Individual Rights under a System of Dual Sovereignty: The Right to Keep and Bear Arms

Abstract

This article identifies and explains three fundamental propositions about the relationship between the federal and state constitutions, using examples to illustrate the general propositions. Those propositions are as follows: (1) State constitutional provisions that conflict with federal law are preempted; (2) State constitutions may provide greater protection of individual rights than does the federal constitution; and (3) State constitutions in theory also may provide less protection of individual rights than the federal constitution, but in that event they are rendered ineffective by federal preemption. The article then applies these principles in the context of the right to keep and bear arms, making some observations about the nature and scope of that right under both the U.S. and state constitutions. The article includes an appendix that consists of a table with information about all of the state constitutions that include a provision regarding the right to keep and bear arms.