Oklahoma Bar Journal
The Role of State Constitutions in the Protection of Individual Rights
By Justice Clint Bolick and Judge Gerald A. Williams
A natural tension exists between our representative form of government and the need to constrain government power to protect individual rights. A written constitution can provide the best fortification against a government straying beyond its proper boundaries. Justice William O. Douglas stated, “The Constitution is not neutral. It was designed to take the government off the backs of people.”1 However, if our federal Constitution is interpreted in a way that inappropriately expands the role and scope of government power, then state constitutional provisions have the potential to fill the gap and ensure the rights of citizens “will not erode even when federal constitutional rights do.”2
Perhaps ironically, one of the earliest proponents of the importance of state constitutional law was a U.S. Supreme Court justice. Justice William Brennan believed that state courts interpreting their own counterparts to the federal Bill of Rights guaranteed citizens of their states additional protections.3 Another advantage is that, as times change, state constitutions are significantly easier to amend.
In addition to states using their own constitutions to define separate sets of constitutional rights, state courts can also interpret language in their own constitutions that is identical to our federal Constitution differently, as long as their interpretation provides more individual freedom than federal courts have allowed.4 It is a one-way ratchet that should be very appealing to those advocating on behalf of individual rights.
This article will highlight some of the parallels and differences between Oklahoma’s and Arizona’s state constitutions in terms of an individual’s right to bear arms, searches and seizures, tort claims for excessive force by law enforcement and freedom of speech. Arizona and Oklahoma were two of the last states to enter the union (48 and 47) and have comparatively recent state constitutions.
At the time it was written, Oklahoma’s Constitution was the longest state constitution.5 It is an extremely inclusive document.6 For example, included are a constitutional right to hunt and fish7 as well as specific standards for kerosene oil.8 Oklahoma’s Constitution existed and was considered when Arizona’s Constitution was being written.9 Some of the influence is quite apparent.
STATE VERSIONS OF THE SECOND AMENDMENT
Ariz. Const. Art. 2, §26
“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.”10
Okla. Const. Art. 2, §26
“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the
Legislature from regulating the carrying of weapons.”
It was not that long ago that there was a debate as to whether the Second Amendment, with its reference to a well-regulated militia, was really a reference to a collective right, meaning that people had a right to own a firearm only if they were in an organization similar to the National Guard. In 2008, the U.S. Supreme Court decision in Dist. of Columbia v. Heller, resolved that issue.11 However, based on the language in their state constitutions, appellate courts in Arizona and in Oklahoma had already resolved the issue of an individual vs. collective right and instead were determining whether and when that individual right could be limited.
In 1999, the Supreme Court of Oklahoma examined a state statute that prohibited certain categories of individuals from obtaining a concealed handgun license, one of which was being arrested for a felony. In that case, the applicant, who had been arrested for a felony, was denied a handgun license even though he had been subsequently acquitted. The Oklahoma Supreme Court held that while there was no right to carry loaded weapons at all times in all circumstances, this statute, as applied to the applicant in this case, was unconstitutional because there was no rational basis for the restriction.12 The majority noted “there exists no nexus or connection between appellant’s arrest for arson conspiracy and any firearm.”
That same year, an Arizona appellate court considered a similar issue but reached a different result. In that case, the defendant was charged with violating a Tucson ordinance that prohibited the possession of firearms in city parks. The trial judge granted the defendant’s motion to dismiss, but the state appealed. In that case, the Arizona Court of Appeals acknowledged his individual right to bear arms, but held the ordinance constitutional because an individual’s right to possess firearms for self-defense must be balanced against the government’s duty to adopt reasonable regulations for the safety of its citizens.13 “Moreover, his assertion that the city’s action strips him of his ability to defend himself is severely undercut by the fact that he can readily avoid the burden … by simply walking around the park with his firearm, instead of through it.”14
OKLAHOMA AND ARIZONA’S VERSION OF THE FOURTH AMENDMENT
While Oklahoma’s Constitution follows the language of the Fourth Amendment,15 Arizona’s Constitution codifies an actual right to privacy by stating, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”16 Arizona courts have applied this provision to protect against warrantless searches of homes, and a recent court of appeals decision has extended it to internet subscriptions. Relying on this language, an opinion from the Arizona Supreme Court provides an example of how a suspect can have enumerated rights under a state constitution that are arguably absent from the federal Constitution.
