mrsat_98
12-18-2012, 09:58 PM
http://www2.law.ucla.edu/volokh/beararms/statecon.htm Wonder what an unenumerated right is? ruh ro
State Constitutional Right to Keep and Bear Arms Provisions
Prof. Eugene Volokh, UCLA Law School *
Now available in published form at State Constitutional Rights to Keep and Bear Arms, 11 Texas Rev. of Law & Politics 191 (2006).
[After each provision, I indicate whether it now protects an individual right aimed at least partly as self-defense, which I abbreviate as "self-defense right"; the shorthand "self-defense right explicitly protected" refers to provisions that specifically say "in defense of himself" or some such. I generally cite only one case, simply for the sake of being terse, unless there's some uncertainty in the caselaw.]
Alabama: That every citizen has a right to bear arms in defense of himself and the state. Art. I, § 26 (enacted 1819, art. I, § 23, with "defence" in place of "defense," spelling changed 1901).
[Self-defense right explicitly protected.]
Alaska: 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. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State. Art. I, § 19 (first sentence enacted 1959, second sentence added 1994).
[Individual right explicitly protected; provision enacted in 1994, when the individual right to bear arms was generally understood as aimed at protecting self-defense.]
Arizona: 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. Art. II, § 26 (enacted 1912).
[Self-defense right explicitly protected.]
Arkansas: The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (enacted 1868, art. I, § 5).
1836: "That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. II, § 21.
[Self-defense right protected, Arkansas Game and Fish Com'n v. Murders, 327 Ark. 426 (1997); Wilson v. State, 33 Ark. 557 (1878).]
California: No provision.
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. Art. II, § 13 (enacted 1876, art. II, § 13).
[Self-defense right explicitly protected.]
Connecticut: Every citizen has a right to bear arms in defense of himself and the state. Art. I, § 15 (enacted 1818, art. I, § 17). The original 1818 text came from the Mississippi Constitution of 1817.
[Self-defense right explicitly protected.]
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. Art. I, § 20 (enacted 1987).
[Self-defense right explicitly protected.]
Florida: (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.
(b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.
(d) This restriction shall not apply to a trade in of another handgun. Art. I, § 8 (sections (b)-(d) added in 1990).
1838: "That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. I, § 21.
1865: Clause omitted.
1868: "The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State." Art. I, § 22.
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." Art. I, § 20.
1968: "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." Art. I, § 8.
[Self-defense right protected, Alexander v. State, 450 So.2d 1212 (Fla. App. 1984).]
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. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
1865: "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." Art. I, § 4.
1868: "A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne." Art. I, § 14.
[Self-defense right protected, McCoy v. State, 157 Ga. 767 (1924).]
Hawaii: 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. Art. I, § 17 (enacted 1959).
[No decision about whether self-defense right right is protected.]
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. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law." Art. I, § 11.
[Self-defense right protected, In re Brickey, 70 P. 609 (Idaho 1902).]
Illinois: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. Art. I, § 22 (enacted 1970).
[Self-defense right protected, Kalodimos v. Village of Morton Grove, 470 N.E.2d 266, 273 (Ill. 1984).]
Indiana: The people shall have a right to bear arms, for the defense of themselves and the State. Art. I, § 32 (enacted 1851, art. I, § 32).
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. Art. I, § 20.
[Self-defense right protected, Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990).]
Iowa: No provision.
Kansas: The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power. Bill of Rights, § 4 (enacted 1859, art. I, § 4).
[Interpreted as collective right only, City of Salina v. Blaksley, 83 P. 619 (Kan. 1905), adhered to by City of Junction City v. Lee, 532 P.2d 1292 (Kan. 1975). But see City of Junction City v. Mevis, 601 P.2d 1145, 1151 (Kan. 1979) (striking down a gun control law, challenged by an individual citizen, on the grounds that it was “unconstitutionally overbroad,” and thus implicitly concluding that the right to bear arms did indeed belong to individual citizens).]
Kentucky: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...
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. § 1 (enacted 1891).
1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned." Art. XII, § 23.
1799: "That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned." Art. X, § 23.
1850: "That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms." Art. XIII, § 25.
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. Art. I, § 11 (enacted 1974).
1879: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed." Art. 3.
[Self-defense right protected, State v. Chaisson, 457 So.2d 1257, 1259 (La. App. 1984).]
Maine: Every citizen has a right to keep and bear arms and this right shall never be questioned. Art. I, § 16 (enacted 1987, after a collective-rights interpretation of the original provision).
1819: "Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned." Art. I, § 16.
[Self-defense right protected, State v. Brown, 571 A.2d 816 (Me. 1990).]
Maryland: No provision.
Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).
[Interpreted as collective right only, Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).]
Michigan: Every person has a right to keep and bear arms for the defense of himself and the state. Art. I, § 6 (enacted 1963).
1835: "Every person has a right to bear arms for the defence of himself and the State." Art. I, § 13.
1850: "Every person has a right to bear arms for the defense of himself and the state." Art. XVIII, § 7.
[Self-defense right explicitly protected.]
Minnesota: No provision.
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. Art. III, § 12 (enacted 1890, art. 3, § 12).
