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NORTHERN KENTUCKY LAW
REVIEW
VOLUME 29, NO. 4, PAGES 823-847 (2002)
What State Constitutions Teach About the Second
Amendment
by David B.
Kopel[1]
I.
Introduction
It is well-settled that
state constitutions can serve as an aid to interpreting the federal Bill of
Rights.[2]Regarding the Second
Amendment, state constitutions are especially helpful. First, right to arms
provisions are contained in forty-four state constitutions.[3]
Few parts of the Bill of Rights have as many state analogues as does the Second
Amendment.[4]
Second, the state language has been written or amended from 1776 until the
present,[5]
so we can see how arms rights have or have not changed in a wide variety of
American linguistic communities. Third, state arms guarantees have been created
or amended by special conventions, by state legislatures, and by initiative and
referenda. Thus, we can see how arms rights language is created by both elite
and non-elite types of lawmakers.
A great deal of ink has been
spilled trying to discern the intent of the authors of the Second Amendment. If
we simply look at how the same words in the Second Amendment have been used in
state constitutions, we find that these words have had a stable, consistent
meaning throughout American history. From 1776 until the present, the words
have guaranteed a right of individuals to own and carry guns.
At least regarding gun
rights, modern Americans speak the same language as the founders. Since 1963, the people of Alaska,
Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana, Maine,
Michigan, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina,
Utah, Virginia, West Virginia, and Wisconsin have chosen, either through their
legislature or through a direct vote, to add a right to arms to their state
constitution, to re-adopt the right to arms, or to strengthen an existing
right. In every state where the people have had the opportunity to vote
directly, they have voted for the right to arms by overwhelming margins.
In this article, I examine
each of the state constitutions that contain an arms rights guarantee. For each
state, I detail how the state arms right has been interpreted and what
implications about the Second Amendment may be drawn from the language of the
state provision.
Throughout the analysis,
several key questions recur:
-
When the Second Amendment was written and adopted,
was the language chosen already familiar as guaranteeing and individual’s right
to keep and bear arms, or was the language familiar as protecting the power of
states over their own militias?
-
Is the phrase "bear arms" a term of art referring
exclusively to bearing arms while in militia service, or is the phrase used in
its more ordinary sense to encompass bearing arms for a variety of purposes,
such as personal or family defense or sporting purposes?
-
When states adopted the Second Amendment verbatim in
their own state constitutions, what did this particular language do?
-
What is the effect when concerns about standing
armies are expressed contemporaneously or even in the same sentence as arms
rights language?
-
What is the implication when states create explicit
exceptions to the right to arms, such as excepting the concealed carrying of
weapons, or excepting large assemblies of armed men, or reserving the power to
create certain types of gun laws?
I.
State Constitutions Contemporaneous with the Second Amendment
The Second Amendment to the
United States Constitution was written in 1789 and sent by Congress to the
States for ratification.[6]
Ratification was achieved in 1791.[7]
Four state constitutions from the very early Republic --
Pennsylvania,
Vermont,
North Carolina and
Kentucky -- provide important
evidence about the meaning of the right to arms in the period surrounding the
adoption of the Second Amendment.
Pennsylvania: The present-day
Pennsylvania Constitution, using language adopted in 1790, declares: "The right
of the citizens to bear arms in defence of themselves and the State shall not be
questioned."[8]
Pennsylvania’s first
constitution, adopted in 1776, stated in its Declaration of Rights: "That the
people have a right to bear arms for the defence of themselves and the state;
and as standing armies in the time of peace are dangerous to liberty, they ought
not to be kept up; And that the military should be kept under strict
subordination, to, and governed by, the civil power."[9]
It is sometimes claimed that
the phrase "bear arms" in the Second Amendment is a term of art referring only
to bearing arms while serving in a militia.[10]
Both in 1790 and 1776, the drafters in
Pennsylvania used the language "bear arms
in the [or 'for'] defence of themselves and the state."[11]
This language has always been interpreted by
Pennsylvania courts to protect the right
of all Pennsylvanians, not just militiamen, to possess firearms.[12]
The
Pennsylvania language suggests that "bear arms" is not a term of art which means only militia usage and nothing else.
