JURIST Guest Columnist Fredrick Vars, of the University of Alabama School of Law, discusses the new Alabama Gun Control Law and argues that the state’s gun regulations will be largely unaffected by the new constitutional amendment…

Alabama voters, on November 4, overwhelmingly approved a state constitutional amendment providing that:

every citizen has a fundamental right to bear arms and that any restriction on this right would be subject to strict scrutiny; and to provide that no international treaty or law shall prohibit, limit, or otherwise interfere with a citizen’s fundamental right to bear arms.

This supplanted a prior state constitutional amendment stating “every citizen has the right to bear arms in defense of himself and the state.” What will be the effect of the new amendment?

Most of the important gun laws in Alabama are federal. The state constitution has no effect on federal law. The Supremacy Clause of the US Constitution dictates that result. For the same reason, the new Alabama amendment’s assertion that treaties may not henceforth limit the right to bear arms is mistaken. Treaties trump state law, even state constitutional law.

On the other hand the Alabama Constitution can certainly circumscribe the Alabama legislature’s power. Notwithstanding the political leanings of the state, Alabama currently regulates guns in at least three significant ways: (1) prohibiting possession by certain types of people; (2) requiring a permit for carrying a concealed weapon; and (3) prohibiting gun possession in certain places. Can these regulations survive in light of the new amendment?

Prohibiting Possession by Certain Types of People

The primary group of people prohibited under Alabama law from possessing a pistol consists of anyone previously convicted of a crime of violence. Before the new amendment, Alabama courts rejected the argument that this provision violated the state constitutional right to bear arms. As the Court of Criminal Appeals of Alabama stated in Bristow v. State, the rationale was that the right to bear arms was subject to reasonable regulation and this regulation was reasonable.

The new amendment replaces “reasonableness” review with “strict scrutiny.” To meet strict scrutiny, a law must infringe a constitutional right “only to the extent necessary to protect a compelling state interest and must do so in a narrowly tailored way, using the least restrictive means,” as the Supreme Court of Alabama discusses in Ex parte E.R.G. Preventing gun violence is obviously a compelling government interest, so the ban on pistol possession by violent criminals is constitutional if it is narrowly tailored to advance that goal.

Federal case law suggests that it is. Gun possession by individuals previously convicted of “a misdemeanor crime of domestic violence” is prohibited by federal statute. The US Court for the District of Utah held in United States v. Engstrum that this prohibition was narrowly tailored to the compelling government interest in keeping firearms out of the hands of individuals who pose a risk of violence. To be sure, Alabama’s prohibition goes beyond domestic violence, but it finds ample support in statistics (PDF) showing that about one third (33.1%) of violent offenders are rearrested on a violent charge within five years of release from state prison. Thus Alabama’s key person-based restriction will pass strict scrutiny.

Restrictions on Concealed Weapons

Carrying a concealed firearm in Alabama without a permit is illegal. Is carrying a concealed firearm part of the right to bear arms in Alabama? Before the new amendment, the answer was no, as the Supreme Court of Alabama held in State v. Reid:

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.

The Alabama Supreme Court reasoned that concealed, as opposed to openly carried, firearms were not needed to defend oneself and the State.

The new amendment however protects the “right to bear arms” without any connection to self-defense or defense of the state. One might conclude that whether a manner of carrying firearms advances a defensive purpose no longer matters. A potential implication might be that concealed-carry is now protected even though open-carry has greater protective value. But the new amendment retains the word “bear” and the courts from other jurisdictions have concluded that the right to bear arms does not include the right to conceal arms. An example thereof is the North Carolina Court of Appeals’ decision in Kelly v. Riley.

That view is not unanimous, so it may be necessary to examine further Alabama’s restrictions on concealed-carry. Sheriffs have discretion under the law to deny a concealed-weapon permit if they have “a reasonable suspicion that the person may use a weapon unlawfully or in such other manner that would endanger the person’s self or others.” Significantly more stringent restrictions on concealed weapons have generally been upheld against challenges under the federal constitution, but these cases (for example Kachalsky v. County of Westchester) did not apply strict scrutiny. It is therefore unclear how Alabama’s law would fare under strict scrutiny. The restriction serves basically the same purpose as the violent-criminal prohibition: keeping concealed firearms out of the hands of risky individuals. The issue is whether a sheriff’s suspicions are narrowly tailored to that goal. In other words, can sheriffs reliably enough identify high-risk individuals?

Search and seizure case law provides a close analogy. The US Constitution permits law enforcement officers to stop and frisk individuals—thus infringing a fundamental right to be secure in their persons—upon reasonable suspicion of dangerousness, as the US Supreme Court held in Terry v. Ohio. If sheriffs can uncover firearms after the fact upon reasonable suspicion, that should be enough to justify preventing concealment up front. The problem with this analogy is that one’s rights are violated only by “unreasonable” searches and, as explained above, the new Alabama amendment expressly disavows a reasonableness standard.

Parade permits are another analogy. Because parades are constitutionally protected speech, a permitting regime must not delegate overly broad discretion to government officials and restrictions must be narrowly tailored according to US Supreme Court’s decision in Forsyth County, Georgia v. Nationalist Movement. Ordinances that give law enforcement the discretion to deny permits based on perceived danger alone are typically struck down, but denials based on a “reasonable belief” of “imminent danger” are allowed as the US Court of Appeals for the Fourth Circuit held in Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. Stuart. This suggests that adding an “imminence” requirement to the existing Alabama concealed-carry statute could satisfy strict scrutiny.

Restrictions on Where Firearms Can be Carried

A private citizen generally may not possess a firearm in certain places, including police stations, prisons, courthouses and inpatient psychiatric facilities. Such restrictions have to my knowledge never been reviewed under strict scrutiny, but it is hard to envision an Alabama court overturning them. The need for safety in these locations is surely compelling and disallowing guns would seem narrowly tailored to that end. Place-based restrictions will be unaffected by the new amendment.

The bottom line is that Alabama’s gun regulations will be mainly unaffected by the new constitutional amendment. The reason is simple: Alabama’s current gun laws are already relatively permissive. The real effect of the amendment, if any, will be forward-looking: making it more difficult to adopt restrictive gun measures in the future. That was going to be tough in Alabama well before the adoption of this new amendment.

Professor Vars is a Professor at the University of Alabama School of Law where he teaches Property, Decedents’ Estates and Mental Health Law. His research interests include mental health and empirical analysis of law. He has previously published articles on gun laws in the Wake Forest and Connecticut Law Reviews.

Suggested citation: Fredrick Vars, Shooting Blanks: Alabama’s New Gun Rights Amendment, JURIST – Academic Commentary, Nov. 21, 2014, http://jurist.org/academic/2014/11/fredrick-vars-alabama-gun.php.