Barbara Mahoney [FNaa1]

The prevailing view of courts and scholars alike is that because the federal government is a government of limited and enumerated powers, state governments have plenary powers subject only to those restrictions set forth in the federal and state constitutions. [FN1] This presumption gives rise to a theory of constitutional interpretation vesting virtually unlimited power in the state government, subject only to constitutional limitations expressly stated. [FN2] Yet, virtually every state in the Union has a constitutional provision memorializing the fact that "all just authority in the institutions of political society is derived from the people, and established with their consent." [FN3]

We posit here the unorthodox view that the people have retained all powers of government except those expressly relinquished by the ratification of their respective state and federal constitutions. *270[ FN4] As set forth below, state constitutions prescribe the nature and limits of the people's consent to be governed. They are contracts between the people and their state government, delegating limited authority to exercise certain powers not otherwise retained by the people. To the extent a state government exercises its power to undertake activities beyond those necessary to protect and maintain individual rights, [FN5] courts must look for specific manifestations of the people's consent that evidence constitutional grants of that authority. But, where a legislature acts without express or necessarily implied authorization of the constitution, it exceeds its authority--even if there is no constitutional provision barring such actions. [FN6]

The proposition that the Federal Constitution created a federal government of delegated and limited powers is well-established and generally accepted. [FN8] But after acknowledging that truth, many courts and scholars jump to the opposite conclusion about state constitutions. [FN9] For example, an early decision of the Washington Supreme Court holds:

Unfortunately this oft-repeated proposition is seldom if ever justified by reasoned analysis. [FN11] At times, some scholars have augmented *272 it with the corresponding idea that all powers reserved to the people are vested in the legislature. [FN12]

Yet, this idea is equally unsubstantiated and historically suspect. Indeed, Federalist Number 48 warns: "It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it." [FN13] Similarly, Hamilton warned: "Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves." [FN14] Why would the people who were so protective of their liberty confer upon their own state government the virtually unlimited power of the British Parliament? Given the preoccupation with the corruptive influence of power in the eighteenth and nineteenth centuries, when most of our state constitutions were drafted, [FN15] is it not more likely the powers conferred upon the state were few and surrendered reluctantly? [FN16]

This statement might be construed to reflect the presumption of plenary state power. But, the Federalist papers address the relationship of the states to the federal government, not the relationship of the people to their respective state. [FN18] Federalist Number. 45 merely describes the powers the people may confer upon their state legislatures; it does not delineate powers inherent to state governments. Nor does it dispel the basic notion that "[e]very American legislature is the creature of the constitution, and strictly subordinate to it." [FN19]

Nevertheless, the presumption that state governments have inherent powers underlies judicial interpretation of state constitutions. [FN20] State courts interpreting their own constitutions routinely place the burden to prove legislative action unconstitutional on the challenger. [FN21] Moreover, state courts typically will uphold legislative action unless the challenger can point to a state constitutional provision prohibiting the exercise of such powers. [FN22]

*274 However this presumption of state plenary power does not accord with the political atmosphere of the American Revolution and the constitutional conventions of the original states. Akhil Reed Amar explains that the Colonial leaders were unwilling to accept the idea of authority vested in the British Parliament, and from there a distinctive idea of American sovereignty emerged. [FN23]

Whereas the British adhered to the view that their sovereignty resided "in the indivisible entity consisting of King, Lords, and Commons" whose power was necessarily boundless, the colonists "came to define the British Constitution not merely as the structure and arrangement of governmental institutions, but also as a set of substantive legal principles limiting the legitimate exercise of government power." [FN24]