A recent opinion by Justice
Ruth Bader Ginsburg suggests that "bear arms" continues to encompass carrying
guns for diverse purposes.[13]
Analyzing the statutory phrase "carries a firearm," she wrote:
Surely a most familiar
meaning is, as the Constitution's Second Amendment ("keep and bear Arms") and Black's Law Dictionary indicate,
"wear, bear, or carry...upon the person or in the clothing or in a pocket, for
the purpose...of being armed and ready for offensive or defense action in case
of a conflict with another person."[14]
Vermont:
Adopted in 1777, the Vermont
Constitution closely tracks the Pennsylvania Constitution.[15] It states "That the people have a right to
bear arms for the defence of themselves and the State -- and as standing armies
in time of peace are dangerous to liberty, they ought not to be kept up; and
that the military should be kept under strict subordination to and governed by
the civil power."[16]
Vermont, like Pennsylvania,
contributed part of this language to the federal Second Amendment, evidencing
the state’s interpretation that recognition of the people’s right to bear arms
was a recognition of an individual right.
Vermont courts have been especially
strict in protecting individual arms rights when interpreting the state
constitution. For example, an 1892 decision declared that the government could
not require licenses for the carrying of concealed weapons.[17]
One of the most important
elements of
Vermont’s right to arms language is
the juxtaposition of a right to bear arms with a denunciation of standing
armies. The fact that
Vermont's right to bear arms has
been interpreted as individual shows that concern about standing armies does
not negate the guarantee of a fundamental personal right to arms.
North Carolina: Like
Pennsylvania,
North Carolina adopted an arms right in
1776.[18] The North Carolina Bill of Rights reads in
part, "[t]hat the people have a right to bear arms, for the defence of the
State; and, as standing armies, in time of peace, are dangerous to liberty, they
ought not to be kept up; and that the military should be kept under strict
subordination to, and governed by, the civil power."[19]
The 1776 adoption of the
phrase "the people have a right to bear arms" precedes James Madison's
derivative use of a substantially similar phrase when he wrote the Second
Amendment in 1789.[20]
The 1776 North Carolina Constitution declares the right is "for the defence of
the State," but delineates no other purpose.[21]
This "right to bear arms" language is included in the same sentence as denunciations of and restrictions on
standing armies. This language would be expected to lend strong support to
arguments that the Second Amendment was intended exclusively to promote state
militias so as to reduce the power of the federal standing army[22]
and that the only purpose of the Second Amendment is collective defense, not
individual arms possession for personal defense.[23]
However, the North Carolina
Constitution has always been, without dissent, construed to guarantee a right
of ordinary citizens to carry weapons for personal protection.[24] The language of the state constitution, unlike
the Second Amendment, explicitly denounces and controls standing armies and
specifies only one purpose for the right to bear arms: "the defence of the
state."[25]
A fortiori, the 1776 North Carolina
Constitution would protect, at most, people in active militia service, but in
1843, the North Carolina Supreme Court explained that "[f]or any lawful purpose
-- either of business or amusement -- the citizen is at perfect liberty to carry
his gun."[26]
In 1868, after the Civil
War, North Carolina recreated its state constitution, adopting
language which directly copied the federal Second Amendment.[27]
The same constitutional clause also denounced standing armies: "A well-regulated
militia being necessary to the security of a free State, the right of the people
to keep and bear arms shall not be infringed; and, as standing armies, in time
of peace, are dangerous to liberty, they ought not to be kept up, and the
military should be kept under strict subordination to, and governed by, the
civil power."[28]
Again, if the federal Second
Amendment is only about controlling standing armies, then the 1868
North Carolina arms right should, a fortiori, only be about controlling
standing armies, since standing army language appears in the very same sentence
as the arms right. Yet the
North Carolina provision has always been
construed as protecting an individual right.[29]
The individual nature of the
1868 North Carolina guarantee, mimicking the Second Amendment,
was underscored by an 1875 amendment: "Nothing herein contained shall justify
the practice of carrying concealed weapons, or prevent the Legislature from
enacting penal statutes against said practice."[30]
If the
North Carolina arms right were only about controlling
standing armies, or only about affirming the state militia, it would make no
sense for North Carolina to carve out an exception
in order to allow the legislature to ban or restrict the carrying of concealed
weapons. The concealed weapons control is aimed at individuals, not at active
militiamen, who can simply be ordered to carry their guns in the manner their
commanding officers insist. Again, the
North Carolina constitution has always been
interpreted to protect an individual right to arms.[31]
Therefore, from the North
Carolina Constitution, we see:
-
Concerns about standing armies do not negate the
individual nature of the arms right.
