More a post of first impression than anything else, but I again find myself irritated at the NRA and the rather bizarre copy of the Constitution that they appear to possess.  As SCOTUSblog reports here and here, the NRA has filed an appeal in the Supreme Court asking the justices to apply the Second Amendment against the states, through a method known as incorporation.  While the affront to federalism brought by incorporation is disturbing in any case, it is particularly so in the Second Amendment context, given that amendment’s deep ties to federalist concerns.  But what occurs to me is that there may be another way for the NRA to get what it wants without needing to cast any pretense of concern for state sovereignty to the winds to get there.

The key is a practice I’ve seen used by state courts that usually comes up in the equal protection context where state constitutional provisions are held to be identical in scope to their federal constitutional counterparts.  In the case of equal protection, I have generally heard state courts say, in essence, that their state equal protection guarantees extend no further than federal equal protection guarantees.  Of course, equal protection guarantees cannot be less.

While state courts certainly are not bound to maintain equivalence, there is a compelling logic to keeping a consistent meaning for the same set of words when those words appear in both federal and state law.  At a minimum, it promotes a consistency of law which is well within the role of the courts to foster.  More importantly, when state constitutions adopt pre-existing provisions of federal law or the federal Constitution, it tends to be because they want to adopt the meaning of the federal provision, which is precisely what the Supreme Court had declared.

Of course, differently worded state constitutions and state courts which choose to disagree with the Supreme Court as far as their own state constitutions go remain a risk to the NRA position under my approach.  Nevertheless, it is far less judicially activist and destructive to federalism than the path currently being charted by the NRA, and it would certainly not preclude them from returning to the Supreme Court with their activism later if the more modest approach doesn’t pan out.

Tags: 14th Amendment, 2nd Amendment, constitution