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Scrutinizing "strict scrutiny" judicial review for the right to bear arms.

INTRODUCTION: THE RIGHT TO BEAR ARMS, WITHOUT STRICT SCRUTINY

The Second Amendment and its state counterparts have experienced a remarkable resurgence in recent years. The Supreme Court of the United States led the way with District of Columbia v. Heller in 2008, which held that the Second Amendment protects an individual's right to possess a firearm for self-defense within the home. (1) Heller was based on the "text and history" of the Second Amendment, (2) and did not employ or establish a level of scrutiny (i.e., strict scrutiny, intermediate scrutiny, rational basis) for evaluating restrictions on the Second Amendment right to bear arms. (3) Two years after Heller, in the case McDonald v. City of Chicago, the Supreme Court of the United States considered whether the Second Amendment fully applied to the States. (4) McDonald asked whether the right to keep and bear arms is "deeply rooted in this Nation's history and tradition" and, based on a review of history and tradition, held that the "Second Amendment right is fully applicable to the States." (5) McDonald, relying on Heller, expressly rejected the argument "that the scope of the Second Amendment right should be determined by judicial interest balancing." (6) Several federal courts of appeal have followed Heller's and McDonald's textual and historical approach to the Second Amendment without applying any particular level of judicial interest balancing, further fueling the resurgence of the Second Amendment. (7)

On the state level, in spite of Heller's and McDonald's reticence to establish or apply any level of judicial scrutiny for evaluating laws that burden the Second Amendment, efforts have been made to shore up state constitutional rights to bear arms with "strict scrutiny" constitutional amendments. In 2012, the people of Louisiana passed a constitutional amendment providing that "[t]he right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny." (8) Louisiana's firearms rights amendment passed quite comfortably, by nearly a 3-to-l margin. (9) In 2014, the people of Missouri passed a constitutional amendment providing, among other things, that the rights to keep and bear arms, ammunition, and related accessories "shall be unalienable" and that any restriction of these rights would be subject to strict scrutiny. (10) The Missouri Amendment passed with a wide 60-40 margin. (11) On November 5, 2014, Alabama's voters passed the Alabama Right to Bear Arms Amendment with over 70% of the vote. (12) In Oklahoma, however, a legislative proposal for a "strict scrutiny" constitutional amendment has failed in conference committee in both the 2014 and 2016 legislative sessions. (13)

Before these States began passing "strict scrutiny" constitutional amendments for the right to bear arms, Justice Antonin Scalia gave this warning about applying various levels of judicial scrutiny to enumerated constitutional rights:
We know of no other enumerated constitutional right whose core
protection has been subjected to a freestanding "interest-balancing"
approach. The very enumeration of the right takes out of the hands of
government--even the Third Branch of Government--the power to decide on
a case-by-case basis whether the right is really worth insisting upon.
A constitutional guarantee subject to future judges' assessments of its
usefulness is no constitutional guarantee at all. Constitutional rights
are enshrined with the scope they were understood to have when the
people adopted them, whether or not future legislatures or (yes) even
future judges think that scope too broad. (14)


This Article is a case study that applies Justice Scalia's warning to Alabama's Right to Bear Arms Amendment and considers whether that Amendment's required strict scrutiny review subjects the right to bear arms to "future judges' assessments of its usefulness," (15) rendering Alabama's constitutional right to bear arms no guarantee at all.

Part I. of this Article evaluates what Alabama's Right to Bear Arms Amendment's promise of "strict scrutiny" review means in application and considers what level of judicial scrutiny Alabama's judges applied to the right to bear arms before the Amendment's enactment. Then, the Article examines both the good and bad that may come from the Amendment requiring strict scrutiny for laws that burden the right to bear arms. Parts II. and III. focus on the Amendment's apparent ignorance of the constitutional text and history of Alabama's right to bear arms and demonstrates what Alabama's legislators and voters missed by neglecting Heller's text and history paradigm as applied to Alabama's right to bear arms. (16) After analyzing the text of Alabama's original constitutional right to bear arms in Part II., and the history of Alabama's right to bear arms in Part III., this Article argues that Alabama's original right to bear arms secured the individual right for every citizen of Alabama to possess and carry weapons in case of armed confrontation. That original right, together with [section] 36 of Alabama's Declaration of Rights, provided much stronger protections for the right to bear arms than the Right to Bear Arms Amendment. Part IV. considers the reasons why Alabama passed the Right to Bear Arms Amendment. To answer that question, this Article examines the United Nations' Arms Trade Treaty and examines how Alabama's judges have handled the right to bear arms over the past two hundred years.

This Article concludes that Alabama did not need the Right to Bear Arms Amendment because strict scrutiny review subjects the right to bear arms "to future judges' assessments of [the right to bear arms'] usefulness," (17) which is precisely the problem that plagued Alabama's right to bear arms for nearly two centuries. Instead, Alabama needed a rigorous textual exposition and historical defense of the right to bear arms.

I. THE MEANING OF ALABAMA'S RIGHT TO BEAR ARMS AMENDMENT

A. What does Alabama's Right to Bear Arms Amendment Actually Mean?

As amended by the Alabama Right to Bear Arms Amendment, [section] 26 of Alabama's Declaration of Rights 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. (18)


Alabama voters were assured that with the passage of the Alabama Right to Bear Arms Amendment, the right to bear arms would become a fundamental right, (19) receive strict scrutiny judicial review, and obtain protection from potential interference by foreign treaties and international law. (20) Voters were told that while the right would still exist if the proposed amendment failed, it would not be declared a fundamental right, might not receive strict scrutiny review, and would not be protected from international laws and treaties. (21)

The Alabama House Republicans explained that the Right to Bear Arms Amendment would position 'Alabama to have the strongest gun ownership safeguards of any state constitution in the country" and explained that strict scrutiny "is the highest level available in the American judicial system. Overcoming strict scrutiny is difficult--if not impossible--which will protect the right of Alabamians to bear arms more than ever before." (22) Chris W. Cox of the National Rifle Association stated that the Alabama Right to Bear Arms Amendment "would strengthen the current Alabama right to keep and bear arms amendment by ensuring the highest level of constitutional protection." (23) What does the language of the Amendment mean, practically, for Alabama's people?

B. Strict Scrutiny and the Right to Bear Arms

The Right to Bear Arms Amendment requires Alabama's judges to apply the judge-made rule of strict scrutiny judicial review to laws that restrict the fundamental right to bear arms. As a general rule, courts presume that legislation is constitutional. (24) Under the Amendment's strict scrutiny review, legislation that burdens the right to bear arms loses that presumption of constitutionality. The Alabama Supreme Court has explained strict scrutiny: "[s]tate action that limits a fundamental right is generally subject to strict scrutiny Strict scrutiny generally requires that the state show a compelling interest, advanced by the least restrictive means." (25) Further, "[s]tatutes that infringe upon fundamental rights... 'are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.'" (26) A statute is narrowly tailored only if the statute targets and eliminates the exact problem or evil it allegedly seeks to remedy. (27) The United States Supreme Court has assured that "it is the rare case... that a law survives strict scrutiny." (28)

The Amendment's strict scrutiny review for laws that restrict the right to bear arms may best be understood in contrast with other levels of judicial scrutiny. Under intermediate scrutiny, "[t]he proper standard of review is the 'substantial relationship' test; i.e., is the [state's] action arbitrary and unreasonable, or is it authorized and substantially related to the maintenance of the public health, safety, morals, and general welfare." (29) Under rational-basis review, which is the lowest level of judicial scrutiny, "[a] statute is constitutional under rational basis scrutiny so long as 'there is any reasonably conceivable state of facts that could provide a rational basis for the' statute." (30)

If these three standards of judicial review (strict scrutiny, intermediate scrutiny, and rational basis review) were applied with hindsight to prior court decisions, Alabama's judges appear to have applied either rational basis review or intermediate scrutiny to laws that burden the right to bear arms. In State v. Reid, the earliest Alabama case on Alabama's constitutional right to bear arms, the Alabama Supreme Court concluded that the legislature had "the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals." (31)

Reid found that a statutory ban on carrying concealed weapons promoted personal security and exerted a moral influence on those who wore certain weapons:
[A] law which is intended merely to promote personal security, and to
put down lawless aggression and violence, and to that end inhibits the
wearing of certain weapons, in such a manner as is calculated to exert
an unhappy influence upon the moral feelings of the wearer, by making
him less regardful of the personal security of others, does not come in
collision with the constitution. (32)


In other words, Reid could have concluded that the concealed-carry ban was "authorized and substantially related to the maintenance of the public health, safety, morals, and general welfare." (33) Alabama's later decisions have generally followed Reid's course. Alabama Representative Mike Jones, the author of the Right to Bear Arms Amendment, opined that Alabama only required rational basis review "in matters related to gun ownership." (34) Professor Frederick Vars of the University of Alabama School of Law concluded that Alabama courts applied a "reasonableness" review to regulations affecting the right to bear arms. (35) In sum, Alabama's Right to Bear Arms Amendment has lifted Alabama's right to bear arms out of either rational basis review or intermediate scrutiny. And, at least on the surface, that appears to be a good thing.

C. Possibilities for the Right under Strict Scrutiny

Because the Amendment requires Alabama's judges to engage in a more stringent judicial review of laws that burden the right to bear arms, the Amendment may bode well for the future of Alabama's right to bear arms. The Law Center to Prevent Gun Violence noted that "[i]n the limited number of cases in which courts have applied strict scrutiny review to gun laws, the laws are most often struck down." (36) While Alabama's courts have not yet applied strict scrutiny review to laws that burden the right to bear arms, other state and federal courts have invalidated legislation that burdens that right using strict scrutiny (37) or, as the Seventh Circuit Court of Appeals put it, "not quite" strict scrutiny. (38) For example, a North Carolina court invalidated statutes allowing "government officials [to] outright ban the possession, transportation, sale, purchase, storage or use of dangerous firearms and ammunition during a declared state of emergency"; (39) a Louisiana court invalidated a Baton Rouge city ordinance barring the possession of a firearm "in any premises where alcoholic beverages are sold and/or consumed on the premises"; (40) an Illinois federal court invalidated a section of the Chicago Firearm Ordinance banning those convicted of misdemeanors from possessing guns; (41) a Massachusetts law requiring a person to be a U.S. citizen to be eligible for a firearms license was overturned; (42) an Illinois regulation banning the sale or transfer of firearms within city limits was struck down; (43) and the City of Chicago's ban on the operation of shooting ranges within city limits was invalidated. (44) If Alabama's judicial application of strict scrutiny review follows these cases from sister states, the Right to Bear Arms Amendment may likewise yield some positive results for Alabama's right to bear arms. (45)

D. Problems for the Right under Strict Scrutiny

While the Right to Bear Arms Amendment may bode some future good for Alabama's right to bear arms, there are some inherent problems with the Amendment. Alabama's original version of [section] 26 existed virtually unchanged from 1819 to 2014--five years shy of two hundred years. (46) Prudence, indeed, should dictate that the actual words of long-established constitutional rights should not be changed, absent convincing and weighty reasons for the change. (47) However, Alabama's right to bear arms has been changed by the people of Alabama, and what's done is done. Unfortunately, under the Right to Bear Arms Amendment, the right to bear arms may suffer from precisely the same problems that befell Alabama's right to bear arms before the Amendment, which are addressed below. (48) The problems inherent with strict scrutiny include a lack of definition, an evasion of the constitutional amendment process, and an ignorance of [section] 36 of the Alabama Declaration of Rights.

1. Strict Scrutiny Suffers from a Lack of Definition

Jason Baker, writing for the Montgomery Examiner, noted the semantics problem that the Amendment's promise of strict scrutiny presents:
The problem is one of semantics--the inclusion of the phrase "any
restrictions on this right would be subject to strict scrutiny." This
would be well and good if only constitutionally minded people held
office. This sadly is not the case or even a reality. Patrick Henry in
speaking for the inclusion of the Bill of Rights warned Madison about
this very thing. The question he posed to Madison was "What are you
going to do when evil men take office?["] (49)


A key source of confusion with strict scrutiny originates from the term "compelling interest." Strict scrutiny requires judges to consider whether the law or regulation burdening the right to bear arms advances "a compelling interest" by the least restrictive means. (50) The Eight Circuit Court of Appeals noted that "[precisely what constitutes a 'compelling interest' is not easily defined." (51) The Alabama Supreme Court has recognized that:
[t]he nature of a compelling interest varies based on the
circumstances, but it is a very stringent standard,... [where] clear
and convincing evidence must demonstrate... that the state has a
compelling interest requiring interference with the rights... and that
that interest is being advanced by the least restrictive means. (52)


The Missouri Supreme Court, likewise, noted that "the application of strict scrutiny depends on context, including the controlling facts, the reasons advanced by the government, relevant differences, and the fundamental right involved." (53) Given that strict scrutiny is a "freestanding 'interest-balancing'" (54) jurisprudence that is unanchored to constitutional texts and history, the lack of definition of "compelling interest"--the key concept judges employ in strict scrutiny review--should not be surprising.

