State Constitutional Rights to Keep and Bear Arms

Article excerpt

I. INTRODUCTION

Debates rage about the meaning of the second Amendment; but observers often miss that there are forty-five right-to-beararms provisions in American constitutional law, not just one. Forty-four states have state constitutional rights to bear arms. Most are written quite differently from the second Amendment. Nearly all secure (at least in part) an individual right to keep some kinds of guns for self-defense. Some date back to the Framing; some have been enacted in the last four decades.

Serious analyses of the original meaning of the second Amendment should consider the Framing-era state provisions. Serious analyses of modern gun control proposals should consider the currently effective provisions. Serious analyses of American tradition as to the right to bear arms should consider all the provisions as they now are and as they have evolved over time.

Unfortunately, there are to my knowledge no print sources summarizing not just all the currently enacted rights but also all the past versions of these provisions. This article aims to fill that gap. Part II lists all the current and past provisions by state. Part III provides a table that indicates whether the provisions, as written or as interpreted by the state court, secure an individual right to keep some kinds of guns for self-defense, as opposed to merely a collective right or possibly an individual right aimed solely at some other purpose. Part IV lists all the current and past provisions by enactment date, and notes how each enactment differed from the preceding version.

II. PROVISIONS BYSTATE, CURRENTAND PAST

Each provision is listed with the year it was first enacted; moves to different sections are not noted. If a provision first enacted in one year was changed very slightly some years later, the latter version is listed together with the original year, and the changes and change dates are noted in the footnotes.

Alabama 1819: "That every citizen has a right to bear arms in defense of himself and the state."1

Alaska 1994: "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."2

1959: "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."3

Arizona 1912: "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."4

Arkansas 1868: "The citizens of this State shall have the right to keep and bear arms, for their common defense."5

1864: "That the free white men of this State shall have a right to keep and to bear arms for their common defence."6

1861: "That the free white men and Indians of this State have the right to keep and bear arms for their individual or common defense."7

1836: "That the free white men of this State shall have a right to keep and to bear arms for their common defence."8

California: No provision.

Colorado 1876: "The 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."9

Connecticut 1818: "Every citizen has a right to bear arms in defense of himself and the state."10

Delaware 1987: "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."11

Florida 1990: "(a) The 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. …