-
A reference to
"the defence of the state" does not negate the
individual nature of the arms right.
-
The creation of an exception to allow restrictions
on concealed carry underscores the nature of the arms right.
-
The exact wording of the Second Amendment is
interpreted as recognizing an individual right in
North Carolina state courts.
These themes will be
continually supported by examination of other state constitutions.
Kentucky: The 1792
Kentucky constitution was nearly
contemporaneous with the Second Amendment, which was ratified in 1791.[32]
Kentucky declared: "That the right of the citizens to bear
arms in defence of themselves and the State, shall not be questioned."[33]
The year after the Second
Amendment became the law of the land,
Kentucky's constitutional drafters
used the phrase "bear arms" to include bearing arms for personal and collective
defense: "in defence of themselves and
the state."[34]
This language suggests that "bear arms" was not commonly understood as
encompassing only militia service.
In 1822, a Kentucky Supreme
Court decision declared a law against carrying concealed weapons invalid.[35]
This led to an 1850 revision in the Kentucky Constitution to allow restrictions
on concealed carry.[36]
This was also the basis for the restrictions on concealed carry written into
many state constitutions. The final form of the
Kentucky arms right was enacted in
1891:
All men are, by nature, free
and equal, and have certain inherent and inalienable rights, among which may be
reckoned:
First: The right of enjoying
and defending their lives and liberties. . . .
Seventh: The right to bear
arms in defense of themselves and of the State, subject to the power of the
General Assembly to enact laws to prevent persons from carrying concealed
weapons.[37]
II.
Is the Second Amendment Mainly about Federalism?
Having examined some very
early states’ right to arms guarantees, let us now jump ahead to 1959 and to
the last states that joined the
Union.[38]
Alaska and
Hawaii:
Both
Alaska and
Hawaii copied the Second Amendment
verbatim into their state constitutions.[39]
The arms right provision in both states reads: "A well‑regulated militia
being necessary to the security of a
free state, the right of the people to
keep and bear arms shall not be infringed."[40]
It is sometimes argued that
the Second Amendment right belongs only to state militias, to protect them from
disarmament by the federal government.[41]
The guarantees made by the
Alaska and
Hawaii Constitutions contradict
this argument. If the argument were true, then it would be preposterous for the
people of Alaska and
Hawaii to place in their
constitution language which is identical
to the Second Amendment. Because of the Supremacy Clause in the United States
Constitution,[42]
nothing in the
Alaska or Hawaii Constitutions
could prevent the federal government from disarming a state militia. The
obvious reason that the people of
Alaska and
Hawaii placed the exact language
of the Second Amendment in their state constitutions was to keep the state
governments from disarming the people of their respective state. The people of
Alaska and
Hawaii chose these precise words
because they understood those words as used in the United States Constitution
to prevent the
United States government from disarming
the people of the
United States.