In application, strict scrutiny shifts the judicial focus from the text and history of the constitutional right to the language of the challenged statute and the government's asserted compelling interests. (55) Justice O'Connor has described strict scrutiny as "a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker...," (56) In the absence of limitations upon the term "compelling interest," judges have a variety of tools to use in applying strict scrutiny as a test of legislative "sincerity." The Supreme Court of the United States' application of strict scrutiny has "justif[ied] restrictions based solely on history, consensus, and 'simple common sense'...," (57) The Fourth Circuit Court of Appeals has observed that, "while the government must carry its burden to establish the fit between a regulation and a governmental interest, it may resort to a wide range of sources, such as legislative text and history, empirical evidence, case law, and common sense, as circumstances and context require." (58)

As a hypothetical example, if Alabama's legislature promulgated a law designed to help prevent the murder of school children through the regulation of weapons in all schools, or a law regulating the possession of firearms by government employees at work, such laws just might survive strict scrutiny review. To do so, the legislature would have to advance a specific, identified compelling interest by the least restrictive means, and craft a "narrowly tailored" law that targets specific weapons-related problems within Alabama. Professor Frederick Vars has argued that Alabama statutes prohibiting possession of weapons by certain types of people, i.e., felons or those with domestic violence misdemeanors, and statutes restricting where firearms may be carried, would likely pass strict scrutiny review. (59) Vars may be correct. Last year, the Missouri Supreme Court, in applying strict scrutiny to the fundamental right to bear arms, held that a statute barring nonviolent felons from possessing firearms was not unconstitutional. (60)

Vars, however, concluded it was unclear how statutory restrictions on the carrying of concealed weapons would fare under strict scrutiny. (61) Eddie Fulmer, the president of BamaCarry, Inc., cautioned that the Right to Bear Arms "[A]mendment changes the right to bear arms from one that 'shall forever remain inviolate' to one that can be changed so long as the standards of strict scrutiny are met." (62) Jason Baker, writing for the Montgomery Examiner, cautioned that "[i]f Alabama falls prey in the future to an anti-gun liberal Governor, Legislature, or State Supreme Court it would be their strict scrutiny to whittle away your rights." (63) Given the difficulty of defining strict scrutiny's operative terms, "compelling interest," Professor Vars may be correct. As a result, how Alabama's judges will apply this "technical and confusing judicial standard" (64) in the future to Alabama's right to bear arms is an open question. (65)

2. Strict Scrutiny Evades the Constitutional Amendment Process

When applied to enumerated fundamental rights, strict scrutiny review has the potential of confusing the judicial duty to "say what the law is... if a law be in opposition to the constitution" (66) with the duties of a constitutional convention. In Alabama,
[t]he constitution is certain and fixed; it contains the permanent will
of the people, and is the supreme law of the land; it is paramount to
the law of the legislature, and can be revoked or altered only by the
authority that made it. (67)


In Alabama's Constitutional Convention, the authority that made Alabama's constitution--that is, the people through their representatives--spoke plainly about the fundamental right to bear arms. In the Constitutional Convention, that assembly weighed and balanced the competing interests of liberty and security, domestic tranquility, and the right of self-protection. (68) The end result was the Alabama Constitution and Declaration of Rights--which protect the right to bear arms.

As applied to constitutional rights, strict-scrutiny review gives judges explicit authority to disregard the plain meaning of the Constitution of Alabama and substitute their own balancing of interests for the express will of the people in the Alabama Constitution. Chief Justice John Marshall recognized that this sort of jurisprudence--closing "judicial eyes" to the constitution and seeing only the law--would subvert the very foundation of constitutional government. Marshall's words may be adapted, as follows:
[Strict scrutiny] would subvert the very foundation of all written
constitutions. [Strict scrutiny] would declare that an act, which,
according to the principles and theory of our government, is entirely
void; is yet, in practice, completely obligatory. [Strict scrutiny]
would declare, that if the [judiciary] shall do what is expressly
forbidden, such act, notwithstanding the express prohibition, is in
reality effectual [if judges find a compelling interest, with a
narrowly tailored statute]. [Strict scrutiny] would be giving to the
[judiciary] a practical and real omnipotence, with the same breath
which professes to restrict their powers within narrow limits. [Strict
scrutiny appears to] prescrib[e] limits, and declar[e] that those
limits may be passed as pleasure. (69)


In application, strict scrutiny review has the potential to allow judges to rewrite or amend Alabama's Declaration of Rights by carving out "compelling interest" exceptions that infringe upon the right to bear arms. If those compelling limitations upon the right to bear arms are not based in the text and history of Alabama's right to bear arms, strict scrutiny review would convert the judiciary into a standing constitutional convention or a constitutional amendment committee. Judges, however, have the duty to declare and exposit what the fundamental law already is, as announced by Alabama's Constitutional Convention, based on the text and history of the Declaration of Rights. Judges have no authority to alter or limit enumerated fundamental rights through strict scrutiny review. (70)

3. The Right to Bear Arms Amendment Ignored [section] 36 of the Alabama Declaration of Rights

Alabama's Right to Bear Arms Amendment rejected the original version of [section] 26 of Alabama's Declaration of Rights, which, considered in conjunction with [section] 36 of the Declaration of Rights, (71) protected the right to bear arms from any government limitations, encroachments, or impairments. Section 36 appears at the end of Alabama's Declaration of Rights, and reads:
That this enumeration of certain rights shall not impair or deny others
retained by the people; and, to guard against any encroachments on the
rights herein retained, we declare that everything in this Declaration
of Rights is excepted out of the general powers of government, and
shall forever remain inviolate. (72)


Less than twenty years after the adoption of Alabama's Constitution of 1819, the Alabama Supreme Court confirmed that the Declaration of Rights removes enumerated rights from the reach of government: "[t]he declaration itself, is nothing more than an enumeration of certain rights, which are expressly retained and excepted out of the powers granted." (73) The government of Alabama is not "at liberty to disregard or restrict the plain meaning" of these two provisions of the Declaration of Rights. (74) Thus, [section] 36 restricts Alabama's government from exercising its general powers to impair, violate, deny, encroach upon, or violate the right of every Alabama citizen to bear arms, enumerated in [section] 26.

That is, the government of Alabama had no general powers over the right to bear arms--at least until November 2014 when Alabama adopted the Right to Bear Arms Amendment. Eddie Fulmer of BamaCarry, Inc., recognized that the Amendment "changes the right to bear arms from one that 'shall forever remain inviolate' [quoting [section] 36] to one that can be changed so long as the standards of strict scrutiny are met." (75) Thus, the Amendment turns [section] 36 on its head by explicitly requiring Alabama's government to do what [section] 36 forbids: it requires Alabama's judiciary to exercise its general powers over the right to bear arms through "strict scrutiny" review. If judicial application of strict scrutiny upholds laws that infringe upon the right to bear arms, Alabama's judiciary would aid the legislative branch that passed the law and the executive branch that signed the law, all in violation of [section] 36 of the Declaration of Rights. By requiring Alabama's judiciary to exercise its general powers through strict scrutiny review, the Right to Bear Arms Amendment may make all three branches of Alabama's government guilty of impairing, encroaching on, and violating Alabama's right to bear arms.

However, these two provisions of Alabama's Declaration of Rights must be construed in harmony as much as possible. (76) One possible construction is that [section] 36 modifies strict scrutiny review by requiring judges to consider only whether (1) state action (2) limits the right to bear arms. If this "modified" strict scrutiny standard is met, the state action is unconstitutional, because [section] 36 removes the right to bear arms from "the general powers of government." (77) This construction would render the "compelling interest" analysis unnecessary. A second and similar construction is that [section] 36 requires Alabama's judges to apply a heightened or "'robust' strict scrutiny review of any restriction on the right to bear arms." (78) But for judges well-schooled in interest-balancing jurisprudence, this construction may be a difficult sell because "there is no more robust test than strict scrutiny." (79)

Both possible constructions of these two provisions of the Declaration of Rights give teeth to [section] 36. Alabama's Supreme Court has recognized that [section] 36 limits judicial power as "a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power." (80) While describing [section] 36 as a firewall might be a helpful metaphor, this "firewall" simply has not deterred or prevented unauthorized judicial power over the right to bear arms over the past two centuries. (81) If the judiciary cannot harmonize these two provisions, as Eddie Fulmer of BamaCarry recognized, (82) strict scrutiny review may render [section] 36 a dead letter as to [section] 26's right to bear arms and preclude Alabama's people from challenging laws that burden the right to bear arms as violations of [section] 36.

E. Conclusion on the Problems for the Right to Bear Arms under Strict Scrutiny

By mandating strict scrutiny review, the Right to Bear Arms Amendment subjected the constitutional guarantee of the right to bear arms to future judges' assessments of the right's usefulness. (83) The Amendment is problematic because strict scrutiny has never been adequately defined. Strict scrutiny review, in some applications, enables judges to evade the constitutional amendment process by carving out exceptions to the plain meaning of the right to bear arms; and the Amendment's promise of strict scrutiny ignored and even contradicted [section] 36's much stronger protections of the right to bear arms. In sum, the Amendment is not a silver bullet. The Amendment's promise of strict scrutiny did not provide Alabama with the strongest gun protections in the country. Instead, the Amendment replaced some of the strongest constitutional protections for the right to bear arms at the state level with strict scrutiny judicial review. And as a result, Alabama's strongest constitutional protection for the right to bear arms may now be lost.

II. THE CONSTITUTIONAL TEXT AND ALABAMA'S RIGHT TO BEAR ARMS

Perhaps because the Right to Bear Arms Amendment took aim at current-day international treaties and laws that burden the right to bear arms and how Alabama's courts have recently handled the right to bear arms, Alabama adopted the Amendment without giving due consideration to the past: that is, the constitutional text and history of Alabama's original [section] 26. If prudence dictates that governments long established "should not be changed for light and transient causes," (84) then prudence likewise dictates that if constitutional rights long established should not be changed without examining the text and history of the right before rejecting the long-established right in favor of an amendment. Justice Scalia's "text and history" jurisprudence in Heller served well to revitalize the Second Amendment right to bear arms. (85) Likewise, this interpretive paradigm would serve equally well in reinvigorating Alabama's right to bear arms at the state level. In order to demonstrate what Alabama missed by apparently ignoring the text and history of original [section] 26, this article applies Heller's "text and history" jurisprudence to Alabama's original right to bear arms. (86)

A. Interpreting the Constitutional Text

Chief Justice John Marshall admonished that: "we must never forget that it is a constitution we are expounding." (87) So, what exactly is Alabama's Constitution? In 1831, the Alabama Supreme Court explained that a constitution:
is the form of government, delineated by the mighty hand of the people,
in which certain first principles of fundamental law are established.
The constitution is certain and fixed; it contains the permanent will
of the people, and is the supreme law of the land; it is paramount to
the law of the legislature, and can be revoked or altered only by the
authority that made it. (88)


Alabama's "Constitution is a document of the people. Words or terms used in that document must be given their ordinary meaning common to understanding at the time of its adoption by the people." (89) Further:
In construing a constitutional provision, the courts have no right to
broaden the meaning of words used and, likewise, have no right to
restrict the meaning of those words. We are, therefore, not at liberty
to disregard or restrict the plain meaning of the provisions of the
Constitution. (90)


Unfortunately, no Alabama court has given the terms of original [section] 26 their ordinary meaning common to the people at the time of adoption. This article now turns to the ordinary meaning of original [section] 26.

Originally, [section] 26 of the Alabama Declaration of Rights simply stated "[t]hat every citizen has a right to bear arms in defense of himself and the state." (91) Like the Second Amendment to the Constitution of the United States, [section] 26 is divided into two clauses: its operative clause and its purpose clause. (92) The operative clause is that "every citizen has a right to bear arms." (93) The purpose clause explains how the citizen may exercise this right: "in defense of himself and the state." Textual analysis of the right must begin with the operative clause, with the analysis of the purpose clause to follow, "to ensure that our reading of the operative clause is consistent with the announced purpose [clause]." (94)

1. The Operative Clause: "Every Citizen has a Right to Bear Arms"

The key words in the operative clause of [section] 26 are: every; citizen; right; bear; and arms. As a matter of constitutional construction, these terms "must be given their ordinary meaning common to understanding at the time of its adoption by the people." (95) Indeed, as with the federal constitution, "the enlightened patriots who framed [Alabama's] constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." (96) In order to determine the original meaning of the words in [section] 26, this Article relies primarily on Noah Webster's American Dictionary of the English Language, which was published only nine years after Alabama's statehood. (97)

Every. Webster defined the adjective "every" as "each individual of a whole collection or aggregate number. The word includes the whole number, but each separately stated or considered." (98) The use of the adjective "every" suggests that the right protected in [section] 26 applies to each, separate, individual citizen of Alabama.

Citizen. Webster defined "citizen" as: "[i]n the United States, (99) a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate." (100) In contrast to the Second Amendment, which applies to "the people," Alabama "used the even more individualistic phrasing that each citizen has the 'right to bear arms in defence of himself and the State.'" (101) Alabama's use of the word "citizen," which is modified by the adjective "every," which refers to "each individual... separately... considered," (102) gives rise to "a strong presumption that the... right is exercised individually and belongs to all [Alabamians]." (103)

Right. Webster defined the noun "right" as:
"Just claim; immunity; privilege. All men have a right to the secure
enjoyment of life, personal safety, liberty, and property. We deem the
right of trial by jury invaluable, particularly in the case of crimes.
Rights are natural, civil, political, religious, personal, and public
.... Authority; legal power. We have no right to disturb others in the
enjoyment of their religious opinions." (104)


William Blackstone explained that the right "of having arms for their defence" is "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (105)

Bear. Webster defined the verb "bear" as: "[t]o carry; to convey; to support and remove from place to place; as, 'they bear him upon the shoulder'; 'the eagle beareth them on her wings.' To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat." (106) In Heller, Justice Scalia noted that "[a]t the time of the founding, as now, to 'bear' meant to 'carry.'... When used with 'arms,' however, the term has a meaning that refers to carrying for a particular purpose--confrontation." (107) Justice Ginsburg, in a dissenting opinion on the meaning of the phrase "carries a firearm," explained that
[s]urely a most familiar meaning is, as the Constitution's Second
Amendment... indicate[s]: 'wear, bear, or carry... upon the person or
in the clothing or in a pocket, for the purpose... of being armed and
ready for offensive or defensive action in a case of conflict with
another person.' (108)


Justice Ginsberg accurately captures the original meaning of the word "bear" in [section] 26. (109)

Arms. In [section] 26's operative clause, the object of the verb

"bear" is the word "arms." (110) Webster defined the noun "arms" as "[w]eapons of offense, or armor for defense and protection of the body." (111) Webster explained that "[t]o be in arms [is] to be in a state of hostility, or in a military life.... To arms is a phrase which denotes a taking [of] arms for war or hostility.... To take arms is to arm for attack or defense." (112) Webster clarified that "[a] stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary." (113) Other Founding-era dictionaries defined "arms" as "weapons of offense, or armour of defence" and "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." (114)

2. The Purpose Clause: "In Defense of Himself and the State"

Defense. Webster defined the noun "defense" as "[a]ny thing that opposes attack, violence, danger, or injury; any thing that secures the person, the rights or the possessions of men; fortification; guard; protection; security." (115) Webster also defined "defense" as "[t]he science of defending against enemies; military skill." (116) Two decades after Alabama's statehood, Bouvier defined "defence" as:
[a] forcible resistance of an attack by force. A man is justified in
defending his person, that of his wife, children and servants, and for
this purpose he may use as much force as may be necessary, even to
killing the assailant, remembering that the means used must always be
proportioned to the occasion. (117)


The word "defense" limits the scope of Alabama's right to bear arms; [section] 26 does not protect those who claim "the right to keep fire arms" but use the right "for annoyance or destruction." (118)

Himself. Webster defined the pronoun "himself as "[h]e; but himself is more emphatical, or more expressive of distinct personality than he." (119) Section 26's use of the "more emphatical" pronoun "himself points back to the words "every citizen" and strengthens the "presumption that the... right is exercised individually and belongs to all [Alabamians]." (120)

The State. Webster defined "state" as "[a] political body, or body politic; the whole body of people united under one government, whatever may be the form of the government." (121) Webster clarified that the word usually signifies "a political body governed by representatives; a commonwealth," and in this sense, the word "state" has "sometimes more immediate reference to the government, sometimes to the people or community." (122) Webster explained the difference: "Thus when we say, the state has made provision for the paupers, the word has reference to the government or legislature; but when we say, the state is taxed to support paupers, the word refers to the whole people or community." (123) Webster's definition makes clear that the right to bear arms in defense of "the State" encompasses both the defense of Alabama's government and the defense of Alabama's people or community, apart from Alabama's particular government.

