Are State Constitutional Clauses that Strengthen Gun Rights Relevant After Bruen?

The National Rifle Association led an effort in recent decades to amend state constitutions to expressly require that courts apply a “strict scrutiny” analysis to challenged gun laws. Do these amendments still matter since the Supreme Court strengthened Second Amendment protections beyond strict scrutiny?

In 2008’s District of Columbia v. Heller, by a 5–4 vote, the Supreme Court held for the first time that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. But Heller failed to instruct lower courts how to apply that right in future cases. In the following years, judges relied primarily on a mix of history and “intermediate scrutiny” in upholding most challenged gun laws.

As described in The N.R.A.’s Strict-Scrutiny Amendments, the NRA and other gun rights advocates were dissatisfied with how federal courts were implementing the Second Amendment after Heller. They wanted to see more gun laws fall — and they thought the lower bar of intermediate scrutiny was largely to blame for the survival of so many restrictions on the right to bear arms. But they feared that the federal courts, including the Supreme Court, would be unwilling to change course and might even retreat from protecting the Second Amendment.

So gun advocates turned to state constitutions, 44 of which also expressly protected the right to keep and bear arms. They lobbied to amend those state constitutions to clarify that the right to keep and bear arms was “fundamental.” The NRA’s hope was that such a recognition would justify applying “strict scrutiny” — the standard Gerald Gunther famously claimed is strict in theory and fatal in fact — to laws infringing on the right. (Though Gunther’s assertion is an exaggeration, a finding that a right is not fundamental can lead to lesser scrutiny, as demonstrated last year when the Kansas Supreme Court declared that voting was not a fundamental right and upheld certain voting restrictions.) In its classic formulation, strict scrutiny requires the government to prove that a challenged regulation is narrowly tailored to a compelling interest and that is the least restrictive means to further that interest.

Lest there be doubt about how courts should treat a restriction on a fundamental right to bear arms, the advocates also urged writing into state constitutions a strict scrutiny requirement for challenged gun laws.

Between 2012 and 2022, voters in four states —Alabama, Iowa, Louisiana, and Missouri — heeded the lobbyists’ call. Iowa’s Amendment 1A is illustrative:

“The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.”

Enter 2022’s New York State Rifle & Pistol Association v. Bruen, in which the Supreme Court leapfrogged intermediate and strict scrutiny in favor of a novel originalist approach that requires modern gun laws to be analogous to historical weapons regulations. When he was a circuit judge, Brett Kavanaugh suggested that such a historical test would grant lawmakers “more flexibility and power to impose gun regulations” than under strict scrutiny. Thus far, however, the opposite has been true, with repeated analyses showing a pronounced increase in the success rate for Second Amendment challenges. The Supreme Court’s follow-up to Bruen, United States v. Rahimi, attempted to moderate some of the more extreme post-Bruen decisions. Whether it succeeds is yet to be seen.

Iowa’s amendment was pending when Bruen came down, and it ultimately passed in November 2022. At that point, many scholars thought Iowa would be the last state to consider such an amendment because of the enhanced Second Amendment protections. But the concerted effort to pass strict scrutiny amendments has continued, most recently in Oklahoma and Kansas. Those amendments proceeded relatively far before ultimately failing to reach a citizen vote.

Why are strict scrutiny amendments still appealing to advocates even though the initial rationale for them — strengthening gun rights beyond the intermediate scrutiny applied in federal cases — has fallen away?

One answer provides interesting insights. As Kansas Attorney General Kris Kobach put it in his testimony supporting the Kansas initiative, “The proposed constitutional amendment would complement the Second Amendment protections under Bruen, giving Kansas gun owners even more constitutional protection.” In most cases challenging a government restriction, Kobach explained, “the plaintiff will bring both a state constitutional claim and a federal constitutional claim if possible.” Under the Kansas Constitution, he said, “the strict scrutiny test could be applied in addition to the historical tradition test of the Second Amendment.”

In other words, rather than rationalizing strict scrutiny amendments as a way to one-up federal standards, the argument was that state and federal doctrine would work together to provide greater protection. Some gun laws might pass strict scrutiny but fail the Bruen test, and vice versa. To borrow Judge Jeffrey S. Sutton’s analogy, gun litigants get two free-throw shots, and they should take each of them. And to carry the analogy further, the two shots will be from different places on the floor.

The continued relevance of these amendments illuminates a fascinating dynamic between state and federal constitutional law. Most basically, constitutionalizing a specific doctrine through ballot initiatives opens a new front in the increasingly heated battle over how to implement constitutions. Judges — not lawmakers or voters — traditionally adopt and adjust doctrines for deciding cases. Strict scrutiny itself is judge-made. Nowhere does the federal Constitution prescribe a specific judicial standard of review. Indeed, the Supreme Court demonstrated its doctrinal autonomy in Bruen when it abandoned both intermediate and strict scrutiny altogether in favor of its originalist approach.

Now that there is precedent for imposing doctrine on judges through ballot measures, however, advocates in other areas might mimic the strategy. Amendments requiring strict scrutiny (or some other standard) for restrictions on abortion, for example, could be enacted by ballot initiative.

Relatedly, these amendments raise questions about the depth of the conservative legal movement’s commitment to constitutional originalism. It is often taken as a matter of faith that those on the legal right favor originalist approaches as the best — and arguably only — way to do constitutional law. Yet recent efforts in conservative states to require strict scrutiny for gun cases reject that orthodoxy. At minimum, this phenomenon is another signal that state law and state courts need to be considered in the ongoing debate over originalism and constitutional interpretation.

Finally, the interplay between state and federal constitutional law exemplified by strict scrutiny amendments after Bruen challenges common assumptions about the tendency of state constitutional law to move in lockstep with federal constitutional law, with federal law leading the way. To be sure, by requiring strict scrutiny in gun cases, states are adopting a standard of review that was crafted by federal courts, setting aside the reasonableness review approach previously taken by most state judges. Moreover, as demonstrated by the Iowa Supreme Court’s attempt last month to apply their new Amendment 1A — which I wrote about here — the gravitational pull of Second Amendment case law remains strong even after Bruen and despite the different methodologies required by state and federal provisions. And yet, states changing their constitutions to mandate strict scrutiny are now expressly departing from the prevailing federal doctrine.

Ultimately, time will tell how much success strict scrutiny amendments will have in state referenda and what their ultimate impact will be on gun rights. Wherever they pass, parsing where federal constitutional law and influence ends and state constitutional law and influence begins will become increasingly complex. At the same time, these efforts warrant more attention given their implications for the future of constitutional law.

Eric Ruben is an associate professor of law at SMU Dedman School of Law and a fellow at the Brennan Center for Justice.

Suggested Citation: Eric Ruben, Are State Constitutional Clauses that Strengthen Gun Rights Relevant After Bruen?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 03, 2025), https://statecourtreport.org/our-work/analysis-opinion/are-state-constitutional-clauses-strengthen-gun-rights-relevant-after