In 1994, the people of
Alaska added additional protection
to their arms right by specifically labeling the right "individual," by
specifically prohibiting local governments from restricting the right, and by
changing "infringed" to "denied or infringed."[43]
The people of
Alaska may have been acting with a
great abundance of caution, since the 1994 addition merely restated what was
already in the 1959 Constitution: that the arms right limited the power of
local government as well as state government,[44]
that the right was individual, and that the right could not be "denied."[45]
Hawaii simply interprets its state
constitutional right to arms[46]
and gets the same result. Hawaiians have an individual right to arms, which may
not be denied by the state or by local governments.[47]
Of course, Hawaii has extensive gun controls,
while Alaska has very few.[48]
The issue for this article, however, is not whether any particular gun control
is constitutional, but simply whether the text of state constitutions suggests
that the federal Second Amendment protects a meaningful individual right.
South Carolina:
Like
North Carolina,
Alaska, and
Hawaii, the state of
South Carolina adopted the Second
Amendment verbatim.[49]
South Carolina also copied
North Carolina’s language denouncing
standing armies: "A well regulated militia being necessary to the security of a
free State, the right of the people to keep and bear arms shall
not be infringed. As, in times of peace, armies are dangerous to liberty,
they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the
civil authority and be governed by it."[50]
In
South Carolina, the state constitutional right to arms, with the exact same
language as the Second Amendment, is read just as it is in Alaska, Hawaii, and
North Carolina: as guaranteeing a right of individuals to bear arms. If Second
Amendment language were about state’s rights, rather than about individual
rights, then surely one would expect the state’s rights interpretation to
prevail in South Carolina, the state which affirmed
state’s rights by seceding and thereby starting the Civil War – providing the
South Carolina militia with an opportunity
to assert its independence from federal control. Yet even in
South Carolina, the precise language of
the Second Amendment is recognized as guaranteeing individual
rights, not militia independence.
III.
Stability across Time and Place
Having examined
constitutions from very old states to the newest states, let us now look at the
constitutions of the rest of the states. We will proceed mostly, in
alphabetical order, although some states will be combined where profitable. We
will find great diversity of geography and time, and will we find consistent
support for the themes established in Parts I and II.
Alabama: The Alabama Constitution, adopted in 1819,
guarantees "[t]hat every citizen has a right to bear arms in defense of himself
and the state.[51]
Alabama's guarantee refers to
community protection (such as might be provided in militia service) with the
phrase "bear arms in defense of...the state."[52]
Alabama also refers to personal protection: "bear arms in
defense of himself."[53]
Thus, one can bear arms "in defense. .. of the state" or "in defense of himself." Bearing arms can include community
protection or personal protection.[54]
Arizona and
Washington:
These states were among the
last to be admitted to the
Union.[55]
Their right to arms language is identical: "The right of the individual citizen
to bear arms in defense of himself, or the state, shall not be impaired, but
nothing in this section shall be construed as authorizing individuals or
corporations to organize, maintain or employ an armed body of men."[56]
The Washington and
Arizona Constitutions make explicit a principle which has been considered in the Second Amendment: protection of an
individual right "to bear arms" does not forbid the government from controlling
large assemblies of armed men.[57]
Just a few years before the Washington Constitution was adopted, the U.S.
Supreme Court upheld a state ban on armed parades in public, even as the Court
plainly treated the Second Amendment as an individual right protected against
federal infringement.[58]
Arkansas: "The citizens of this State
shall have the right to keep and bear arms for their common defense.[59]
As in many states,
Arkansas’s state constitution is
narrower than the Second Amendment, because it guarantees the right only "for
their common defense."
An
1842 case interpreted the state constitution narrowly, holding that it
protected only the kind of people who might serve the militia, i.e. free males,
and only the kind of weapons suitable for militia use.
A concurring opinion stated that "The provision of the Federal Constitution [and
of the state Constitution] . . . is but an assertion of that general right of
sovereignty belonging to independent nations, to regulate their military force."[61]
This
concurrence was never followed in
Arkansas, and does not appear to
have been cited in any court for the remainder of the nineteenth century.
