Legal Commentary

State court standards of review for the right to arms

By David Kopel

That?s that title of a forthcoming article in a Santa Clara Law Review symposium, by Clayton Cramer and me. We examine, in detail, scores of important cases, from Bliss v. Commonwealth in 1822 up to the present. We explain which cases can provide useful guidance to modern courts which must interpret the Second Amendment (and which cases use an approach is plainly inapplicable to Second Amendment analysis, post?Heller).

Our Article also addresses Adam Winkler?s influential and well-written 2007 Michigan Law Review article, which surveyed post-WW II state cases. Our article studies a broader range of cases, and gets into more depth on those csases, so it?s 93 pages long. It was even longer until the editors changed the typeface from Century Schoolbook to Times New Roman. Here?s the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of ?reasonableness,? this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying ?reasonableness,? many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of ?police power,? are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

The article is founded on the tremendous research on state cases which Clayton conducted for his 1994 book For the Defense of Themselves and the State. That book was cited by the Washington Supreme Court in its new decision State v. Sieyes.

Full post as published by The Volokh Conspiracy on February 18, 2010 (boomark / email).