B. The Meaning of the Operative and Purposes Clauses Together

Under these ordinary, everyday meanings of [section] 26's words near the time of Alabama's adoption of the Declaration of Rights, Alabama's right to bear arms may be more fully defined as the individual citizen's just claim, immunity, or privilege to carry, convey, and remove weapons from place to place. These weapons include firearms, ammunition, and knives or blades, (124) in order to oppose attack, violence, danger, or injury, for the purpose of protecting and securing one's person, rights, and possessions, and also protecting and preserving both Alabama's government and Alabama's people or community. When the textual elements of [section] 26 are considered together, like the Second Amendment, "they guarantee the individual right to possess and carry weapons in case of confrontation," (125) but this individual right involves much more than the mere right of possession of weapons and carrying weapons.

C. The Constitutional Firewall: Section 36 of the Alabama Declaration of Rights

In addition to interpreting the original meaning of the words used in [section] 26, Alabama's right to bear arms must also be interpreted in the light of other relevant sections of the Alabama Constitution. (126) As explained above, under [section] 36 of the Alabama Declaration of Rights, no branch of Alabama's government has the authority to violate the citizen's right to bear arms. In Alabama's original constitution, [section] 36 was numbered as [section] 30, and stated that:
[t]his enumeration of certain rights shall not be construed to deny or
disparage others retained by the people: and, to guard against any
encroachments on the rights herein retained, or any transgression of
any of the high powers herein delegated, we declare, that every thing
in this article is excepted out of the general powers of government,
and shall forever remain inviolate; and that all laws contrary thereto,
or to the following provisions, shall be void. (127)


Members of Alabama's judiciary have confirmed how [section] 36 applies to the rights enumerated in the Declaration of Rights. In 1838, Associate Justice John James Ormond explained how [section] 36 (then [section] 30) interacts with the rest of the Constitution:
The people, by [the Constitution], have enumerated and asserted certain
first principles, which they therein declare, they have reserved to
themselves, and have not delegated to the legislative department of the
government....

By [Art. 1, [section] 30] it appears,... that any act of the
legislature which violates any of these asserted rights, or which
trenches on any of these great principles of civil liberty, or inherent
rights of man, though not enumerated, shall be void. (128)


Recently, the Alabama Supreme Court explained that "Section 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power." (129) In 2010, the Alabama Supreme Court stated that "[s]ections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians and [section] 36 provides that no branch of government has the authority to impair or deny those rights." (130) Thus, when [section] 36 is considered in pari materia with [section] 26, no branch of Alabama's government has any authority to violate the fundamental, God-given inherent rights of man (131) and the great principles of civil liberty enumerated in the Declaration of Rights, including the right to bear arms.

D. The Preamble to the Constitution of Alabama

The preamble to the Constitution of Alabama "must necessarily be considered in pari materia with" [section] 26's right to bear arms. (132) The preamble states that,
[w]e, the people of the State of Alabama, in order to establish
justice, insure domestic tranquility, and secure the blessings of
liberty to ourselves and our posterity, invoking the favor and guidance
of Almighty God, do ordain and establish the following Constitution and
form of government for the State of Alabama. (133)


As the right to bear arms is part of the Declaration of Rights, which is the governing and controlling part of Alabama's Constitution, (134) by necessary inference, the people of Alabama established the right to bear arms in order to establish justice, insure domestic tranquility, and secure the blessings of liberty. In other words, the specific objectives recited in the preamble to Alabama's Constitution apply both to Alabama's form of government established and to the rights enumerated in the Declaration of Rights, such as the right to bear arms. Like the Second Amendment, [section] 26 "is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary.... Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny." (135) Section 26 thus helps achieve the preamble's goal of ensuring domestic tranquility and securing the blessings of liberty.

E. Section 1, Alabama Declaration of Rights

Section 1 of Alabama's Declaration of Rights states "[t]hat all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." (136) When [section] 1 is considered in pari materia with the rest of the Declaration of Rights, another objective of the right to bear arms is evident. The right to bear arms protects and secures each citizen's equal rights to freedom and independence, and the inalienable rights to life, liberty, and the pursuit of happiness. Sir William Blackstone connected the right to bear arms with the blessings of liberty and freedom and explained that the right "of having arms for their defence" is "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (137) Blackstone viewed the right to bear arms as the means to vindicate other rights and preserve the blessings of liberty:
So long as these [rights or liberties of Englishmen] remain inviolate,
the subject is perfectly free; for every species of compulsive tyranny
and oppression must act in opposition to one or other of these rights,
having no other object upon which it can possibly be employed.... [T]o
vindicate these rights, when actually violated or attacked, the
subjects of England are entitled... lastly, to the right of having and
using aims for self-preservation and defense. And all these rights and
liberties it is our birthright to enjoy entire. (138)


Thus, Alabama's right to bear arms helps defend [section] 1 of the Declaration of Rights by ensuring that Alabama's citizens remain free and independent and protect their inalienable rights to life, liberty, and the pursuit of happiness.

This article now examines the history behind Alabama's right to bear arms in order to properly understand and frame the interpretation of the constitutional text.

III. THE HISTORY OF ALABAMA'S RIGHT TO BEAR ARMS A. Alabama and the English Bill of Rights

Alabama's right to bear arms is unquestionably rooted in England's common law right to bear arms. Alabama's Declaration of Rights, like the federal Bill of Rights, was "not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (139) In 1840, the Alabama Supreme Court stated that the right to bear arms was "doubtless suggested by the [English] 'Bill of Rights' of the 1 W[illiam] and M[ary] which embodies many provisions in favor of the liberty of the subject, and is said to be for the most part, in affirmance of the common law." (140) The English Bill of Rights, in the relevant section, states '"that the Subjects which are Protestants may have Arms for their Defence, suitable to their Conditions and as allowed by Law.'" (141) In Reid v. State, the Court linked the English right to bear arms to King Charles II's attempts (142) to disarm English Protestants:
The evil which was intended to be remedied by the provision quoted, was
a denial of the right of Protestants to have arms for their defence,
and not an inhibition to wear them secretly. Such being the mischief,
the remedy must be construed only to extend so far as to effect its
removal....

... [The English Bill of Rights] while it declares the right of the
subject, it refers to Parliament to determine what arms shall be borne
and how; while our constitution being silent on the subject as to the
action of the Legislature, does not divest it of a power over the
subject, which pertained to it independent of an express grant. (143)


In 1911, Associate Justice Thomas N. McClellan also opined that Alabama's right to bear arms descended from the English right to bear arms:
The clauses quoted from our Constitutions, from the beginning, have
been ascribed, in suggestion of incorporation therein, to the Bill of
Rights formulated by the Parliament, in 1688, as conditions to the
recognition and installation of William and Mary as the reigning
sovereigns, after the flight of James II, whose assumptions of
authority and power were deemed violative and subversive of the
liberties of the people of England, chief among which subjects of
abuses was that of the Protestant religion.... [The English Bill of
Rights] was a response to the unwarranted action, imputed to James II,
of 'causing several good subjects, being Protestants, to be disarmed at
the same time when Papists were both armed and employed, contrary to
law'.... From the particular clause of the Bill of Rights subscribed
by William and Mary, it appears to have been expressly provided that
the right to bear arms should be subject to legislative treatment,
necessarily implying its regulation, if not more. (144)


In Reid, the Court explained that "[w]e have taken this brief notice of the English statute, as it may serve to aid us in the construction of our constitutional provision, which secures to the citizen the right to bear arms." (145) And again in 1911, Justice McClellan used the English right to bear arms to construe Alabama's right to bear arms. (146)

Reliance on the English common law as an aid in construing Alabama law is necessary and proper. (147) Alabama's Supreme Court stated over 140 years ago that state constitutions are "always interpreted in the light of the common law." (148) Alabama's Supreme Court "has long acknowledged the common law matrix that produced the guarantees contained in the Declaration of Rights." (149) In addition, Alabama requires that its judges apply English common law: "[t]he common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force...." (150)

Unfortunately, Alabama's use of the English right to bear arms as an aid for construction of the Alabama right is problematic because Alabama's judges never construed the actual words of the English Bill of Rights against the words of the Alabama Declaration of Rights. While constitutional provisions must be read "in the light of their history," constitutional provisions must also be read with "a due regard to the words in which they are expressed." (151) By failing to give due regard to the actual words expressed in the English Bill of Rights and in the Alabama Declaration of Rights, a narrow focus on one aspect of English common law for interpreting Alabama's right to bear arms has produced a narrow interpretation of the right to bear arms. Thus, if the English Bill of Rights ever would "serve to aid us in the construction" of Alabama's right to bear arms, Alabama's judges must give due regard to the actual words of both constitutional texts, which must be compared against each other. (152)

1. A Comparison of the Alabama and English Rights to Bear Arms

Original [section] 26 stated that "every citizen has a right to bear arms in defense of himself and the state." (153) The English Bill of Rights, in the relevant part, states "that the subjects which are Protestants may have arms for their Defence, suitable to their Conditions and as allowed by law." (154) There are several important differences between the English right and Alabama's right to bear arms.

The English right is for subjects; Alabama's right is for citizens. A "subject" is "[o]ne that owes allegiance to a sovereign and is governed by his laws." (155) Webster defined "citizen" as: "[i]n the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate." (156) The fact that the English right is for "subjects" and Alabama's right is for "citizens" imparts certain connotations to modern, democratic sympathies, but the original meaning of the words do not signify much of a substantive difference. Like the American right to bear arms, the English right "was clearly an individual right, having nothing whatever to do with service in a militia.... [A]nd like all written English rights it was held only against the Crown, not Parliament.... [I]t was secured to them as individuals.... By the time of the founding, the right to have arms had become fundamental for English subjects." (157) As to the right to bear arms, the primary difference between the terms "subject" and "citizen" lies in how the individual holds the right to bear arms: in England, the individual held the right against the Crown; in Alabama, the right is protected against Alabama's government.

The English right is restricted to Protestants and "was an individual right not available to the whole population, given that it was restricted to Protestants." (158) In contrast, Alabama's right is not limited to a particular religious persuasion. Such a limitation would violate Alabama's constitutional ban on giving preference to any religious sect, society, or denomination by law. (159)

The English right is permissive: "may have." Noah Webster defined the verb "may," as "[t]o have moral power; to have liberty, leave, license or permission; to be permitted; to be allowed. A man may do what the laws permit." (160) In contrast, Alabama's right is indicative: "has," which is the third person singular of the verb "have." Webster defined "have" as "[t]o possess; to hold in possession or power; [t]o possess, as something that is connected with, or belongs to one." (161) Alabama's people possess or hold the right to bear arms; English subjects are permitted or allowed the right.

The English right could be limited for subjects of the Crown, "suitable to their Conditions and as allowed by law." (162) Saint George Tucker, in his edition of Blackstone's Commentaries on the Laws of England, explained how the phrase "suitable to their condition[s]" in the English Bill of Rights was interpreted to disarm the people of England "under the specious pretext of preserving the game... [s]o that not one man in five hundred can keep a gun in his house without being subject to a penalty." (163) In contrast, Alabama's right to bear arms says nothing of limiting the right to bear arms "suitable to... conditions" or "as allowed by law." In fact, Alabama's Constitutional Convention of 1901 rejected proposals that would have constitutionally required licensing and regulation of small arms. (164)

The textual differences between the English right and Alabama's right are significant and should give Alabama's judges reason to consider whether the English right could serve as a reliable guide to construing [section] 26. Given the differences between the operative terms of each right, the English right to bear arms offers little practical help for construing the meaning of Alabama's right to bear arms. In addition, the Reid court and Justice McClellan focused narrowly on the English right to bear arms and ignored other relevant parts of the English Bill of Rights. While the actual text of the English right explicitly allows for legislative conditions and allowances, the English Bill of Rights as a whole precludes later interpreters from focusing exclusively on King Charles IPs attempts to destroy the English right to bear arms. The English Bill of Rights affirms "the laws and liberties of this kingdom," asserts "ancient rights and liberties," and declares "the true, ancient and indubitable rights and liberties of the people of this kingdom." (165) A century later, Blackstone confirmed that the "right of having and using arms for self-preservation and defense" is "our birthright to enjoy entire." (166) Thus, Reid's and Justice McClellan's construction of the English right to bear arms only with reference to William and Mary's attempt to remedy the Stuart monarchs' violations of the right to bear arms contradicts the stated intent of the rest of the English Bill of Rights. That Reid and Justice McClellan overlooked other guideposts in the English Bill of Rights is not surprising; Reid and Justice McClellan also overlooked necessary guideposts for construing Alabama's right to bear arms, most notably the Preamble, [section] 1, and [section] 36 of Alabama's Declaration of Rights.

2. A Short History of England's Common Law Right to Bear Arms

Although Alabama's judges have, thus far, failed to note the textual differences between the English and the Alabamian right to bear arms, there is no question that the English right is an important precedent for Alabama's right to bear arms. But it is not the only precedent. The English had the right to keep and bear arms for many centuries before Charles II, James II, and William and Mary. Accordingly, a brief historical review of the English common law right to bear arms is a helpful aid in understanding Alabama's right to bear arms.