Subsequent Arkansas case law has interpreted
the state constitution to guarantee all law-abiding Arkansans the right to own
firearms.[62]
Arkansas courts apply the "common
defense" language so that the right only includes the type of arms that might be useful for militia service.[63]
For example, in Fife v. State,[64]
an 1876 decision, the Arkansas Supreme Court held that large military-sized
pistols are within the scope of the arms right, but small concealable handguns
are not.[65]
Thus, the
Arkansas courts effectuate every
word of the state constitution: the right belongs to every "citizen" but the
right includes only ownership of the type of firearms useable for the "common
defense." The Fife case is one of
many state cases whose precedent was followed in United States v. Miller,[66]
which allowed for a Second Amendment claim on behalf of two individual citizens
(Jack Miller and Frank Layton, who were not in any militia), while holding that
the Second Amendment does not extend to firearms which are unsuitable for
militia use.[67]
Colorado: "The right of no person to keep and bear
arms in defense of his home, person and property, or in aid of the civil power
when thereto legally summoned, shall be called in question; but nothing herein
contained shall be construed to justify the practice of carrying concealed
weapons."[68]
Again, the phrase "keep and
bear arms" is used for more than militia use. The Colorado Constitution shows
that a person may "keep and bear arms in defense of his home, person, or
property."[69]
The Colorado provision includes the concealed carry exception.[70]
The right is unquestionably individual.[71]
Connecticut: "Every citizen has a right
to bear arms in defense of himself and the state."[72]
Connecticut too uses "bear arms" to
encompass personal defense.[73]
Delaware: "A person has the right to
keep and bear arms for the defense of self, family, home and State, and for
hunting and recreational use."[74]As
Delaware shows, "bear arms" can
include "hunting and recreational use" as well as defense of "self, family, home
and State."[75]
Florida: As enacted in 1968,
Florida’s provision states: "(a) The right of the people to keep and bear arms
in defense of themselves and of the lawful authority of the state shall not be
infringed, except that the manner of bearing arms may be regulated by law."[76]
Earlier versions were:
1838: "That the free white men of this State shall
have a right to keep and to bear arms for their common defence."[77]
1868: "The people
shall have the right to bear arms in defence of themselves and of the lawful
authority of the State."[78]
1885: "The right
of the people to bear arms in defence of themselves and the lawful authority of
the State, shall not be infringed, but the Legislature may prescribe the manner
in which they may be borne."[79]
The people of
Florida have repeatedly used "right
of the people to keep and bear arms" to protect the right of every individual
citizen of Florida to possess a firearm.[80]
If the Second Amendment does nothing more than protect state militias from
federal interference, it is impossible to explain why language based on the
Second Amendment appears again and again in state constitutional language
throughout the nineteenth and twentieth centuries.
Georgia:
"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."[81]
Again, language nearly identical to the Second
Amendment is used to guarantee a right of individuals.[82]
Before
Georgia had its own right to arms
guarantee, the Georgia Supreme Court used the Second Amendment to declare a
state handgun ban illegal.[83]
The Georgia Court explained that the Second Amendment protects:
The right of the whole
people, old and young, men, women and boys, and not militia only, to keep and
bear arms of every description, and not such merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon, in the smallest degree;
and all this for the important end to be attained: the rearing up and
qualifying a well‑regulated militia, so vitally necessary to the security
of free State.[84]
The Nunn decision was consistent with every nineteenth century Supreme Court case, every state court case[85]
and every legal treatise which
discussed the Second Amendment. Throughout the nineteenth century, it was
undisputed that the Second Amendment guaranteed an individual right of every
citizen to own and carry firearms.[86]
Idaho: The people have the right
to keep and bear arms, which right shall not be abridged; but this provision
shall not prevent the passage of laws to govern the carrying of weapons
concealed on the person nor prevent passage of legislation providing minimum
sentences for crimes committed while in possession of a firearm, nor prevent
the passage of legislation providing penalties for the possession of firearms
by a convicted felon, nor prevent the passage of any legislation punishing the
use of a firearm. No law shall impose licensure, registration or special
taxation on the ownership or possession of firearms or ammunition. Nor shall
any law permit the confiscation of firearms, except those actually used in the
commission of a felony.[87]
Once more, language which tracks the
Second Amendment is used to protect an individual right.