The colonial experience under corporate charters prepared the ground for revolutionary ideas. [FN25] "By the eve of the Revolution the charters that the crown had granted to many of the colonies in the previous century had come to be seen as just so many miniature magna cartas." [FN26] The corporate charters provided for the establishment of a colonial government consistent with the terms expressed in the charter by circumscribing the rights and privileges to which the colonists were entitled and limiting the powers of the crown. [FN27] For example, the Virginia Charter of 1606 provided for a council with plenary governmental powers beyond the requirements of the English Privy Council. [FN28] But it also guaranteed the colonists would "HAVE and enjoy all Liberties, Franchises, and Immunities . . . to all Intents and Purposes, as if they had been abiding and born, within *275 this our Realm of England, or any other of our said Dominions." [FN29] Even the Charter for the Province of Pennsylvania of 1681, which granted William Penn "absolute" authority to establish a code of laws, a judiciary, and a means of enforcement, required "[t]hat the said Lawes bee consonant to reason, and bee not repugnant or contrarie, but as neare as conveniently may bee agreeable to the Lawes and Statutes, and rights of this Our Kingdome of England." [FN30]

Over time the colonial charter experience resulted in a radical redefinition of governmental sovereignty whereby the people retained their sovereignty except to the extent they delegated the powers of governing to their federal, state, or local governments. [FN31] This development informed American Revolutionaries, and most of the original state constitutions of the former colonies specifically provide that "all political power is vested in and derived from the people only."[FN32]

Most of the later-joining states obtained statehood through a federal enabling act. [FN33] Every congressional enabling act since 1864 *276 requires the state to ratify a state constitution not "repugnant to . . . the principles of the Declaration of Independence." [FN34] In pertinent part, the Declaration provides:

The Declaration articulates the first premise of American government, that sovereignty resides in the people and governments obtain the powers to govern by the consent of the people. [FN36] Thus, the power of government extends only insofar as it is delegated by the consent of the governed. This principle was adopted, for example, in the Washington Constitution, which provides a specific provision ensuring consent of the governed. [FN37]

The Founders adopted John Locke's view of a limited government, the essential function of which was to preserve life, liberty, and property. [FN38] They rejected the more expansive view of the inherent powers of government, which Blackstone would later describe as "the due regulation and domestic order of the kingdom, *277 whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations." [FN39] Early on the Supreme Court recognized the limited nature of the state's police power:

The Lockean essential function of government, sometimes described as the police power, [FN41] is, therefore, to protect our lives, liberty, and property from transgressions by our neighbors. [FN42] If a government is to do more, the evidence of delegation of that authority should reside in a specific provision of the constitution. State constitutions contain many such provisions. For example, the *278 Washington Constitution authorizes the legislature to establish educational institutions "for the blind, deaf, or otherwise disabled." [FN43] However, the rule should remain that, absent express delegation of constitutional authority, the people have reserved to themselves all else.

But even the police power, understood in this narrow sense of preventing serious harm to individuals in violation of their legal entitlements, [FN44] does not authorize the state to encroach upon rights guaranteed in the state declaration of rights. [FN45]

Similarly, Washington's Right of Petition and Free Assemblage Clause provides: "The right of petition and of the people peaceably to assemble for the common good shall never be abridged." [FN47] The only exception to "absolute freedom" of religion is express, i.e., "acts of licentiousness or . . . practices inconsistent with the peace *279 and safety of the state"; nor may the right to petition or assemble be limited unless it poses a serious risk of violence or other harm. [FN48]

As originally expressed by Alexander Hamilton when advocating adoption of the Federal Constitution absent a national Bill of Rights, a bill of rights serves only one function: "to delineate exceptions to otherwise legitimate exercises of governmental powers." [FN49] In the view of the founders, the very purpose of a declaration of rights is to except from the reach of government any power to abridge the rights secured thereby. If the rights guaranteed by a declaration of rights are not exceptions to governmental power, including otherwise legitimate exercises of the police power, then those rights are illusory because the government has no authority to exceed its legitimate functions in any case. [FN50]

But how has this principle been applied to state constitutional provisions? Several states have subjected their constitutions' unconditional guarantee of the right to bear arms to the state's police power. [FN51] A recent decision of the Washington Supreme Court held *280 even the free exercise of religion [FN52] may be subject to zoning regulations*281 enacted pursuant to the state's police power. [FN53] What is next? Privacy? Press? Speech? Assembly? Can it not be argued that these are also at the mercy of the state--a power that some argue only ends where the declaration of rights begins, but now predominates over even that?

[FNa1]. Justice, Washington State Supreme Court.

