The N.R.A.'s Strict-Scrutiny Amendments

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The N.R.A.’s Strict-Scrutiny Amendments

Tod

d E. Pettys

ABSTRACT: The National Rifle Association (“N.R.A.”) is urging states to

declare in their constitutions that the right to keep and bear arms is

fundamental and that any restraint on that right is invalid unless it meets

the stringent demands of strict scrutiny. Three states have already embraced

the N.R.A.’s proposal and Iowa is one-third of the way toward becoming the

fourth. In this brief Essay, I make two overarching arguments. First, contrary

to the apparent aims of the N.R.A. and its legislative partners, the proposed

strict-scrutiny amendments leave courts with significant latitude to define the

scope of the fundamental constitutional right to which the strict-scrutiny

standard attaches. Second, courts can reasonably conclude that the right

protected by these amendments is narrow in scope, encompassing little or no

more than what federal courts today strongly protect under the Second

Amendment. Far from securing the sweeping reform that many may desire

and others may fear, therefore, the N.R.A.’s proposal may ultimately prove

merely to ensure that, at the state level, the fundamental gun rights that

receive powerful judicial protection cannot be reduced below the federal floor

that the United States Supreme Court has already clearly established.

NTRODUCTION

Frustrated with state and federal judges who have evaluated gun-control

laws under lenient standards of review,

the National Rifle Association

(“N.R.A.”) is urging states to declare in their constitutions that the right to

keep and bear arms is fundamental and that any state or local restraint on

that right is invalid unless it satisfies strict scrutiny. The executive director of

the N.R.A.’s Institute for Legislative Action told Louisiana voters in 2012, for

example, that a constitutional amendment necessitating strict scrutiny would

provide “an iron wall around” their gun rights by protecting “them from anti-

H. Blair and Joan V. White Chair in Civil Litigation, The University of Iowa College of Law.

1. See infra notes 40–60 and accompanying text (describing the lenient standards commonly

deployed in state and federal cases).

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1456 IOWA LAW REVIEW [Vol. 104:1455

gun, activist judges.”

In January 2018, the N.R.A. similarly encouraged its

members in Iowa and elsewhere to protect their gun rights with “iron plating”

by ensuring that judges are constitutionally obliged to evaluate gun

restrictions under “the highest standards of justification.”

As every law

student knows, the strict-scrutiny standard of review sets a daunting path for

a challenged law to travel, demanding that the legislation be “narrowly

tailored” to achieve a “compelling” objective.

“For decades,” the N.R.A.

argues, “anti-gun judges and lawyers” have insisted that strict scrutiny is

inappropriate for gun-rights claims, “because they know that without this gold

standard of legal protection, gun-ban politicians are virtually unbound to pass

any freedom-killing laws that infringe on your constitutional right to keep and

bear arms.”

By overwhelming margins, voters in Alabama,

Louisiana,

and Missouri

have adopted the N.R.A.’s recommendation. In March 2018, the Iowa

2. Chris W. Cox, November 6: A Historic Opportunity for Louisiana Voters to Protect Their Gun

Rights, NRA-ILA (Sept. 25, 2012), https://www.nraila.org/articles/20120925/november-6-a-

historic-opportunity-for-louisiana-voters-to-protect-their-gun-rights. After the Louisiana legislature

voted to send the measure to the state’s voters for ratification, Governor Bobby Jindal released a

celebratory statement picking up on the ferric imagery, declaring that “[w]e are adopting the

strongest, most iron-clad, constitutional protection for law-abiding gun owners.” Bill Barrow,

Gun Rights Constitutional Amendment Clears Senate, Headed for November Ballot, NOLA.COM

(May 29, 2012), https://www.nola.com/politics/index.ssf/2012/05/gun_rights_constitutional_

amen.html (quoting Governor Jindal).

3. “Strict Scrutiny” Amendments: Iron Plating for the Right to Keep and Bear Arms, NRA-ILA

(Jan. 26, 2018), https://www.nraila.org/articles/20180126/strict-scrutiny-amendments-iron-plating-

for-the-right-to-keep-and-bear-arms.

