Why your state constitution may guard gun rights better than the federal one

Quick quiz. How many constitutions protect your right to keep and bear arms? If you said one, the Second Amendment, you are in good company and you are short by one. If you live in most of the country, you have two: the federal one, which everybody talks about, and your own state's, which almost nobody reads. The second one is sometimes the better of the two.

This is one of the least understood facts in the whole gun debate, and it is good news for people who care about the right. Federal courts get the headlines. But the American system was built with fifty state constitutions beside the national one, and each state wrote its own bill of rights. For readers who want to know what protects them where they actually live, the state document is the place to start. Let me explain how the two systems fit together, show some of the wording, and tell you how to find your own.

How do state and federal constitutions fit together?

The rule is simple and has a name: the federal Constitution is a floor, not a ceiling. It sets the minimum protection that every government in the country must respect. A state may add to it. A state may not subtract from it.

Take the arms right as the example. For most of American history, the Second Amendment limited only the federal government. That changed when the Supreme Court held in McDonald v. City of Chicago (2010) that the right recognized in District of Columbia v. Heller (2008) applies to the states through the Fourteenth Amendment. The story of that gradual extension is told in How the Bill of Rights Came to Bind the States, One Right at a Time. After McDonald, no state can fall below the federal floor. But the floor is only the lowest level. State constitutions can say more, and many do.

There is a well-known precedent for the principle. In PruneYard Shopping Center v. Robins (1980), the Supreme Court held that a state could read its own constitution to protect speech in a privately owned shopping center, even though the federal First Amendment would not require it. The Court said, in effect, that states are free to give individuals more protection than the federal Constitution demands. Courts apply the same logic to arms.

Why a state court can be the last word

When a state's highest court decides a case on the basis of its own constitution, and says clearly that it is doing so, the United States Supreme Court will not review the decision. The doctrine is called the "independent and adequate state ground." In Michigan v. Long (1983) the Court said that when a state court's decision appears to rest on federal law, the Supreme Court may review it unless the state court makes a plain statement that its ruling rests on independent state grounds. The upshot for citizens: a state supreme court that reads its own arms clause generously cannot be reversed in Washington for doing so.

That is the structure often described as the states serving as laboratories of democracy. It is also the structure explained in Federalism Lets Fifty States Experiment, and the Constitution Planned It. A right can be defended in two places, and if one fails, the other may still hold.

What do the state clauses actually say?

Most state constitutions contain an arms provision. A handful, among them California, Maryland, Minnesota, New Jersey and New York, have none, so check the text for your state. (Iowa was long on that list but added a right to arms in 2022.) The rest vary in wording, and the differences are interesting. Here are a few, which you should verify against your state's current text before relying on them.

What jumps out

Three features distinguish many state clauses from the Second Amendment.

1. They say "themselves." Pennsylvania's clause, whose current wording dates to 1790 and which is discussed in What Pennsylvania and Vermont wrote about arms before the Second Amendment, protects bearing arms "in defence of themselves and the State." Self-defense is in the text. There is no militia clause to argue about, and no need to extract an individual right from a prefatory phrase. When someone tells you the Second Amendment is ambiguous, point to the state clauses written by the same generation.
2. Some have no militia preface at all. The federal text begins with the militia. Many state clauses do not. They state the right directly.
3. Some are explicit about the standard of review. This is where the modern action is.

The strict-scrutiny amendments

Courts have standards for measuring a law against a right. The most demanding is strict scrutiny: the government must show that the law serves a compelling interest and is narrowly tailored to that interest, with no less restrictive means available. A law that passes strict scrutiny is rare. The weaker standard, intermediate scrutiny, asks only whether the law is substantially related to an important government interest. Under a "rational basis" test, nearly any law survives.

In the federal system, Heller and Bruen turned the question into one of text and historical tradition, as The Sullivan Act of 1911 and the century New York spent rationing carry permits describes. But for a long time, many lower courts applied intermediate scrutiny to gun laws, and gun-rights advocates looked for a way to demand something more. Some states wrote the answer into their own constitutions.

Louisiana, 2012

In November 2012 (the ballot was November 6), Louisiana voters approved an amendment to the state's arms clause, Article I, Section 11. The amended text says that the right to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. Even so, the Louisiana Supreme Court has said the right is not absolute and has held that the felon-in-possession statute withstands strict scrutiny. It was a direct instruction to the courts, from the people, about how closely to examine a gun law.

Missouri, 2014

In August 2014 (the amendment is dated August 5), Missouri voters approved an amendment to Article I, Section 23. The new text protects the right to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, calls the rights unalienable, and provides that any restriction shall be subject to strict scrutiny. The Missouri Supreme Court has held that the amendment applies only prospectively, and the Missouri courts have since applied it in felon-possession cases, so read the decisions as well as the text.

Check whether your own state has amended its clause in a similar way. If it has, read the exact text. If it has not, ask why not.

