This November, Iowans will vote on an NRA-sponsored ballot initiative to incorporate the right to keep and bear arms into the Iowa state Constitution. The amendment goes beyond just incorporating the language of the Second Amendment into Iowa’s law books, as many other states have done, but will instead make any push for gun regulations nearly impossible, while undermining any existing restrictions. “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,” reads the proposed amendment.
“Strict scrutiny” is the most rigorous judicial test in the nation. Under strict scrutiny, a regulatory law must serve a compelling government interest, such as the interest of public safety, and also must be narrowly tailored to serve that interest for a judge to rule the law constitutional. According to an October poll from the Des Moines Register and Mediacom Iowa, almost 60 percent of likely voters plan to vote in favor of the amendment.
Connie Ryan, executive director of Interfaith Alliance, an organization that is part of the Iowa Coalition for Responsible Gun Laws, said that this amendment will tie the hands of Iowa justices indefinitely, preventing most popular gun regulations, like the prohibition on felons from possessing firearms, from standing against a judicial challenge. “It goes far above what the Second Amendment does and puts the ability to possess and carry a gun far above public safety,” said Ryan. “We are just very focused as a coalition on this particular issue and defeating the reckless gun amendment.”
But the hands of justices across the United States may have already been tied by the Supreme Court, according to Andrew Willinger, executive director of the Duke Center for Firearms Law. In June, the Supreme Court ruled on New York State Rifle & Pistol Association, Inc. v. Bruen, overturning a New York law requiring concealed-carry applicants to show “proper cause” for requesting a permit in their application. Conservative justice Clarence Thomas, who authored the 6-3 decision, created a new test to evaluate the constitutionality of gun regulations, requiring the government to prove that firearms regulations are part of “the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Since Bruen, federal courts have scrambled to rule on gun rights challenges from plaintiffs. Earlier this month, a West Virginia judge struck down a federal law requiring guns to have serial numbers. And in September, a federal judge in Texas ruled that a US law barring people under felony indictment from purchasing firearms was unconstitutional. “It’s interesting to see people saying that this amendment would give the highest protection or the greatest protection to the right to keep and bear arms,” Willinger said. “That doesn’t really seem to hold true anymore.”
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Despite the strong precedent set by Bruen, the case’s historical tradition test and strict scrutiny analysis are dissimilar enough that the amendment’s passage would result in an additional line of defense against future gun regulations, according to Todd Pettys, law professor at the University of Iowa Law School. “If Iowans follow those few other states that have already adopted these amendments, gun rights are going to have two different forms of protection, both of them very tough,” Pettys said. Even if a gun regulation is consistent with the historical precedent of the United States, Pettys said, the regulation would still not be permissible in Iowa unless it can pass strict scrutiny. “So it’s two very tall hurdles,” he said.
Even before Bruen, the push to give firearms the highest degree of protection in Iowa was well underway. In April 2021, Republican Governor Kim Reynolds signed a bill making gun permits optional for purchasing or carrying a handgun. Eight months later, Iowa Senate Republicans advanced a bill that would prohibit state and local law enforcement from enforcing any federal laws “infringing on the right to bear arms.” Under the bill, law enforcement agencies would be fined up to $50,000 if they employ officers who knowingly violate the Second Amendment.
This bill, if passed, would institutionalize a recent Iowa trend of counties and local governments voting to become “Second Amendment sanctuaries,” where the locality would stand to oppose any regulations perceived to violate the amendment. In some of these sanctuaries, law enforcement is barred from enforcing current or future laws perceived to violate the right to bear arms. Today, 36 of Iowa’s 99 counties have voted to become gun sanctuaries.
Common gun regulations, such as blanket bans on guns for all felons—including those convicted of nonviolent crimes—may not stand up in court under a strict scrutiny lens, since these bans are not narrowly tailored, according to Richard Rogers, a board member of the Iowa Firearms Coalition. In Louisiana, a district court judge ruled in favor of two plaintiffs who argued that their inability to possess a firearm due to prior felony convictions was not constitutional under their state’s strict scrutiny clause, though the Louisiana Supreme Court eventually overturned the ruling.
Louisiana is one of three states—along with Alabama and Missouri—with strict scrutiny clauses in their Constitutions protecting gun rights, all which were approved by the majority of voters in each state. In Alabama and Missouri, though, the prohibition on guns for felons has not been overturned, nor have background check requirements or other common gun control measures.
But Bruen’s historical tradition may prove a more unyielding test than strict scrutiny, Willinger said, because some common regulations on gun possession have been found to have a strong public safety rationale, but lack precedent dating to the 18th or 19th centuries, which make them harder to cement into law under Bruen. He referenced felon prohibition itself, which was only introduced at the federal level in the 1968 Gun Control Act, which a judge may find to lack sufficient historical precedent.
Ultimately, Ryan said, even if Bruen’s historical tradition test has already made many gun regulations unable to stand, the Supreme Court may someday overturn Bruen or void the historical tradition test, but repealing an Iowa constitutional amendment would be nearly impossible.
“The crux of the matter in Iowa is what do we want in our own state Constitution, regardless of what the US Supreme Court does,” Ryan said. “We still stand with the belief that putting this into the Iowa Constitution is dangerous and reckless.” Ryan urged Iowa voters to look beyond Bruen when voting in the November 8 election. Activism against the amendment’s passage is not pointless, she said, and is in fact essential to leaving regulations in the hands of Iowa voters down the line, instead of in the tied hands of the judiciary.
