It looks like voters in the Hawkeye State will have the opportunity to enshrine the right to keep and bear arms in the state constitution next year. On Thursday morning, the state Senate approved the ballot measure, and the House was scheduled to take up the amendment on Thursday afternoon. With Republicans in control, passage seems assured, which would place the proposed changed to the state constitution before voters in the 2022 elections.
The language of the proposed constitutional amendment is unambiguous in its protection of the right to keep and bear arms, stating “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.”
As you might expect, most Democratic lawmakers are objecting to the language of the bill.
Senate Democrats attempted to change the wording of the resolution to exactly match the Second Amendment of the U.S. Constitution instead of what they described as extreme language, but Republicans voted the change down.
“This could be a noncontroversial bill in a bipartisan fashion to do something that has been overlooked for over a century. But no, the majority party chooses division. They choose extremism,” said Sen. Tony Bisignano, D-Des Moines.
What’s extreme about the language proposed here? Calling the right to keep and bear arms “fundamental”? Placing gun control laws on the same legal footing as laws restricting speech, which are also subject to strict scrutiny?
The truth is that it’s the Democrats who are the extremists here, and they’re the reason why this ballot measure wasn’t passed in a bipartisan fashion. Frankly, opposition to the proposed amendment is a dumb move politically for Iowa Democrats, who failed to make any gains whatsoever in last fall’s elections. Gun control wasn’t the winning issue in the state that the Left thought it would be, and by 2022 there are going to be a lot of new gun owners in the state from across the political spectrum who’ll be voting in favor of the amendment.
While some Democrats were content to name-call, others made a more emotional appeal in opposition to the proposed language.
Sen. Kevin Kinney, D-Oxford, a former lieutenant in the Johnson County Sheriff’s Office, said he worried the strict scrutiny language could allow laws like required background checks to be struck down.
“Not many of you have ever had to sit and look down the barrel of a gun. I have, on a number of occasions,” Kinney said. “When you are placing strict scrutiny into the Constitution you’re going to be diminishing our laws that are on the books. To me, this is going to make law enforcement more dangerous.”
I certainly respect Sen. Kinney’s service in law enforcement, but he swore an oath as both a law enforcement and legislative officer to uphold the Constitution, not gun control laws. We don’t know, by the way, how Iowa courts would adjudicate a challenge to the state’s background check laws if the proposed amendment is ratified by voters. Rather than respect the will of the people and the judicial system, however, Kinney seems to believe that the Second Amendment should be viewed as a second-class right.
Keep in mind, strict scrutiny is the legal standard that is used for issues of free speech. It’s not unusual or “extreme” in any way. It’s simply the highest standard of judicial review, requiring that the government prove that the law meets a compelling government interest and that the law uses the least restrictive means of achieving that interest in order to be upheld.
To me, the most interesting part about the strict scrutiny language in the proposed amendment is that the Supreme Court may be moving towards adopting another standard when it comes to the determining the constitutionality of gun control laws. Justices Amy Coney Barrett and Brett Kavanaugh have both used the “history, tradition, and text” test when they examined gun control laws while serving on appellate courts.
In Judge Kavanaugh’s view, “gun bans and regulations” should “be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances…” He did not think judges should “re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right.” In his view, Heller had been clear that Second Amendment cases should be decided “based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”
Don’t be surprised if Democrats actually use this as one of their main arguments against the proposed amendment, though they may use astroturf “pro-gun” voices to do it. They’ll argue that they support the Second Amendment, but strict scrutiny isn’t the right way to do it. Unfortunately, revising the language now would restart the clock on the whole process, which would push the public vote on the amendment back to 2024.
This amendment is worth supporting now, and if the language needs to be tweaked again to include a reference to the “history, tradition, and text” standard later that can always be done. What’s most important is enshrining the right to keep and bear arms into Iowa’s state constitution, which is one of only a half-dozen or so that does not specifically include that protection.
