On November 8, 2022, during the midterm elections, Iowans voted on whether or not to add the following amendment to the Iowa Constitution: “Right to keep and bear arms. Sec. 1A. 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.”[i] This amendment was approved by nearly a two-thirds majority (748,363 votes to 399,959 votes).[ii] On the surface, one may not think this would make much of a difference, as the Second Amendment of the U.S. Constitution states, “. . . the right of the people to keep and bear Arms, shall not be infringed,” and has been held to apply to the states.[iii] In fact, this was likely the intention of the Iowa Legislature when they were drafting this amendment, and it was certainly the intention of the Iowa Firearms Coalition when they were so heavily campaigning for the passage of this amendment, which they referred to as “the Freedom Amendment.”[iv]However, the requirement of strict scrutiny to be applied will likely have serious consequences regarding Iowa’s ability to regulate gun ownership in any way.

Strict scrutiny is the highest standard of judicial review in examining whether a statute or government directive is or is not constitutional.[v] Strict scrutiny review requires the court to analyze “whether the government action or law infringing on the plaintiff's right is being used to further a compelling interest” and determine “whether such an interest is furthered using narrowly tailored means.”[vi] The statute or regulation does not need to be so closely tied to the intention of the law that it is the least restrictive way of furthering the intention of the statute or regulation, but the law “must further an interest that would be achieved less effectively without the law.”[vii] Traditionally, strict scrutiny has only been applied to statutes that violate the Equal Protection Clause in the Fourteenth Amendment when the statute discriminates against a class based on race, alienage, or national origin.[viii] The U.S. Supreme Court has thus far been unwilling to explicitly state whether the second amendment is to be analyzed under “strict scrutiny” or “intermediate scrutiny.”[ix]Iowa’s amendment thus takes the Second Amendment of the U.S. Constitution a step further in preventing the government from passing legislation that would put limitations on firearm ownership, possession, concealed carry, where one may bring an active firearm, and firearm regulations of any kind by making such laws potentially unconstitutional under the Iowa Constitution. Strict scrutiny gun laws give Iowa judges the authority to strike down a great deal of firearm regulations as unconstitutional, and in some cases, this amendment may leave the hands of judges tied, forcing them to strike down such limitations as unconstitutional under the Iowa Constitution.

Prior to Iowa’s passage of this amendment, only three states had passed strict scrutiny gun laws: Alabama, Louisiana, and Missouri.[x] As of 2020, all three of these states rank within the top five states with the highest record for firearm mortalities (fifth, second, and fourth respectively).[xi] Since the passage of these laws, the courts of these states have faced an influx of gun ownership litigation and challenges to what was once considered standard limitations on gun ownership, such as concealed carry limitations,[xii] juvenile possession of handguns,[xiii] and felon ownership and possession.[xiv] Although there were concerns in these trials that felons or minors would be considered unfairly discriminated against and that the laws would not be narrowly tailored enough, the courts in both cases upheld the laws, although they were forced to navigate more hoops of logic than usual.[xv]

Prior to Alabama passing the Alabama Right to Bear Arms, Amendment 3 in 2014,[xvi] the state had a firearm death rate of 16.9 per 100,000 people and had 815 total deaths by firearms in 2014.[xvii] That number regularly rose and increased to a death rate of 23.6, with 1,141 deaths due to use of a firearm in 2020.[xviii] Louisiana was the first state to pass its strict scrutiny law in 2012,[xix] and since that time they have seen their death rate increase from 19 per 1000 people to 26.3 and their firearm fatalities increase from 896 to 1,183 between 2014 and 2020.[xx] Since Missouri passed its strict scrutiny gun law in 2014,[xxi] they increase from a death rate of 15.3 and 943 deaths in 2014 to a death rate of 23.9 and 1,426 deaths in 2020.[xxii] For reference, between 2014 and 2020, Iowa’s death rate per 100,000 people caused by firearms only increased from 7.5 to 11.2 and its death rate only increased from 241 to 351.[xxiii] Although there are certainly other factors related to these increases, it is likely significant that these three states faced three of the largest increases in firearm death rates and total deaths of any state.

