Would a proposed individual right to bear arms prevent Maine from reasonably regulating weapons?

Plain-English summary

The Maine Attorney General tentatively concluded that proposed amendments creating an individual right to bear arms would probably not invalidate weapons regulations reasonably related to public health, safety, and welfare.

One proposal removed the existing reference to the common defense. Another used the undefined phrase common good. The opinion cautioned that predicting judicial interpretation of language not yet enacted was necessarily uncertain.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical audience context

Legislators

The opinion said an individual-right provision would still likely allow reasonable use of the police power to regulate firearms. It recommended a clear legislative history for future courts.

Voters and firearms owners

The proposed language could broaden the constitutional right from a collective militia-based right to an individual right, but the exact boundaries were uncertain.

Public-safety officials

Existing decisions from other states generally upheld reasonable firearms regulations even under individual-right provisions.

Common questions

Q: Did the AG guarantee that every existing weapons law would survive? A: No. The opinion was tentative and addressed reasonable regulation in general, not every statute.

Q: What was unclear about the common-good proposal? A: No existing state constitutional arms provision used that phrase, so its legal meaning was difficult to predict.

Background and statutory framework

Article I, Section 16 of the Maine Constitution then protected keeping and bearing arms for the common defense. The opinion discussed State v. Friel, Landers v. State, and Kalodinos v. Village of Morton Grove when comparing collective and individual rights and the continuing police power.

Citations and references

• Article I, Section 16 of the Maine Constitution
• State v. Friel
• Landers v. State
• Kalodinos v. Village of Morton Grove

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1987/ag_19870508.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

1~~ ~
..... ··-;;,
~

87-6
JAMES E. TIERNEY
ATTORNEY GENERAL

C
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGl'.STA, MAINE 04333

May 8, 1987

Honorable John L. Martin
Speaker of the House
State House Station #6
Augusta, Maine 04333
Dear Speaker Martin:
You have inquired into the extent to which the adoption of either of two proposed amendments to Article I, Section 16 of the Maine Constitution would affect the power of the Legislature to regulate the use of weapons in Maine. Since ( such a question involves predicting how the Supreme Judicial Court of Maine will interpret a constitutional provision which has yet to be enacted, any response is necessarily tentative.
Nonetheless, on the basis of decisions of other state courts of last resort interpreting similar provisions, it is the opinion of this Department that future judicial review would not result in invalidation of legislation reasonably related to the protection of the public health, safety and welfare.
Article I, Seeton 16 at present provides:
Every citizen has a right to keep and bear arms for the common defense, and this right shall never be questioned.
Last year, the Supreme Judicial Court held that this prov1s1on, like its counterpart in Massachusetts,!/ does not confer an individual right to bear arms, but is limited to insuring the collective right of all citizens of Maine to maintain an

!/ Massachusetts Constitution, Article I, Section 17. See Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).
 -2- organized militia. State v. Friel, 508 A.2d 123, 125-26 (Me.
( 1986).~/ Maine thus falls within a group of nine states (Alaska, Arkansas, Hawaii, Maine, Massachusetts, North Carolina, South Carolina, Tennessee, Virginia) whose constitutions appear to provide only for a collective right to bear arms. Nine other states have no provision for a right to bear arms at all. Five states (Georgia, Idaho, Illinois, Louisiana and Rhode Island) provide for an individual right to bear arms unrestricted as to purpose, while the remaining twenty-seven states limit such a right to various forms of defense of persons or property, as well as providing a collective right to bear arms for the common defense.~/ The proposed amendment to the Maine Constitution about which you inquire is contained in Legislative Document 651 and would simply strike the reference to the common defense in Article I, Seeton 16 (as well as the phrase "and this right shall never be questioned"), The enactment of such an amendment would therefore move Maine into the category of states which guarantee an individual right to bear arms without limitation as to purpose. The alternative amendment about which you inquire would substitute for the phrase "common defense" the phrase "common good," a concept not found in any existing state constitutional provision concerning the right to bear arms. It is therefore difficult to state how the clause might be interpreted if this particular language were adopted.!/
(

