicates both an intent to preserve pre-existing firearm regulations and the legislature’s authority to restrict firearm possession by felons). ⤴︎

State Right to Bear Arms in Wyoming

Article I, § 24 of the Wyoming Constitution states: “The right of citizens to bear arms in defense of themselves and of the state shall not be denied.”

The Supreme Court of Wyoming has held that the right under article I, § 24 is subject to the reasonable exercise of the police power.1

In addition, in the 1982 case Carfield v. State, the Supreme Court of Wyoming rejected a challenge to a state statute prohibiting possession of a firearm by a person previously convicted of certain crimes.2 The court noted that article I, § 24 grants Wyoming residents the right to possess firearms “in defense of themselves and of the state” but observed that “[i]n this case there is no claim, nor would the facts support such a claim, by [defendant] that his possession was for the purpose of defending the State or himself.”3 The court concluded that the right to “bear arms” is subject to the legitimate exercise of the police power of the state and the statute prohibiting convicted felons from possessing firearms was a reasonable and legitimate exercise of that power.4

Wyoming has provided by statute that, subject to approval by the governor, “[t]he attorney general may seek to intervene or file an amicus curiae brief in any lawsuit filed in any state or federal court in Wyoming, or filed against any Wyoming citizen or firm in any other jurisdiction for damages for injuries as a result of the use of fire arms [sic] that are not defective,” if the action threatens the right of Wyoming citizens to “keep and bear arms.”5

Notes
  1. See King v. Wyo. Div. of Crim. Investigation, 89 P.3d 341, 351-52 (Wyo. 2004) (finding that no right to carry a concealed weapon exists under the Wyoming Constitution); Mecikalski v. Office of Att’y Gen., 2 P.3d 1039, 1040-41 (Wyo. 2000) (rejecting an article I, § 24 challenge to Wyo. Stat. Ann. § 6-8-104, which prohibits the carrying of concealed weapons without a permit); and State v. McAdams, 714 P.2d 1236 (Wyo. 1986) (also rejecting an article I, § 24 challenge to Wyo. Stat. Ann. § 6-8-104). ⤴︎
  2. 649 P.2d 865, 871-72 (Wyo. 1982). ⤴︎
  3. Id. at 871. ⤴︎
  4. Id. at 871-72. ⤴︎
  5. Wyo. Stat. Ann. § 9-14-101. ⤴︎