Time will tell whether this amendment to the Iowa Constitution will lead to an increase in Iowa’s death rate and total deaths due to firearm usage like the other three states that passed strict scrutiny gun laws. Until another amendment revoking this amendment is passed, this will be the law of Iowa for the indefinite future. The question now is how judges in Iowa will handle this Constitutional change, and whether or not they will strike down as unconstitutional bans and limitations on certain felons, minors, mentally ill persons, and other limited parties possessing and purchasing firearms.[xxiv] This also opens the door for the courts to strike down statutes that give businesses and homeowners the right to regulate guns being brought on to their property.[xxv] The safety of Iowans is now in the hands of the Iowa judges, and those hands have been tied, leaving Iowans to wait and wonder which limitations on gun ownership by dangerous parties or restrictions on where guns can be carried will be challenged and potentially declared unconstitutional first.

[i] Iowa Const. art. I, §1A (amended 2022); Katarina Sostaric & Josie Fischels, Iowa Election Results 2022: Right to Keep and Bear Arms Amendment Passes, Iowa Public Radio (Oct. 19, 2022, 9:44 AM), https://www.iowapublicradio.org/ipr-news/2022-10-19/gun-rights-amendment-2022-election-ballot [https://perma.cc/TW7F-E6P8].

[ii] Id.

[iii] U.S. Const. amend. II.

[iv] Iowa’s Newest Constitutional Amendment “The Freedom Amendment”, Iowa Firearms Coalition (last visited Feb. 8, 2023), https://iowafc.org/iowas-freedom-amendment/ [https://perma.cc/XZV8-6VEX].

[v] Strict Scrutiny, Legal Information Institute (last visited Feb. 7, 2023), https://www.law.cornell.edu/wex/strict_scrutiny [https://perma.cc/L9C2-BMJL].

[vi] Wymore v. City of Cedar Rapids, Iowa, 2022 WL 7570986, No. 22-CV-66 (N.D. Iowa 2022) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989)).

[vii] Id.

[viii] City of Boerne v. Flores, 521 U.S. 507, 534 (1997).

[ix] McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008).

[x] Giffords Condemns the Iowa Legislature for Passing Dangerous Constitutional Amendment, Giffords (last visited Feb. 7, 2023), https://giffords.org/press-release/2021/01/giffords-condemns-the-iowa-legislature-for-passing-dangerous-constitutional-amendment/ [https://perma.cc/75B6-QELT].

[xi] Firearm Mortality by State, Center for Disease Control and Prevention (Mar. 1, 2022), https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm [https://perma.cc/B524-DH8S].

[xii] State ex rel. J.M., 2013-1717 (La. 1/28/13); 144 So. 3d 853.

[xiii] Id.

[xiv] State v. McCoy, 468 S.W.3d 892, 897 (Mo. 2015).

[xv] Id., State ex rel. J.M., 2013-1717 (La. 1/28/13); 144 So. 3d 853.

[xvi] Ala. Const. art. I, §26; Alabama Right to Bear Arms, Amendment 3 (2014), Ballotpedia (last visited Feb. 7, 2023), https://ballotpedia.org/Alabama_Right_to_Bear_Arms,_Amendment_3_(2014) [https://perma.cc/SL3Q-5QKA].

[xvii] Center for Disease Control and Prevention, supra note 8.

[xviii] Id.

[xix] La. Const. art. I, §11; Louisiana Right to Bear Arms, Amendment 2 (2012), Ballotpedia (last visited Feb. 7, 2023), https://ballotpedia.org/Louisiana_Right_to_Bear_Arms,_Amendment_2_(2012) [https://perma.cc/7BVZ-Y92A].

[xx] Center for Disease Control and Prevention, supra note 8.

[xxi] Mo. Const. art. I, §23; Missouri Right to Bear Arms, Amendment 3 (August 2014), Ballotpedia (last visited Feb. 7, 2023), https://ballotpedia.org/Missouri_Right_to_Bear_Arms,_Amendment_5_(August_2014) [https://perma.cc/36SR-XM4S].

[xxii] Center for Disease Control and Prevention, supra note 8.

[xxiii] Id.

[xxiv] See Strict Scrutiny, Iowans for Gun Safety (last visited Feb. 6, 2023), https://iowansforgunsafety.org/strict-scrutiny/ [https://perma.cc/W6B5-23UF].

[xxv] Id.

Friday, February 10, 2023