~/ The Court also reiterated the well established principle that the Second Amendment to the United States Constitution, also dealing with the right to bear arms, applies only to the United States Congress and not to the states. Id. at 125, citing, inter alia, Miller v. Texas, 153 U.S. 535 (1894).
~/ The text of the forty-one state constitutional provisions concerning a right to bear arms are attached as an appendix to this Opinion.
!/ On the face of it, the incorporation of the concept of the "common good" is ambiguous. The phrase is quite similar to that of the "common defense," since both require some kind of common, as opposed to individual, justification in order for a person to come within the constitutional right to bear arms.
If the intention of introducing such a concept is, however, to guarantee some freedom of legislative action as well as to establish an individual right to bear arms, perhaps the proposed amendment could be reworded along the lines of one of the existing state constitutional provisions to more clearly achieve that result. For example, see the Illinois provision ("Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." -3-
But regardless of how an amended Article I, Section 16 should be categorized, it is likely that the elimination of the collective restriction to the right to bear arms in Maine would not be held to invalidate existing laws relating to the possession and use of weapons. Even in those states where an individual right to bear arms is declared, and is not limited to some notion of defense of person or property, the courts have been very reluctant to strike down reasonable statutes enacted pursuant to the police power concering firearms. See Landers v. State, 299 S.E.2d 707, 709-10 (Ga. 1983); State v.
Grob, 690 P.ld 951 (Idaho App. 1984); Kalodinos v. Village of Morton Grove, 470 N.E.2d 266, 269-273 (Ill. 1984); State v.
Amos, 343 So.2d 166 (La. 1977); State v. Storms, 308 A.2d 463, 464 (R.I. 1973). See generally Note, The Individual Right to Bear Arms: An Illusory Public Pacifier?, 1986 Utah L. Rev. 751 (1986); Note, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. Chi. L.
Rev. 185 (1970). Indeed, courts have been very reluctant to strike down such laws under any constitutional provision whatever. As of 1966, for example, only two courts since the beginning of the century had done so. Note, The Philadelphia Firearms Ordinance - A Case of Comprehensive Oversight, 114 u.
Pa. L. Rev. 550, 553, n. 27 (1966), cited with approval in Commonwealth v. Davis, supra note 1 at 849, n. 5. It seems clear, therefore, that the creation of a provision guaranteeing an individual (as opposed to collective) constitutional right to bear arms would not be found to negate legislative authority ( to reasonably regulate firearms.
This is not to say, however, that the precise constitutional parameters of such a new right would be clear.
It would therefore be wise for the Legislature to develop an extensive legislative history concerning its intention in passing a constitutional amendment, to which the Courts will give legal cognizance, Opinion of the Justices, 142 Me. 409, 415-16 (1947); Kalodimos v. Village of Morton Grove, supra. In anticipation of circumstances where the courts will be obliged to interpret the new constitutional amendment and apply it to a new statutory provision, the legislative intent should now be made as clear as possible.

~/ The cases were In re Brickery, 70 Pac. 609 (Idaho 1902) and People v. Zerillo, 189 N.W. 927 (Mich. 1922).
.,•,
-4-
I hope the foregoing is a helpful response to your inquiry. Please feel free to reinquire if further assistance C is necessary. ely,

T-----
T IE RNEY
General
JET/ec
Enc. cc: Sen. John L. Tuttle, Jr.
Rep. Donnell P. Carroll
Co-Chairpersons, Joint Standing Committee on State and Local Government
Sen. Charles P. Pray
Rep. Thomas A. Duffy
Rep. Richard P. Ruhlin
Co-sponsors, Legislative Document 651

(
 c··.. · .•
. ..
(
\ STATE OONSTJTOTJONAL GUARANTEES 00
·-.:/
THE RIGHT TO KEEP AND BEAR ARMS
Forty-one (41) ·states have constitutional guarantees on the
right to keep and bear arms~
·
Alabama:· That every citizen has a right to bear arms In defense of himself and the state. Article I, Section 26 • . Alaska: A well-regulated militia being necessary to the security of a free state, the right of the people to keep and beir arms shall not be Infringed. Article I~ Section 19.
. Arizona: The right of the Individual citizen to bear arms l·n defense of himself or the State shall not be Impaired, but .n·othing in t.his ·section shall be construed as authorizing individuals or corporations to ~rganize, maintain, or employ an •. armed body o~ men. Article 2, Section 26.
Arkansas: The citizens of this State shall h~ve the right to keep and bear arms for their corrmon defense. Article II, Section 5.
. Colorado: The right of no person to keep and bear arms In defense of. his ho~e,. person and property, ·or In aid of the civil power wh_en .thereto legally surrmoned, s~all be called in question; but nothirig berein ~ontained ·shall be construed to justify the ·pr~ctice or:car~ylng concealed weapons. Article II, Section 13.
. Connecticut: Every citizen has a right to bear arms in difense of himself and the state. Article I, Section 15.
Florida: The right of _the people to keep and bear arms in defense or·. themselves· and of the 1awf'-:11 authority of the state shall not be infringed, except· that the manner of bearing arms may be regulated by law. Article I, Section 8 • . Georgia: The right of the people to keep and bear arms, shall not b~ Infringed, ~ut the General Assembly shall have the power to p~escribe the mariner in which arms may be.borne.
Article I, Section I, para. VIII.
. Hawaii: A well regulated militia being necessary to the sectirlty of a free state, the· rlg~t of the p~ople to keep and bear -~~s shalf not b~ Infringed.· Article I, Section 15.
. ldaho: The people have the-right to-keep and bear arms, which right shall not be abridged; but this provision shall not prevent ttie passage ·or laws to ·govern the carrying of weapons concealed on·the person, nor prevent passage of legislation P.ro.v I dlilg ml n lmum ien tences for CJ' Imes corrml t t ed wh 11 e l n possession ~fa flr~arm, nor ~revent passage of legislation ~ ptovJdln1 penalties for the pos~esslon of firearms by a convicted .. , ... . "' ........