4. See, e.g., Citizens United v. FEC, 558 U.S. 310, 340 (2010).

5. Cox, supra note 2.

6. See Alabama Right to Bear Arms, Amendment 3 (2014), B

ALLOTPEDIA, https://ballotpedia.org/

Alabama_Right_to_Bear_Arms,_Amendment_3_(2014) (last visited Jan. 3, 2019) (reporting that

voters approved the amendment by a 73-27 margin); see also A

LA. CONST. art. I, § 26(a) (amended

2014) (“Every citizen has a fundamental right to bear arms in defense of himself or herself and

the state. Any restriction on this right shall be subject to strict scrutiny.”).

7. See Louisiana Right to Bear Arms, Amendment 2 (2012), B

ALLOTPEDIA, https://ballotpedia.org/

Louisiana_Right_to_Bear_Arms,_Amendment_2_(2012) (last visited Jan. 3, 2019) (reporting that

voters approved the amendment by a 73-27 margin); see also L

A. CONST. art. I, § 11 (amended 2012)

(“The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any

restriction on this right shall be subject to strict scrutiny.”). Louisiana lawmakers were driven in large

part by a desire to ensure that, if changes on the United States Supreme Court resulted in a narrower

interpretation of the Second Amendment, Louisianans would still have strongly protected gun

rights. See State v. Draughter, 130 So. 3d 855, 861 n.6 (La. 2013); see also infra notes 107–08 and

accompanying text (discussing the possible significance of this observation).

8. See Missouri Right to Bear Arms, Amendment 5 (August 2014), B

ALLOTPEDIA,

https://ballotpedia.org/Missouri_Right_to_Bear_Arms,_Amendment_5_(August_2014) (last visited

Jan. 3, 2019) (reporting that voters approved the amendment by a 61-39 margin); see also M

CONST. art. I, § 23 (amended 2014) (“That the right of every citizen to keep and bear arms,

ammunition, and accessories typical to the normal function of such arms, in defense of his home,

person, family and property, or when lawfully summoned in aid of the civil power, shall not be

questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these

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General Assembly approved an amendment that follows the N.R.A.’s

proposal;

if lawmakers endorse the amendment again during their next

session, Iowa voters will be asked to ratify or reject it.

With the N.R.A. urging

Iowa and other states to join the “elite group that provides the strongest

possible protection for” gun rights,

lawmakers and citizens across the

country may soon find themselves in the thick of a debate about the proposal’s

merits.

I take no position here on whether gun-control laws are typically

desirable or undesirable. Focusing on the N.R.A.’s promise of an “iron wall”

or “iron plating” for gun rights, my objective in this brief Essay is to consider

the degree to which the N.R.A.’s proposal is or is not likely to have a

significant impact in states that adopt it. My specific arguments are twofold.

First, the proposed amendments leave courts with significant latitude to

define the scope of the fundamental constitutional right to which the strict-

scrutiny standard attaches. Strict scrutiny can be difficult to satisfy, but those

difficulties will be irrelevant in all firearms cases in which courts conclude that

the textually protected right to keep and bear arms is not even in play. Second,

when adjudicating claims arising under these amendments, courts may

reasonably conclude that the protected right’s scope is narrow, encompassing

little or no more than what federal courts already strongly protect under the

Second Amendment. If gun-rights lawmakers want to secure impactful

constitutional reform, they may need to tailor the language of their proposed

rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these

rights and shall under no circumstances decline to protect against their infringement. Nothing

in this section shall be construed to prevent the general assembly from enacting general laws

which limit the rights of convicted violent felons or those adjudicated by a court to be a danger

to self or others as result of a mental disorder or mental infirmity.”).

9. H.R.J. Res. 2009, 87th Gen. Assemb., Reg. Sess. (Iowa 2018) (“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.”); see also Rod Boshart, Iowa Senate Passes Gun Rights Constitutional Amendment,

AZETTE (Mar. 21, 2018), https://www.thegazette.com/subject/news/government/iowa-senate-

passes-gun-rights-constitutional-amendment-20180321) (reporting on the legislative debate).

10. See I

OWA CONST. art. X, § 1. Iowa voters are authorized to ratify or reject constitutional

amendments that have been proposed by the legislature in successive sessions with an intervening

general election. Id.