[FNaa1]. J.D., University of Washington; Ph.D. (philosophy), Universität Freiburg; and current law clerk to Justice Sanders.

[FN1]. See, e.g., Thomas C. Marks, Jr., & John F. Cooper, State Constitutional Law In A Nutshell 1-7 (1988); G. Alan Tarr, Understanding State Constitutions 6-9 (1998); Daniel B. Rodriguez, State Constitutional Theory And Its Prospects, 28 N.M. L. Rev. 271, 291-92 (1998); see also citations infra notes 9, 11.

[FN2]. Marks & Cooper, supra note 1, at 2-5.

[FN3]. Del. Const. pmbl; see also Ala. Const. § 2; Alaska Const. art. I, § 2; Ariz. Const. art. II, § 2; Ark. Const. art. II, § 1; Cal. Const. art. II, § 1; Conn. Const. art. I, § 2; Fla. Const. art. 1, § 1; Ga. Const. art. I, § 2, P ii; Haw. Const. art. I, § 1; Idaho Const. art. I, § 2; Ill. Const. art. 1, § 1; Ind. Const. art. I, § 1; Iowa Const. art. I, § 2; Kan. Const. Bill of Rights § 2; Ky. Const. § 4; La. Const. art. I, § 1; Me. Const. art. I, § 2; Md. Const. Decl. of Rights art. 1; Mass. Const. art. 5; Mich. Const. art. I, § 1; Minn. Const. art. 1, § 1; Miss. Const. art. III, § 5; Mo. Const. art. I, § 1; Mont. Const. art. II, § 1; Neb. Const. art. I, § 1; Nev. Const. art. I, § 2; N.H. Const. art. I; N.J. Const. art. I, P 2; N.M. Const. art. II, § 2; N.D. Const. art. I, § 2; Ohio Const. art. I, § 2; Okla. Const. art. II, § 1; Or. Const. art. I, § 1; Pa. Const. art. I, § 2; R.I. Const. art. I, § 1; S.C. Const. art. I, § 1; S.D. Const. art. 6, § 1; Tenn. Const. art. I, § 1; Tex. Const. art. I, § 2; Utah Const. art. I, § 2; Vt. Const. ch. I, art. 6; Va. Const. art. I, § 2; Wash Const. art. I, § 1; W. Va. Const. art. II, § 2; Wis. Const. art. I, § 1; Wyo. Const. art. I, § 1.

[FN4]. This paper develops an idea previously advanced by Justice Richard B. Sanders, Battles for the State Constitution: A Dissenter's View, 37 Gonz. L. Rev. 1 (2001/02).

[FN5]. The Washington Constitution states: "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights." Wash. Const. art. I, § 1.

[FN6]. But see Shea v. Olson, 53 P.2d 615, 619 (Wash. 1936) (describing "the only limitation upon" the state's general police powers to be "that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution").

Herbert Hovenkamp, Law and Morals in Classical Legal Thought, 82 Iowa L. Rev. 1427, 1428-29 (1997).

[FN7]. Maynard v. Valentine, 3 P. 195, 199-200 (Wash. 1880).

[FN8]. See, e.g., United States v. Curtiss-Wright Ex. Corp., 299 U.S. 304, 315-16 (1936) (stating the proposition that the "federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers").

[FN9]. See, e.g., Pinellas County v. Laumer, 94 So.2d 837, 840 (Fla. 1957); Graham v. Illinois State Toll Highway Auth., 695 N.E.2d 360, 366-67 (Ill. 1998); State ex rel. Lewis v. Smith, 63 N.E. 25, 26 (Ind. 1902); Aguillard v. Treen, 440 So.2d 704, 707 (La. 1983); Blank v. Dep't of Corrections, 611 N.W.2d 530, 556 (Mich. 2000); State ex rel. Stenberg v. Douglas Racing Corp., 524 N.W.2d 61 (Neb. 1994); State v. Ertelt, 548 N.W.2d 775, 776 (N.D. 1996); Jackson v. Freeman, 905 P.2d 217, 221 (Okla. 1995); Moseley v. Welch, 39 S.E.2d 133, 137 (S.C. 1946); Vincent v. Voight, 614 N.W.2d 388, 430-31 (Wis. 2000). For examples of commentators sharing this view, see infra note 11.

