Strict scrutiny gun amendment

Bohannan floor debate comments

 

Representative Holt (the floor manager for this bill) said Iowa is one of only 6 states without a gun rights amendment. But the overwhelming majority of states do not have this extreme amendment. Instead, they have a right similar to the Second Amendment. Only three states have this more extreme amendment -- Alabama, Louisiana, and Missouri. And Missouri’s law isn’t even as strict as this proposal because it has exceptions. Missouri’s law specifically says that the legislature can limit gun rights for convicted violent felons and for those who are adjudicated a danger to themselves or others. The proposed amendment here has none of these exceptions.

The proposed amendment “recognizes [the right to keep and bear arms] to be a fundamental individual right” and says that “any and all restrictions of this right shall be subject to strict scrutiny.”

The “right to keep and bear arms” part sounds like the Second Amendment. But the language that makes “any and all restrictions” on gun rights “subject to strict scrutiny” – that’s new. And it is far more extreme than the Second Amendment ever has been.

Strict scrutiny is the highest and harshest level of scrutiny a court can use to decide whether a law is unconstitutional. In one gun case, the Missouri Supreme Court cited a study showing that laws are struck down under strict scrutiny 70% of the time. That means, generally speaking, that laws survive strict scrutiny only 30% of the time. If this strict scrutiny amendment passes, are we really supposed to believe that all of Iowa’s existing gun laws will magically survive?

Supporters of this strict scrutiny amendment say it is about freedom. No – the Second Amendment is a freedom to defend oneself that has deep historical and constitutional roots in our country, but the proposed amendment is not the Second Amendment. It is a perversion of that constitutional right. The proposed amendment is an extreme bill that cripples law enforcement and endangers public safety.

Supporters of this bill say that fundamental rights always get strict scrutiny. But that’s not true -- in constitutional law, just because there is a fundamental right does NOT mean “any and all restrictions” are “subject to strict scrutiny.” For example, the First Amendment right to free speech is perhaps our most precious fundamental right, our most cherished freedom. But many laws affecting the right to free speech are not subject to strict scrutiny. I certainly hope no one would claim that gun rights are entitled to more protection than free speech rights. There is a reason why the First Amendment is first.

Iowa has done a good job of balancing gun rights with gun safety regulations that keep people safe.  Background checks. Keeping felons from having firearms. Keeping perpetrators of domestic violence from having firearms. Our permit system. Keeping guns out of schools. Restrictions on machine guns and other “offensive weapons.” If we pass this strict scrutiny amendment, there is no doubt that every one of these common-sense laws will be challenged.

This amendment has no exception for existing gun laws, and Representative Holt refuses to say whether Iowa’s existing gun safety laws will be safe if this amendment passes. This is very troubling. Iowans need to know what they are voting on. They need to know whether this constitutional amendment is going to dismantle the careful balance of gun laws that Iowa has had for years. And it’s especially troubling because it is an about-face from what the sponsors said when they first introduced the bill a couple of years ago. In 2018, Rep. Windschitl said in a television interview that the proposed amendment “isn’t going to take us into a path or down a road that is extreme where we’re undoing the regulations we have in the books now.” But now, the sponsors of this bill are no longer willing to give that assurance.

This is not a hypothetical. Take the example of a felon in possession law. Felon in possession laws prevent a person who has been convicted of a felony from possessing firearms. Felon in possession laws have been challenged multiple times in states that have strict scrutiny laws. In one case, a man from New Orleans had previously been convicted of burglary, which is a felony. He was later caught riding in a car with a handgun in the backseat and an AK-47 with a 30-round clip in the trunk, which was a violation of Louisiana’s felon-in-possession law. His lawyers tried to get the gun possession charge dropped, arguing that the strict scrutiny amendment gave him the same "fundamental right" to bear arms that anyone else has. The judge agreed with him and struck down his conviction under the strict scrutiny amendment.

In another case, a man with five felony drug convictions later used a gun in a drive-by shooting, killing an 11-year-old boy. He also challenged his felon in possession conviction. And like in the other case, the court said the man’s felon in possession conviction was unconstitutional under strict scrutiny.

Fortunately, the Louisiana Supreme Court ultimately upheld its felon in possession law. But Iowa’s felon in possession law could easily be struck down because our law is broader than Louisiana’s. Louisiana’s law only prohibits violent felons from having firearms, and only for ten years after completion of sentence. Iowa says no felons can have guns and puts a lifetime ban on having firearms. So a court could easily find that Iowa’s law is too broad and too long to survive strict scrutiny, even though Louisiana’s less restrictive ban is ok.

These cases make you wonder. When people say the strict scrutiny amendment is about freedom, freedom for whom? Freedom for felons to get guns? Freedom for dangerous people to evade law enforcement and escape punishment for their crimes?

These kinds of cases are happening constantly in the states that have adopted strict scrutiny. Whenever someone who isn’t supposed to have a gun is arrested on a gun charge, they whip out that strict scrutiny amendment faster than they drew the gun that got them there.  They say it violates their fundamental right to keep and bear arms and that their charge doesn’t withstand strict scrutiny. They try to use strict scrutiny as a get-out-of-jail-free card.

Is this what we have to look forward to in Iowa? A steady stream of criminals dragging us through endless challenges to their gun convictions? Forcing state taxpayers to foot the bill to defend gun laws that we have had for decades?

This bill is not the Second Amendment. The framers of our Constitution would never have signed on to this bill. They believed in the freedom to defend oneself, but they also believed in law and order. They were statesmen.  They created a brilliant Constitution characterized by checks and balances, not one-sided extremism. The proposed bill is a reckless amendment that threatens the balance between gun rights and gun safety that Iowa has worked decades to calibrate. Please don’t take Iowa down this extreme path. I urge this body to vote no on this bill.