As part of King Alfred the Great's (r. 871-901) codification of England's common law, he adopted the Ten Commandments from Exodus 20 and the case laws from Exodus 21-22. (167) Alfred the Great's laws included this paraphrase of Exodus 22:2-3: "If a thief break into a man's house by night, and he be there slain; the slayer shall not be guilty of manslaughter. But if he do this after sunrise, he shall be guilty of manslaughter; and then he himself shall die, unless he were an unwilling agent." (168) Exodus 22:2-3 forms part of the basis the modern "castle doctrine," which was noted by Justice James Wilson, one of the original justices on the United States Supreme Court and a signer of both the Declaration of Independence and Constitution of the United States, who traced the fundamental right of self-defense to ancient Anglo-Saxon laws, which in turn are based, in part, on Biblical laws. Wilson observed:
Homicide is enjoined [i.e., required], when it is necessary for the
defense of one's person or house.

With regard to the first, it is the great natural law of self
preservation, which, as we have seen, cannot be repealed, or
superseded, or suspended by any human institution. This law, however,
is expressly recognized in the constitution of Pennsylvania.... This
is one of our many renewals of the Saxon regulations. "They were
bound," says Mr. Seiden, "to keep arms for the preservation of the
kingdom, and of their own persons."

With regard to the second; every man's house is deemed, by the law, to
be his castle; and the law, while it invests him with the power,
enjoins on him the duty, of the commanding officer. "Every man's house
is his castle," says my Lord Coke, in one of his reports, "and he ought
to keep and defend it at his peril; and if any one be robbed in it, it
shall be esteemed his own default and negligence." For this reason, one
may assemble people together in order to protect and defend his house.
(169)


William Blackstone also noted that Alfred the Great is widely regarded by historians as having "first settled a national militia in this kingdom." (170)

The Laws of King Cnut (r. 1020-1023) made self-defense a right and duty, "fining those who failed to follow the hue and cry." (171) The hue and cry was "[t]he public uproar that, at common law, a citizen was expected to initiate after discovering a crime." (172) When the hue and cry was raised, "[a]ll were obliged to pursue the criminal.... Neglect of these duties entailed an amercement [(fine)] of the individual, the township or the hundred. The sheriffs and the constables were under special obligations, as conservatores pacis, to fulfil these duties." (173)

In 1181, King Henry II's Assize of Arms recognized the right and duty of self-defense by creating a militia system that required every knight and "holder of a knight's fee," every "free layman" owning property over a certain value, and "all burgesses and... freemen" to be armed with lances and armor. (174) In 1215, the Magna Carta affirmed the customs Henry II established with the Assize of Arms. (175) In 1230 and 1252, Henry III affirmed the Assize of Arms. (176) In 1285, Edward I in the Statute of Winchester affirmed "the ancient Assize" and required all men from the age of 15 to 60 to possess swords, knives, bows, and arrows. (177) Four centuries later, Blackstone explained that the Statute of Winchester remained in force through the early 1600's and:
obliged every man, according to his estate and degree, to provide a
determinate quantity of such arms as were then in use, in order to keep
the peace: and constables were appointed in all hundreds to see that
such arms were provided. These weapons were changed, by the statute 4 &
5 Ph. & M. c.2 into others of more modern service; but both this and
the former provision were repealed in the reign of James 1. (178)


In 1503, Henry VII required that the shooting of "any crossbow" be exercised only with "the King's special license," unless one possessed sufficient property, or shot "out of a house for the lawful defense of the same." (179) However, in 1511, Henry VIII recognized the right of "every man [to] have a bow and arrows ready continually for his house." (180) In 1514, changing course, Henry VIII made the possession and discharge of "any Crossbow and handgonne" subject to imprisonment, unless the person possessed sufficient property. (181) Henry VIII granted exceptions for those near the sea and near Scotland, and by special royal licenses. (182) However, by 1541, Henry VIII permitted all persons to lawfully keep firearms, subject to certain length requirements. (183) Those who did not meet a property qualification of [pounds sterling]100 could not carry or possess "any Crossbow or Gun charged or furnished with powder" on the King's highways and other ways. (184) However, anyone could shoot a handgun, "demyhake," or "hagbutt" in town against earth embankments, or in "defense of his person or house" and '"have and keep in every of their houses,' and practice shooting 'handguns, hagbutts, and demyhakes of the requisite length.'" (185)

In 1662, Charles II empowered royal officials with a "militia bill" to search for and seize all firearms in the custody of those who were judged "dangerous to the peace of the kingdom." (186) Next, in 1670, Charles II attempted to deprive commoners of their arms and announced that such were "not allowed to keep... any Guns, Bows... but... are hereby prohibited to have, keep or use the same." (187) It was this act--creatively titled "An Act for the Better Preservation of the Game"--that helped precipitate the English Bill of Rights. (188)

B. Alabama's Right to Bear Arms: Distinctly American

In sum, English common law was fickle; it both protected the right to bear arms--by making arms-bearing a public duty--and, at other times, suffered the Crown's limitations of the right. Should Alabama follow common law statutes which limit the right to bear arms? Or, should Alabama follow the Assize of Arms and Statute of Winchester, which required the bearing arms? While Alabama judges must follow the English common law as the rule of decisions, [section] 1-3-1 of the Code of Alabama requires the common law to be rejected where it is inconsistent with Alabama's Constitution. Section 36 of the Declaration of Rights protects [section] 26's right to bear arms from legislative, judicial, and executive interference. The English Bill of Rights, in contrast, subjects the right to bear arms to legislative conditions and allowances. Because the English Bill of Rights conflicts with [section] 36 of the Declaration of Rights, the English Bill of Right must be rejected as the "rule of decisions" for construing Alabama's right to bear arms. In addition, because the statutes of Charles II, James II, and Henry VIII attempted to destroy the English right to bear arms, these statutes must be rejected as inconsistent with Alabama's right to bear arms. Finally, Alabama judges should not rely upon the laws of English tyrants to construe Alabama's constitutional right to bear arms. (189)

Section 1-3-1 thus respects and confirms Alabama's inheritance of the English common law, but recognizes that the American states made a decided break with the English common law. And with the right to bear arms, the break could not be more emphatic. James Madison confirmed that Americans possessed the right to bear arms "over the people of almost every other nation." (190) Noah Webster, likewise: "[t]he supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." (191) In contrast, though William Blackstone held the right to bear arms belonged to the English as a "birthright to enjoy entire," (192) England had been disarmed due to the English Bill of Rights being interpreted in such a way "that not one man in five hundred can keep a gun in his house without being subject to a penalty." (193) Once clarified through the lens of [section] 1-3-1 of the Code of Alabama, the English common law strongly confirms Alabama's guarantee of the individual right to possess and carry weapons in case of armed confrontation. (194)

(190) THE FEDERALIST NO. 46 (James Madison). ("Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.").

IV. WHY DID ALABAMA PASS THE RIGHT TO BEAR ARMS AMENDMENT?

In light of the plain meaning of [section] 26's text, the constitutional firewall in [section] 36 guarding the right to bear arms inviolate, and England's common law history behind Alabama's right to bear arms, why did Alabama pass the Right to Bear Arms Amendment? The Amendment was part of the Alabama House Republicans' "We Dare Defend our Rights" legislative agenda in 2013. (195) The Amendment served two specific purposes: to defend the right to bear arms from federal overreach through international treaties and laws, (196) and to proscribe Alabama judges from applying rational basis review to laws that burden the right to bear arms. (197) Alabama's right to bear arms has faced perceived threats from the United Nations Arms Trade Treaty, and Alabama has a well-documented trail of evidence demonstrating how Alabama's own judges have treated the right to bear arms.

A. How the United Nations Wants to Handle the Right to Bear Arms

Representative Mike Jones, the sponsor of the Amendment, asserted that, "[g]iven the course that the federal government is taking, it is imperative that we protect our God-given right to defend our families, our homes, and ourselves.... If the federal government won't protect our right to keep and bear arms, we're prepared to do it at the state level." (198) The League of Women Voters of Alabama explained that the Amendment was "largely a defensive move in response to efforts by the United Nations to establish a legally enforceable Arms Trade Treaty to control illegal arms sales and thereby reduce war, terrorism, and other actions that destabilize nations." (199) The Arms Trade Treaty (200) is a product of the United Nations Office for Disarmament Affairs. (201) The Right to Bear Arms Amendment's passage was well-timed just weeks ahead of the effective date of the Arms Trade Treaty, which was December 24, 2014. (202) The United States is a signatory to the Arms Trade Treaty, courtesy of former Secretary of State John Kerry, but the United States is not a state party to the Treaty, due to the fact that the Treaty has not been ratified by the Senate. (203)

The Arms Trade Treaty applies to "all conventional arms" classed in the categories of tanks, armored vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. (204) Article 3 requires "[e]ach State Party" to establish and maintain a "national control system to regulate the export of ammunition/munitions fired, launched or delivered by the enumerated conventional arms." (205) Article 4, likewise, would require each State Party to "establish and maintain a national control system to regulate the export of parts and components where the export is in a form that provides the capability to assemble the conventional arms" enumerated. (206) Each State Party is required to make its "national control list" available to the United Nations Secretariat, which in turn is required to make the national control lists available to other State Parties. (207) Should Alabama be concerned about the Arms Trade Treaty?

Judging by the response of the United States Senate, Alabama should be concerned. In 2013, in a letter to President Obama by Oklahoma Senator James Inhofe, a majority of the Senate expressed strong opposition to the United States being bound by the Arms Trade Treaty. (208) Senator Inhofe expressed particular concern that the Arms Trade Treaty "includes only a weak non-binding reference to the lawful ownership and use of, and trade in firearms, and recognizes none of these activities, much less individual self-defense, as fundamental individual rights." (209) Inhofe noted further that the Treaty:
encourages governments to collect the identities of individual end
users of imported firearms at the national level, which would
constitute the core of a national gun registry, and it creates a
national "responsibility" to "prevent... [the] diversion" of firearms,
which could be used to justify the imposition of controls within the
U.S. that would pose a threat to the Second Amendment and infringe on
the rights protected therein. (210)


Senator Inhofe has valid concerns about the "weak non-binding reference" to the lawful ownership and use of firearms. The Arms Trade Treaty contains the following weak, non-binding references:
[t]he States Parties to this Treaty,

Reaffirming the sovereign right of any State to regulate and control
conventional arms exclusively within its territory, pursuant to its own
legal or constitutional system. (211)

Mindful of the legitimate trade and lawful ownership, and use of
certain conventional arms for recreational, cultural, historical, and
sporting activities, where such trade, ownership and use are permitted
or protected by law. (212)

Determined to act in accordance with the following principles;
Principles--The inherent right of all States to individual or
collective self-defence as recognized in Article 51 of the Charter of
the United Nations. (213)


In the words of Senator Inhofe, "[g]ood treaties are not ambiguous, and our constitutional rights are too important to be entrusted to a dangerous treaty drafted by nations hostile to the ownership of firearms by private citizens." (214) The Treaty's vacuous language provided Alabama Republicans good reason for concern. In Madison's words, Alabama's Republicans properly took "alarm at the first experiment on our liberties." (215) Madison held "this prudent jealousy" for one's liberties to be "the first duty of citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents." (216) Likewise, the Alabama Republicans did not wait for the possible passage of the Arms Trade Treaty, but preemptively sought to avoid Alabama being entangled in that experiment on the right to bear arms.

As to the legal effect of the Right to Bear Arms Amendment against the likes of the Arms Trade Treaty, Professor Vars of the University of Alabama School of Law opined that the "[A]mendment's assertion that treaties may not henceforth limit the right to bear arms is mistaken. Treaties trump state law, even state constitutional law... [the Supremacy Clause of the United States Constitution dictates that result]." (217) The Amendment, however, did not take aim at treaties made "under the authority of the United States," which are "the supreme law of the land," binding the judges of every state, under Article VI of the Constitution of the United States. (218) The Amendment took aim at treaties and international laws that interfere with the right to bear arms, "if such treaty or law, or its adoption, violates the United States Constitution." (219) Thus, the Amendment cannot be an attempt to preemptively nullify constitutionally adopted treaties. Rather, the Amendment was a conscious effort on the part of Alabama's Republican legislators to defend against President Barack Obama attempting to implement the Arms Trade Treaty through executive order, in an end run around the constitutional limitations on the presidential treaty-making power. (220) Alabama's Republicans also had valid concerns regarding President Obama's actions. In spite of the Senate's entrenched opposition to the Arms Trade Treaty, on December 9, 2016, President Obama transmitted the Treaty to the Senate "[w]ith a view to receiving the advice and consent of the Senate to ratification," and noted that the Treaty "is fully consistent with rights of U.S. citizens (including those secured by the Second Amendment to the U.S. Constitution)." (221) Given the Senate's position on the Arms Trade Treaty, and the recent change in the Executive Branch, the Arms Trade Treaty likely will not present an imminent threat to Alabama's right to bear arms, at least for the immediately foreseeable future.

B. How Alabama's Judges Have Handled the Right to Bear Arms

Representative Mike Jones authored the Right to Bear Arms Amendment after Louisiana approved a constitutional amendment that required strict scrutiny review for any law affecting the right to bear arms. (222) Before Louisiana's gun rights amendment, "Louisiana judges needed only the lowest level of review, a 'rational basis,' to restrict gun rights in that state." (223) Jones witnessed the passage of Louisiana's constitutional amendment and assumed that in Alabama, whose motto is "We Dare Defend Our Rights," had similar measures in place to protect the right to bear arms. (224) Representative Jones learned, however, that Alabama judges, like Louisiana's judges, only applied rational basis review to gun-related matters. (225) While Representative Jones admitted he was not "big on re-inventing the wheel," he believed that Alabama needed "great clarity on people's fundamental right to bear arms." (226) Thus, as with Louisiana's gun rights amendment, "the heart of the matter" for Alabama's Right to Bear Arms Amendment "is how judges are allowed to handle cases that involve the right to bear arms." (227) In contrast to Alabama Republicans' fears regarding what might happen someday in the future with the Arms Trade Treaty, Alabama has well-documented reasons to be concerned about how its own judges have handled cases involving laws that burden the right to bear arms. This article now examines how Alabama's judges have restricted and infringed upon [section] 26's right to bear arms.

