doBack in 2022, Iowa voters overwhelmingly approved a change to the state Constitution that added the right to keep and bear arms to the document and instructed courts to use strict scrutiny (the highest standard of judicial review) when considering the legality of any gun law that's challenged.
Now the state Supreme Court has upheld the convictions of two men charged with violating different state gun laws, but the vote was far from unanimous. In separate 4-3 rulings, the court kept in place laws making it a crime to possess a gun while under a domestic violence protective order as well as a prohibition on carrying a "dangerous weapon" (including, but not limited to, firearms) while also possessing illegal drugs or engaging in a criminal act.
Jordan Cole, of Story County, appealed his conviction for possession of firearms while under a domestic violence protective order. Cole, in court filings, argues the district court erred in denying his motion to dismiss because he has a fundamental right to possess firearms under the Second Amendment to the U.S. Constitution and the Iowa Constitution that cannot be extinguished by the entry of a civil protective order.
According to court records, Cole consented to the entry of a one-year protective order in a domestic abuse case that expressly prohibited him from possessing firearms. Despite the prohibition, Cole pawned stolen firearms while the protective order was in effect. Prosecutors charged him with theft and violating the domestic abuse protective order.
Cole ended up taking a plea deal to the theft charge, and the charge of violating the protective order was dropped.
In their decision, the four justices in the majority argued that Cole was "expressly agreeing to give up his right to possess firearms for the one-year term of the protective order," when he consented to the protective order, adding that "Cole waived his Second Amendment and article I, section 1A rights." That leaves open the possibility that the law could be challenged in the future, but only by someone who doesn't consent to a protective order.
The second case, however, was decided on the merits... and wrongly, in my opinion.
Kevin Woods was found with marijuana and a loaded semiautomatic pistol in his backpack during a traffic stop. He was charged with and pleaded guilty to possession of marijuana and carrying a dangerous weapon while carrying controlled substances and committing an indictable offense.
Woods moved to have the dangerous weapon charge dismissed on the grounds it violated his federal and state constitutional rights.
[Justice Christopher] McDonald argued the U.S. Supreme Court has held the federal right conferred under the Second Amendment “is no unlimited,” and instead “is a limited right of responsible, law-abiding citizens to keep and bear arms when engaged in lawful conduct.”
“There is no federal or state constitutional right to carry a firearm while criming,” McDonald wrote.
[Justice Matthew] McDermott, in his dissent, contends Woods’ possession of a “personal-use quantity” of marijuana — a non-violent misdemeanor — is insufficient ”to justify abridging Woods’s right to hear arms.“
“The plurality’s failure to distinguish between dangerous and nondangerous activities leads it to uphold a firearm restriction that in this case has no anchor in our historical traditions,” he wrote.
McDermott is right that the Supreme Court has indicated a finding of dangerousness is necessary when determining whether someone should lose their Second Amendment rights; either temporarily or permanently. At least one federal appeals court has held that while laws banning gun possession while under the influence may not violate the Second Amendment, statutes prohibiting gun possession by those who use intoxicating substances, even those that are illegal, go too far.
The Woods opinion leaves open the possibility that even Iowans who have an Iowa Medical Cannabis Card could face charges if they possess a gun at the same time they possess a little pot. While the statute in question refers to carrying a gun "for an unlawful purpose", the dissenting justices noted that the logic deployed in a concurring opinion "could justify punishing a citizen for carrying firearms even when it is known that the citizen has no 'unlawful purpose' for carrying.
To illustrate how this could happen, consider the hypothetical person described in the State’s brief: “the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety.” The State seems to assume—or, at least, I will assume—that this grandmother does not possess a firearm for an unlawful purpose. Rather, the gun is just to protect her against a violent world, a core justification for the Second Amendment right.
Even though she lacks an unlawful purpose for arming herself, the concurrence’s approach would allow the grandmother to be jailed for arming herself. For instance, suppose she chooses to drive to Fareway to pick up baking supplies. Suppose also that she brings her purse with her, and that she always keeps her “pistol tucked away” in that purse “for her own safety.” Naturally, she keeps it loaded—so she can use the gun to protect her own safety. Finally, suppose that the purse also contains crumbs from her homemade marijuana brownies, the ones she uses “for a chronic medical condition.”
In that scenario, there would be no meaningful daylight between the grandmother’s situation and Woods’s. The grandmother’s gun would be just asaccessible—and, therefore, would have the same “potential to facilitate” a crime—as Woods’s handgun. Indeed, the facts of the two cases would be effectively identical because in both: (1) the gun is in a bag and loaded, (2) the marijuana is in the bag, (3) the gun is “readily-accessible,” and (4) all of this occurs in public. And so, under the concurrence’s nexus approach, the grandmother should be treated just like Woods. Even though we know (as part of the hypothetical) that the grandmother has no unlawful purpose for possessing the gun, she still lacks any constitutional right to carry, and she could still be sent to jail for doing so. Her lack of an unlawful purpose doesn’t matter at all.
A prosecutor might decide to let it slide if Grandma has a medical card, but a zealous D.A. who wants to punish gun owners whenever possible could file charges even if the state says it's okay for her to purchase and possess marijuana from a licensed dispensary. And if granny doesn't have a medical card, she's in an even more precarious situation.
The U.S. Supreme Court could take up one or more cases dealing with the federal prohibition on gun ownership for unlawful users of drugs next term, and if they conclude the statute is too broad it could open the door to another legal challenge to Iowa's law. At the moment, though, gun owners in the state need to keep in mind that even a small amount of the devil's lettuce could land them in big trouble if they're in possession of a firearm at the same time.
