Article I, § 26 of the Alabama Constitution sets forth the right of a private individual to bear arms. In 2014, voters approved a radical amendment to this provision making it easier to challenge state and local gun laws in court. Article I, § 26 now reads:
“(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.
(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.”1
The 2014 amendment forces state courts to review gun laws under the technical and confusing judicial standard known as “strict scrutiny.” Laws evaluated under strict scrutiny—the toughest form of judicial review—are struck down more frequently by the courts because the standard is so high.
Very few courts in the nation apply this level of review to cases challenging gun laws. Using this standard, the court asks whether the law furthers a compelling government interest using the most narrowly tailored means to achieve that interest.
In the limited number of cases in which courts have applied strict scrutiny review to gun laws, the laws are most often struck down. Since the 2014 amendment, Alabama courts have yet to review a challenge to a gun law. Examples of measures outside of Alabama that have been invalidated under this standard include laws that:
- ban transporting or possessing firearms outside of the home during a state of emergency2
- ban guns in bars and other establishments where alcohol is sold or consumed on the premises3
- ban possession of guns by individuals previously convicted of misdemeanor gun possession4
- require that a person be a U.S. citizen to be eligible for a firearms license5
- ban the sale or transfer of firearms within city limits6
- ban the operation of shooting ranges within city limits7
Prior to the 2014 amendment, the Supreme Court of Alabama had long taken the position that the right to “bear arms” under the Alabama Constitution may be regulated by the state. In 1840, in State v. Reid, the court rejected an Article I, § 26 challenge to a statute authorizing criminal penalties for individuals convicted of carrying a concealed weapon.8 The court concluded, “The Constitution, in declaring that ‘every citizen has the right to bear arms in defense of himself and the state,’ has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne.”9
The Alabama Supreme Court has also rejected other Article I, § 26 challenges to state firearms statutes.10 However, whether those decisions will be followed in light of the 2014 amendment is an open question.
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- Ala. Const., § 26.
- Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012).
- Taylor v. City of Baton Rouge, 2014 U.S. Dist. LEXIS 117919 (M.D. La., Aug. 25, 2014).
- Gowder v. City of Chicago, 923 F. Supp. 2d 1110 (N.D. Ill. 2012).
- Fletcher v. Haas, 851 F. Supp. 2d 287 (D. Mass. 2012).
- Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014).
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).
- 1 Ala. 612 (Ala. 1840).
- Reid, 1 Ala. at 616
- See Isaiah v. State, 58 So. 53 (Ala. 1911) (rejecting an Article I, § 26 challenge to a statute [Ala. Code § 13A-11-52] prohibiting a person from openly carrying a pistol while on another’s premises); Davenport v. State, 20 So. 971 (Ala. 1895) (rejecting an Article I, § 26 challenge to a state law barring any person from pointing a loaded or unloaded firearm at another person). See also Bristow v. State, 418 So. 2d 927 (Ala. Crim. App. 1982) (rejecting an Article I, § 26 challenge to a statute [Alabama Code § 13A-11-72(a)] prohibiting a person previously convicted of a violent crime from possessing a pistol); Dickerson v. State, 517 So. 2d 625 (Ala. Crim. App. 1986) (rejecting another Article I, § 26 challenge to Alabama Code § 13A-11-72(a), rev’d on other grounds by Ex parte Dickerson, 517 So. 2d 628 (Ala. 1987).