The Complexity of Lockstepping Post-Bruen  

While many state courts reflexively lockstep — or interpret state rights identically to their federal counterparts — the Kansas Court of Appeals took a different path in a recent gun case due to a lurking complexity unique to the right-to-arms context.

State courts frequently grapple with the extent to which they should look to federal precedent to adjudicate challenges under state constitutional provisions that depart textually from their federal counterparts. This question is especially complicated in the gun rights context because the U.S. Supreme Court changed the applicable legal test in its 2022 decision in New York Rifle & Pistol Association v. Bruen. The new federal test calls for an originalist, history-focused inquiry. And the test does not map neatly onto state constitutional law, especially for state right-to-arms protections adopted prior to Bruen. In challenges to gun laws under state constitutional protections, courts now face uncertainty about both the governing legal test and the relevant universe of historical evidence.

In 2010, Kansas voters amended the state’s constitution to replace a guarantee of the “right to bear arms” for “defense and security” with explicit protection for the individual “right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.” The ballot initiative garnered 88 percent support among Kansas voters. 

The provision did not have much immediate impact in the courts. In 2021, a state appellate court rejected a criminal defendant’s assertion that the provision provided an “absolute” right to keep and carry firearms that was more broad than that provided in the U.S. Constitution, holding that it “should be interpreted as coextensive to the Second Amendment.”

Enter February’s Kansas v. Mauricio Hall, in which a state appellate court took a different approach. Mauricio Hall was arrested with a firearm after a fatal shooting and argued that he had fired the gun in self-defense. A jury subsequently found Hall not guilty of murder but convicted him of being a felon in possession of a firearm in violation of state law. He challenged his felon-in-possession conviction under only the Kansas Constitution, not the Second Amendment. The appellate opinion noted that, while the state high court has interpreted some state constitutional protections as moving in lockstep with similar federal rights, “the substantial gulf in wording” between the Kansas right-to-arms provision and the Second Amendment “cuts strongly against a lockstep interpretation of the Kansas constitutional right.”

The court concluded that the purpose of the 2010 amendment was “to constitutionalize the rights of gun owners the United States Supreme Court recognized" in 2008's District of Columbia v. Heller, which held 5–4 that the Second Amendment protects an individual right to keep a handgun for self-defense. The judges took a practical view of the amendment, suggesting that Heller’s continued viability at the time was in doubt, such that state action was necessary to “lock in” Heller’s expanded protections for Kansans but not with the intent of mirroring subsequent evolution of the federal right.

The court first had to determine which standard of review to apply to Hall’s challenge. The court noted that protections in the Kansas Bill of Rights are “presumptively considered fundamental” and saw no reason to depart from that rule. For a fundamental right like the right to arms, Kansas precedent required the state “to show the statute advances a compelling governmental interest and does so in a narrowly tailored way.” Before applying strict scrutiny, the court again emphasized that post-Heller developments in Second Amendment jurisprudence — namely, the text, history and tradition test announced in Bruen — have “no bearing on the claim before us.”

The panel proceeded to reject Hall’s state constitutional challenges to the law under which he was convicted. The court found the state’s approach of banning felon gun possession for a term of years after the criminal sentence is complete — with the term varying based on the underlying crime — to be narrowly tailored to a compelling interest in ensuring public safety. The prohibition is temporary, the court said, but long enough for a defendant to demonstrate they’re sufficiently reformed to have a gun again. It chose not to apply a “least restrictive means” test given “the right at stake, the nature of the restriction, and the governmental interest.” To the judges, that “the least restrictive means arguably might be a prohibition of firearms for a single day or a week” was “a prudentially stunted conclusion that would not tangibly further any governmental interest.” Rejecting what it called Hall’s “absolutist” approach to Kansas’s right-to-arms provision, the court found that this construction “would create patently unreasonable and even absurd constitutional doctrine.”