11. See “Strict Scrutiny” Amendments, supra note 3.

12. Cf. Holly Martin, Note, Legislating Judicial Review: An Infringement on Separation of Powers,

17 N.Y.U.

J. LEGIS. & PUB. POL’Y 1097, 1107–08, 1108 n.63 (2014) (noting that several additional

states were actively considering the N.R.A.’s proposal). The N.R.A. and its allies are able to press

their argument with even greater urgency when prominent individuals urge the nation to repeal

the Second Amendment. See, e.g., John Paul Stevens, Repeal the Second Amendment, N.Y.

TIMES

(Mar. 27, 2018), https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-

amendment.html; see also Aaron Blake, John Paul Stevens’s Supremely Unhelpful Call to Repeal the

Second Amendment, W

ASH. POST (Mar. 27, 2018), https://www.washingtonpost.com/news/the-

fix/wp/2018/03/27/john-paul-stevenss-supremely-unhelpful-call-to-repeal-the-second-amendment

(arguing that Justice Stevens’s op-ed “might as well be considered an in-kind contribution to the

National Rifle Association”).

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amendments far more closely to the specific gun rights they wish to protect. I

make those arguments in Parts II and III, respectively, after explaining in Part

I how standards of review for gun restrictions came to be a focal point of

constitutional debate in the first place. I close in Part IV by pointing to some

of the problems that arise when courts in states with strict-scrutiny

amendments neglect the issues of scope on which I focus here.

The Second Amendment declares that “[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.”

After evaluating that provision’s text and

history, the Supreme Court found in 2008’s District of Columbia v. Heller

that,

as a general matter, the Second Amendment protects “the individual right to

possess and carry weapons in case of confrontation.”

Turning to the facts of

the case before it, concerning a challenge brought against a set of District of

Columbia handgun regulations, the Court held that—at a minimum—the

Second Amendment protects individuals’ right to possess and carry handguns

in their homes for self-defense.

Writing for the 5-4 majority, Justice Scalia

also made clear, however, that “the right secured by the Second Amendment

is not unlimited.”

With respect to the wide variety of firearms available in the

world today, for example, the Court found “that the Second Amendment does

not protect those weapons not typically possessed by law-abiding citizens for

lawful purposes.”

In what has proven to be one of the ruling’s most

significant passages, the Court also emphasized that

nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons

and the mentally ill, or laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of

arms.

13. U.S. CONST. amend. II.

14. District of Columbia v. Heller, 554 U.S. 570 (2008).

15. Id. at 592.

16. Id. at 635 (“In sum, we hold that the District’s ban on handgun possession in the home

violates the Second Amendment, as does its prohibition against rendering any lawful firearm in

the home operable for the purpose of immediate self-defense.”); see also id. (“[W]hatever else it

leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in defense of hearth and home.”).

17. Id. at 626; see also id. at 595 (“[W]e do not read the Second Amendment to protect the

right of citizens to carry arms for any sort of confrontation, just as we do not read the First

Amendment to protect the right of citizens to speak for any purpose.”).

18. Id. at 625.

19. Id. at 626–27.

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Underscoring the point, Justice Scalia explained that he and his colleagues

had listed “these presumptively lawful regulatory measures only as examples;

our list does not purport to be exhaustive.”

By virtue of what doctrinal analysis might the Second Amendment permit

legislative restrictions of the sort that the Court approvingly identified? Justice

Scalia did not say, but there are two plausible possibilities. First, it might be

that convicted felons (to take one of Heller’s examples) are wholly outside the

protection of the Second Amendment and thus do not share in “the right of

the people to keep and bear Arms.” I will say more about this possibility in

Part II. Second, it might be that the Second Amendment’s protections do

extend to convicted felons and the like, but that restrictions of the sort the

Court listed can meet the standard of review that the Second Amendment

requires. Efforts to assess the latter possibility are complicated by the fact that

the Heller Court declined to announce a standard of review, and so we cannot

know for sure what standard (if any) the justices in the majority favored.

Instead, the Court disposed of the case by concluding that, when it comes to

law-abiding citizens wishing to protect themselves from harm in their homes,

the District of Columbia’s handgun ban was impermissible “[u]nder any of

the standards of scrutiny that we have applied to enumerated constitutional

rights.”

