Article I, § 11 of the Idaho Constitution provides:
“The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.”
As originally adopted, the provision read: “The people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law.” The provision was amended in 1978 to read as it now appears.
In State v. Woodward (a 1937 case), the Idaho Supreme Court discussed the ability to use a firearm for self-defense, and stated that under article I, § 11 (the original, pre-1978 version), the right to bear arms may not be denied by the state, but the legislature has the power to regulate this right and may prohibit the carrying of concealed weapons or prescribe “the kind or character of arms that may or may not be kept, carried or used, and various other things of a regulatory character.”1
Other case law examining the scope of the original version of article I, § 11 indicates that Idaho courts have treated the “right to keep and bear arms” as a personal, individual right, and held that while the legislature may not prohibit or deny the right completely, it has the authority to regulate the exercise of that right. For example, in the 1945 case State v. Hart, the court noted that it was “a reasonable exercise of the police power of a municipality to prohibit the carrying of concealed dangerous or deadly weapons.”2
There is little case law interpreting the current version of article I, § 11. In a 1984 case, State v. Grob, the Idaho Court of Appeals held that Idaho Code Ann. § 19-2520, which imposes an additional prison term for the commission of certain offenses while using a firearm, generally does not violate the state constitution. The court noted that, under the current version of article I, § 11, the legislature was expressly authorized to prescribe “minimum sentences for crimes committed while in possession of a firearm” and concluded that “whether examined against the 1978 or pre-1978 versions of Article 1, § 11, we believe [the challenged law] passes constitutional muster.”3
Finally, in 1979, the Idaho Attorney General opined that the current version of article I, § 11 does not: 1) “undermine the validity of the current Idaho Code prohibitions against the carrying of concealed weapons” under section 18-3302; or 2) affect the viability of state law on the seizure of firearms during searches incident to arrest.4
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- 74 P.2d 92, 95 (Idaho 1937).
- 157 P.2d 72, 73 (Idaho 1945); see also In re Brickey, 70 P. 609 (Idaho 1902).
- 690 P.2d 951, 954 (Idaho Ct. App. 1984).
- 1979 Op. Att’y Gen. Idaho 31, 1979 Ida. AG LEXIS 45 at *4, *8.