Christine Lehman-Engledow of Moms Demand Action of Cedar Rapids tells of her experiences and those of her family who fear the threat of gun violence, during a news conference in June at the Cedar Rapids Public Library. (Geoff Stellfox/The Gazette)
Iowa voters in November will be asked to add language to the Iowa Constitution that states it is a “fundamental individual right“ to keep and bear arms, and that any restraint on that right is invalid unless it meets the stringent demands of “strict scrutiny.”
A new coalition of gun safety advocates warns the pro-gun amendment will prohibit reasonable safety measures that Iowans support, such as firearm safety training, universal background checks and a license to carry a gun in public.
Republicans have argued for the measure for years, saying Iowa is one of only six states without protections in its constitution for the right to keep and bear arms.
Iowa Right to Keep and Bear Arms Amendment
The language, which will go before voters Nov. 8, states: “The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.“
Democrats and gun-safety advocates contend Republicans are misleading Iowans when they say the amendment is equivalent to the Second Amendment to the U.S. Constitution. The “strict scrutiny” language, they say, could prohibit reasonable safety measures that many Iowans support and could lead to courts overturning gun restrictions already on the books.
“Inserting gun rights with strict scrutiny into the (Iowa) Constitution would tip the balance of power, elevating access to guns above public health and safety,” said Connie Ryan, executive director of Des Moines-based Interfaith Alliance of Iowa and a member of the Iowans for Responsible Gun Laws coalition. “This is unacceptable and, quite frankly, it is dangerous.”
Connie Ryan, Interfaith Alliance of Iowa executive director, speaks on behalf of her organization during a news conference on June 16 at the Cedar Rapids Public Library. (Geoff Stellfox/The Gazette)
The Iowa Firearms Coalition, a gun-rights advocacy group, said in a statement that, “U.S. courts have long recognized that the right to keep and bear arms is a fundamental right that preexisted the Constitution and which is protected — not granted — by the Second Amendment. Although it is the ultimate guarantor of our other rights, Iowa is one of only six states that do not protect that vital right in their constitutions.”
While true, Iowa constitutional law professors say the amendment goes a step further by dictating the level of judicial review Iowa courts must apply when considering whether gun restrictions in the state are permissible.
“Regardless of what your positions are on guns, normally, the courts are the ones usually that decide the level of (judicial) scrutiny,” said Mark Kende. director of Drake University’s Constitutional Law Center.
“Even the U.S. Constitution (and it’s amendments) doesn’t have levels of scrutiny in it.”
Kende said the ballot amendment presents a “separation-of-powers problem.”
“Do we want the Legislature telling the courts how to do things?” Kende asked of the questions Iowa voters will be asked to weigh when voting on the amendment this fall.
Kende was not advocating a position on the amendment or how Iowans should vote.
“It’s the Legislature becoming more interventionist with what the court does in more specific ways that some people would argue creates separation-of-powers problems,“ he said.
Rep. Steven Holt, R-Denison, who sponsored the gun amendment in the Iowa House, said it serves “as an important firewall” to protect Iowans’ “fundamental right to keep and bear arms” to protect themselves.
Holt as well called the argument that the amendment would lead to courts overturning gun restrictions already on the books — including background checks and prohibitions on felons owning firearms — “ utterly ridiculous,” and he believes “voters in Iowa will reject it.”
“It’s a compelling government interest narrowly tailored,” Holt said. “We don’t want felons to have firearms. We don’t want violent people to have firearms.
“Reasonable firearm laws on the books are not going to be impacted and federal requirements for background checks aren’t going to be impacted.”
But some Iowa legal experts say the issue is not so clear.
Strict scrutiny
“Strict scrutiny” is the highest legal hurdle for legislation to clear. It would require any restrictions on gun rights to be narrowly tailored to achieve a compelling government interest, such as public safety, Drake University’s Kende said.
“Most attempts to regulate guns are going to be struck down by the courts because strict scrutiny means exactly what it says,” he said. “The court very much want to see precision in the law, and if they see any imprecision or think the law goes too far or doesn’t accomplish what it’s supposed to, they’ll strike it down.”
The Iowa Firearms Coalition states on its website that “strict scrutiny” is “a near-impossible test for an infringement on a fundamental right. In addition, it would be a state-level backstop if federal courts lessen or continue to ignore Second Amendment protections, even if the amendment was repealed.”
What the amendment does
Kende and University of Iowa law professor Todd Pettys, who has written on gun-rights issues, said the proposed amendment would establish a much narrower legal framework for passing new gun restrictions in Iowa — one more stringent than that at the federal level.
Until just recently, federal courts first asked whether a challenged law placed a burden on gun rights protected by the Second Amendment. If yes, the courts’ examined a challenged law with different levels of scrutiny, depending on how burdensome the requirement was and how important the protected right, Pettys said.
