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June 29, 2010

The "Silent Six" states worth watching for post-McDonald Second Amendment litigation

Back in October 2009 the Supreme Court accepted cert in the McDonald case, I asked in this post "What state and local issues will be litigated the most if (when?) Heller is incorporated?".  Though that post did not generate many responses, I suspect this question is now on the minds of many government lawyers who may be tasked with having to defend state and local gun regulations against new Second Amendment attacks in the wake of McDonald.

Though a diverse array of gun regulations will likely be subject to a diverse array of post-McDonald Second Amendment attacks in lower courts, I will be watching most closely how Second Amendment litigation unfolds in the six states that lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.  (Professor Eugene Volokh long ago created on-line this terrific list of state constitutional provisions concerning arms.)  Here are at least three reasons why these states — which I will call the "Silent Six" (or should it be Silencer Six) —  seem worth watching extra closely after McDonald:

1.  Lack of any controlling state constitutional law precedents.  In states with constitutional provisions concerning arms, there will be some judicial precedents that state judges can consider and reference when sorting through new Second Amendment claims.  But in the "Silent Six," state judges will be working on a mostly blank jurisprudential slate.  These state judges can and surely will look for guidance from gun rulings from other jurisdictions.  Still, the state judges in the "Silent Six" states will have a unique freedom (and unique necessity) to develop Second Amendment jurisprudence without any existing law to restrict or guide them.

2.  Large, diverse states with urban and rural settings.  Most of the "Silent Six" states are, relatively speaking, pretty big with big populations spread diversely around the state.   There are many rural parts of New York and California, for example, that are likely to be favorable to gun rights and to have local judges sympathetic to an expansive view of gun rights.  But there are also many urban centers in these states that tend to be hostile to gun rights and likely have local judges who reflect local attitudes.  Especially if and when early Second Amendment challenges are brought in these "Silent Six" states, early outcomes may turn on just where in the state a challenge is initially brought (and on which local judges are most eager to rule quickly on these claims).

3.  Mostly blue and politically important, dynamic states.  Most of the "Silent Six" tend to vote for Democrats, though Minnesota and New Jersey right now have high-profile Republican Governors.  Meanwhile, California, Maryland and New York have important state-wide elections taking place this November, and Iowa is where all Presidential campaigns get started.  These realities could make early constitutional litigation over state's gun regulations a hot political topic in the months (and years) ahead in the "Silent Six."  Against the backdrop of developing Second Amendment litigation, I wonder if former federal prosecutor and now Republican NJ Governor Chris Christie will continue to defend strict NJ gun control as he seemed to do in this interview with Sean Hannity back in October.  Similarly, as California laws get challenged, I wonder if Republican candidate Meg Whitman will stick with this reported statement last year that she "believes tough gun laws like assault weapon bans and handgun control are appropriate for California."

Some old and new recent related posts on state litigation and McDonald

June 29, 2010 at 01:54 PM | Permalink


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As far as Iowa goes - this session the legislature made us a "shall issue" state for concealed carry permits. It passed overwhelmingly in a Dem controlled legislature and was signed by the Dem governor. It has automatic reciprocity for out of state permits, and doesn't try to pile on worthless restrictions (i.e. you can actually carry in a place that has a liquor license, so long as you aren't intoxicated).

Iowa has a state preemption law, so there aren't any cities or counties with more restrictive laws.

As an Iowa lawyer I believe that there won't be any significant litigation on gun issues in this state.

Posted by: AlanO | Jun 29, 2010 6:31:02 PM

NY and possibly CA are where I think the next major steps will take place. Mostly because both allow completely arbitrary decisions by permit authorities,

Beyond that I really don't expect very much.

Posted by: Soronel Haetir | Jun 29, 2010 7:58:40 PM

I'd add Massachusetts to your list in light of Commonwealth v Davis(1976), which basically nullified the right to arms provision in the MA constitution.

Posted by: Jeff | Jun 30, 2010 12:07:14 PM

AlanO would you contact me at my email? I would like to make contact with a "gun friendly" Iowa attorney.

Posted by: Jack Else | Jun 30, 2010 3:35:34 PM

I am an attorney (in-house counsel) with an insurance company.

Posted by: Jack Else | Jun 30, 2010 3:37:02 PM

In as much as the Court in the "Heller" decision found the Second Amendment to be a Constitutional right and then in "McDonald" incorporated that right, can the right be taxed as in the 1934 N.F.A. Act which places a burdening $200.00 tax to transfer a firearm from one individual to another with each transfer?

I am a Second Amendment advocate.

Posted by: Bruce V | Jul 3, 2010 8:26:51 AM

Wow everyone is stating here that they are lawyers and such. Nice post you got there.

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