Will Iowa's right to keep and bear arms referendum be out of date by Election Day?

(AP Photo/Steven Senne)

When voters head to the polls in Iowa this year, they’ll not only have the opportunity to cast their vote for several state and federal offices, but the chance to change their state constitution as well. A proposed amendment will be going before the voters that would enshrine the right to keep in bear arms in the Iowa Constitution, which is one of just a handful of states that do not mention the right to keep and bear arms.

That would change if the straighforward language of the proposed amendment is 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.”

The proposed amendment is getting some scrutiny of its own, including from some gun control advocates who claim that enshrining the right to keep and bear arms in the state constitution would have disastrous consequences.

If Iowa were adopting the Second Amendment, it would say: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Iowa’s proposal has no mention of a militia, no mention of the security of the state. Instead, it refers to Iowa as a “sovereign” state, a term popular with secessionists and anti-government kooks.

The proposal also designates the right to keep and bear arms as a “fundamental” right. That word carries deep meaning in a legal context. It does not appear in the Second Amendment.

Fundamental rights include your ability to move between states and to have custody of your children. Whatever the gun industry might like you to think, taking your gun away from you should not be in the same legal category as taking your child away.

Let’s dispel the myths being advanced here. First of all, there’s nothing kooky about using the phrase “sovereign state,” which is a fairly common (though legally vague) description for states within the U.S. Even the Supreme Court has recognized that the Constituion “preserves the sovereign status of the States” because it “reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status.”

As for the columnists’ bizarre definition of a fundamental right, once again they should look to what the Supreme Court has said and done. As University of William & Mary law professor Timothy Vick wrote a couple of years ago:

As recognized in District of Columbia v. Heller and interpreted in the lower courts, the Second Amendment exhibits all the hallmarks of a fundamental constitutional right. It is a non-economic, individual dignity right that is considered ‘implicit in the concept of ordered liberty.’

But those aren’t the only objections to the Iowa constitutional amendment raised by the gun control supporters. They also have a big problem with the last line of the proposed change.

Strict scrutiny means that any limitation on “keeping and bearing arms” must fulfill a compelling state interest, and must be narrowly tailored to meet that compelling interest. It is extremely difficult for the government to meet this burden of proof.

Imagine trying to justify a law to the courts that works one way for Black people and another way for everyone else. That’s the level of scrutiny that gun laws would have to pass.

Again, that’s a really weird hypothetical to use, especially when there’s no shortage of real cases involving strict scrutiny, which is indeed the highest standard of review (at least based on a tiered system of “rational basis”, “intermediate scrutiny”, and “strict scrutiny”) that courts use when determining the constitutionality of a given law and its discriminatory impact on we the people. Strict scrutiny has been regularly used as the basis of review in First Amendment cases, so it stands to reason that it would be the default when it comes to Second Amendment challenges as well. Basically, all the Iowa amendment is stating is that the Second Amendment should be treated as a fundamental right by lawmakers and judges alike.

But there could be another issue with the “strict scrutiny” provision in the proposed amendment; namely, the fact that the Supreme Court might decide that strict scrutiny actually isn’t the proper standard of review, and that a “text, history, and tradition” test is the more appropriate standard for cases dealing with the right to keep and bear arms. As Duke University law professor Jake Charles noted back in 2019, justices Samuel Alito and Brett Kavanaugh have expressed support for using that standard, and longtime Second Amendment attorneys and scholars like Stephen Halbrook also believe that a “THT standard” is the best option for justices and lower court judges to use.

New York State Rifle & Pistol Association v. Bruen concerns whether New York may condition the right to carry a firearm on an official’s finding of “proper cause.” “Proper cause” means an exceptional need, and it excludes, for example, residence in a high-crime area. Possession of an unlicensed, loaded handgun subjects one to 15 years incarceration. The court should decide the case based on text, history, and tradition, the methodology it applied in District of Columbia v. Heller holding that a ban on handguns in the home violates the Second Amendment. In Heller, the court eschewed an “interest-balancing” test under which judges “decide on a case-by-case basis whether the right is really worth insisting upon,” and it should do the same here.

So what happens to the proposed RKBA amendment to the Iowa Constitution that specifically mentions “strict scrutiny” if the Supreme Court comes out in a few weeks and declares that interest-balancing tests, even those that adopt strict scrutiny, aren’t the appropriate standard of review when it comes to our right to keep and bear arms? I have a hard time imagining that the amendment would be pulled, or that supporters would suddenly call on voters to reject the amendment while they work on a new one. At the same time, it’s not possible to change the language of the proposed amendment at this late date. In fact, the issue is only going to the voters now because the legislature in two separate sessions approved the language on the ballot.

If the Court comes out and formally declares that “text, history, and tradition” is the proper standard of review, the best choice for Second Amendment supporters in Iowa this fall would be to approve the constitutional amendment as its written, and immediately get to work on amending the amendment to fall in line with SCOTUS’s reasoning. It may end up being a moot point if the Supreme Court declines to firmly state what standard of review should be used in Second Amendment cases going forward, but given the arguments in the Bruen case and the views of at least a couple of Supreme Court justices, there’s a substantial likelihood that Iowa’s proposed amendment may be a little out of date by the time Election Day rolls around.