[88]
Illinois: "Subject only to the police
power, the right of the individual citizen to keep and bear arms shall not be
infringed."[89]
This is another modern usage
of language from the Second Amendment to protect the rights of individual
citizens, and another usage of "bear arms" outside an exclusively military
context.[90]
Indiana: "The people shall have a
right to bear arms, for the defense of themselves and the State."[91]
The earlier version dated from 1816: "That the people have a right to
bear arms for the defense of themselves and the State, and that the military
shall be kept in strict subordination to the civil power."[92]
As the 1816 Indiana
Constitution shows, one major rationale for the right to arms in the early
republic was concern about the dangers of standing armies.[93]
That is why the people of
Indiana put the right to arms
provision in the same section as a restriction on standing armies. But it would
be erroneous to conclude that the right to arms only includes people who are in
a militia which might fight a standing army. Even with the anti-standing army
language, Indiana's Constitution, which tracks the Second Amendment, was always
construed to protect a right of all citizens of Indiana, not just militiamen,
to own and carry firearms -- subject, of course, to reasonable restrictions.[94]
The same is true of the constitutions of,
South Carolina, and
Vermont, all of which use a single
constitutional section to denounce standing armies and to protect a right of
every citizen to possess arms.[95]
Louisiana: "The right of each citizen
to keep and bear arms shall not be abridged, but this provision shall not
prevent the passage of laws to prohibit the carrying of weapons concealed on the
person."[96]
Louisiana is one of many states to
use language almost identical to the Second Amendment, while including an
explicit provision to allow regulation of the carrying of concealed weapons.[97]
These arms-carrying restrictions show that Second Amendment language was
understood to include ordinary citizens walking around with firearms for
personal protection or hunting.[98]
That is why the legislature was given authority to control the carrying of
weapons -- to control ordinary people carrying guns.[99]
Maine:
Maine’s 1819 Constitution stated:
"Every citizen has a right to keep and bear arms for the common defence; and
this right shall never be questioned."[100]
In State v. Friel, decided in 1986, the
Maine Supreme Court read the 1819 language as guaranteeing only a
"collective" right.[101]
Like "collective property" in a Communist country, the
"collective" right to arms favored by the Friel
court really belonged exclusively to the government. Thus, this "collective"
right was antithetical to the ordinary American understanding of rights as
belonging to individuals, not governments. The people of
Maine quickly demonstrated that
the Friel court was grossly out of
step with contemporary norms. In 1987 the
people overwhelmingly adopted language which reaffirmed that the Maine
Constitution guaranteed an individual right to arms: "Every citizen has a right
to keep and bear arms and this right shall never be questioned."[102]
Michigan: "Every person has a right to
keep and bear arms for the defense of himself and the state."[103]
If "to keep and bear arms"
is a "term of art" used to mean militia service only,[104]
that "art" must have been entirely unknown to the people who drafted the state
constitutions of the early American republic, for those drafters used "keep and
bear arms" again and again to protect the right of individuals to possess and
carry firearms for personal defense.
Michigan recognizes the state
constitution as guaranteeing an individual right.[105]
Mississippi:
"The right of every citizen
to keep and bear arms in defense of his home, person, or property, or in aid of
the civil power when thereto legally summoned, shall not be called in question,
but the legislature may regulate or forbid carrying concealed weapons."[106]
The concealed weapon
restriction underscores that "the right to keep and bear arms" includes the
right to carry non-concealed firearms for personal protection.
Missouri: "That the right of every citizen to keep and
bear arms in defense of his home, person and property, or when lawfully summoned
in aid of the civil power, shall not be questioned; but this shall not justify
the wearing of concealed weapons."[107]
The 1820 provision stated: "That the people have the right
peaceably to assemble for their common good, and to apply to those vested with
the powers of government for redress of grievances by petition or remonstrance;
and that their right to bear arms in defence of themselves and of the State
cannot be questioned."[108]
This language described "the people" as possessing "the right peaceably to
assemble for their common good" and "their right to bear arms."[109] That the right to assemble was specified as
being "for their common good" did not, of course, mean that the right did not
belong to individuals, or that the right was a "collective" right which
belonged only to the government.
