The National Rifle Association led an effort in recent decades to amend state constitutions to expressly require that courts apply a “strict scrutiny” analysis to challenged gun laws. Do these amendments still matter since the Supreme Court strengthened Second Amendment protections beyond strict scrutiny?
In 2008’s District of Columbia v. Heller, by a 5–4 vote, the Supreme Court held for the first time that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. But Heller failed to instruct lower courts how to apply that right in future cases. In the following years, judges relied primarily on a mix of history and “intermediate scrutiny” in upholding most challenged gun laws.
As described in The N.R.A.’s Strict-Scrutiny Amendments, the NRA and other gun rights advocates were dissatisfied with how federal courts were implementing the Second Amendment after Heller. They wanted to see more gun laws fall — and they thought the lower bar of intermediate scrutiny was largely to blame for the survival of so many restrictions on the right to bear arms. But they feared that the federal courts, including the Supreme Court, would be unwilling to change course and might even retreat from protecting the Second Amendment.
So gun advocates turned to state constitutions, 44 of which also expressly protected the right to keep and bear arms. They lobbied to amend those state constitutions to clarify that the right to keep and bear arms was “fundamental.” The NRA’s hope was that such a recognition would justify applying “strict scrutiny” — the standard Gerald Gunther famously claimed is strict in theory and fatal in fact — to laws infringing on the right.