[FN10]. Walker v. Spokane, 113 P. 775, 779 (Wash. 1911).

[FN11]. See, e.g., Erwin Chemerinsky, Constitutional Law: Principles and Policies § 3.1, at 230 (2d ed. 2002); Thomas Cooley, Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the United States of America Union 107 n.2 (5th ed. 1998) (1883) (citing cases, each of which recite the presumption without articulating a basis for it); G. Alan Tarr, supra note 1, at 6-9; Cornell W. Clayton, Towards a Theory of the Washington Constitution, 37 Gonz. L. Rev. 41, 72-75 (2001/2002); Jennifer Friesen, State Courts as Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L. Rev. 1065, 1086-87 (1997); Lawrence Schlam, State Constitutional Amending, Independent Interpretation, and Political Culture: A Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 279-80 (1994); Philip A. Talmadge, The Myth of Property Absolutism and Modern Government: The Interaction of Police Power and Property Rights, 75 Wash. L. Rev. 857, 867-68 n.27 (2000); Robert F. Williams, Old Constitutions and New Issues: National Lessons from Vermont's State Constitutional Case on Marriage of Same-Sex Couples, 43 B.C.L. Rev. 73, 87 (2001); Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 178 (1983).

[FN12]. Cooley, supra note 11, at 105-06.

[FN13]. The Federalist No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961).

[FN14]. Bernard H. Siegan, Property Rights: from Magna Carta to the Fourteenth Amendment 86 (2001).

[FN15]. Bernard Bailyn, The Ideological Origins of the American Revolution 59-61 (1967) (discussing the eighteenth century); Tarr, supra note 1, at 109 (noting the Jacksonian influence of the nineteenth century).

[FN16]. See generally Gordon S. Wood, The Radicalism of the American Revolution 171-75 (1991) (describing the colonists' widespread support for liberty from British oppression and their reaction to British efforts to reduce popular political participation in government in the 1760s).

[FN17]. The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added).

[FN18]. See J. Michael Martinez & William D. Richardson, The Federalist Papers and Legal Interpretation, 45 S.D. L. Rev. 307, 311 (1993).

[FN19]. Cooley, supra note 11, at 104 n.1. Although Cooley begins with the premise that power resides in the people, he concludes they "have committed [the power to legislate] in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States, or of the particular State in question." Id. at 105.

[FN20]. See Marks & Cooper, supra note 1, at 1-7.

[FN21]. Merlin Myers Revocable Trust v. Yellowstone County, 53 P.3d 1268, 1272 (Mont. 2002); Gallivan v. Walker, 54 P.3d 1069, 1112-13 (Utah 2002); In re Stovall, 45 P.3d 855, 858 (Kan. 2002); Frantz v. Palmer, 564 S.E.2d 398, 403 (W.Va. 2001); Walton v. Commonwealth, 497 S.E.2d 869, 872 (Va. 1998); State ex rel. Shepherd v. Neb. Equal Opp. Comm'n, 557 N.W.2d 684, 688 (Neb. 1997); Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996); State Bd. of Health v. Greater Birmingham Ass'n of Home Builders, Inc., 384 So.2d 1058, 1061 (Ala. 1980); Montgomery v. Daniels, 340 N.E.2d 444, 451 (N.Y. 1975); Roylston v. Pima County, 475 P.2d 233, 234 (Ariz. 1970).

[FN22]. See cases cited supra note 9; cf. Island County v. State, 955 P.2d 377, 384-92 (Wash. 1998) (Sanders, J., concurring); see also Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 507 (1984) (arguing that the presumption of constitutionality "seriously hampers the courts' accomplishment of what article 1, section 1 of the Washington Declaration defines as the fundamental purpose of our state's constitution and government: to protect and maintain individual rights").

[FN23]. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1429 (1987).

[FN24]. Id. at 1431-32. As one commentator has remarked on the British view of limited government:

See also Gordon S. Wood, The Origins of Vested Rights in the Early Republic, 85 Va. L. Rev. 1421, 1425 (1999).