1. Alabama 's Seminal Case on the Right to Bear Arms

The Alabama Supreme Court's seminal case on the right to bear arms is State v. Reid, an 1840 decision, (228) which has been cited favorably by the Alabama Court of Criminal Appeals as recently as 1980 in Hyde v. City of Birmingham. (229) In Reid, Mr. Reid, who was a Montgomery County sheriff, was convicted of the offense of carrying a concealed pistol while on duty. (230) At trial, the evidence confirmed that Reid had carried a pistol concealed on his person. (231) In the course of his work as sheriff, Reid had been "attacked by an individual of a dangerous and desperate character, who afterwards threatened his person, and came to his office several times to look for him." (232) The "desperate character" threatened Reid, who was convinced his life was in danger and had a friend bring him a pistol. (233) Reid appealed and argued that conviction violated his right to bear arms under [section] 23 of the Declaration of Rights (which was later renumbered as [section] 26). (234)

The Alabama Supreme Court disagreed with Reid and reasoned that Alabama's Constitution does not divest the Legislature of the power to regulate how arms may be borne:
[A] law which is intended merely to promote personal security, and to
put down lawless aggression and violence, and to that end inhibits the
wearing of certain weapons, in such a manner as is calculated to exert
an unhappy influence upon the moral feelings of the wearer, by making
him less regardful of the personal security of others, does not come in
collision with the constitution. (235)


As to the facts of Reid, the court noted that "[t]here was no evidence adduced, tending to show that the defendant could not have defended himself as successfully, by carrying the pistol openly, as by secreting it about his person." (236) The Reid court commented that "Reid needed no arms for his protection, his official authority furnished him an ample shield," (237) and concluded that, under the facts, it was not necessary for Reid to carry a concealed weapon in order to defend himself. (238)

2. Alabama's Judges Reject [section] 36 of the Declaration of Rights

Reid had a roadmap available for construing the plain meaning of Alabama's right to bear arms in conjunction with [section] 30 of the Declaration of Rights (now renumbered as [section] 36)--but did not use the map. Reid's map was in the form of Bliss v. Commonwealth, an "especially significant" (239) 1 822 Kentucky decision on the right to carry a concealed weapon, which, in that case, was a sword cane. (240) The original Kentucky Constitution stated, in language similar to Alabama's Declaration of Rights, "that the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned." (241) Bliss construed Kentucky's constitutional right to bear arms by reference to [section] 28 of Kentucky's Bill of Rights, which, like [section] 36 of Alabama's Declaration of Rights, (242) provided "that every thing [sic] in that article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the constitution, shall be void." (243) Bliss provided this analysis of the two sections of the Kentucky Bill of Rights:
The provision contained in [[section] 23], perhaps, is as well
calculated to secure to the citizens the right to bear arms in defense
of themselves and the state, as any that could have been adopted by the
makers of the constitution. If the right be assailed, immaterial
through what medium, whether by an act of the legislature or in any
other form, it is equally opposed to the comprehensive import of the
section. The legislature is nowhere expressly mentioned in the section;
but the language employed is general, without containing any expression
restricting its import to any particular department of government; and
in the twenty-eighth section of the same article of the constitution,
it is expressly declared, "that every thing in that article is excepted
out of the general powers of government, and shall forever remain
inviolate; and that all laws contrary thereto, or contrary to the
constitution, shall be void."

The right of the citizens to bear arms in defence of themselves and the
state, must be preserved entire. (244)


Bliss reasoned that "it is the right to bear arms in defense of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution." (245) Bliss concluded that "[t]he act to prevent persons from wearing concealed arms, is unconstitutional and void." (246)

Reid did not mention Bliss' construction of provisions of the Kentucky Bill of Rights that are substantially similar to provisions of Alabama's Declaration of Rights. Ultimately, Reid distinguished Bliss on the basis that the court was "strongly inclined to believe" that:
the inhibition to question the right [in [section] 23 of Kentucky's
Constitution], was regarded as more potent than a mere affirmative
declaration, intended to secure it to the citizen [in [section] 23 of
Alabama's Constitution (now [section] 26)]; and that while the one
amounted to a denial of the right to legislate on the subject, the
other would tolerate legislation to any extent which did not actually
or in its consequences destroy the right to bear arms. (247)


By maintaining that the difference between the operative phrases in the two states' rights to bear arms justified Reid's approval of legislative limitations of the right, Reid conveniently ignored how Bliss' construction of [section] 28 of the Kentucky Constitution might inform Alabama's construction of [section] 30 (now [section] 36). Reid's rationale for failing to interpret Alabama's constitutional right to bear arms in pari materia with [section] 36, as in Bliss, is lost to history. (248) And beginning with Reid, Alabama's judges have infringed the right to bear arms by ignoring [section] 36 of the Declaration of Rights. The implications of Reid are profound: if a sheriff on duty does not have the constitutional right to carry a concealed weapon for self-defense, then the average citizen has little hope of securely retaining the full and complete right to bear arms. Alabama's later decisions on the right to bear arms--Reid's progeny--have continued to breach [section] 36's "constitutional firewall" in similar ways.

3. Alabama 's Judges Have Not Defined the Right to Bear Arms

One may spend fruitless hours searching Alabama's reported cases for a text-based definition of Alabama's right to bear arms. Alabama's judges simply have not provided a definition of the right to bear arms tied to the actual constitutional text. (249) The following examples demonstrate Alabama's lack of adequate definition of the right to bear arms. (250)

i. The right is not for all occasions and all places

Reid stated that "[t]he right guaranteed to the citizen, is not to bear arms upon all occasions and in all places, but merely 'in defence of himself and the State.'" (251) The Alabama Court of Criminal Appeals quoted Reid's terse statement of the right to bear arms favorably in Hyde v. City of Birmingham in 1980. (252) However, merely repeating language from Alabama's Declaration of Rights does not define the right, (253) and Reid cited no legal authority for the limiting gloss it added to the right to bear arms. Reid's limitation is problematic in light of the fact that [section] 26 [formerly [section] 23] contains neither universals, e.g., "all occasions and in all places," nor particulars, e.g., "some occasions and in some places." Reid's limitation appears to assume that Alabama's people only would need to exercise the right to bear arms only upon "some occasions and in some places." Reid's limitation on the right to bear arms is disingenuous, considering that Alabama's citizens cannot advance-plan the situations where they would need to exercise the right to bear arms in self-defense. Alabama's law-abiding citizens cannot contact their potential future murderers or future assailants and tell such them to avoid "certain occasions and some places."

The right to bear arms in self-defense is fundamentally different from the right of free speech, where the individual exercising the right chooses if, when, where, and how to exercise the right to speak freely. In contrast, the right to bear arms in self-defense need only be exercised if, when, and where the need arises. (254) In most cases, the place and the occasion are chosen by the would-be murderer and/or intended assailant, not the individual citizen. (255) In fact, where the government bars citizens from exercising the right to bear arms in self-defense in certain places and on certain occasions, e.g., public gatherings or government buildings, that fact is not lost on murderers and/or assailants, who are well aware of which locations and gatherings likely have armed citizens present--or not present. (256)

ii The right has only one objective

In 1911, Associate Justice McClellan, in his concurring opinion in Isaiah v. State, made what may have been an attempt to define the right, stating that "[t]he only objective of the right guaranteed is protection--defense. To impair it the enactment assailed must qualify, beyond proper regulations of police, the ability to avail of the objective of the constitutional guaranty." (257) McClellan's attempt is better than Reid, but falls short. Just as the direct object of a verb does not define the verb, the stated objective of a constitutional right does not define the right, especially where the right serves multiple objectives or purposes. (258) Many exercise the right to bear arms for a variety of purposes; not all bear arms for McClellan's "only objective"--defense. Focusing on one narrow objective for the right to bear arms violates a fundamental principle of constitutional construction, that each section of the Constitution must be considered in light of the other sections. (259) As explained above, Alabama's right to bear arms serves several important objectives beyond individual self-defense. (260) In sum, Alabama's apparent judicial reluctance to determine the meaning of Alabama's constitutional right to bear arms by reference to the original meaning of the words will inevitably lead to limiting the right to some occasions and specific places and a narrowing of the right, as evidenced by Reid and Justice McClellan.

4. Alabama 's Judges Approve Legislative Power over Firearms

Alabama's judicial rejection of [section] 36's limitations upon government power over the right to bear arms has gone hand-in-hand with a judicial approval of expansive legislative power over the right. In Reid, the Alabama Supreme Court stated that the Alabama Legislature possesses plenary powers over all objects of legislation, including how arms may be borne:
The constitution of a State, is an instrument of restraint and
limitation upon powers already plenary, so far as it respects the
functions of government and the objects of legislation....

... The constitution in declaring that, "Every citizen has the right to
bear arms in defence 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.... [0]ur
constitution being silent as to the action of the Legislature, does not
divest it of a power over the subject, which pertained to it
independent of an express grant. (261)


Likewise, in Isaiah, Justice McClellan followed Reid by holding that "[t]he Legislature [has] the right to regulate the exercise of the right to bear arms in defense of self and the state." (262) According to McClellan, the fact that [section] 26 does not refer to legislative power over the right to bear arms is unimportant:
Our organic law declares the right of the citizen to bear arms in
defense of self and the state, but omits any express reference of the
subject to legislative action. But this omission is not important in
any sense, because, with us, the Constitution is deemed an instrument
of limitation of power, not a grant thereof. (263)


As in Reid, McClellan did not mention that [section] 36 of the Declaration of Rights specifically denies the government any power over the right to bear arms.

Reid and McClellan justified their approval of legislative power over the right to bear arms by appealing to the State's police powers. Reid stated that "[t]he terms in which this provision [ALA. CONST, art. I, [section] 23 (1819)] is phrased seems to us, necessarily to leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals." (264) Likewise, McClellan stated that:
necessarily the Legislature possesses the power and the province to
determine what enactments will conserve, in this respect, the safety
and morals of the people of the state....

... The Legislature, to which is committed the establishment of
regulations of police, are authorized to control the exercise of the
constitutional right with such regulations "as may be dictated by the
safety of the people and the advancement of public morals." (265)


Reid's jurisprudence is bald eisegesis; Reid, and Isaiah afterward, completely failed to explain how the actual terms and phrases of Alabama's constitutional right to bear arms leave to the legislature any authority with respect to the police powers, public safety, and public morals. Nevertheless, in 1953, the Alabama Court of Appeals followed Reid, stating that the legislature had unquestionable, full authority to regulate the constitutional right to bear arms under its police powers. (266) Then, in 1956: "[i]t is well settled that the constitutional right of every citizen to bear arms in defense of himself and the State, as guaranteed by Article 1, Section 26 of our Constitution, is subject to reasonable regulation under the police powers of the State." (267) And in 2014, in a case where a man was convicted of violating a city ordinance prohibiting carrying a pistol on premises not his own, the Alabama Court of Appeals stated that: "A municipality has the authority to enact ordinances pursuant to its police powers, as long as the ordinances are consistent with the general laws of the State." (268)

Reid's line of cases conflict directly with [section] 36, which denies Alabama's legislature the power to encroach upon, deny, or impair the right to bear arms. Under [section] 36, Alabama's judges cannot constitutionally approve the legislature's exercise of power over the right to bear arms. If the legislature's exercise of police powers for public safety or public morals can negate [section] 36, then [section] 36 serves no purpose in removing the right to bear arms from the government's power. In the words of Chief Justice Marshall:
To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained? The distinction, between a
government with limited and unlimited powers, is abolished, if those
limits do not confine the persons on whom they are imposed, and if acts
prohibited and acts allowed, are of equal obligation. (269)


Section 36 of Alabama's Declaration of Rights is either a superior, paramount law, unchangeable by ordinary means, unchangeable by judicial limitations, and unalterable by the legislature's police powers, or it is on par with ordinary legislative acts and may be altered when the legislature "shall please to alter it." (270) Over the years, Alabama's judges have reduced [section] 36 (and with it, [section] 26) to the level of ordinary legislation.

In contrast to [section] 36, which flatly prohibits judges and legislators from exercising any power over the right to bear arms, the Right to Bear Arms Amendment's required application of strict scrutiny may not disrupt Reid's line of cases that acknowledge the legislature's power over the right to bear arms. Strict scrutiny presumes that the exercise of legislative and judicial power over constitutional rights may have valid applications, as long as the standards of strict scrutiny are met in a given case.

B. Conclusion on How Alabama's Judges Have Handled the Right to Bear Arms

Without doubt, Alabama's right to bear arms has suffered many things from the hands of Alabama's judges. (271) Those who should protect, support, (272) and defend the right to bear arms have not done so. (273) In summary, Alabama's judges have mishandled the right to bear arms in the following ways:

* Divorced the right to bear arms from [section] 36's protections;

* Neglected to define the right to bear arms by the plain meaning of the text;

* Limited the right to bear arms to only one objective;

* Interpreted the right to bear arms in light of common law precedents that are inconsistent with Alabama's Constitution;

* Failed to interpret the right to bear arms in light of common law precedents that are consistent with Alabama's Constitution;

* Subjected the right to bear arms to plenary legislative power and police powers, in contravention of [section] 36.

To address Alabama's judicial violations of the right to bear arms, the Right to Bear Arms Amendment requires judges to apply strict scrutiny, which, like rational basis review, is a "freestanding 'interest-balancing'" jurisprudence. (274) Rather than directing Alabama's judges to the plain meaning of the constitutional texts of [section] 26 and [section] 36, the Amendment subjected Alabama's right to bear arms "to future judges' assessments of [the right to bear arms'] usefulness...," (275) This is precisely how Alabama's right to bear arms has suffered under Alabama's judges for nearly two centuries. If the Amendment is the panacea prescribed by Alabama's House Republicans for Alabama's malady of judicial mishandling of the right to bear arms, only time will tell if the remedy does not prove worse than the disease.