Likewise, as has been shown, the provision in many state constitutions
mentioning only "the common defense" in the arms guarantee has almost always
been interpreted to recognize a right of individuals.
The
1876 U.S. Supreme Court case United
States v. Cruikshank, also treated the right to assemble and the right to
bear arms in pari materia.[110] Both were rights "found wherever civilization
exists," both were recognized but not created by the Constitution, and neither
were within the power of Congress under the Fourteenth Amendment to protect
against infringement by private persons.[111]
Montana: "The right of any person to
keep or bear arms in defense of his own home, person, and property, or in aid of
the civil power when thereto legally summoned, shall not be called in question,
but nothing herein contained shall be held to permit the carrying of concealed
weapons."[112]
This 1889 language closely tracks the
Colorado provision from 1876.[113]
It supports that point that one may "bear" arms in personal
defense. It also underscores that
carrying concealed weapons, which militiamen would not do, but individuals
might, was something that might be considered part of the arms guarantee, and
for which a specific exception was therefore necessary.
Nebraska and
North Dakota:
Nebraska’s right, adopted in 1988
referendum, states:
All persons are by nature
free and independent, and have certain inherent and inalienable rights; among
these are life, liberty, the pursuit of happiness, and the right to keep and
bear arms for security or defense of self, family, home, and others, and for
lawful common defense, hunting, recreational use, and all other lawful
purposes, and such rights shall not be denied or infringed by the state or any
subdivision thereof. To secure these rights, and the protection of property,
governments are instituted among people, deriving their just powers from the
consent of the governed.[114]
North Dakota also added an arms right by
a referendum,
All individuals are by
nature equally free and independent and have certain inalienable rights, among
which are those of enjoying and defending life and liberty; acquiring,
possessing and protecting property and reputation; pursuing and obtaining
safety and happiness; and to keep and bear arms for the defense of their
person, family, property, and the state, and for lawful hunting, recreational,
and other lawful purposes, which shall not be infringed.[115]
Like Kentucky, the states of
Nebraska and
North Dakota interpolate the right to
arms in a larger section that guarantees numerous individual rights.[116]
Similarly, James Madison's original proposal for the right to keep and bear
arms was to put that clause in Article I, section 9, of the U.S. Constitution, which guarantees
various individual rights, such as habeas corpus. If
Madison viewed the Second Amendment
as a restriction on federal power over the militia, then he would have put the
Second Amendment in Article I, section 8, the portion of the Constitution which grants militia powers
to the federal government.[117]
Nevada and
New Hampshire: In 1982, the people of
both of these states voted to add an arms right to the state constitution.[118]
Nevada’s
provision is "Every citizen has the right to keep and bear arms for security and
defense, for lawful hunting and recreational use and for other lawful purposes."[119]
New Hampshire’s states: "All persons have the right to keep and bear arms in defense of
themselves, their families, their property and the state."[120]
The
vote to include these rights shows the continued importance of the right to
arms to Americans. These votes also show modern usage of "the right to keep and
bear arms" as encompassing the individual possession and carrying of arms for a
variety of purposes, not just militia service.
New Mexico: The 1912 New Mexico Constitution guaranteed:
"The people have the right to bear arms for their security and defense, but
nothing herein shall be held to permit the carrying of concealed weapons."[121] In 1971, the people voted to rephrase the
guarantee, to make explicit that the protection encompassed recreational as
well as defensive purposes.[122] The change reads: "No law shall abridge the
right of the citizen to keep and bear arms for security and defense, for lawful
hunting and recreational use and for other lawful purposes, but nothing herein
shall be held to permit the carrying of concealed weapons."[123]
In 1986,
New Mexico | 
