pageok
pageok
pageok
State Constitutional Right to Keep and Bear Arms Provisions, Past and Present:

I include all 44 states' provisions, dating from 1776 to 1998, sorted by state, categorized by type, and sorted by date, in this short article that's forthcoming in the Texas Review of Law & Politics. It's mostly reference material with little analysis, but it hadn't been assembled before in an Official Source. But since the two Web pages that I put together on this have been cited in several law review articles, I figured that they were useful — and that publishing them in a law review could get still more people to notice them and use them.

LifeTrek:
Just a point of etiquette, I think it is rude to link to a pdf without noting it. Not everyone has adobe load at startup and not everyone has high speed internet.
DKK
12.1.2006 8:05pm
Mark H.:
I like it better when the courtesy (.pdf) is added after such a link too LifeTrek, as I then know up front that I'm not going to be following it.

That said though, I never click any link without mousing over to see where it's headed first, so when it comes down to it, it's the responsiblity of the reader to check first.
12.1.2006 8:51pm
Allen G.:
So that was the origin of the earlier defence/defense question... did Alabama require a constitutional amendment to change the spelling back in 1901?

A few years ago here in Texas, we had a constitutional amendment to fix several grammatical and spelling errors (and to get rid of a number of obsolete provisions).
12.1.2006 9:25pm
Eugene Volokh (www):
Allen G.: Alabama enacted a whole new constitution in 1901 -- most states have had more than one constitution during their history. I doubt that Alabama would have enacted a specific amendment just to correct the spelling.
12.1.2006 10:29pm
Truth Seeker:
Great idea for an article. When I came across a couple interesting state constitutional arms clauses a few years ago I started looking for others, but there was not enough material to make a whole book out of so I put it aside and forgot about it.

Looks like a couple typos in the boxes in Part II. Kansas has "6idual" and Virginia has that plus "1ective." (Unless this is some NRA secret code I'm not privy to.)
12.1.2006 11:20pm
Dave Hardy (mail) (www):
Looks like a couple typos in the boxes in Part II. Kansas has "6idual" and Virginia has that plus "1ective." (Unless this is some NRA secret code I'm not privy to.)

(Suspicious look). You don't have the decoder ring?
12.2.2006 12:41am
Clayton E. Cramer (mail) (www):

Great idea for an article. When I came across a couple interesting state constitutional arms clauses a few years ago I started looking for others, but there was not enough material to make a whole book out of so I put it aside and forgot about it.
Actually, there is. See Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger Press, 1994).
12.2.2006 12:46am
PersonFromPorlock:

Unless this is some NRA secret code I'm not privy to.

In that case the giveaway would be the picture of Wayne LaPierre and the appeal for contributions.
12.2.2006 7:58am
blcjr (mail):
In Part III, there are some ommissions of the states following the dates. For example, in the second entry for 1836, there is no state indicated. I think that is from Texas, however. Maybe you only intended for this section to show the information chronologically, but I think having the state listed for all of them would be helpful. There are others missing the states.
12.2.2006 8:23am
Daedalus (mail):
Interesting....three states, California, New Jersey and New York, which have some of the most progressive (restrictive) gun laws in the country are listed as having NO PROVISION for Second Amendment Rights......What does this say for the future of gun owners and their rights in these states that have no provision for the Second Amendment?

Other states with no provision for Second Amendment Rights are Iowa, Maryland, and Minnesota, which appear to have less restrictive gun laws, but what does the future hold for them?
12.2.2006 11:04am
Beerslurpy (mail) (www):
These state provisions all seem to fall into one of two categories:
1) they were enacted long before incorporation to provide a state level protection analogous to the 2nd on the federal level
2) they were enacted in response to lack of supreme court action on the 2nd amendment and increasing anti-gun activism at both the federal and state levels.
12.2.2006 11:29am
Cornellian (mail):
A few years ago here in Texas, we had a constitutional amendment to fix several grammatical and spelling errors (and to get rid of a number of obsolete provisions).

Were they really outright errors, or just updates to reflect the fact that American spelling and grammar has changed slightly over the past couple of centuries? You'd think they'd have QC'd the provisions the first time around, especially given the leisurely pace of law and legislating back in the day.
12.2.2006 1:23pm
DustyR (mail) (www):
While the current NYS Constitution does not contain a right to bear arms amendment, Article 2.4 of the Civil Rights Section of the Consolidated Laws of New York, is this:

"§ 4. Right to keep and bear arms. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." [ "cannot" in place of "shall not" in the 2nd Amendment - Me]

Source is here.