In State v. Bolt, after making several small marijuana purchases from a woman, agents arranged to meet her supplier, who was her brother.17 During a transaction, the brother inadvertently named his supplier. The wholesale supplier was then placed under surveillance.
The brother was arrested and immediately began cooperating with the police. As agents were drafting an affidavit to seek a telephonic search warrant, they were notified by the agents watching suspect’s house that a pickup truck had left. The case agent ordered that the truck be stopped and that the house be secured until a warrant could be obtained. After they had a warrant, both house and vehicle were searched. Large quantities of marijuana were found in both, and the suspect was convicted by a jury of felony possession and distribution of marijuana. The Arizona Court of Appeals affirmed the conviction.18 The Arizona Supreme Court reversed.19
The Arizona Supreme Court held that securing the residence until a warrant could be obtained was the same as a seizure and it was therefore unconstitutional under Arizona’s state constitutional right to privacy provision.20 The majority opinion noted that no exigent circumstances were present because the individuals remaining in the house did not know that they were under police surveillance. As such, they would not be destroying evidence. The majority opinion explained the state constitutional right to privacy:
Our constitutional provisions were intended to give our citizens a sense of security in their homes and personal possessions. It is impossible to reconcile that sense of security with the idea that the police may enter without warrant, inspect the premises, and hold everyone that they find until such time as they determine whether a warrant can be issued and brought to the home.21
In Bolt, the Arizona Supreme Court reversed a conviction that may have been upheld if only the U.S. Constitution had been applied to the facts of the case. While Oklahoma’s Constitution follows the text of the Fourth Amendment, the Oklahoma courts have construed that identical language more broadly.
In Bosh v. Cherokee County Bldg. Authority, the Oklahoma Supreme Court held the Oklahoma’s Constitution provided a private cause of action for excessive force by jailers even if the application of federal law would have resulted in a different conclusion.22 The court in Bosh considered but disregarded federal law and wrote, “Under 42 U.S.C. §1983, respondeat superior does not serve as a basis for government liability. … However, Oklahoma is not bound by the constraints of federal law when determining whether the doctrine of respondeat superior serves as a basis for municipal liability under a cause of action for excessive force pursuant to the Okla. Const. art 2, §30. … The problems of federalism which preclude the application of respondeat superior to §1983 actions are obviously not present when the action is for a violation of a state’s constitution.”23
STATE CONSTITUTIONAL PROVISIONS ON FREEDOM OF SPEECH
Ariz. Const. Art. 2, §6
“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”
Okla. Const. Art. 2, §22
“Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libel, the truth of the matter alleged to be libelous may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous be true, and was written or published with good motives and for justifiable ends, the party shall be acquitted.”
Although Arizona’s free speech provision is, by comparison, a model of brevity, both state constitutional protections are significantly broader than the familiar “Congress shall make no law” language in the First Amendment. Before an action or restriction can be found unconstitutional under the U.S. Constitution, generally some type of state action is required because the federal Constitution only prohibits governmental infringement of individual rights. The free speech language in the state constitutions has no such requirement.
In First American Bank & Trust Co. v. Sawyer,24 the Oklahoma Court of Appeals examined free speech in the context of a real estate dispute. The customer and his mother owned two houses on the same street in Lexington. The house number for one with the mortgage was 422, but the other, with a house number of 410, was owned free and clear.
The customer defaulted on the 422 house. A vice president at the bank purchased the home at a sheriff’s sale. Unfortunately, the documents referenced the 410 house. He then invested $12,000 in repairs and in renovations to the 410 house. Litigation followed and the former bank vice president pled guilty to an unrelated federal criminal charge, but somehow, the customer’s mother ended up losing her house.
The mother started peacefully picketing and distributing leaflets on the public sidewalk in front of the bank. She was not accused of trespassing, disturbing the peace or harassment. The bank’s only objection was to the content of the flyers. The bank requested and received a restraining order prohibiting her from distributing the flyers.