Heller is not, however, entirely devoid of guidance regarding the

appropriate standard of review for Second Amendment claims. Justice Scalia

stressed that the level of scrutiny must be more demanding than run-of-the-

mill rational-basis review, lest the amendment merely “be redundant with the

separate constitutional prohibitions on irrational laws.”

He also rejected the

dissent’s proposal that the Court adopt “an interest-balancing inquiry”

focused on whether a gun-restricting law “burdens a protected interest in a

way or to an extent that is out of proportion to the statute’s salutary effects

upon other important governmental interests.”

In the majority’s view, this

was an unacceptably “judge-empowering” mode of analysis: “A constitutional

guarantee subject to future judges’ assessments of its usefulness is no

constitutional guarantee at all. Constitutional rights are enshrined with the

scope they were understood to have when the people adopted them, whether

or not future legislatures or (yes) even future judges think that scope too

broad.”

The Court’s opinion contains a few additional clues regarding the

standard of review toward which the majority might have been leaning, but

those clues do not all point in the same direction. Some portions of the

20. Id. at 627 n.26.

21. Id. at 628.

22. Id. at 628 n.27.

23. Id. at 689–90 (Breyer, J., dissenting).

24. Id. at 634–35.

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opinion suggest that the justices might have envisioned something more

accommodating than strict scrutiny. Consider, for example, the Court’s

approval of laws barring convicted felons from possessing firearms. Would the

Court have so easily given its sweeping blessing to felon-in-possession laws if

the justices believed strict scrutiny would apply to laws stripping convicted

felons of their gun rights? It seems unlikely.

Felonies come in a wide variety

of species, not all of which reveal a predilection for violence. A law keeping

guns out of the hands of all convicted felons, regardless of the nature or

circumstances of their crimes, is arguably not narrowly tailored to the

government’s compelling goal of protecting the public from harm.

And

then there is the Court’s statement that gun restrictions of the sort the Court

listed are “presumptively lawful.”

Such language is certainly not what one

expects to hear when strict scrutiny is at work. To the contrary, it usually is a

hallmark of rational-basis review.

Perhaps Heller’s strongest indication that strict scrutiny is appropriate for

Second Amendment claims comes in the Court’s finding that Second

Amendment rights are “fundamental.”

The justices undoubtedly did not

choose that term casually, paying no regard to its implications. By choosing

that verbiage and by making the historical findings necessary to justify it, for

example, the Court laid the cornerstone for its conclusion two years later, in

McDonald v. City of Chicago,

that—by operation of the Fourteenth

Amendment’s Due Process Clause—the Second Amendment applies to laws

25. See Dennis A. Henigan, The Heller Paradox, 56 UCLA L. REV. 1171, 1197–98 (2009);

Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial

Ipse Dixit, 60 H

ASTINGS L.J. 1371, 1379–85 (2009). Writing for the dissent in Heller, Justice

Breyer inferred from the Court’s recitation of presumptively lawful gun restrictions that

something less than strict scrutiny would apply. See Heller, 554 U.S. at 688 (Breyer, J., dissenting).

As I indicated above and will discuss in Part II, it also is possible that the Court regarded convicted

felons as being entirely beyond the Second Amendment’s protection, such that one need not

even worry about standards of review when evaluating their claims.

26. I say “arguably” because the supreme courts of Louisiana and Missouri have concluded

that their states’ felon-in-possession laws actually do survive strict scrutiny. See State v. Eberhardt,

145 So. 3d 377, 385 (La. 2014); State v. Draughter, 130 So. 3d 855, 867–68 (La. 2013); State v.

McCoy, 468 S.W.3d 892, 897–99 (Mo. 2015); State v. Merritt, 467 S.W.3d 808, 813–16 (Mo. 2015).

27. Heller, 554 U.S. at 627 n.26.

28. See, e.g., Heller v. Doe, 509 U.S. 312, 320–21 (1993) (“A statute is presumed

constitutional, and the burden is on the one attacking the legislative arrangement to negative

every conceivable basis which might support it, whether or not the basis has a foundation in the

record.” (internal quotation marks omitted) (citations omitted)); United States v. Carolene

Prods. Co., 304 U.S. 144, 152 (1938) (stating that a law regulating commercial transactions

satisfies due-process principles “unless in the light of the facts made known or generally assumed

it is of such a character as to preclude the assumption that it rests upon some rational basis within

the knowledge and experience of the legislators”). But see infra note 81 (noting the slim possibility

that the Court meant merely to acknowledge the possibility of challenging a felon-in-possession

law on non-Second Amendment grounds).