I've had the opinion from long years of living in and reading about New York that it was the queer uncle of the colonies, i.e., it always had to do things a bit differently and in the oddest way, and that it hadn't changed much since. Sorry, but I don't have the annotation for when this was established. I should note the 2.2 states:

"§ 2. Supreme sovereignty in the people. No authority can, on any pretence whatsoever, be exercised over the citizens of this state, but such as is or shall be derived from and granted by the people of this state."

But I am curious, now, as to what those familiar with law would opine on the differences and similiarities in civil rights law and Consitutional Bill of Rights and, also, what the difference might be between civil rights law and what is termed "common law". I ask this both independently and within the context of 2.2, above.
12.2.2006 3:10pm
Cornellian (mail):
But I am curious, now, as to what those familiar with law would opine on the differences and similiarities in civil rights law and Consitutional Bill of Rights and, also, what the difference might be between civil rights law and what is termed "common law".

I've sometimes wondered why rights are called "civil." It's not because they're constitutional - lots of statutory rights are not in the constitution but still called "civil rights." Presumably they've got something to do with being personal to the individual so a Title VII statutory right to be free from discrimination in certain situations is a "civil right" whereas the easement you hold over your neighbor's property is just a right without being a "civil right." Presumably First Amendment free speech is a civil right too. What about a Second Amendment right to bear arms? How about a Third Amendment right not to have troops quartered in your home?

One can find civil rights of a sort in the common law. The concept of property and the ownership of it is as old as the common law and we didn't have (or need) a statute to provide that property existed and that people could own it. The right to own property is a civil right of a sort and the right not to be deprived of it except in certain circumstances is also a constitutional right.
12.2.2006 4:26pm
Oren Elrad (mail):
LifeTrek - There is a fantastic extension to FireFox that, when a PDF is clicked on, asks you if you want to save it to disk, open in the browser or cancel.

Here
12.2.2006 6:58pm
mike (mail):
Georgia needs some updating:

The Constitution of 1861, for the first time, included:

“6) The right of the people to keep and bear arms shall not be infringed.”

Patterned largely after the Confederate constitution, the Georgia Constitution of 1861 was the first state constitution to be submitted to the people for ratification. Though earlier constitutions had enumerated only four or five personal liberties, the Constitution of 1861 incorporated a lengthy bill of rights


Constitution of 1877, modified RKBA to:

“Par. XXII. The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”

The manner of course was designed to prevent Blacks from bearing arms via a permit process with fees, good moral character standards, and ownership of property.

Constitution of 1945, the RKBA is:

“Paragraph XXII. Arms, Right to Keep and Bear. The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”


Constitution of 1976 includes the following:

‘Paragraph V. Arms, Right to Keep and Bear. The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”

Constitution of 1983 retains prior RKBA language:

Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.
12.2.2006 10:15pm
Jerry Greenhoot (mail):
Your North Carolina post expressly states that concealed carrying weapons is forbidden. This is no longer true in N.C and many other states.
12.2.2006 10:21pm
Eugene Volokh (www):
Mr. Greenhoot: Actually, I quote the North Carolina Constitution's provision that "Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that
practice." This is not a prohibition of concealed carry -- just an authorization for the legislature to enact such a prohibition.

The North Carolina legislature (and legislatures in other states that have such provisions) may have chosen not to take advantage of that authorization. But the state constitutional provision, which is all that I'm discussing in this article, does provide such an authorization.
12.3.2006 11:11am
DustyR (mail) (www):
Thanks, Cornellian.
12.3.2006 2:18pm
Billll:
The Illinois constitution seems to broadly permit the citizenty to keep and bear arms. In light of this, how is the new Cook county firearm ban constitutional?
12.3.2006 8:18pm
Clayton E. Cramer (mail) (www):

The Illinois constitution seems to broadly permit the citizenty to keep and bear arms. In light of this, how is the new Cook county firearm ban constitutional?
It probably isn't a complete ban. The 1970 Constitutional Convention debated the meaning of the RKBA provision, and according to the Quilici decision, the convention concluded that regulations, such as a ban on handguns, would not be a violation because at least some firearms were not prohibited.
12.3.2006 9:18pm
Jay Myers:
Cornellian:

I've sometimes wondered why rights are called "civil."

The word civil comes from the Latin where it meant of a citizen or proper for a citizen. In modern English the meaning that is relevant to your question is "of or relating to or befitting citizens as individuals".
12.4.2006 2:59am