Scrutinizing 'Strict Scrutiny' Judicial Review for the Right to Bear Arms

Faulkner Law Review, Vol. 8, 2017

67 Pages Posted: 20 Sep 2017

Date Written: September 19, 2017

Abstract

This Article is a case study that applies Justice Scalia’s warning about "strict scrutiny" judicial review in the Heller decision to Alabama’s Right to Bear Arms Amendment and considers whether that Amendment’s required strict scrutiny review subjects the right to bear arms to “future judges’ assessments of its usefulness,” rendering Alabama’s constitutional right to bear arms no guarantee at all.

Part I. of this Article evaluates what Alabama’s Right to Bear Arms Amendment’s promise of “strict scrutiny” review means in application and considers what level of judicial scrutiny Alabama’s judges applied to the right to bear arms before the Amendment’s enactment. Then, the Article examines both the good and bad that may come from the Amendment requiring strict scrutiny for laws that burden the right to bear arms. Parts II. and III. focus on the Amendment’s apparent ignorance of the constitutional text and history of Alabama’s right to bear arms and neglecting Heller’s text and history paradigm as applied to Alabama’s right to bear arms. After analyzing the text of Alabama’s original constitutional right to bear arms in Part II., and the history of Alabama’s right to bear arms in Part III., this Article argues that Alabama’s original right to bear arms secured the individual right for every citizen of Alabama to possess and carry weapons in case of armed confrontation. That original right, together with § 36 of Alabama’s Declaration of Rights, provided much stronger protections for the right to bear arms than the Right to Bear Arms Amendment. Part IV. considers the reasons why Alabama passed the Right to Bear Arms Amendment. To answer that question, this Article examines the United Nations’ Arms Trade Treaty and examines how Alabama’s judges have handled the right to bear arms over the past two hundred years.

This Article concludes by arguing that Alabama did not need the Right to Bear Arms Amendment because strict scrutiny review subjects the right to bear arms “to future judges’ assessments of [the right to bear arms’] usefulness," which is precisely the problem that plagued Alabama’s right to bear arms for nearly two centuries. Instead, Alabama needed a rigorous textual exposition and historical defense of the right to bear arms.

Keywords: Firearms, Gun Rights, Second Amendment, Heller, Alabama, Right to Bear Arms, Strict Scrutiny, Right to Bear Arms Amendment, Alabama Declaration of Rights, Common Law, Text, History, United Nations, Arms Trade Treaty, Scalia, Marshall

JEL Classification: K40, K49, K39, K39, K00, K10, K19

Suggested Citation

Boyd, Benjamin, Scrutinizing 'Strict Scrutiny' Judicial Review for the Right to Bear Arms (September 19, 2017). Faulkner Law Review, Vol. 8, 2017, Available at SSRN: https://ssrn.com/abstract=3039647

Benjamin Boyd (Contact Author)

Hostetter Law Group ( email )

Enterprise, OR
United States

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