February 27, 2011
On January 20th, Minnesota state representative Tom Hackbarth introduced legislation to place a firearms related constitutional amendment before Minnesota voters. This amendment would add a guarantee of rights to “keep and bear arms” analogous to those protected by the federal Constitution’s Second Amendment. The text would read:
“The right of a citizen to keep, bear, and use arms for the defense and security of the person, family, or home, or for lawful hunting, recreation, or marksmanship training is fundamental and shall not be infringed.”
This proposed amendment had been introduced before, but had not fared well in the Democratic-controlled legislature of recent years. With last fall’s Republican victories in both the House and Senate, the amendment is back for another attempt at passage.
The recent appearance of the proposed amendment may puzzle some. After all, the legal landscape for gun rights has changed dramatically since the amendment was first introduced.
In the past, a state-level amendment might have provided a way to secure rights denied under the then-authoritative “collective rights” theory of the Second Amendment that had been upheld by federal appellate courts. This theory held that the Second Amendment did not guarantee an individual right to keep and bear firearms, but instead guaranteed state militias the right to do the same.
With the Supreme Court’s 2008 District of Columbia v. Heller decision, the collective rights theory was abolished, and an individual view of guns rights was affirmed. Two years later, the McDonald v. Chicago decision bound state governments to the individual rights view of the Second Amendment, essentially guaranteeing some manner of guns rights for all Americans.
Bearing this in mind, is a state-level constitutional amendment really necessary to secure gun rights? Or, is the amendment primarily a political device for motivating the Republican base, as some have asserted?
I would argue that there is, in fact, a rights-based rationale for passing such an amendment.
At its core, the Heller decision only dealt with the keeping of arms in certain circumstances. It did not address larger questions of who could bear arms, and where or when such persons could bear them. McDonald expanded the reach of Heller, but did not touch its substance.
The right to bear arms in Minnesota is currently articulated by the Minnesota Personal Protection Act (MPPA), codified as statute 624.714. The carrying of arms is now only a statutory right in Minnesota; not a constitutional right. A constitutional amendment would be a way to ensure that some of the statutory rights of the MPPA could be protected for the long term.
Also, since the Supreme Court has yet to determine the extent of the right to bear – rather than to keep – arms, an amendment would be a way to establish a state-level grant of such rights. Even after the U.S. Supreme Court eventually takes up the matter, a Minnesota amendment could be used to generate a potentially more expansive view of the right to bear arms within the state.
In many instances, rights guaranteed by the Minnesota Constitution have been interpreted more broadly than analogous rights found in the federal Bill of Rights. Protections from unreasonable search and seizure (in the State v. Carter dog sniff case) and grants of religious freedom (in State v. Hershberger II) were both interpreted more expansively by Minnesota courts that in related federal case law.
Given Minnesota’s past embrace of the so-called “New Judicial Federalism,” it may be possible that the state Supreme Court could take an expansive view of gun rights as well. The court has had some turn-over in recent years, so such a proposition is not a foregone conclusion, however.
As of February 27, Rep. Tom Hackbarth’s amendment had been referred to the Public Safety and Crime Prevention Policy and Finance Committee.