Much of the focus on gun rights and gun control in contemporary America focuses on the meaning of the Second Amendment of the U.S. Constitution.
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.
Although there are heated debates over what constitutes an “infringement” upon the right to keep and bear arms (see L’Affaire Metcalf), many federal laws regulating the manufacturing, sale, ownership, and use of arms. In fact, until the District of Columbia v. Heller decision in 2008, the U.S. Supreme Court had never ruled a gun law unconstitutional.
Despite all of the attention focused on the Second Amendment and the actions of the federal government, many of the most interesting and important developments in terms of gun laws are taking place at the state level. This is certainly the case with respect to my current main interest, concealed carry. But it was also seen in the aftermath of the Sandy Hook Elementary School massacre, when a federal gun bill stalled out in Congress but very serious restrictions were passed in states like Colorado and New York.
Here I simply want to enter into the record the fact that 44 out of 50 states have constitutional provisions protecting the right to keep and bear arms. The 6 states with no constitutional provision are: California, Iowa, Maryland, Minnesota, New Jersey, and New York.
The following table (in PDF format) reconstructs information about these 44 states contained in Eugene Volokh’s “State Constitutional Rights to Keep and Bear Arms” (11 Texas Rev. of Law & Politics 191 ):
Only five of the 44 states with provisions make any reference to “militias,” the language that I find most clouds debates over the meaning of the Second Amendment. Hawaii, for example, replicates the language of the Second Amendment in its 1959 State Constitution (Art. I, § 17). South Carolina used language more elaborate than the U.S. Constitution’s in its 1895 Constitution: “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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it” (Art. 1, § 20).
Beyond Militia Language
Many state constitutions make clear that the right to keep and bear arms goes beyond simple militia service in defense against tyranny. Among the earliest is Pennsylvania, which declared more directly in 1790: “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned” (Art. 1, § 21). Connecticut used similar language in 1818: “Every citizen has a right to bear arms in defense of himself and the state” (Art. I, § 15).
Recent Additions to State Constitutions
Interestingly, several states have only recently amended their constitutions to make clear that the right to keep and bear arms is an individual right and not a collective right tied to militia service (a key finding in the Supreme Court’s decision in Heller). These developments are part of a broader movement, as my colleague John Dinan has shown recently, to expand rights beyond what is guaranteed in the federal constitution. (“State Constitutional Amendments and Individual Rights in the Twenty-First Century,” Albany Law Review 76.4 )
Alaska, for example, initially enacted the Second Amendment language in its 1959 Constitution, but in 1994 added a second clarifying sentence: “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” (Art. I, § 19).
Several states that had no constitutional provisions guaranteeing a right to keep and bear arms added these in the last decades of the 20th century, including: Illinois (1970), Virginia (1971), Nevada (1982), New Hampshire (1982), North Dakota (1984), West Virginia (1987), Delaware (1987), Nebraska (1988), and Wisconsin (1998).
The language of these state constitutional provisions are often very similar and all seek to make the point that the right to keep and bear arms is an individual right:
- Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose (Art. I, § 25).
- West Virginia: 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 (Art. III, § 22).
- Nebraska: 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 (Art. I, § 1).
- North Dakota: All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and 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 (Art. I, § 1).