Why strict scrutiny matters

A procedural phrase sounds dull, but it determines outcomes. Take a hypothetical, labelled as such. Suppose a legislature passes a law banning a category of ordinary rifles because of their cosmetic features. Under intermediate scrutiny, the state needs to show only that the law is substantially related to an important interest, and judges have often accepted studies and predictions from the government at face value. Under strict scrutiny, the state has to show a compelling interest, that the law is narrowly drawn, and that no less restrictive option would serve. The burden moves, in effect, from the citizen to the state. That shift is the same one the Court announced in Bruen at the federal level, and the state amendments secure it independently.

It also matters because federal law can change with the composition of the Court. A state constitutional amendment is the work of voters, and it cannot be undone by a change of mood in Washington. It can be undone only by the same voters who passed it.

An objection, stated fairly

There is a respectable objection. It says that constitutions should be short and general, that strict scrutiny provisions put judges in the position of decision-makers about public safety, and that a rigid test for gun laws may handcuff legislatures that want to respond to new problems. Some who favor gun rights have worried that over-specific amendments invite litigation and could backfire if courts read them in ways the voters did not expect. Opponents add that a constitutional right should not be treated as more absolute than other rights.

Here are four answers.

1. A right is supposed to constrain the legislature. That is what makes it a right. If a legislature could remove the protection by passing the right law, the protection would be a suggestion.
2. The voters chose the standard. When a state amends its constitution to say "strict scrutiny," it is not judges who have chosen it. The people have. A court that applies the standard is following the people's instruction.
3. Strict scrutiny is not a ban on regulation. The state may still regulate if it can show a compelling interest and narrow tailoring. Laws against violent criminals owning guns, for example, are likely to survive any standard. The test sorts good laws from poor ones.
4. Other rights already get this treatment. Speech and religion receive strict scrutiny in many contexts. It is not extreme to give the arms right the same respect, and the text of the Bill of Rights puts them side by side, as The right of the people means the same thing in the First, Second and Fourth argues.

State courts have been doing this for two centuries

State judges did not wait for Heller. In the early nineteenth century they were already reading their own arms clauses as individual rights, as Bliss, Nunn and the antebellum judges who first read the right to bear arms explains. A modern example is State v. Kessler (1980), in which the Oregon Supreme Court held that Article I, section 27 of its state constitution protected the possession of a billy club in the home, and reversed the conviction. Oregon's clause says the people have the right to bear arms for the defence of themselves and the State. The court relied on that wording and the state's own history, including the clause's origin in Indiana's 1851 constitution, and the case turned on the state constitution.

The pattern shows why it pays to know the local text. A federal lawsuit may take years and may end in a loss. A state-court claim may stand on firmer ground.

How do you find your own state's text?

This is the practical part, and it is easy.

1. Find your state legislature's website. Almost every state posts its constitution there, usually under "Constitution" or "Laws."
2. Look for the "Declaration of Rights," "Bill of Rights" or "Article I." The arms clause is usually in the first article. Search the page for the word "arms."
3. Read it twice. Note whether it mentions self-defense, whether it has a militia clause, whether it allows the legislature to regulate, and whether it specifies a level of scrutiny.
4. Check for amendments. State constitutions are amended far more often than the federal one. Look for the date of the most recent change to the arms clause.
5. Look for court decisions. Your state supreme court's opinions are searchable on the court's website. A decision applying the arms clause tells you how it has actually been read.
6. Ask your legislators. If your state has no strict-scrutiny provision and you would like one, the legislature proposes amendments in most states, and the voters decide.

I should say what this post is not. It is not legal advice for your own situation, and the law of each state changes. Treat the table as a starting point and verify the current text yourself.

A note on civic habits

There is a lesson here that extends beyond firearms. Americans tend to look to Washington for everything, and the habit has a cost. The Founders designed a country in which most of the daily protection of liberty would be done at home, by state courts and local voters. Citizens who read their own constitutions, attend their own legislative hearings and vote on their own amendments are doing what the system asks. vermont never required a carry permit, and the sky never fell is the story of a state that went its own way for two centuries, with no federal prompting, and it is a fair reminder that the states can be laboratories for liberty as well as for regulation.

And a small joke at the expense of our own habits. Most of us could name the three branches of the federal government and could not name our state's constitution's amendment process on a bet. The result is that the most powerful legal document most of us could actually change is the one we have never opened. Open it.

The case in brief

1. Most states have their own arms clause, and the federal Constitution is a floor beneath them, so states may protect the right more broadly but not less.
2. Many state clauses mention self-defense directly, as Pennsylvania's does, and some omit the militia preface that fuels the federal debate.
3. Louisiana in 2012 and Missouri in 2014 amended their constitutions to require strict scrutiny of restrictions, and you should check whether your own state has done likewise.
4. A state court that rests its decision on state grounds cannot be reversed by the United States Supreme Court, so the state text can be the strongest protection.
5. The remedy for a weak clause is local: read it, learn how courts have applied it, and ask the legislature and the voters to strengthen it.

What you can do: look up the arms clause in your own state constitution on your legislature's website this week, and write down its exact words.