V. CONCLUSION: ALABAMA DID NOT NEED THE RIGHT TO BEAR ARMS AMENDMENT

Though the Right to Bear Arms Amendment promised "the strongest gun protection provisions in the country," (276) Alabama did not need the Right to Bear Arms Amendment. If Alabama had earnestly examined the text and history of [section] 26's original right to bear arms, she would find that instead of daring to defend rights, the Amendment sold her treasured rights cheaply. (277) The original [section] 26 and [section] 36 are solid treasures, but these constitutional rights, like other long-established legal texts, are treasures that do not glitter. (278) Likewise, the painstaking textual exposition of constitutional rights in light of history does not glitter. Instead of the Alabama Right to Bear Arms Amendment and its required strict scrutiny review, Alabama needed (and still needs) a rigorous textual and historical defense of the right to bear arms. And, far from a glittering, glamorous task, this places a burden "upon inexpert judges with weighty caseloads to conduct adequate historical research before determining the constitutionality of [Alabama's] myriad gun-control laws." (279) And, perhaps because of this burden, which Justice Stephen Breyer has described as "reefs and shoals that lie in wait for those nonexpert judges," (280) a text and history-based jurisprudence for Alabama's right to bear arms "has not been tried and found wanting. It has been found difficult; and left untried." (281) But conducting adequate textual and historical research on constitutional rights is one burden Alabama's judges, like all state and federal judges, are called to shoulder. (282) If Alabama may learn anything profitable from Justice Scalia's text and history jurisprudence in Heller, it is this lesson: To defend constitutional rights from either international threats or judicial encroachment, judges should not focus on levels of scrutiny or divining compelling interests, but must instead seek the old paths from where these rights have sprung. (283)

Benjamin Boyd (*)

(*) J.D., Liberty University School of Law, 2010; Associate Attorney, Hostetter Law Group, Enterprise, Oregon. Many thanks to Mike Tate, Zachary Hurt, Jonathan Sater, and Matt Clark for helpful critiques and edits; and to Sheri for listening. To the Boyd Tribe: Dico tibi verum, Libertas optima rerum; Nunquam servili, sub nexu vivito, fili.

(1) District of Columbia v. Heller, 554 U.S. 570, 576-626 (2008).

(2) Id. at 595.

(3) Id. at 634 (noting that Justice Breyer criticized the court for "declining to establish a level of scrutiny for evaluating Second Amendment restrictions"). Heller noted that the District of Columbia's challenged weapons ban would fail under any level of judicial scrutiny: "Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to "keep" and use for protection of one's home and family,' would fail constitutional muster." Id. at 628-29 (citation omitted) (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).

(4) See McDonald v. City of Chicago, 561 U.S. 742 (2010).

(5) Id. at 750.

(6) Id. at 785 (citing Heller, 554 U.S. at 634).

(7) In 2012, the United States Court of Appeals for the Seventh Circuit followed Heller and McDonald and held in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), that Illinois statutes prohibiting carrying weapons in public violated the Second Amendment right to bear arms for self-defense outside the home. Moore, 702 F.3d at 942. The Seventh Circuit's analysis, following Heller, was "not based on degrees of scrutiny, but on Illinois's failure to justify the most restrictive gun law of any of the 50 states." Id. at 941. The Seventh Circuit did note that "Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety." Id. at 942. In 2014, a panel of the United States Court of Appeals for the Ninth Circuit followed Heller and McDonald, holding in Peruta v. County of San Diego that "San Diego County's 'good cause' permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense." 742 F.3d 1144, 1179 (9th Cir. 2014), on reh'g en banc, 824 F.3d 919 (9th Cir. 2016). In Peruta, the Ninth Circuit judges explained that "[b]ecause our analysis paralleled the analysis in Heller itself, we did not apply a particular standard of heightened scrutiny." Peruta, 742 F.3d at 1175. However, in 2016, a panel of the United States Court of Appeals for the Fourth Circuit broke from Heller's refusal to adopt a particular level of judicial scrutiny for the Second Amendment, stating that "[s]trict scrutiny... is the appropriate level of scrutiny to apply to the ban of semiautomatic rifles and magazines holding more than 10 rounds." Kolbe v. Hogan, 813 F.3d 160, 182 (4th Cir. 2016), on reh'g en banc, 849 F.3d 114 (4th Cir. 2017). The Fourth Circuit held, based on strict scrutiny review, that "semi-automatic rifles and [large capacity magazines] are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment." Kolbe, 813 F.3d at 178. In 2012, a federal district court in Illinois applied Heller's "text, history, and tradition" analysis to Chicago's ban on the possession of firearms by those with misdemeanor convictions. See Gowder v. City of Chicago, 923 F. Supp. 2d 1110, 1120 (N.D. 111. 2012) ("Under a text, history, and tradition analysis, the court must assess whether 'a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment--1791 or 1868."') (quoting Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011), where the United States Court of Appeals for the Seventh Circuit noted that "if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment --1791 or 1868--then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.").

(8) LA. CONST. ANN. art. I, [section] 11 (Supp. 2015).

(9) Official Louisiana Secretary of State Election Results for Election Date: 11/6/2012, LA. SEC'Y OF STATE, http://voterportal.sos.la.gOv/static/#/2012-11-06/resultsRace/Statewide (last visited Apr. 9, 2017) (73.45% voted yes, 26.55% voted no).

(10) Mo. CONST, art. I, [section] 23 (amended 2014) ("That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.").

(11) State of Missouri--Primary Election--August 5, 2014 Official Results, Mo. SHC'Y OF STATE (August 25, 2014), http://enrarchives.sos.mo.gov/enrnet/Default.aspx.

(12) Stephen Dethrage, Alabama votes yes on Amendment 3, requiring 'strict scrutiny' to restrict right to bear arms, AL.COM (Nov. 4, 2014, 9:51 PM), http://www.al.com/news/tuscaloosa/index.ssf/2014/11/alabama_votes_yes_on_amendment.html.

(13) See, e.g., H.R.J. Res. 1026, 54th Leg., 1st Sess. (Okla. 2013) (bill Information available at http://www.oklegislature.gov/BillInfo.aspx?Bill=HJR1026&Session=1400); H.R.J. Res. 1009, 55th Leg., 1st Sess. (Okla. 2015) (bill Information available at http://www.oklegislature.gov/Billlnfo.aspx?Bill=HJR1009&Session=1600).

(14) Heller, 554 U.S. at 634-35.

(15) Id. at 634.

(16) See id. at 595.

(17) Id. at 634.

(18) ALA. CONST, art. 1, [section] 26 (amended 2014).

(19) The right to bear arms already was a fundamental right. See, e.g., McDonald, 561 U.S. at 778 ("[T]he Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.").

(20) ALA. FAIR BALLOT COMM'N, 2013-2014 STATEWIDE CONSTITUTIONAL AMENDMENTS BALLOT STATEMENTS 4 (2014), http://probate.mobilecountyal.gov/pdfs/2013-2014statewideballotstatements.pdf.

(21) Id.

(22) Alabama House Republicans, Alabama Constitution Will Have Strongest Gun Protection Provisions in the Country with Firearms Protection Amendment, http://alhousegop.com/wedaredefend/to-bear-arms/ (last visited Apr. 9, 2017).

(23) NRA Endorses Pro-Gun and Pro-Hunting Statewide Ballot Amendments in Alabama, NAT'L RIFLE ASS'N POL. VICTORY FUND (Sept. 25, 2014), http://www.nrapvf.org/articles/20140925/nra-endorses-pro-gun-and-pro-hunting-statewide-ballot-amendments-in-alabama.

(24) See Tanner v. Tuscaloosa Cty. Comm'n, 594 So. 2d 1207, 1209 (Ala. 1992) ("where the constitutionality of an act of the legislature is questioned, [the courts] must approach our review of the legislation with every presumption and intendment in favor of its validity"); Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, 336 So. 2d 1078, 1082 (Ala. 1976) (there is a "presumption favoring the constitutionality of legislation if any viable construction may be given it"); Johnston v. Alabama Pub. Serv. Comm'n, 252 So. 2d 75, 80 (Ala. 1971) ("courts must indulge all presumptions and intendments in favor of the constitutionality of a statute") (Lawson, J., concurring specially).

(25) Exporte E.R.G., 73 So. 3d 634, 645 (Ala. 2011) (citation omitted).

(26) Blevins v. Chapman, 47 So. 3d 227, 231 (Ala. 2010) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)); Herring v. State, 100 So. 3d 616, 625 (Ala. Crim. App. 2011) ("Under the strict-scrutiny test, a statute must be 'narrowly tailored to serve a compelling state interest,'... and must be 'the least restrictive alternative' available for accomplishing that interest.") (citation omitted).

(27) Entm't Software Ass'n v. Blagojevich, 469 F.3d 641, 646 (7th Cir. 2006) ("Generally, 'a statute is narrowly tailored only if it targets and eliminates no more than the exact source of the "evil" it seeks to remedy.'") (citation omitted); Burson v. Freeman, 504 U.S. 191, 199 (1992) ("To survive strict scrutiny, however, a State must do more than assert a compelling state interest--it must demonstrate that its law is necessary to serve the asserted interest.").

(28) Burson, 504 U.S. at 211.

(29) Indian Rivers Cmty. Health Ctr. v. City of Tuscaloosa, 443 So. 2d 894, 896 (Ala. 1983).

(30) 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319, 333 (Ala. 2010) (quoting Williams v. Pryor, 240 F.3d 944, 948 (11th Cir. 2001)); see generally 16AAM. JUR. 2D Constitutional Law [section] 403 (2017) ("Whenever it is determined that legislation significantly interferes with the exercise of a fundamental right, a court must review the legislation with strict judicial scrutiny, under which the state must demonstrate that the statute serves a compelling state interest, and that the state's objectives could not be achieved by any less restrictive measures.").

(31) 1 Ala. 612, 616(1840).

(32) Id. at 617.

(33) Indian Rivers Cmty. Health Ctr, 443 So. 2d at 896.

(34) Stephen Dethrage, Alabama Legislator Says Amendment Will Protect Gun Rights, but Some Aren't Convinced, AL.COM (Oct. 29, 2014, 12:13 PM) [hereinafter Dethrage, Legislature], http://www.al.com/news/index.ssf/2014/10/rep_mike_jones_defends_gun_rig.html.

(35) See Frederick Vars, Shooting Blanks: Alabama's New Gun Rights Amendment, JURIST (Nov. 21, 2014, 9:47 AM), http://www.jurist.org/forum/2014/ll/fredrick-vars-alabama-gun.php (citing Bristow v. State, 418 So 2d 927, 930 (Ala. Crim. App. 1982) (Bristow held that "[i]t is well within the power of the Legislature to deal with the constitutional right to bear arms in defense of himself, and it is subject to reasonable regulation by the State under its police power.") (emphasis added).

(36) State Right to Bear Arms in Alabama, LAW CTR. TO PREVENT GUN VIOLENCE, http://smartgunlaws.org/state-right-to-bear-arms-in-alabama/ (last updated Nov. 4, 2016).

(37) See id.

(38) See Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) (applying "not quite" strict scrutiny).

(39) Bateman v. Perdue, 881 F. Supp. 2d 709, 715-16 (E.D.N.C. 2012).

(40) Taylor v. City of Baton Rouge, 39 F. Supp. 3d 807, 814 n. 17 (M.D. La. 2014) (citing BATON ROUGE, LA., CODE OF ORDINANCES [section] 13:95.3).

(41) Gowder, 923 F. Supp. 2d at 1124. Gowder also applied Heller's text and history test to invalidate Chicago's ordinance. Id. at 1120 ("Under a text, history, and tradition analysis, the court must assess whether 'a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment--1791 or 1868."') (quoting Ezell, 651 F.3d 684, 702-03).

(42) Fletcher v. Haas, 851 F. Supp. 2d 287, 303 (D. Mass. 2012) ("The Massachusetts firearms regulatory regime, as applied to Fletcher and Pryal, does not pass constitutional muster regardless of whether intermediate scrutiny or strict scrutiny applies.").

(43) 111. Ass'n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928, 939 (N.D. 111. 2014) (noting that "under Ezell's heightened review, which is 'not quite strict scrutiny,' the City bears the burden of establishing a strong public-interest justification for its ban on gun sales and transfers") (quoting Ezell, 651 F.3d at 708). Illinois Association of Firearms Retailers engaged in a limited historical analysis. See id. at 937 ("[T]he City bears the burden of demonstrating that firearms sales and transfers are categorically outside the scope of the Second Amendment as it was understood in 1791.").

(44) Ezell, 651 F.3d at 708 ("All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite 'strict scrutiny.'") (citing United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (noting that "[t]he United States concedes that some form of strong showing ('intermediate scrutiny,' many opinions say) is essential, and that [section] 922(g)(9) is valid only if substantially related to an important governmental objective.").

(45) Cf. Ex parte Tulley, 199 So. 3d 812 (Ala. 2015) (holding that a Jacksonville municipal statute that criminalized the act of carrying a pistol on private property facially violated due-process guarantees). In Tulley, the Alabama Supreme Court did not address the Right to Bear Arms Amendment's requirement of strict scrutiny. It is this author's opinion that the Jacksonville ordinance barring an individual from carrying a pistol on premises not his own most likely would not pass strict scrutiny.

(46) See, e.g., ALA. CONST, art. I, [section] 23 (1819); ALA. CONST, art. I, [section] 23 (1861); ALA. CONST, art. I, [section] 27 (1865); ALA. CONST, art. 1, [section] 28 (1868); ALA. CONST. art. I, [section] 27 (1875).

(47) Cf., THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776) ("Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes").

(48) See infra Section III(B).

(49) Jason Baker, Alabama Statewide Amendment 3 Could Be a Slippery Slope, MONTGOMERY EXAMINER, (Oct. 8, 2014), http://www.examiner.com/article/alabama-statewide-amendment-3-could-be-a-slippery-slope.

(50) Ex parte E.R.G., 73 So. 3d at 645.

(51) Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005).

(52) Ex Parte E.R.G., 73 So. 3d at 645 (emphasis added).

(53) State v. Merritt, 467 S.W.3d 808, 813 (Mo. 2015) (emphasis added).

(54) Heller 554 U.S. at 634.

(55) See Blevins v. Chapman, 47 So. 3d 227, 231 (Ala. 2010); see also Herring v. State, 100 So. 3d 616, 625 (Ala. Crim. App. 2011) ("Under the strict-scrutiny test, a statute must be 'narrowly tailored to serve a compelling state interest,'... and must be 'the least restrictive alternative' available for accomplishing that interest.") (citation omitted); Marbury v. Madison, 5 U.S. 137, 180 (1803) ("Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?").

(56) Grutter v. Bollinger, 539 U.S. 306, 327 (2003).

(57) Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (citing Burson v. Freeman, 504 U.S. 191, 211 (1992)).

(58) United States v. Carter, 669 F.3d 411, 418 (4th Cir. 2012) (citing United States v. Staten, 666 F.3d 154, 160-61, 167-68 (4th Cir. 2011)).