The Oklahoma Court of Appeals analyzed the case in the context of free speech language in Oklahoma’s Constitution. The opinion stated that while an injunction is discretionary, “freedom of speech is a constitutional guarantee.”25 The appellate court noted that the trial court had attempted to draft a narrow injunction that infringed on the mother’s rights “as little as possible,” but held that it was still an improper content-based prior restraint on speech under the state constitution.26
Arizona courts have also broadly interpreted the Arizona Constitution’s free speech provision. In one such case, Korwin v. Cotton,27 the City of Phoenix attempted to prevent a firearms training company from advertising their gun safety and marksmanship classes on city busses and bus stops.
The city’s restrictions on advertising included a requirement that it is limited to commercial speech. It objected to the content of the company’s advertisement because it contained noncommercial political elements and because it failed to propose a commercial transaction. The Arizona Court of Appeals held that although the city’s bus system was not a public forum, its restriction was unconstitutional as it was applied to the company.28
SOME FINAL THOUGHTS
Federalism, in the context of the dual sovereignty of state and federal governments, produces a balance of power that enforces freedom. Both the constitutions of Oklahoma and Arizona, in addition to supplementing the rights listed in the U.S. Constitution, provide a list of additional rights that are not documented in our federal Constitution.29
Among these are limits on government debt,30 prohibitions on racial or gender preferences in government operations31 and specific rights for victims of crime.32 In addition, Oklahoma’s Constitution contains a provision requiring members of the Legislature to disclose if they could personally benefit from a piece of legislation.33 They are then prevented from voting on it.34
Whatever happens or fails to happen in our nation’s capital, citizens can seek to limit government overreach and to make meaningful policy changes in state capitals. That is one of the many beauties of our constitutional republic.
ABOUT THE AUTHORS
Clint Bolick is a justice on the Arizona Supreme Court. He previously served as vice president for litigation at the Goldwater Institute. He has authored numerous articles and has written 12 books including Voucher Wars: Waging the Legal Battle Over School Choice and Death Grip: Loosening the Law’s Stranglehold over Economic Liberty. He also co-authored Immigration Wars: Forging an American Solution with Jeb Bush.
Gerald A. Williams is an elected judge in Arizona. He graduated from the OU College of Law and from OSU. As a limited jurisdiction judge, he hears a mixture of civil lawsuits, traffic citations, restraining orders, misdemeanors and residential eviction actions. He served in the Air Force as a judge advocate and retired as a lieutenant colonel.
1. William O. Douglas, The Court Years 1939-1975: The Autobiography of William O. Douglas, 8 (1980).
2. Clint Bolick, “Vindicating the Arizona Constitution’s Promise of Freedom,” 44 Ariz. L. J. 505, 509 (2012). See generally, Clint Bolick, “The Unused Toolbox; Forging a Dynamic Future for Arizona’s Constitution,” Arizona Attorney, 40 (October 2018); Clint Bolick, “State Constitutions as a Bulwark for Freedom,” 37 Okla. City. U. L. Rev. 1 (2012); Joseph Blocher, “What State Constitutional Law Can Tell Us About the Federal Constitution,” 115 Penn. St. L. Rev. 1035 (2011); Ruth V. McGregor, “Recent Developments in Arizona State Constitutional Law,” 35 Ariz. St. L. J. 265 (2003)(author was chief justice of the Arizona Supreme Court). Contra, James A. Gardner, “The Failed Discourse of State Constitutionalism,” 90 Mich. L. Rev. 761 (1991).
3. William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977); See also, William J. Brennan Jr., “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” 61 N.Y.U. L. Rev. 535 (1986).
4. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, para. 171-73 (Ariz. 2019)(Bolick, J., concurring). See generally, David Schuman, “Using State Constitutions to Find and Enforce Civil Liberties,” 15 Lewis & Clark L. Rev. 783 (2011).
