The (New) New Judicial Federalism: State Constitutions and the Protection of the Individual Right to Bear Arms

Introduction I. A Fine Mess: The Post-Heller/McDonald World A. What Is Scope of Second Amendment Post-Heller? B. Uncertainty Regarding Scope of 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 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 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 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 INTRODUCTION Although Supreme Court's decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) were hailed as watershed moments for gun rights movement as they resolved two major uncertainties, these cases also created scores of additional important questions regarding scope of protections that Second Amendment affords. No one currently has any firm idea about who Second Amendment protects, what Second Amendment protects, where those protections exist, and--to extent that they do exist--why they exist. Without question, we are at very beginning of Second Amendment jurisprudence; precise rights guaranteed by Second Amendment will be debated, litigated, appealed, interpreted, redebated, re-litigated and re-appealed for next generation. There likely will be important Supreme Court opinions written on Second Amendment by Justices who currently are still in high school, choosing prom dresses, or learning how to drive. In face of this uncertainty, an old idea, formerly championed by quite a different side of political spectrum, may be of some use to pro gun lobby in its desire to expand--or at least define scope of--gun rights. A consequence of Heller's holding that 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 federal Constitution--though state constitutions cannot go below guarantees afforded by Second Amendment. (3) The idea that federal Constitution creates a floor but not a ceiling for individual rights was called the new judicial when it took root in mid-twentieth century. (4) This Article, which is based on my portion of panel discussion at Fordham Urban Law Journal Symposium on Gun Control and Second Amendment on March 9, 2012, begins with an overview of post-Heller/McDonald world, arguing that there is no consensus on what rights Second Amendment confers and analyzing possible scopes of Second Amendment. The second part of this Article examines 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 face of Supremacy Clause, a state could confer greater individual gun rights than federal Constitution. I. A FINE MESS: THE POST-HELLER/MCDONALD WORLD Although Supreme Court's ruling in Heller has been analyzed ad nauseam in popular press, in law review articles, and by lower courts, (5) there are a few key points that bear repeating. …