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May 4, 2010

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this lengthy (and newly revised) piecefrom David Kopel and Clayton Cramer available via SSRN. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).

Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation.  This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

As regular readers know from a variety of prior posts, I think a lot of tough federal sentencing laws for felon-in-possession crimes might be subject to successful constitutional attack if (and when?) lower courts get serious about applying a rigorous standard of review in Second Amendment cases.

A few related Second Amendment posts:

May 4, 2010 at 10:18 AM | Permalink


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The Oregon appellate courts have rejected a facial challenge -- under the Oregon right to bear arms -- to the felon in possession statute. In a footnote, they left open the possibility that a person could make an as-applied challenge. This was a few years ago -- definitely pre-Heller -- but I haven't heard if anyone has much that effort. Personally, I'm waiting for the client who has been crime free for years, had a non-violent prior, and had a firearm in the home. And I wouldn't need all three to file the motion. For obvious reasons, though, these types of cases don't come up very often.

Posted by: Ryan S | May 4, 2010 12:10:01 PM

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