(59) Vars, supra note 35.

(60) See State v. Clay, 481 S.W.3d 531, 538 (Mo. 2016) (holding that "Section 571.070.1 [restricting possession of firearms by nonviolent felons] survived strict scrutiny review under the prior version of article I, section 23 [Missouri Bill of Rights right to bear arms], and this Court already has held that Amendment 5 did not substantially change article I, section 23.").

(61) Vars, supra note 35.

(62) Dethrage, Legislature, supra note 34.

(63) Baker, supra note 49.

(64) State Right to Bear Arms in Alabama, LAW CTR. TO PREVENT GUN VIOLENCE, (Nov. 4, 2016), http://smartgunlaws.org/state-right-to-bear-arms-in-alabama/.

(65) See Dotson v. Kander, 464 S.W.3d 190, 197 (Mo. 2015) (observing that "there is no settled analysis as to how strict scrutiny applies to laws affecting the fundamental right to bear arms, which has historically been interpreted to have accepted limitations.").

(66) See Marbury, 5 U.S. at 177-78 ("It is emphatically the province and duty of the judicial department to say what the law is.... So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.").

(67) Dale v. State, 3 Stew. 387,418 (Ala. 1831).

(68) See, e.g., ALA. CONST, pmbl. (West, Westlaw through Mar. 2016 amendments).

(69) Marbury, 5 U.S. at 178.

(70) Id. at 180 ("It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.").

(71) Jefferson Cnty. v. Braswell, 407 So. 2d 115, 119 (Ala. 1981) ("Each section of the Constitution must necessarily be considered in pari materia with all other sections.").

(72) ALA. CONST, art. I, [section] 36 (West, Westlaw through Mar. 2016 amendments).

(73) In re Dorsey, 7 Port. 293, 359 (Ala. 1838) (noting that "the declaration of rights, as the governing and controlling part of the constitution; and with reference to this, are all its general provisions to be expounded, and their operation extended or restrained").

(74) McGee v. Borum, 341 So. 2d 141, 143, (Ala. 1976).

(75) Dethrage, Legislature, supra note 34.

(76) State Docks Comm'n v. State ex rel. Cummings, 150 So. 345, 346 (Ala. 1933) ("A constitutional provision, as far as possible, should be construed as a whole and in the light of entire instrument and to harmonize with other provisions, that every expression in such a solemn pronouncement of the people is given the important meaning that was intended in such context and such part thereof").

(77) ALA. CONST, art. I, [section] 36 (West, Westlaw through Mar. 2016 amendments).

(78) See State v. Clay, 481 S.W.3d 531, 541 n.8 (Mo. 2016) (in which the defendant, Mr. Clay, argued that Missouri's strict scrutiny amendment "requires a 'robust' strict scrutiny review of any restriction on the right to bear arms because the word 'unalienable' was added to the constitution").

(79) Id.

(80) Ex parte Cranman, 792 So. 2d 392, 401 (Ala. 2000) holding mod. by Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006) (emphasis added).

(81) See, e.g., Ex parte Cranman, 792 So. 2d at 401.

(82) Dethrage, Legislature, supra note 34.

(83) Heller, 554 U.S. at 634-35.

(84) Cf., THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776) ("Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.").

(85) Heller, 554 U.S. at 595.

(86) Id.

(87) M'Culloch v. State, 17 U.S. 316, 407 (1819).

(88) Dale v. State, 3 Stew. 387, 418 (1831) (emphasis added).

(89) McGee, 341 So. 2d at 143.

(90) Id. (citing Wright v. United States, 302 U.S. 583 (1938) and McPherson v. Blacker, 146 U.S. 1 (1892)); see also United States v. Sprague, 282 U.S. 716, 731 (1931) ("The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention in clear there is no room for construction and no excuse for interpolation or addition.").

(91) ALA. CONST, art. I, [section] 26 (1901).

(92) Cf., Heller, 554 U.S. at 577 ("The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.... Logic demands that there be a link between the stated purpose and the command.").

(93) See id. at 581.

(94) Id. at 578 ("[W]hile we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.").

(95) McGee, 341 So. 2d at 143.

(96) Gibbons v. Ogden, 22 U.S. 1, 188 (1824).

(97) Noah Webster's 1828 AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE has been routinely cited by the Supreme Court of the United States for founding-era definitions. See, e.g., Davis v. Washington, 547 U.S. 813, 824 (2006) and Crawford v. Washington, 541 U.S. 36, 51 (2004) (defining "testimony"); Giles v. California, 554 U.S. 353, 360 (2008) (defining "procure"); Michigan v. Bryant, 562 U.S. 344, 353-54 (2011) (defining "witnesses"); Sabri v. United States, 541 U.S. 600, 612 (2004) (defining "plainly") (Thomas, J., concurring in judgment); California v. Hodari D., 499 U.S. 621, 624 (1991) (defining "seizure"); and N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2561 (2014) (defining "recess").

(98) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE "Every" (1828).

(99) Cf., U.S. CONST, amend. XIV, [section] 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.").

(100) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Citizen" (1828).

(101) Heller, 554 U.S. at 602-03 (that Alabama (and six other states) "unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right.").

(102) WEBSTER, supra note 98, at "Every."

(103) Heller, 554 U.S. at 581.

(104) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Right" (1828).

(105) 1 WILLIAM BLACKSTONE COMMENTARIES * 139. Blackstone explained that the right "of having arms for their defence" is "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

(106) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Bear" (1828). Cf., State v. Christian, 274 P.3d 262, 278 (2012) (Edmonds, J, dissenting) ("[T]he words 'to bear' in Article I, section 27, during the period of time surrounding the adoption of the Oregon Constitution, were ordinarily understood to mean '2. To carry; to convey; to support and remove from place to place; as, 'they bear him upon the shoulder'; 'the eagle beareth them on her wings.' '3. To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat.'").

(107) Heller, 554 U.S. at 584 (citing 1 DICTIONARY OF THE ENGLISH LANGUAGE 161 (4th ed.) (reprinted 1978); N. WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) (1989); T. SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1796); and 2 OXFORD ENGLISH DICTIONARY 20 (2d ed. 1989)).

(108) Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting) (quoting BLACK'S LAW DICTIONARY 214 (6th ed. 1990)).

(109) See Heller, 554 U.S. at 584 (quoting Justice Ginsberg's dissent in Muscarello) ("We think that Justice G1NSBURG accurately captured the natural meaning of 'bear arms.'").

(110) Heller, 554 U.S. at 581 ("Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today").

(111) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Arms" (1828).

(112) Id.

(113) Id.

(114) Heller, 554 U.S. at 581 (2008) (citing SAMUEL JOHNSON, 1 DICTIONARY OF THE ENGLISH LANGUAGE 106 (4th ed.) (1773) and TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LEGAL DICTIONARY (1771)).

(115) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Defense" (1828).

(116) Id.

(117) JOHN BOUVIER, A LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA 297-98 (1839) (quoted in Christian, 274 P.3d at 278-79 (Edmonds, J., dissenting).

(118) Commonwealth v. Blanding, 20 Mass. 304, 314 (1825) ("The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.").

(119) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Himself" (1828).

(120) Heller, 554 U.S. at 581.

(121) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "State" (1828).

(122) Id.

(123) Id.

(124) Nunn v. State, 1 Ga. 243, 251 (1846) (Georgia's Supreme Court opined that the Second Amendment right to bear arms is "[t]he right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia.").

(125) Heller, 554 U.S. at 592.

(126) Braswell, 407 So. 2d at 119 ("Each section of the Constitution must necessarily be considered in pari materia with all other sections."). See Dethrage, Legislature, supra note 34 (quoting Eddie Fulmer of BamaCarry, Inc., who recognized that [section] 36 must be construed with [section] 26 and asserted that the Amendment "changes the right to bear arms from one that 'shall forever remain inviolate' to one that can be changed so long as the standards of strict scrutiny are met.").

(127) ALA. CONST, art. 1 [section] 30 (1819). See also, Downs v. City of Birmingham, 198 So. 231,235 (Ala. 1940).

(128) In re Dorsey, 7 port, at 378.

(129) Ex parte Cranman, 792 So. 2d at 401.

(130) 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319, 342 (Ala. 2010).

(131) See THE DECLARATION OF INDEPENDENCE ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."); ALA. CONST, art. 1 [section] 1 ("That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.").

(132) Braswell, 407 So. 2d at 119.

(133) ALA. CONST, pmbl.

(134) In re Dorsey, 7 Port, at 359.

(135) Heller, 554 U.S. at 597-98.

(136) ALA. CONST, art. I, [section] 1.

(137) 1 WILLIAM BLACKSTONE, COMMENTARIES *144.

(138) Id.

(139) Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

(140) Reid, 1 Ala. at 615.

(141) Id. (citing ENGLISH BILL OF RIGHTS OF 1689, 1 W.&M. Sess. 2, c. 2.).

(142) STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 43 (1984) (quoting 22 Car. II c. 25 [section] 3) (In 1670, Parliament under Charles II passed a statute deceptively titled An Act for the Better Preservation of the Game: "That all and every Person and Persons not having Lands and Tenements... of the clear yearly Value of one hundred Pounds per annum... or having Lease or Leases... of the clear yearly Value of one hundred and fifty Pounds, other than the Son and Heir Degree... are hereby declared to be persons by the Laws of this Realm not allowed to keep... any Guns, Bows... or other Engines aforesaid; but shall be and are hereby prohibited to have, keep or use the same.").

(143) Reid, 1 Ala. at 615-16; Aymette v. State, 21 Tenn. 154, 157 (1840) (In 1840, the Supreme Court of Tennessee also tied the English Bill of Rights directly to Charles II's limitations of the right to bear arms, and opined that the English Bill of Rights "does not extend the privilege [to bear arms] beyond the terms provided in the act of Charles II., before referred to.... The law, we have seen, only allowed persons of certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the 2d section of the amendments to the constitution of the United States was incorporated into that instrument.").

(144) Isaiah v. State, 176 Ala. 27, 31-32 (1911) (citing ENGLISH BILL OF RIGHTS OF 1689, 1 W. & M. Sess. 2, c. 2.).

(145) Reid, 1 Ala. at 615.

(146) Isaiah, 176 Ala. at 32.

(147) See Heller, 554 U.S. at 593 ("This right [in the English Bill of Rights] has long been understood to be the predecessor to our Second Amendment.").

(148) City of Mobile v. Stonewall Ins. Co., 53 Ala. 570, 577 (1875) ("A state constitution is always interpreted in the light of the common law, and if it be not the first constitution, in the light of its predecessors. The guaranties for the security of property and of personal liberty, found in the bill of rights, are borrowed chiefly from magna charta, and for their interpretation we look to the common law.").

(149) Clark v. Container Corp. of Am., 589 So. 2d 184, 200 (Ala. 1991).

(150) ALA. CODE [section] 1-3-1; see also, Peery v. Fletcher, 93 Or. 43, 52 (1919) ("It is stated as a general rule that English statutes passed before the emigration of our ancestors, in aid or amendment of the common law, applicable to our condition, and not repugnant to our institutions, constitute a part of our common law.... The common law, as it existed in England at the time of the settlement of the American colonies, has never been in force in all of its provisions in any colony or state of the United States. It has been adopted so far only as its general principles were suited to the habits and conditions of the colonies, and in harmony with the genius, spirit, and objects of American institutions.").

(151) Stonewall Ins. Co., 53 Ala. at 580.

(152) Reid, 1 Ala. at 615. I am indebted to Dr. Herbert W. Titus, of William J. Olson, P.C., Attorneys at Law, for his writings analyzing the wording and text of the English Bill of Rights.

(153) ALA. CONST. Art. I, [section] 26 (emphasis added).

(154) ENGLISH BILL OF RIGHTS OF 1689, 1 W. & M. Sess. 2, c. 2. (emphasis added).

(155) Subject, WEBSTER'S AM. DICTIONARY OF THE ENG. LANGUAGE, (1st ed. 1828). Webster provided this example: "The natives of Great Britain are subjects of the British government. The natives of the United States, and naturalized foreigners, are subjects of the federal government. Men in free governments, are subjects as well as citizens; as citizens, they enjoy rights and franchises; as subjects, they are bound to obey the laws."

(156) NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, "Citizen" (1828).

(157) Heller, 554 U.S. at 593.

(158) Id.

(159) ALA CONST., Art. I, [section] 3 ("That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship.").

(160) May, WEBSTER'S AM. DICTIONARY OF THE ENG. LANGUAGE, (lsted. 1828).

(161) Have, WEBSTER'S AM. DICTIONARY OF THE ENG. LANGUAGE, (1st ed. 1828).

(162) ENGLISH BILL OF RIGHTS OF 1689,1 W.&M. Sess. 2, c. 2.

(163) 1 WILLIAM BLACKSTONE, COMMENTARIES, APPENDIX, NOTE D, [section] 12 (St. George Tucker ed. 1803). ("The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.").

(164) See OFFICIAL PROC. OF THE CONS. CONVENTION OF THE STATE OF ALABAMA 172, 786 (Wetumpka Printing Co. 1940); See also, JOURNAL OF THE PROC. OF THE CONS. CONVENTION OF THE STATE OF ALABAMA 1745-47, 1875, 2258, 4676, 4989(1901).

(165) ENGLISH BILL OF RIGHTS OF 1689, 1 W. & M. Sess. 2, c. 2, [section] VI.

(166) 1 WILLIAM BLACKSTONE, COMMENTARIES *140.

(167) See BENJAMIN THORPE, ANCIENT LAWS AND INSTITUTES OF ENGLAND 20-44 (1840); HAROLD BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 65 (1983) ("The Laws of King Alfred... start with the Ten Commandments and a restatement of the laws of Moses.").

(168) Id. at 23.

(169) 1 JAMES WILSON, THE WORKS OF THE HONORABLE JAMES WILSON 84-85 (1804) (emphasis added) (citing Bacon on Government [section] 49, and 7 Coke's Reports 6).

(170) 1 WILLIAM BLACKSTONE, COMMENTARIES *397.

(171) HALBROOK, supra note 142, at 38.

(172) Hue And Cry, BLACK'S LAW DICTIONARY (10th ed. 2014).

(173) See id. (citing 1 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 294 (7th ed. 1956)).

(174) HALBROOK, supra note 142, at 38-39.

