"Strict scrutiny" amendments to state constitutions must be the next front in fortifying gun rights

(AP Photo/Jeff Roberson)

Last week, I called attention to a serious risk from NYSRPA v. Bruen, which is the germination of complacency among gun owners and Second Amendment advocates. In the NYSRPA v. Bruen case, the Supreme Court was forced to convey a message to lower courts to not mess around with the Second Amendment using “interest balancing” tests that always put a thumb on the scale in favor of gun control. 


As a result, numerous gun control laws are getting struck down around the country. Diabolical pistol grips that turn semi-autos into assault-o-matics are legal again and the citizens of states with anti-Second Amendment majorities don’t have to submit themselves to the discretion of apparatchiks to exercise their natural right of self-defense when outside the home.

Nevertheless, the writing is on the wall. One of the cases that was vacated by the Supreme Court and sent back to the lower courts was Bianchi v. Frosch, which challenged the Maryland “assault weapons” ban. Another two cases that were vacated and remanded at the same time were ANJRPC v. Bruck and Duncan v. Bonta, both of which were “high capacity” magazine ban cases from New Jersey and California respectively. 

The message from the Supreme Court in the above cases is clear: “assault weapons” and “high capacity” magazine bans are unconstitutional. So, what happened after that? Democrats around the country brazenly passed laws that repeated the same “assault weapons” and “high capacity” magazine bans in states like Washington, Oregon, Delaware, Rhode Island, and Colorado.

The takeaway from the Democrats’ reaction is that they will never, ever accept our right to keep and bear arms. They think that the Second Amendment ought to be shredded but given that there’s no chance that they can repeal it the lawful way, they will resort to extra-legal and norm-busting ways to destroy it. Our right to keep and bear arms is only safe inasmuch as the highest court is not under the control of those who employ duplicitous and emotional arguments to rubber-stamp infringements. And what happens when control of the highest court switches in the future, something that is well within the bounds of probability?


That’s where State Constitutions come into play as an additional firewall. Forty-five out of fifty states have clearly written provisions to protect the right to keep and bear arms. The five states that don’t have one are California, Maryland, Minnesota, New Jersey, and New York. Eugene Volokh, a professor at UCLA Law School has a useful list of these provisions on his website.

Iowa was on the list of states without a provision protecting the right to keep and bear arms until last year, when a near-supermajority of voters passed a state constitutional amendment not only to add a provision but also to give it teeth with a Strict Scrutiny directive to the state judiciary. The text of the Iowa amendment states the following:

Right to keep and bear arms. Sec. 1A. 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.

This state constitution amendment provides an extra layer of protection by making it clear in no uncertain terms that the right to keep and bear arms is an individual right, not a wishy-washy collective right of the “militia,” and that the judiciary shall not use any interest-balancing shenanigans to whittle it down.


Even if attacks on the Second Amendment intensify at the federal level, as I expect they will, state constitution amendments will provide an extra level of protection to posterity. Looking back at history, it’s amply clear that political tides shift, and long-held beliefs and norms can be tossed aside rather rapidly. A case in point is Vermont, a state that until 2018 had no gun control. In fact, unrestricted concealed carry was called “Vermont Carry” because of that state’s respectful treatment of the human right of self-defense. That has changed very quickly, and Vermont is joining the ranks of other anti-Second Amendment states.

As of this writing, 25 states have permitless carry, with Florida and Nebraska on the verge of becoming the 26th and 27th states respectively. These states are friendly to the right to keep and bear arms. Gun rights activists and groups should seize the moment and start passing Strict Scrutiny amendments to their state constitutions to make sure that their right to keep and bear arms doesn’t fall victim to shifting political tides in the future. Take inspiration from Iowa, Louisiana, Missouri, and Alabama and amend your state constitutions to fortify your rights and tie down the hands of activist judges now while you can.


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