Attorney gives insight into possible legal consequences of gun rights amendment

Gun Rights

The “Keep and Bear Arms” Amendment on Iowa’s general election ballot might not have the intended effect that the National Rifle Association had when lobbying states to enshrine “strict scrutiny” amendments in their state constitutions, a local attorney says.

With Statewide Ballot Measure 1 on Tuesday’s ballot, Iowa is poised to join Alabama, Louisiana and Missouri as states that recognize gun ownership as a fundamental right protected by strict scrutiny.

The full text of the measure reads: “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.”

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Strict scrutiny is the highest level of review judges use to evaluate the constitutionality of laws.

“Strict scrutiny means that the state has to prove they have a compelling interest in this statute, and that the statute is narrowly constructed to serve that compelling interest,” said local attorney Jerry Schnurr III.

Schnurr is a past president of the Iowa State Bar Association and has over 35 years of experience in the legal field.

“Supposedly the NRA wants to create this iron shield around gun rights,” Schnurr said, noting that the vague language in the amendment doesn’t necessarily do that.

The question is, Schnurr said, what exactly is the right stated in the amendment?

“Is it the right that exists now, at the time of passage to possess and own guns?” he asked. “Well, there’s limitations to that right, such as felons can’t.”

Judges in the state will bear the burden of interpreting that “vague” language and applying it to state laws, Schnurr said. The courts will have to determine if “the right” in the amendment is the rights Iowans currently have to own guns, with some restrictions; or if “the right” is an unlimited right to all individuals to own all types of guns.

“The proposed strict-scrutiny amendments leave courts with significant latitude to define the scope of the fundamental constitutional right to which the strict-scrutiny standard attaches,” University of Iowa College of Law professor Todd E. Pettys wrote in the 2019 Iowa Law Review.

“The job of ascertaining the scope of the strongly protected fundamental right to keep and bear arms will fall to judges — the very same people whose purported ‘anti-gun activisim’ the NRA says necessitates these amendments in the first place,” Pettys wrote in his Iowa Law Review essay.

Iowa law currently bars convicted felons and individuals convicted of misdemeanor domestic assault from owning or possessing firearms. If the courts interpret the phrase “the right” to mean an unlimited right with no restrictions, those statutes that bar felons from owning guns would fail under strict scrutiny because it is too broad, Schnurr said. If the courts strike down those statutes, he said, there wouldn’t be any law prohibiting any felon — violent or not — from possessing any firearm in Iowa.

“It seems that our legislature more recently has been expanding gun ownership and possession rights, rather than restricting them,” Schnurr said. “Could they narrow [the restrictions on felons]? I suppose they could. Would they? I don’t know.”

Instead of building that “iron wall” around gun rights, Iowa’s proposed amendment is likely to muddy the waters of the legal system, Schnurr said.

“There’s a lot of questions, a lot of unanswered questions,” he said. “There’s going to be a lot of litigation over it and I don’t know how the court will come up.”

Anti-domestic violence advocates say the amendment would undermine efforts to enhance safety and make it harder to prevent violence. The amendment “requires judges to elevate gun rights over public safety every time, invites legal challenges to current law and makes it harder to enact gun safety measures broadly supported by most Iowans,” according to the Iowa Coalition Against Domestic Violence.

Domestic violence and gun violence are “inextricably linked,” and both are preventable public health problems, the ICADV says.

According to data from the Educational Fund to Stop Gun Violence, when guns are involved in domestic violence, a female partner is five times more likely to be killed. Guns kill 55% of women murdered by an intimate partner.

Voting no on Statewide Ballot Measure 1 does not take away any existing gun rights, the ICADV says. “Voting no rejects changes to Iowa’s constitution that would make it harder for lawmakers to enact policies to help prevent gun violence, like background checks and restricting access for people at risk of harming themselves or others.

On Tuesday, the ballot measure only has to be approved by a simple majority of voters to pass.

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