The State Constitutional Rights to Bear Arms After Rahimi

This piece also appears on the Duke Center For Firearms Law website and the FRC’s Forum.

Since the 1970s, as the protections afforded by the U.S. Constitution’s Bill of Rights have ebbed and flowed with the U.S. Supreme Court’s evolving jurisprudence, litigants have increasingly turned to state courts and constitutions to raise their claims. State constitutions contain their own declarations of rights and state courts have been free to interpret those rights as more protective than analogous federal rights. In some cases, courts have sought to justify a departure from federal jurisprudence — relying on differences in text or historical traditions — and in others, courts have considered what their constitution was meant to protect without the federal comparison.

Prior to the Supreme Court’s recognition that the Second Amendment protected an individual right to keep and bear arms in District of Columbia v. Heller, or that it was incorporated to the states in McDonald v. City of Chicago, state courts were the only available forum for lawsuits over gun control measures. Since the nineteenth century, state courts have more than occasionally struck down restrictions on firearms possession, relying on rights to bear arms in state constitutions, though most were upheld under a “reasonableness” test that was generally deferential. Several state courts have found negligible rights to bear arms in their state constitutions — Kansas in 1905, Massachusetts in 1976, and Hawaii most recently. But after the Court’s decisions in Heller and McDonald, litigating in the states made little sense. After the Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, even less so — with federal courts ready, willing, and able to strike down gun control measures, why raise state constitutional challenges at all?

The Court’s decision in United States v. Rahimi this summer — and how Second Amendment jurisprudence evolves afterward — might create a greater incentive for state-level litigation. Bruen heavily incentivized litigants to challenge any gun control measure they disliked, and the inconsistent outcomes flowing from lower court application of the text, history, and tradition test resulted in chaos. Rahimi’s meaning, and the extent to which it clips the wings of ongoing Second Amendment litigation, are both ultimately unclear. But it’s certainly possible that Rahimi will incentivize gun-rights advocates to bring their claims in state court.

Virtually every state in the country has an explicit protection of the right to keep and bear arms in its constitution. (Only California, Maryland, Minnesota, New Jersey, and New York lack such a provision.) Yet the scope of these rights, as well as the contexts in which they were adopted, vary significantly. The number of state constitutions without rights to bear arms has not changed significantly over the course of American history; instead, as new states were admitted to the Union and convened constitutional conventions, these rights were often included in the new constitutions. 

Once added into state constitutions, these rights changed with the times. As concerns about the carrying of concealed weapons grew in the mid-to-late 1800s, about one-quarter of states granted their legislatures the constitutional power to limit the right to bear arms, either in general or to prohibit the carrying of concealed weapons.

Since the 1970s, however, rights to bear arms have been added into state constitutions where they did not exist, or modified where they did, by constitutional amendment, starting with New Mexico in 1971. These amendments were frequently motivated by gun control measures adopted in municipalities — the most infamous of which was that of Morton Grove, Illinois, in 1981 — or by court decisions that narrowly construed the existing right. Many of these new amendments expanded the purposes for which weapons could be owned and eliminated legislative power to regulate the right.

In the decade-plus after the Supreme Court’s decisions in Heller and McDonald, additional amendments have been adopted in a handful of states around the country: Alabama (2014); Kansas (2010); Louisiana (2012); and Missouri (2014). In Iowa, voters ratified a constitutional amendment safeguarding a right to bear arms in 2022, the first time in state history that such a right was included in the state constitution. These amendments ostensibly attempted to lock in the Court’s recognition of an individual right to keep and bear arms, preventing future membership change on the Court from altering the decisions in Heller and McDonald, yet also used language that went much further. Some state constitutions now recognize the right to bear arms as “fundamental” or “inalienable,” include express standards of review (usually strict scrutiny), and expand the protections to include ancillaries to guns (like ammunition).

So far, these amendments have not produced significant jurisprudential change. As Professor Nino Monea has observed, state supreme courts have largely rejected the most extreme possible interpretations of these new rights — and they have rejected challenges to statutes that have disarmed domestic abusers or those convicted of felonies. In 2014, Missourians ratified an amendment that substantially revised their state constitution’s protection of the right to bear arms. Following the amendment, the right extended to “arms, ammunition,” and related “accessories;” the right was established as “unalienable;” and any gun control measures were “subject to strict scrutiny.” Just two years later, the Missouri Supreme Court upheld a ban on the possession of firearms by those who were convicted of nonviolent felonies. The court viewed the effect of the 2014 amendment narrowly, concluding that the amendment “simply enshrined the status quo as to the right to bear arms.”

But will this be the case after Rahimi? If gun rights advocates know that some of their avenues — like challenges to statutes that disarm domestic abusers — are unavailable in federal court, one could imagine that they might try again in the states. Given the growing extremism of state appellate courts, which seem increasingly willing to entertain fringe legal theories (most notably, fetal personhood), as well as the capture of ostensibly nonpartisan judicial nominating processes by partisan ideologues, it does not seem implausible that state courts might be willing to give their constitutions’ rights to bear arms too expansive a reading.

Yet doing so would betray the voters who ratified these measures. The arguments in favor of these amendments, from 1971 to the present, focused on relatively narrow aims — preventing municipalities from totally banning gun ownership, for example, or recognizing, as the Court did in Heller and McDonald, that there is an individual right to keep and bear arms — not a total rejection of all gun control measures. Indeed, opponents of the amendments argued that they might be interpreted too broadly by state courts, arguments that advocates responded to by insisting that such outcomes simply wouldn’t happen. While the amendments clearly intended some expansion of the right to bear arms, given the context in which these amendments were ratified, giving them a sprawling reach would pull a disgraceful bait-and-switch with voters who could not possibly have imagined that they were ratifying a constitutional protection that would be used to arm people convicted of violent felonies or subject to civil protection orders.

Quinn Yeargain is an associate professor of law and the 1855 Professor of the Law of Democracy at the Michigan State University College of Law. This piece is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. 

Suggested Citation: Quinn Yeargain, The State Constitutional Rights to Bear Arms After Rahimi, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 5, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-constitutional-rights-bear-arms-after-rahimi.