29. Heller, 554 U.S. at 593–94.

30. McDonald v. City of Chicago, 561 U.S. 742 (2010).

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enacted by states and their political subdivisions, and not merely to laws

enacted by the federal government.

As proponents of gun rights point out,

the Court often uses strict scrutiny to protect fundamental rights from

infringement,

and so perhaps the Heller majority was laying a cornerstone for

that doctrinal structure, as well. Then again, fundamental rights do not always

draw this demanding standard of review. A content-neutral regulation of

speech, for example, gets only intermediate scrutiny, requiring the

government to show that its law furthers an important governmental objective

and is not substantially broader than necessary.

Laws that burden a person’s

free exercise of religion are treated even more favorably—receiving mere

rational-basis review—if they are neutral and generally applicable.

Faced with this puzzle, what are lower courts to do when presented with

a Second Amendment claim? Some judges have resisted committing to any of

the familiar standards of review, finding instead that the required strength of

the government’s justification for a challenged law should fluidly correspond

to the degree to which the law burdens the core, Heller-vindicated Second

Amendment right of armed self-defense. That was the approach taken by

Judge Richard Posner and his colleagues on a Seventh Circuit panel in 2012’s

Moore v. Madigan.

The dispute in Moore concerned an Illinois law banning

the possession of handguns and other firearms outside the home. The court

said the state’s wide-reaching ban required a stronger justification than would

be needed for a law banning firearms in public schools or other narrowly

defined public places.

Striking down the statute, Judge Posner explained

that the court’s “analysis [was] not based on degrees of scrutiny, but on

Illinois’s failure to justify the most restrictive gun law of any of the 50 states.”

The analytic framework deployed in Moore is not, however, the norm.

Courts do commonly agree that the required strength of the government’s

rationale for a gun-control law should be tied to the severity of the burdens

31. See id. at 767–78, 791.

32. See, e.g., Brief for the Nat’l Rifle Ass’n & the NRA Civil Rights Def. Fund as Amici Curiae in

Support of Respondent at 16–21, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290)

(urging the Court to apply strict scrutiny to infringements of Second Amendment rights).

33. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546–47

(1993) (using strict scrutiny to strike down a law that targeted a disfavored group’s free exercise

of religion); R.A.V. v. City of St. Paul, 505 U.S. 377, 395–96 (1992) (using strict scrutiny to strike

down a content-based regulation of speech).

34. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (using intermediate

scrutiny to uphold must-carry provisions of a statute).

35. See Emp’t Div. v. Smith, 494 U.S. 872, 879–81 (1990) (abandoning the strict-scrutiny

standard for neutral and generally applicable laws that substantially burden a claimant’s free

exercise of religion); see also, e.g., Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (finding

that Employment Division requires rational-basis review for religion-burdening laws that are neutral

and generally applicable).

36. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

37. See id. at 939–40.

38. Id. at 941.

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the law imposes, but they use that premise as a springboard for deploying a

traditional standard of review. Nearly all federal courts that have addressed

the issue have concluded that a lenient application of intermediate scrutiny is

ordinarily appropriate, so long as the legislation at issue does not make it

difficult for law-abiding people to possess (especially in their homes) the kinds

of firearms that people have traditionally kept for self-defense and other

lawful purposes.

That approach, combined with the scope-defining categoricalism I will

describe in Part II, is yielding an impressive win-loss record for the

government in Second Amendment cases.

In a study of all Second

Amendment claims adjudicated by federal and state courts between June

2008 and February 2016, Eric Ruben and Joseph Blocher recently found that

the government prevailed more than ninety percent of the time.

In 2010,

for example, the Third Circuit concluded that strict scrutiny was

inappropriate for evaluating a federal law that outlaws firearms from which

the serial numbers have been removed.

The restrictions imposed by the

statute do not burden the right to armed self-defense nearly as much as the

laws struck down in Heller, the court reasoned, and so a more permissive

standard of review was in order. The court upheld the statute, concluding that

it was reasonably adapted to serve important governmental interests.

