The (New) New Judicial Federalism: State Constitutions and the Protection of the Individual Right to Bear Arms
de Leeuw, Michael B., Fordham Urban Law Journal
Introduction I. A Fine Mess: The Post-Heller/McDonald World A. What Is the Scope of the Second Amendment Post-Heller? B. Uncertainty Regarding the Scope of the Second Amendment Is Disappointing Whether One Is Pro-Gun Rights or Pro-Gun Control C. Heller and McDonald Have Left Open Many More Questions Than They Have Answered 1. What Is the Proper Standard of Review for Gun Control Laws? 2. Which Laws, if Any, Limiting Gun Rights Are Constitutional? II. Can State Constitutions Offer Better Clarity About Gun Rights? A. State Constitutions and the Right to Keep and Bear Arms B. What Would a Particularly Pro-Gun Rights State Constitutional Provision Look Like? C. Potential Sources of Federal Law that Could Counteract State Constitutional Provisions D. Current Federal Laws that Would Limit the Ability for a State to Grant Broad Gun Rights Through Its State Constitution E. If a State Did Amend Its Constitution, What Deference Would Other States Have to Pay to Constitutional Provisions of Sister States on, E.g., Carry Laws? Conclusion
Although the Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) were hailed as watershed moments for the gun rights movement as they resolved two major uncertainties, these cases also created scores of additional important questions regarding the scope of the protections that the Second Amendment affords. No one currently has any firm idea about who the Second Amendment protects, what the Second Amendment protects, where those protections exist, and--to the extent that they do exist--why they exist. Without question, we are at the very beginning of Second Amendment jurisprudence; the precise rights guaranteed by the Second Amendment will be debated, litigated, appealed, interpreted, redebated, re-litigated and re-appealed for the next generation. There likely will be important Supreme Court opinions written on the Second Amendment by Justices who currently are still in high school, choosing prom dresses, or learning how to drive.
In the face of this uncertainty, an old idea, formerly championed by quite a different side of the political spectrum, may be of some use to the pro gun lobby in its desire to expand--or at least define the scope of--gun rights. A consequence of Heller's holding that the right to bear arms is an individual as opposed to a collective right is that state constitutions can at least theoretically confer greater protections of individual gun rights than the federal Constitution--though state constitutions cannot go below the guarantees afforded by the Second Amendment. (3) The idea that the federal Constitution creates a floor but not a ceiling for individual rights was called "the new judicial federalism" when it took root in the mid-twentieth century. (4)
This Article, which is based on my portion of the panel discussion at the Fordham Urban Law Journal Symposium on Gun Control and the Second Amendment on March 9, 2012, begins with an overview of the post-Heller/McDonald world, arguing that there is no consensus on what rights the Second Amendment confers and analyzing the possible scopes of the Second Amendment. The second part of this Article examines the new judicial federalism to see if there is any potential for state constitutions to define, in a more substantial way, which rights are conferred by state constitutional gun rights provisions; and examines how, in the face of the Supremacy Clause, a state could confer greater individual gun rights than the federal Constitution.
I. A FINE MESS: THE POST-HELLER/MCDONALD WORLD
Although the Supreme Court's ruling in Heller has been analyzed ad nauseam in the popular press, in law review articles, and by the lower courts, (5) there are a few key points that bear repeating. …