(175) Id. at 39.

(176) Id.

(177) Id. (citing the Statute of Winchester 1285, 13 Edw. c. 6 (Eng.)).

(178) 1 WILLIAM BLACKSTONE, COMMENTARIES *398 (emphasis added).

(179) HALBROOK, supra note 142, at 40-41 (quoting D Balistis no Exercitand 1503, 19 Hen. 7 c. 4 (Eng.)).

(180) Id. (quoting An Act Concerning Shooting in Longe Bowes 1511, 3 Hen. 8 c. 3 (Eng.)).

(181) Id. (quoting Acte Avoiding Shoting in Crosbowes 1514, 6 Hen. 8 c. 13 (Eng.)).

(182) Id.

(183) Id. at 42, (citing An Acte Concerninge Crosbowes and Handguns 1541, 33 Hen. 8 c. 6 (Eng.)).

(184) HALBROOK., supra note 142, at 42.

(185) Id. Interestingly, Henry VIII's repeated efforts at gun control concluded by affirming the ancient right to keep, practice, and bear arms for self-defense and defense of one's home.

(186) Id. at 43 (quoting 13 and 14 Car. II c.3 (1662)).

(187) Id. at 43 (quoting An Act for the Better Preservation of the Game 1670, 22 Car. 2 c. 25 [section]3 (Eng.)).

(188) Id.

(189) Justice Joseph Story noted that, '"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms.'" J. Story, A Familiar Exposition of the Constitution of the United States [section] 450 (1840)), cited in Heller, 554 U.S. at 592, 594, 598, 609.

(191) Noah Webster, An Examination of the Leading Principles of the Federal Constitution (1787) reprinted in 1 The Debate on the Constitution 155 (Bernard Bailyn ed., 1993) (emphasis added).

(192) 1 WILLIAM BLACKSTONE, COMMENTARIES *140. ("[T]O vindicate these rights, when actually violated or attacked, the subjects of England are entitled... lastly to the right of having and using arms for self-preservation and defense. And all these rights and liberties it is our birthright to enjoy entire").

(193) WILLIAM BLACKSTONE, COMMENTARIES (St. George Tucker ed.) (1803) http://www.constitution.org/tb/tldl2000.htm ("True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty").

(194) Heller, 554 U.S. at 592 ("the meaning" of the Second Amendment "is strongly confirmed by the historical background of the Second Amendment.").

(195) Alabama House GOP, We Dare Defend Our Rights, http://alhousegop.com/wedaredefend/(citing HB8, the Alabama Firearms Protection Amendment); see also The Alabama House of Representatives Republican Caucus "We Dare Defend our Rights" 2013 Agenda Summary, http://alhousegop.com/wordpress/wp-content/uploads/downloads/2013/0l/Ve-Dare-Defend-Our-Rights.pdf.

(196) ALA. CONST, art. 1, [section] 26(b) (1901) ("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").

(197) Id.

(198) Alabama House Republicans, supra note 22.

(199) League of Women Voters of Alabama, An Analysis of Constitutional Amendments on Ballots Statewide in the Alabama General Election on November 4, 2014, http://www.lwval.org/learn-vote/amendments2014/.

(200) United Nations Office for Disarmament Affairs, The Arms Trade Treaty, https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/2013/06/English7.pdf.

(201) UNITED NATIONS OFFICE FOR DISARMAMENT AFFAIRS, https://www.un.org/disarmament (last visited April, 14, 2017).

(202) Fred Lucas, Christmas Eve to Deliver U.N. Gun Control Treaty--and It Has Some Pro-Firearm Advocates in the U.S. Worried, ' THE BLAZE (Nov. 14, 2014, 3:06 AM), http://www.theblaze.eom/news/2014/l1/14/christmas-eve-to-deliver-u-n-gun-control-treaty-and-it-has-some-pro-firearm-advocates-in-the-u-s-worried/.

(203) United Nations Office for Disarmament Affairs, ATT Status of Ratifications and Accessions, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/02/ATT-status-table-WebReport-Feb-2017.pdf.

(204) The Arms Trade Treaty art. 2(1), Apr. 2, 2013, 13 U.N.T.S. 27217 (entered into force Dec. 24, 2014).

(205) Id. at art. 3.

(206) Id. at art. 4.

(207) Id. at art. 5(3).

(208) Letter from James Inhofe, U.S. Sen, to President Barak Obama, (Oct. 15, 2013), http://www.inhofe.senate.gov/download/?id=5EB82344-2309-4C35-AA0F-87475036AA34&download=l

(209) Id. at 1.

(210) Id.

(211) United Nations Office for Disarmament Affairs, supra note 200, at 1.

(212) Id. at 2.

(213) Id.

(214) James Inhofe and Jerry Moran, INHOFE AND MORAN: The U.N. Arms Trade Treaty is dead on arrival, WASH. TIMES: OPINION (Sept. 27, 2013), http://www.washingtontimes.com/news/2013/sep/27/inhofe-and-moran-fhe-un-arms-trade-treaty-is-dead-/.

(215) See James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in The Papers of James Madison. (William T. Hutchinson, ed., et al.) (1962-77) ("Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of (the) noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it.").

(216) Id.

(217) Vars, supra note 35.

(218) U.S. CONST, art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.").

(219) ALA. CONST, art. 1, [section] 26(b) (1901) (emphasis added) ("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.").

(220) See generally U.S. CONST, art. II, [section] 2, cl. 2 ("He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur"); LEAGUE OF WOMEN VOTERS OF ALA., AN ANALYSIS OF CONSTITUTIONAL AMENDMENTS ON BALLOTS STATEWIDE IN THE ALABAMA GENERAL ELECTION ON NOVEMBER 4, 2014 (2014), http://www.lwval.org/amendments2014/LWVALEF-Amendments-Analysis-2014.pdf (reporting that "Republican legislators also express concern that with the lack a [sic] of the necessary 2/3 Senate majority in support of ratification of ATT, the President might attempt to implement through executive order.").

(221) Memorandum from President Barack Obama to the Senate of the U.S. (Dec. 9, 2016) https://obamawhitehouse.archives.gov/the-press-office/2016/12/09/message-senate-arms-trade-treaty.

(222) Dethrage, Legislature, supra note 34.

(223) Id.

(224) Id.

(225) Id.

(226) Id.

(221) Id.

(228) Reid, 1 Ala. at 612.

(229) Hyde v. City of Birmingham, 392 So. 2d 1226, 1228 (Ala. Crim. App. 1980).

(230) Reid, 1 Ala. at 612. Sheriff Reid was convicted under the first section of the act "to suppress the evil practice of carrying weapons secretly, [Alabama Acts of 1838-39]", which provided "that if any person shall carry concealed about his person, any species of fire arms, or any Bowie knife, Arkansaw tooth pick, or any other knife of the like kind, dirk, or any other deadly weapon, the person so offending, shall on conviction thereof, before any court having competent jurisdiction, pay a fine not less than fifty nor more than five hundred dollars, to be assessed by the jury trying the case; and be imprisoned for a term not exceeding three months, at the discretion of the judge of said court." Id. at 614.

(231) Id. at 612.

(232) Id. at 612-13.

(233) Id.

(234) Id. at 614-15.

(235) Id. at 617.

(236) Reid, 1 Ala. at 621.

(237) Id. at 622. The average citizen's respect for the average law enforcement official's official authority must have been a bit higher than today.

(238) Id.

(239) Peruta v. Cty. of San Diego, 742 F.3d 1144, 1156 (9th Cir 2014), on reh'g en banc, 824 F3d 919 (9th Cir. 2016) (noting that Bliss is "especially significant both because it is nearest in time to the founding era and because the state court assumed (just as [Heller] does) that the constitutional provision... codified a preexisting right.") (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1360 (2009)).

(240) Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (Ky. 1822).

(241) Bliss, 12 Ky. (2 Litt.) at 90 (citing KY. CONST, art. 10, [section] 23.).

(242) ALA CONST, art. I, [section] 30 (1819) (amended 1865) ("This enumeration of certain rights shall not be construed to deny or disparage others retained by the people: and, to guard against any encroachments on the rights herein retained, or any transgression of any of the high powers herein delegated, we declare, that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or to the following provisions, shall be void.").

(243) Bliss, 12 Ky. (2 Litt.) at 91, (quoting KY. CONST, art. 10, [section] 28).

(244) Id. at 91.

(245) Id. at 91-92.

(246) Id. at 93.

(247) Reid, 1 Ala at 619.

(248) See id. at 620. The Reid court felt it appropriate "[w]ithout further noticing the case of Bliss v. Commonwealth, it may be proper to remark, that it received the assent of but two of the judges of the court of appeals, while it was dissented from by the third."

(249) In 1909, Associate Justice Simpson provided a helpful definition, and opined that the right to bear arms applies to the defense of one's property: "[o]ur Constitution guarantees to every one the right to bear arms in defense of person or property." Though helpful, Simpson's explanation does not adequately define the full contours of the right to bear arms. Eidge v. City of Bessemer, 51 So. 246, 254 (1909) (Simpson, J., dissenting).

(250) This lack of adequate legal definitions has cropped up in other areas of law. See, e.g., Glassroth v. Moore, 229 F. Supp. 2d 1290, 1314 (M.D. Ala. 2002) (where Judge Myron Thompson opined that "the court lacks the expertise to formulate its own definition of religion for First Amendment purposes. Therefore, because the court cannot agree with the Chief Justice [Roy Moore]'s definition of religion and cannot formulate its own, it must refuse the Chief Justice's invitation to define 'religion.'").

(251) Reid, 1 Ala at 616. Thirty-five years later, the Supreme Court tersely stated, "[i]t is a legal, constitutional right to bear arms." Miller v. State, 54 Ala. 155, 157 (1875).

(252) Hyde, 392 So. 2d at 1228.

(253) Identifying something does not necessarily define the thing, e.g., A=A does not tell us what A is.

(254) Of course, individuals may exercise the right to bear arms for non-defensive purposes, i.e., target practice, competitive shooting sports, hunting, reenactments, etc., which, like the right of free speech, may be done at specific, chosen times and places.

(255) See, e.g., Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 STAN L. REV. 199, 232 (2009).

(256) To be fair, Reid attempted to install hypothetical brakes on the authority of the Legislature over the right: "We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional." Reid, 1 Ala at 616-17. Likewise, in Owen v. State, an 1858 case, the Alabama Supreme Court described "[t]he right, guarantied by the constitution to every citizen, 'to bear arms in defense of himself and the State,'" and, citing Reid, indicated that the right would be destroyed if a law required "[arms] to be so borne, as to render them useless for the purpose of defense." 31 Ala. 387, 388 (1858). However, hypothetical brakes on destructive future regulations does not define the right to bear arms.

(257) Isaiah, 176 Ala. at 36.

(258) See, e.g., supra Part IL, [section][section] D.-E. (arguing that the right to bear arms advances other constitutional objectives under the preamble to the Constitution of Alabama and [section] 1 of the Declaration of Rights).

(259) Braswell, 407 So. 2d at 119 ("Each section of the Constitution must necessarily be considered in pari materia with all other sections.").

(260) See supra, Part II., [section][section] D.-E.

(261) Reid, 1 Ala. at 616.

(262) Isaiah, 176 Ala. at 34.

(263) Id. at 32.

(264) Reid, 1 Ala. at 616 (emphasis added).

(265) Isaiah, 176 Ala. at 34, 36-37.

(266) Jackson v. State, 68 So. 2d 850, 852 (Ala. Ct. App. 1953); accord. Hyde, 392 So. 2d at 1227.

(267) Mason v. State, 103 So. 2d 337, 341 (Ala. Ct. App. 1956) aff'd, 103 So. 2d 341 (Ala. 1958) abrogated by State ex rel. Sokira v. Burr, 580 So. 2d 1340 (Ala. 1991).

(268) Tulley v. City of Jacksonville, 199 So.3d 779, 801 (2014) (citing Ott v. Moody, 216 So.2d 177 (1968); Smith v. Town of Notasulga, 59 So.2d 674 (1952)).

(269) Marbury, 5 U.S. at 176-77.

(270) Id. at 177 ("The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.").

(271) If Alabama's judges were doctors and the right to bear arms was the patient, the patient definitely has not shown much improvement; in fact, the patient has suffered much mistreatment. Cf. Mark 5:25-28 (King James) ("And a certain woman, which had an issue of blood twelve years, and had suffered many things of many physicians, and had spent all that she had, and was nothing bettered, but rather grew worse. When she had heard of Jesus, came in the press behind, and touched his garment. For she said, If I may touch but his clothes, I shall be whole.").

(272) ALA. CONST, art. XVI, [section] 279 (requiring all judicial officers to take this oath: "I,..., solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.")

(273) JON R. STONE, THE ROUTLEDGE DICTIONARY OF LATIN QUOTATIONS: THE ILLITERATI'S GUIDE TO LATIN MAXIMS, MOTTOES, PROVERBS, AND SAYINGS 294 (2005) (Cicero: "O praeclarum custodem ovium, lupum! ("O what an excellent protector of sheep, the wolf!")).

(274) Heller, 554 U.S. at 634.

(275) Id.

(276) Alabama House Republicans, supra note 22.

(277) Cf. Genesis 25:29-34 (King James).

(278) Cf. J.R.R. TOLKIEN, THE LORD OF THE RINGS 170 (2004) ("All that is gold does not glitter, Not all those who wander are lost; The old that is strong does not wither, Deep roots are not reached by the frost. From the ashes a fire shall be woken, A light from the shadows shall spring; Renewed shall be blade that was broken, The crownless again shall be king").

(279) Amy Hetzner, Where Angels Tread: Gun-Free School Zone Laws and an Individual Right to Bear Arms, 95 MARQ. L. REV. 359, 380 (2011).

(280) See, e.g., McDonald, 561 U.S. at 914, 916 (Breyer, J., dissenting) ("scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.... My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well--above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decision-making process.").

(281) G.K. CHESTERTON, WHAT'S WRONG WITH THE WORLD 48 (1942).

(282) Marbury, 5 U.S. at 179-80 ("the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support? The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?")

(283) Cf. Jeremiah 6:16 (King James) ("Thus saith the Lord, Stand ye in the ways, and see, and ask for the old paths, where is the good way, and walk therein, and ye shall find rest for your souls. But they said, We will not walk therein.").
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