Judge G. Gordon Atcheson concurred in the result but wrote separately to express his view that the Supreme Court’s “post-Heller rulings support remaining in lockstep with the highest Court’s analysis of the Second Amendment.” Thus, Atcheson would have asked if the challenged regulation “is consistent with the principles that underpin Kansas’ regulatory tradition” and conducted a historical review of the state’s approach to gun regulation. Drawing on state and municipal regulations from the early statehood period, Atcheson would have found that “history and tradition establish that [Kansas’s provision], like the Second Amendment, allows the Legislature to disarm people who are not law-abiding, responsible citizens,” such as Hall.

Many state courts apply lockstepping as a de facto rule in certain areas and decline to extend additional protection above and beyond that granted by the U.S. Constitution, as interpreted by federal courts. As professor Nino Monea has observed, the post-2008 development of Second Amendment case law heavily influenced state courts and made them less likely to perform independent judicial analysis under state right-to-arms provisions. Since Heller, state “decisions relying on the Second Amendment alone, treating the state constitution as indistinguishable from federal rights, or resolving a matter on the basis of the Second Amendment first and declining to analyze the state constitution, have all grown in number.” 

Yet the landscape is far from settled. The Delaware Supreme Court, for example, rejects lockstepping for its state Second Amendment analogue. And, as professor Eric Ruben has summarized, a handful of states — Alabama, Iowa, Louisiana, and Missouri — specify a different legal test in the state constitution itself. Ruben highlights a recent Iowa right-to-arms decision that observed that federal precedent “provides only limited guidance” for challenges to gun restrictions “because federal courts have moved away from intermediate or strict scrutiny in favor of the ‘text, history, and tradition’ test.”

Critics of lockstepping emphasize that “state judges are leaving rights on the table” by failing to enforce state protections at a higher level than the federal Constitution, especially when the intent of state constitutional drafters was to provide broad protection of individual rights. This critique does not hold in the context of the right to arms because of the recent rights-protective jurisprudence of the U.S. Supreme Court. As the panel in Hall suggests, the only way to go further than the federal high court is to embrace an absolutist view of the state provision — with absurd consequences, such as the inability to bar a convicted murderer from possessing guns for longer than a few days post-release. In contrast to lockstepping debates over rights like privacy and abortion, where the choice of whether to follow federal law will often dictate the result, in cases such as Hall the live debate is over doctrinal method and not outcome. 

But that doctrinal quandary is an important and vexing one. Hall illustrates a puzzle of state constitutional lockstepping post-Bruen: The Supreme Court’s text, history, and tradition methodology, if applied by a state court to an analogous state constitutional protection, likely elevates in-state historical sources and evidence. That’s because, as Atcheson notes, only in-state history will be relevant to the original meaning of a state constitutional provision — in other words, a court must “look at the rights that existed in the years surrounding” the state’s adoption of its constitution and the state’s “early development.” State courts are not bound by out-of-state judicial decisions, nor should they be bound by out-of-state regulatory tradition in construing a provision of the state constitution.

Under a lockstepping approach to state right-to-arms protections, state courts will necessarily evaluate different regulatory traditions and may well reach different outcomes in similar cases. After all, what the U.S. Supreme Court has labeled “outliers” in the national regulatory tradition may well be defining features of a certain state’s history. Kansas and other western and southern states likely have a much stronger tradition of broad, statutory public carry regulation than states in the Northeast or Midwest. Paradoxically, given the current partisan landscape, this could mean that state right-to-arms protections assume outsized significance in the very states where they were intended to have the least impact.

It’s no wonder, then, that the Hall majority rejected lockstepping and chose to apply means-end scrutiny — an approach that did not require “plumb[ing] the legal antiquities of the Kansas territory” or opening the door to inconsistent state adjudications.

Andrew Willinger is the executive director of the Duke Center for Firearms Law and a lecturing fellow at Duke Law School. He teaches and writes on the Second Amendment, gun regulation, and constitutional law.

Suggested Citation: Andrew Willinger, The Complexity of Lockstepping Post-Bruen, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 31, 2025), https://statecourtreport.org/our-work/analysis-opinion/complexity-lockstepping-post-bruen