Bruce D. Black and Kara L Kapp (U.S. District Court Judge - District of New Mexico and Cozen O'Connor) have posted State Constitutional Law as a Basis For Federal Constitutional Interpretation: The Lessons of the Second Amendment (New Mexico Law Review, Vol. 46, No. 2, 2016) on SSRN. Here is the abstract:
This Article advocates that courts should rely more heavily on an underappreciated method of constitutional interpretation: reference to parallel state constitutional text and jurisprudence. This article is novel insofar as it develops a normative argument for why courts should consult state constitutions in interpreting the meaning of the federal constitution. To illustrate the value of this method for jurists who ascribe to various judicial philosophies, the authors apply this method to the U.S. Supreme Court’s newly developed Second Amendment jurisprudence. While District of Columbia v. Heller provides some guidance in interpreting the Second Amendment under the Court’s new framework, many questions remain unanswered in its wake. For instance, the Court has not yet answered what level of scrutiny should apply to Second Amendment regulations. Additional questions include exactly what kinds of “arms” will fall within the protection of the Amendment, in what kinds of places the right be given greater sanctity, and how protected arms may and may not be carried or stored. The authors argue, and illustrate with examples, how the states have widely already addressed these issues under their state constitutions, with striking uniformity in their conclusions.
This Article is empirically valuable because it is a repository for data on a number of issues related to the Second Amendment. It catalogues the exact number of states, with citations, that have adopted the reasonable regulation standard and the number of states that have upheld concealed carry bans. It also collects data on a number of other, related, characteristics of these states, such as cataloguing the states that consider the right to bear arms fundamental and cataloguing the number of states that have found “self defense” to be one of the animating concerns under their right to bear arms. Additionally, this Article provides data for originalists on the number of states with constitutions at different points in time relevant to the historical analysis, not just at the time of the founding, and among those states, the number of states with right to bear arms provisions. Finally, it catalogues the number of states from that period with language similar to that used in the federal Second Amendment.