1817: "Every citizen has a right to bear arms, in defence of himself and the State." Art. I, § 23.
1832: "Every citizen has a right to bear arms in defence of himself and of the State." Art. I, § 23.
1868: "All persons shall have a right to keep and bear arms for their defence." Art. I, § 15.
[Self-defense right explicitly protected.]
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. Art. I, § 23 (enacted 1945).
1820: "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." Art. XIII, § 3.
1865: Same as above, but with "the lawful authority of the State" instead of "the State." Art. I, § 8.
1875: "That the right of no citizen 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 into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons." Art. II, § 17.
[Self-defense right explicitly protected.]
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. Art. II, § 12 (enacted 1889).
[Self-defense right explicitly protected.]
Nebraska: 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. Art. I, § 1 (right to keep and bear arms enacted 1988).
[Self-defense right explicitly protected.]
Nevada: 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. Art. I, § 11(1) (enacted 1982).
[Self-defense right explicitly protected.]
New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).
[Self-defense right explicitly protected.]
New Jersey: No provision.
New Mexico: 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. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms. Art. II, § 6 (first sentence enacted in 1971, second sentence added 1986).
1912: "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." Art. II, § 6.
[Self-defense right explicitly protected.]
New York: No provision.
North Carolina: 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 shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice. Art. 1, § 30 (enacted 1971).
1776: "That 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." Bill of Rights, § XVII.
1868: "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." Art. I, § 24.
1875: Same as 1868, but added "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice."
[Self-defense right protected, State v. Kerner. 107 S.E. 222, 225 (N.C. 1921).]
North Dakota: 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. Art. I, § 1 (right to keep and bear arms enacted 1984).
[Self-defense right explicitly protected.]
Ohio: The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. Art. I, § 4 (enacted 1851).
1802: "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 shall not be kept up, and that the military shall be kept under strict subordination to the civil power." Art. VIII, § 20.
[Self-defense right protected, Arnold v. Cleveland, 616 N.E.2d 163, 169 (Ohio 1993).]
Oklahoma: The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. Art. II, § 26 (enacted 1907).
[Self-defense right explicitly protected.]
Oregon: The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.] Art. I, § 27 (enacted 1857, art. I, § 28).
[Self-defense right protected, State v. Hirsch, 114 P.3d 1104, 1110 (Ore. 2005).]
Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. Art. 1, § 21 (enacted 1790, art. IX, § 21).
1776: 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. Declaration of Rights, cl. XIII.
[Self-defense right protected, Sayres v. Commonwealth, 88 Pa. 291 (1879).]
Rhode Island: The right of the people to keep and bear arms shall not be infringed. Art. I, § 22 (enacted 1842).
[Self-defense right protected, Mosby v. Devine, 851 A.2d 1031, 1043 (R.I. 2004).]
South Carolina: 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. Art. 1, § 20 (enacted 1895).
1868: "The people have a right to keep and bear arms for the common defence. As, in times of peace . . . ." Art. I, § 28.
[Right treated as an individual right, apparently aimed at least partly at self-defense, State v. Johnson, 16 S.C. 187 (1881);
South Dakota: The right of the citizens to bear arms in defense of themselves and the state shall not be denied. Art. VI, § 24 (enacted 1889).
[Self-defense right protected, Conaty v. Solem, 422 N.W.2d 102, 104 (S.D. 1988).]
Tennessee: That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. Art. I, § 26 (enacted 1870).
1796: "That the freemen of this State have a right to keep and to bear arms for their common defence." Art. XI, § 26.
1834: "That the free white men of this State have a right to keep and to bear arms for their common defence." Art. I, § 26.
[Self-defense right protected, State v. Foutch, 34 S.W. 1, 1 (Tenn. 1896).]
Texas: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. Art. I, § 23 (enacted 1876).
1836: "Every citizen shall have the right to bear arms in defence of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power." Declaration of Rights, cl. 14.
1845: "Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State." Art. I, § 13.
1868: "Every person shall have the right to keep and bear arms in the lawful defence of himself or the State, under such regulations as the legislature may prescribe." Art. I, § 13.
[Self-defense right explicitly protected.]
Utah: The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms. Art. I, § 6 (enacted 1984).
1896: "The people have the right to bear arms for their security and defense, but the legislature may regulate the exercise of this right by law."
[Self-defense right explicitly protected.]
Vermont: 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. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).
[Self-defense right protected, State v. Rosenthal, 55 A. 610 (Vt. 1903).]
Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).
[No decision about whether self-defense right right is protected. Compare 1993 Va. Op. Atty. Gen. 13 (construing the right as collective) with 2006 WL 304006 (Va. Op. Atty. Gen.) (construing the right as individual).]
Washington: 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. Art. I, § 24 (enacted 1889).
[Self-defense right explicitly protected.]
West Virginia: A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use. Art. III, § 22 (enacted 1986).
[Self-defense right explicitly protected.]
Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. Art. I, § 25 (enacted 1998).
[Self-defense right protected, State v. Fisher, 714 N.W.2d 495 (Wisc. 2006).]
Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall not be denied. Art. I, § 24 (enacted 1889).
[Self-defense right protected, State v. McAdams, 714 P.2d 1236, 1238 (Wyo. 1986).]
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