Most often, they applied a test called “intermediate scrutiny,” Pettys said. It asks whether the government asserted an important interest in the regulation — in this case, public safety — and whether the regulation actually advanced that interest.
Courts often decided that question by judging the empirical evidence a state put forward, such as evidence that a law designed to reduce shooting deaths actually did so.
The legal landscape, though, shifted following a June U.S. Supreme Court decision. In New York State Rifle and Pistol Association v. Bruen, the court overturned a New York gun safety law requiring a license to carry a gun outside the home and to “demonstrate a special need for self-protection“ in public places.
It is the first major Second Amendment decision from the Supreme Court since its 2008 decision in District of Columbia v. Heller, which protected the right to have a handgun for self-defense in the home.
It marked the first time the Supreme Court affirmed an individual right — as opposed to a collective right — to gun ownership that was separate from the “militia clause” in the Second Amendment, Pettys said.
Writing for the majority in that 5-4 Heller decision, Justice Antonin Scalia, now deceased, said the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Scalia’s opinion opened the door to eliminating some public carry regulations and bans, but it did not immediately strike down many long-standing prohibitions on firearms. The vast majority of challenges to gun regulations in years subsequent to the Heller decision failed, Pettys said — hence the push by the National Rifle Association urging states to pass “strict scrutiny” amendments.
Defending the handgun licensing law, New York argued the right to carry a weapon for self-defense outside the home was not absolute.
The increasingly conservative Supreme Court, though, held the New York law stretched the bounds of Heller because it gave too much discretion to state officials. The majority opinion said the law violated the 14th Amendment by “preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public.”
The court’s six conservative justices found New York’s proper cause requirement was inconsistent with the nation’s historical tradition of firearm regulation, and that historical precedent was needed to justify a modern law.
The decision, though, does not undo objective licensing requirements, such as fingerprinting, background and mental health records checks and firearms training that exist in many states to possess a firearm. It also does not repeal existing state and federal prohibitions regarding who is qualified to possess a firearm, according to national legal experts.
Justices also said gun regulations banning weapons in sensitive places such as schools and government buildings were permissible.
Iowa’s proposed amendment, however, would be even more protective of gun rights, according to Pettys and Kende.
“In the U.S. Supreme Court’s Heller decision — Justice Antonin Scalia says there’s an important right to bear arms, but that doesn’t preclude certain historically-based restrictions, and one of the examples was” prohibitions on felons owning firearms, Kende said.
“Even Justice Scalia — who certainly was a supporter of gun rights — said there were permissible restrictions, but it’s not 100 percent clear that some of them would survive under explicit strict scrutiny in Iowa.”
Pettys agreed.
“Laws restricting gun rights for felons have some good historic lineage to them … of there being prominent restrictions of when you commit a serious crime you lose your guns,“ he said.
But such restrictions could very well violate the Iowa Constitution if a strict scrutiny amendment is adopted, Pettys and Kende said.
“So a law saying all felons (including those convicted of non-violent crimes who have served their time) are still being told they can’t have a gun, that would be the ideal plaintiff,” Pettys said.
While they likely would not have a valid Second Amendment claim under the U.S. Constitution, they would have a strong claim under the amended Iowa Constitution, he said.
Because while the goal is compelling to protect public safety, the means are not narrowly tailored, Pettys said.
“Because we’re not asking anything about the nature of the crime committed or your tendency to violence,” he said. “… All we want to know is, once upon a time you did something that could have been punishable by a year or more in prison. And, knowing nothing more, we say, take away your guns.”
‘Common-sense gun laws’ in jeopardy?
The Iowa Firearms Coalition contends “strict scrutiny” is the appropriate test for fundamental rights, such as those granted under the First and Second Amendments to the U.S. Constitution.
“There is (a) significant political element that wishes to either reinterpret the contemporary understanding of the meaning of the Second Amendment through overturning Supreme Court precedent — by packing the court if necessary — or by amending or repealing the amendment itself,” the coalition said in a statement.
“If such were to occur, the presence of the Freedom Amendment” — what the Iowa Firearms Coalition is calling the ballot amendment — “in Iowa’s Constitution would preserve strong protection of those rights at the state level.”
But for Iowans who support gun rights — but do not feel those rights are absolute and support what they see as sensible gun laws — “they’re in trouble because they will not get reasonable limitations upheld as frequently under this (amendment), if at all,” Kende said.
He said a “person’s belief in reasonable gun restrictions will be nullified if they vote for this particular (amendment) under strict scrutiny.”
“But their belief in gun (rights) — to the extent they have one — and being able to have guns without restrictions, relatively, that would be upheld,” Kende said. “If they do have a strong belief in ‘common-sense gun laws,’ then those laws would all be in jeopardy.”
Comments: (319) 398-8499; tom.barton@thegazette.com