feion, ~oi prevent the passage of leglslatio~ punishing the use
(
of a firearm. ··No Jaw shall impose llcensure, registration or
sp_eclal taxation on the. ownershi'p or possession of firearms or . arrrn1.:1nltlon. Nor shall a·ny law permit the confiscation of firearms, except those actually used in the corrmission of a .felony. Artl~le I, Section 11.
·llllnofs:··.~ubject only to the police power, the right of the 'Individual cltlz~n to keep and bear arms shall not be Infringed. A~ticle I, Section 22 •
. ; · Indiana: The people shall have a right to bear arms, for the defense of themse)ves and the State. Article I, Section 32 • . . Kansas: The people have the right to bear arms for their ~er•nse and se~urlty; but standing armies, In time of peace, are d~ngerout to liberty~ and shall not be tolerated, and the militar~ shall be In strict subordination to the civil power.
K~~sas Bill of Rights, Section 4 •
.Kentucky:. A~l men are, by nature, free and equal, and have ·certain inherent and'inalienable rights, among which may be ·reckon~d: ••• 7~ The· right to b~ar arms. in defense of themselves a:nd of the $tate, subject-to the power of the general assembly to enact lais to pr~vent.~ersons from carr~lng concealed weapons.
K~ntuc_ky
. ,
Bill
.
·of
.
Rights, Section I, para. 'l.
(
... .
,
. ..· ·,. .
.
.

_ ·•·i.•tout'~rana: The right of each citizen to keep and bear arms shall not b~ abridged, but this provision shall not prevent the p•ssage of laws to prohibit the carrying of weapons concealed on th~ person. Article I, Section 11.
Maine: Every citizen has a right to keep and bear arms for the comnon defense; and thi.s right shall never be questioned.
Article I, Section 16.
Massachusetts:· The people have a right to keep and bear :arms for the conmon defense. And as, In times of peace, armies ·ate dangetous to liberty, they ought not to be maintained without ··1~~ consent of the legislature; and the military power shall always be held··1n an exact ~~bordinatlon to the civi• authority, and be governed by It. Massa~husetts Declaration of Rights, Part I, Article XVII. .
. .

Michigan:·;. Every person has. a right to keep and bear arms fbr ·the defens~ of hlmselt and the state. Article I, Se~tlon 6.
. Mississippi a The rfeht of every citizen to keep and bear I
•r~• In defense of. hi• home, person, or property, or In aid of ·the c_lvll p9.wer ·where· thereto legally aunrnoned, shall not be called ln_questlon, but the legislature may regulate or forbid· .. carrying concealed ~eapons. Article 3, Section 12.
C
_- Ml_ssourla···Thatthe right of every citizen to keep and bear:

......
· arms In defense of his home, person and property, or when
lawfully surrmoned. In ·aid of the civil power, shall not be
. qu~stloned; b~t this shall not justify the wearing of concealed weapotis. Article I, Section 23.
Moniani: The right of any person to keep or bear arms in def~nse of his owti home, person, and property, or in aid of the civil power w.hen thereto legally surrrnoned, shall not be called in questlon, bu~ nothing he~eln contained ~hall be held to permit the carrying of concealed weapons. Article II, Section 12. · Nevada: Every cltizen.~as the right to keep and bear arms .tot security and defense, for lawful h~~tlng and recreational use and for other lawful purposes. Art. 1, Section II, para. 1.
. New Hampshire: All persons have the right to keep and bear
~rms in defense ~f themselves, their families, their property,
·and the state. Part First, Art. 2-a.
New Mexico: No law shill ~bridge the right of the citizen to keep and bear arms for security and defense, for lawful · hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carryint of concealed ·weapons. No mun i ~ipali ty or county sha 11 regulate, in any way, _an· Incident of the right to keep and bear arms. Article II, Section 6 • . . · North Carolina: !a- well regulated militia being necessary to the •~curity of a·fr~e State, the right of the people to keep and bear arms shall. not be lnfringed; and, as standing armies in time ~f ~ea~e ~re:dangero~s ·t6 liberty, .~hey shall not be maintained, and lhe militat~ shall be k~pt ~nder strict subordination to, and governed ·byl the civil po~er. Nothing herein shall justify the piactice ~f carrying ·coricealed weapons~ or prevent the General Assembly from ·enacting penal statutes against that practice. Article I, Section 30.
North Dakota: All Individuals are by nature equally free and lndependent·and have certain inalienable rights, among whi.ch are••.• to keep and bear arms for th~ defense of their person, family, p·roperty, .'-nd the state, and· for lawful hunting, recteatn~l~ and other lawful pur~~se~, which shall not be ]~fringed.·
.. .
Article
.
I, Section 1.
........ • -:ohfo:. · The p_~ople ~ave the right to bear arms for their defeijse·•~d se6urlty; but·s~andlng armies, In time of peace, are
· dang~rous to ll~~rty, . ~nd sh~l~ tiot be kept up; and t~e military shall· be ln strict ·-ubordlnation to the civil power. Article I, Section 4·. · . Oklahoma: The right of a cl tlzen to keep and bear arms In .· defense of )~Is home, person, or property, or .In aid of the clvl 1 po_wer ·when thereunto 1.egally surrmoned, shall never be prohl~lted; but ~othlng hereln contained shall prevent the ' ' :.