[FN25]. Wood, supra note 24, at 1432.

[FN26]. Id. at 1427.

[FN27]. Id.

[FN28]. Virginia Charter of 1606, reprinted in American Charters Constitutions and Organic Laws 3784 (Francis Newton Thorpe ed., 1977) (1909) [hereinafter American Charters].

[FN29]. Id. at 3788.

[FN30]. Id. at 3038. The Charter of North Carolina (1663) has a virtually identical provision. See American Charters, supra note 30, at 2746.

[FN31]. Amar, supra note 23, at 1434-35.

[FN32]. N.C. Const. of 1776, P 1; see also Ga. Const. of 1777 ("We, therefore, the representatives of the people, from whom all power originates, and for whose benefit all government is intended, by virtue of the power delegated to us, do ordain and declare, and it IS hereby ordained and declared, that the following rules and regulations be adopted for the future government of this State."); N.H. Const. of 1776, art. I ("[A]ll government of right originates from the people, is founded in consent, and instituted for the general good."); N.Y. Const. of 1777 ("By virtue of which several acts, declarations, and proceedings... all power whatever therein hath reverted to the people thereof, and this convention hath by their suffrages and free choice been appointed, and among other things authorized to institute and establish such a government as they shall deem best calculated to secure the rights and liberties of the good people of this State, most conducive of the happiness and safety of their constituents in particular, and of America in general."); Md. Const. of 1776, arts. I & II ("[A]ll government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole" and "the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof."); Pa. Const. of 1776, arts. III & IV ("[T]he people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same" and "all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them."); Va. Const. of 1776, Bill of Rights, § II ("[A]ll power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.").

[FN33]. However, certain exceptions exist. For example, Vermont petitioned Congress as an independent revolutionary state and was granted admission under the Vermont Act, 1 Stat. 191 (Feb. 18, 1791). See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291, 373-74 (2002). Wyoming also obtained statehood without an enabling act. Peter Nicolas, American-Style Justice in No Man's Land, 36 Ga. L. Rev. 895, 913 n.108 (2002).

[FN34]. Act of Feb. 22, 1889, § 4, 25 Stat. 676 (Enabling Act of Washington, Montana, North Dakota, South Dakota); see also Hawaii Statehood Act, § 1, 73 Stat. 4 (1959); Alaska Statehood Act, § 3, 72 Stat. 339 (1958); Act of June 6, 1906, § 3, 34 Stat. 267 (Enabling Act of Oklahoma); Act of July 16, 1894, § 3, 28 Stat. 107 (Enabling Act of Utah); Enabling Act of Colorado, § 4, 18 Stat. 474 (1875); Act of March 21, 1864, § 4, 13 Stat. 30 (Enabling Act of Nevada).

[FN35]. The Declaration of Independence para. 2 (U.S. 1776).

[FN36]. See, e.g., Bernard H. Siegan, Separation of Powers & Economic Liberties, 70 Notre Dame L. Rev. 415, 471 (1995).

[FN37]. Wash. Const. art. I, § 1; see also supra note 3 (citing similar provisions in other states).

[FN38]. Talmadge, supra note 11, at 862 n.16.

[FN39]. Id. at 857 n. 1 (citing 4 Blackstone's Commentaries 162 (St. George Tucker ed., Rothman Reprints, Inc. 1969) (1803)).

[FN40]. Calder v. Bull 3 U.S. (3 Dall.) 386, 388-89 (1798) (Chase, J., seriatim). Another case espoused this view of the limited nature of state police power:

California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 318 (1905).

[FN41]. See, e.g., Hadacheck v. Sebastian, 239 U.S. 394, 410 (1913).

[FN42]. John Locke, Second Treatise of Government § 124, in Two Treatises of Civil Government 117, 180 (Ernest Rhys ed., J.M. Dent & Sons 1924) (1690).

[FN43]. Wash. Const. art. XIII, § 1 (amended 1988).