5. John A. Fairlie, “The Constitution of Oklahoma,” 6 Mich. L. Rev. 105 (1907).
6. Danny M. Adkison, Oklahoma Constitution, Oklahoma Historical Society, (Aug. 12, 2019, 9:22 a.m.), www.okhistory.org/publications/enc/entry.php?entry=OK036. “It will be your own fault if you do not frame the best constitution ever written,” William Jennings Bryan admonished the delegates who met in Guthrie in 1906 to draft Oklahoma’s Constitution. Id.
7. Okla. Const. Art. 2, §36.
8. Okla. Const. Art. 20, §2.
9. John S. Goff, The Records of the Arizona Constitutional Convention of 1910, 677.
10. The last clause prohibiting the formation of private armies was an apparent response to employers who hired "goon squads" to prevent works from organizing for the purpose of collective bargaining. John D. Leshy, The Arizona State Constitution, 102 (2013).
11. 554 U.S. 570, 128 S.Ct. 2783 (2008)(held Second Amendment conferred and individual right to keep and to bear arms). See also, Randy E. Barnett, “Forward: Guns, Militias, and Oklahoma City,” 62 Tenn. L. Rev. 443 (1995)(Introduction to Second Amendment Symposium Issue).
12. State v. Warren, 975 P.2d 900 (Okla. 1999).
13. City of Tucson v. Rineer, 971 P.2d 207 (Ariz. Ct. App. 1999).
14. Id. at 214. One of the most famous gun fights in history was triggered in part by a city ordinance in Arizona that made it unlawful for a person to carry a deadly weapon within the city limits without a permit. Gerald A. Williams, “Justice of the Peace Wells W. Spicer; Wyatt Earp, Doc Holliday, and the Tombstone Judge,” Arizona Attorney, 12 (October 2012).
15. Okla. Const. Article 2, §30.
16. Ariz. Const. Art. 2, §8.
17. State v. Bolt, 689 P.2d 543 (Ariz. Ct. App. 1983).
19. State v. Bolt, 689 P.2d 519 (Ariz. 1984).
20. Id. at 524.
21. Id. State constitutions might provide broader protection against the warrantless attachment of GPS devices than does the Fourth Amendment. State v. Jean, 407 P.3d 524, 546-47 ¶¶90-97 (Ariz. 2018) (Bolick, J., concurring).
22. 305 P.3d 994 (Okla. 2013). The holding in Bosh is limited and does not include the denial of medical care. Barrios v. Haskell County Public Facilities Authority, 432 P.3d 233 (Okla. 2018). See also, Perry v. City of Norman, 341 P.3d 689 (Okla. 2014)(Arrestee should have sought relief under State Claims Act). See generally, Nick Coffey, “Bosh and the Constitutional Cause of Action: The Corridor to Civil Liberties,” 68 Okla. L. Rev. 621 (2015). A video of the assault in Bosh is available. www.newson6.com/story/16320948/booking-video-released-in-lawsuit-against-cherokee-county-jail.
23. Id. at 1003–04.
24. 865 P.2d 347 (Okla. Ct. App. 1993).
25. Id. at 353.
27. 323 P.3d 1200 (Ariz. Ct. App. 2014). See also, Phoenix Newspapers, Inc. v. Otis, 413 P.3d 692 (Ariz. Ct. App. 2018)(order precluding news agencies from disseminating name of death penalty prosecutor was unconstitutional prior restraint).
28. 323 P.3d at 1210–1211. The Arizona Supreme Court recently held that a city antidiscrimination ordinance, as applied to the owners of a faith-based custom wedding invitation business, unconstitutionally compelled speech. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Although the case was also decided on other grounds, one justice wrote a separate concurring opinion analyzing the facts within the framework of the free speech provision of Arizona’s Constitution. Id., at 927 (Bolick, J., concurring). See also, Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012)(tattoo artists who were denied city permit had constitutional free speech claim).
29. Toni McClory, Understanding the Arizona Constitution, 2 (2010).
30. Ariz. Const. Art. 9, §5; Okla. Const. Art. 10, §23.
31. Ariz. Const. Art. 2, §13; Okla. Const. Art. 2, §36A.
32. Ariz. Const. Art. 2, §2.1; Okla. Const. Art. 2, §34.
33. Okla. Const. Art. 5, §24.
Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 18 (March 2020)