Leg I s 1 a tu re fr om r_ e g u 1 a t I ng the ca r r y l n g of weapon s • Ar ti c 1 e 2 , Section
. . 26.
Or~gon: The people shall have the right to bear arms for tb~ defence of themselves, and the State, but the Military shall be kept In strict subordination to the civil power. Article I, Section 2'1. ·

· . Pennsylvania: Tbe right of the citizens to bear arms in defence of themselves and the State shall not be questioned.
Article I, Section 21.
, Rhode l~land1 The right of the people to keep and bear arms shall not be infringed. Article I, Section 22.
, South Carolina: A well regulated militia being necessary to the security of _a free State, the right of the people to ke~p and bear arm• shall not b~ infringed. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of" ·ihe ·oeneral Assembly. The military power of the State shall ~1~ay$ ~e held in subordination to the. civil authority.and be governed by it. No soldier shall in time of peace be quartete4 In iny house w1thout the consent of the owner nor in.time of war ·but in the manner prescribed by law. Article I,. Section 20.
(
....

~:·~I- Soiith Dakota·:
The right of the citizens to bear arms ln deferise of themselves and the s~ate shall not be denied. Article VI, Section 24.

• Tennessee: That the citizens of this State have a right to keep a_nd to bear arms tor their common defense; but the Legislature shall have. power, by law, to regulate the wearing of arms with a view to pre~ent crime. Article I, Section 26.
  Texas: Every citizen shall have the right to keep and bear arms In the lawftil defence ot himself or -the State; but the Le&lslature ihall have power, by law, to regulate the wearing of arms, with a view to prevent crime. Article I, Section 23.
  Utah: The individual right of the people to keep and bear •r.rns for security·and defense of self, family, others, property, ~r the State, as ~ell as f~r. the o,het lawful purposes shall not -b~ Infringed; but,nothlng h~reln ~hall prevent the legislature from defining the lawful use of_arrils. Article I, Section 6 •

., . .. . _ Vermont. .That the- people have a r l;ht to bear arm■ for the detenae of lh•m••Jv•• •~i th• ltat• ••and•• ■ tandlng armle ■ In t lrne of ·peace· are .dangerous to liberty, .they ought not to be kept u~i and th~t the military should be kept under strict· subordination to and govern·ed by the civil ·power. Chapter I, .•
Article 16. . ·
.:. _ :..,.·d·•--:-· Virgin las ... That. a well-:· regulated militia, composed of the
... ,..
 body of the people, trained to arms, ls the proper, natural, and safe defense ol a free state, therefore, the right of the people · to keep and bear- ar,ns shall not be i_nfringed; that standing armies, In time of peace, should be avoided as dangerous to liberty; and that in all cases ·the military should be under strict subordination to, and governed by, the civil power.
· Article I, Section 13.
Washington: The right of the Individual citizen to bear _arms ln defens~ of himself, or the state, shall not be impaired, but nothing l_n Jhls ·section ~hall be cdnstrued as authorizing lndivldua1s·6~ corporations to organize, maintain, or employ an armed body of men. Article I, Section 24.
West Virginia: A person has the right to keep and bear arms for ··the defense of self, family, home, and state, and for lawful hu~tjng aid recreational use. Article III, Section 22 • •
Wyoming: The right of citizens to bear arms in defense of themselves and of the state shall not be denied. Article I, Section 24.
; STATES WITHOUT OONSTITUTIONAL PROVISIONS:
Nine (9). states ~o not have a con~titutlonal provision on I arms: California, Delaware, Iowa, Maryland, Minnesota, Nebraska, New Jersey, New York, and Wisconsin.

_,,,