A proposed amendment to the Iowa Constitution would make the state’s already loose gun laws even less restrictive.
On the back of ballots for the Nov. 8 election, Iowa voters will be asked this question:
“Shall the following amendment to the Constitution be adopted?
“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.”
“Yes” means the language will be added to the Iowa Constitution, and any new laws to regulate guns have to be narrowly drawn in order to not trip the amendment. A ‘no’ vote rejects the language. The language goes beyond the Second Amendment in the US Constitution, and Iowa would be one of only three other states (Alabama, Missouri, Louisiana) with a strict scrutiny requirement.
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Strict scrutiny is the highest standard of review in the legal system and legal experts say it’s hard to satisfy.
This amendment would make it harder for the state to create regulations on deadly weapons in the future, and put current restrictions at risk if they’re deemed too broad. This is because any law that isn’t narrowly tailored to a compelling government interest could be challenged and overturned in court.
Mark Kende, director of the Drake Constitutional Law Center and a Constitutional law professor at Drake University, said one of the problems is that the US Supreme Court hasn’t been clear about what would fit the definition.
“The burden is on the government to show basically whether the law is narrowly tailored to promote a compelling government interest or show that it’s not,” he said.
Public safety would likely qualify as a strong government interest, Kende said, but the result would come down to how the law was written. Every possible loophole would have to be anticipated and blocked, enforcement methods explained, and the law would have to clearly accomplish its goals without stepping outside of the lines.
In Iowa, there have been several notable shootings this year including outside of East High School in Des Moines, at an after-prom party for Roosevelt High School in Des Moines, students outside of a church in Ames, and at Maquoketa Caves State Park.
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Gun laws would be tough to pass strict scrutiny because of how many variables there could be, such as transit between states and whether a person accurately reports if they have a gun when asked, Kende said. It’d be hard to write a perfect, ironclad law.
“Having said that, all sorts of imperfect laws have been upheld by the Supreme Court and the Iowa Supreme Court if the laws do a pretty good job or as good a job as it could do,” he said. “So I think that’s what I would say is, it doesn’t have to be a perfect law. It has to be as good a law as you could possibly have and be what’s called the least restrictive alternative.”
Supporters of the amendment have said it’s important to preserve the right to own firearms in Iowa because courts haven’t been protective enough over the years, which explains the strict scrutiny standard.
But firearms laws in the state are already loose. And Republican legislators, who have all the power, aren’t likely to pass any restrictions.
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Most recently, the Iowa Legislature removed the permit requirement to buy or open-carry handguns. Background checks are still required for those who don’t have permits. There are also no training requirements for handguns—if the person isn’t seeking a permit—and very few restrictions on ownership.
Kende described Iowa’s gun laws as among the most liberal in the country for firearm owners.
Iowans for Gun Safety has this statement on its website:
“The proposed amendment is an overreach of the right to ‘keep and bear arms.’ It is not simply the US Second Amendment. The ‘subject to strict scrutiny’ language is too extreme and could severely hinder any efforts for common sense gun laws. It could lead to costly court challenges of current laws.
We find it unacceptable that pro-gun groups have centered on the ‘rights’ of gun-owning citizens over and against the safety of the general public. We think Iowans have the right not to get shot.”
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Of course, the US Supreme Court this summer also made gun regulations harder to pass. Justice Clarence Thomas, in the majority opinion, said any case restricting guns must demonstrate a connection to the nation’s “historical tradition of firearm regulation.”
To Kende, the oddest part of the amendment is the way the legislature tells the courts what to do when it hears gun cases. Typically, US courts decide what level of legal scrutiny they’ll consider after they’ve looked at a case.
“I would just say that it’s not best practices for legislators to tell courts what level of scrutiny to use,” he said. “I mean, I’m not saying that’s illegal. I’m not saying it’s unconstitutional, but I don’t think it’s best practices in a democracy.”
Nikoel Hytrek
10/21/22
Have a story idea or something I should know? Email me at nikoel@new.iowastartingline.com. You can also DM me on Twitter at @n_hytrek.
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