[FN44]. The courts have adopted an increasingly broad definition of the police power. See, e.g., State ex rel. Clausen v. Burr, 117 P. 1101, 1106 (Wash. 1911) (holding that the "possession and enjoyment of all rights are subject to [the] power" of the state to "prescribe regulations promoting the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its welfare and prosperity"); Western Indem. Co. v. Pillsbury, 151 P. 398, 401 (Cal. 1915) (quoting Clausen with approval); People v. Faxlanger, 1 A.D.2d 92, 93 (N.Y. App. Div. 1955) (holding that an individual's "rights are not absolute, but are always subject to the proper exercise of the police power for the public good"); see also Siegan, supra note 14, at 211; cf. Eckles v. State of Oregon, 760 P.2d 846, 858 (Or. 1988) ("[T]he existence of [the police] power cannot explain the extent to which the power is constitutionally limited").

[FN45]. See Siegan, supra note 14, at 51 ("[R]ights that are inalienable cannot be limited in the name of the public interest; instead, the public interest will be achieved by protection of these rights.").

[FN46]. Wash. Const. art. I, § 11.

[FN47]. Wash. Const. art. I, § 4.

[FN48]. See Malyon v. Pierce County, 935 P.2d 1272, 1278 (Wash. 1997) (religious freedom); State ex rel. Lumber & Sawmill Workers v. Superior Court for Pierce County, 164 P.2d 662, 668 (1945) (free assembly).

[FN49]. State v. Schelin, 55 P.3d 632, 648 (Wash. 2002) (Sanders, J., dissenting). Hamilton's views on this point are emphasized by the following quotation:

[FN50]. Schelin, 55 P.3d at 648 (Sanders, J., dissenting).

[FN51]. See, e.g., Hyde v. City of Birmingham, 392 So. 2d 1226, 1227 (Ala. Crim. App. 1980) (interpreting Ala. Const. art. I, § 26, which provides: "That every citizen has a right to bear arms in defense of himself and the state"); Dano v. Collins, 802 P.2d 1021, 1022-23 (Ariz. App. 1993) (interpreting Ariz. Const. art. II, § 26, which provides: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men"); Robertson v. City and County of Denver, 874 P.2d 325, 331 (Colo. 1994) (interpreting Colo. Const. art. II, § 13, which provides: "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons"); People v. Green, 580 N.W.2d 444, 449 (Mich. App. 1998) (interpreting Mich. Const. art. I, § 6, which provides: "Every person has a right to keep and bear arms for the defense of himself and the state"); People v. McFadden, 188 N.W.2d 141, 144 (Mich. App. 1971) (interpreting Mich. Const. art. I, § 6, which provides: "Every person has a right to keep and bear arms for the defense of himself and the state"); State v. Ricehill, 415 N.W.2d 481, 482-83 (N.D. 1987) (interpreting N.D. Const. art. I, § 1, which provides: "All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed"); Arnold v. Cleveland, 616 N.E.2d 163, 172 (Ohio 1993) (interpreting Ohio Const. art. I, § 4, which provides: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power"); Tsokas v. Bd. of Licenses & Inspections Review, 777 A.2d 1197, 1201 n.2 (Pa. Commw. Ct. 2001) (interpreting Pa. Const. art. I, § 21, which provides: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned"); McGuire v. State, 537 S.W.2d 26, 28-29 (Tex. Crim. App. 1976) (interpreting Tex. Const. art. I, § 23, which provides: "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime"); State v. Rupe, 683 P.2d 571, 596 n.9 (Wash. 1984) (interpreting Wash. Const. art. 1, § 24, which provides: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men"); Carfield v. State, 649 P.2d 865, 870-73 (Wyo. 1982) (interpreting Wyo. Const. art. I, § 24, which provides: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied").

Nothing bars states from amending their constitutions to provide for governmental regulation. See, e.g., Ill. Const. art. I, § 22 ("Subject only to the police power, the right of the individual to keep and bear arms shall not be infringed."); see State v. Schelin, 55 P.3d 632, 640-52 (Wash. 2002) (Sanders, J., dissenting).

[FN52]. Wash. Const. art. I, § 11 provides:

Wash. Const. art. I, § 11.

[FN53]. See Open Door Baptist Church v. Clark County, 995 P.2d 33, 48-49 (Wash. 2000) (Sanders, J., dissenting).