2011, the D.C. Circuit similarly applied intermediate scrutiny when evaluating

the District of Columbia’s ban on “assault weapons” and on magazines

holding more than ten rounds of ammunition.

Those restrictions were not

as burdensome as laws banning the possession of handguns in the home, the

court said, and so strict scrutiny was unwarranted.

Finding that the

39. See Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional

Case for Gun Control, 92 WASH. U. L. REV. 1187, 1201 (2015) (“The vast majority of appellate decisions

to consider the question have rejected the claim that regulations limiting the ability to keep and bear

arms in common civilian use are necessarily subject to strict scrutiny . . . .”); Allen Rostron, Justice

Breyer’s Triumph in the Third Battle over the Second Amendment, 80 G

EO. WASH. L. REV. 703, 706–07 (2012)

(stating that lower courts “have effectively embraced the sort of interest-balancing approach that

Justice Scalia condemned, adopting an intermediate scrutiny test and applying it in a way that is

highly deferential to legislative determinations and that leads to all but the most drastic

restrictions on guns being upheld”).

40. Of course, intermediate scrutiny does not always yield an easy win for the government.

In Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678 (6th Cir. 2016) (en banc), for

example, the judges tentatively held that the government had failed to justify 18 U.S.C. § 922(g)(4)’s

lifetime ban on gun possession by anyone “who has been adjudicated as a mental defective or

who has been committed to a mental institution.” Tyler, 837 F.3d at 681 (quoting 18 U.S.C. § 922(g)(4)

(2012)). The court remanded the case for further consideration. Id. at 699.

41. See Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right

to Keep and Bear Arms After Heller, 67 D

UKE L.J. 1433, 1455, 1472 (2018).

42. See United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (evaluating 18 U.S.C.

§ 922(k)), cert. denied, 562 U.S. 1158 (2011).

43. See id. at 98–99.

44. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1253 (D.C. Cir. 2011).

45. See id. at 1257, 1261–62.

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challenged restrictions were substantially related to important governmental

objectives, the court deemed them constitutionally permissible.

Applying

intermediate scrutiny, courts have rejected Second Amendment challenges to

numerous other varieties of federal gun-control legislation, including laws

barring gun possession by convicted felons,

by individuals subject to certain

protective orders,

by individuals who have been convicted of domestic

violence misdemeanors,

by individuals who illegally use (or are addicted to)

controlled substances,

by noncitizens who are in the country unlawfully,

and by persons on property owned by the U.S. Postal Service,

among others.

When it comes to state and local gun-control measures, the Second

Amendment is, of course, only half the story, because state and local officials

must also act within any constraints imposed by their states’ constitutions. It

turns out, however, that—setting aside Alabama, Louisiana, and Missouri,

which have adopted strict-scrutiny amendments

—the law on the right to

keep and bear arms is even more pro-government at the state level. Most states

have provisions that purport to protect that right in their constitutions, but

courts have concluded that those provisions merely require that gun

restrictions be reasonable. In 2007, Adam Winkler described the landscape

this way:

Forty-two states have constitutional provisions guaranteeing an

individual right to bear arms and, tellingly, the courts of every state

to consider the question apply a deferential “reasonable regulation”

standard in arms rights cases. No state’s courts apply strict scrutiny

or any other type of heightened review to gun laws. Under the

standard uniformly applied by the states, any law that is a “reasonable

regulation” of the arms right is constitutionally permissible. Since

46. See id. at 1262–64.

47. See, e.g., United States v. Williams, 616 F.3d 685, 692–94 (7th Cir.) (upholding 18 U.S.C.

§ 922(g)(1) as applied to those convicted of violent felonies), cert. denied, 562 U.S. 1092 (2010).

48. See, e.g., United States v. Mahin, 668 F.3d 119, 124–26 (4th Cir. 2012) (upholding

18 U.S.C. § 922(g)(8)); United States v. Reese, 627 F.3d 792, 802–05 (10th Cir. 2010) (same),

cert. denied, 563 U.S. 990 (2011).

49. See, e.g., United States v. Chovan, 735 F.3d 1127, 1138–41 (9th Cir. 2013) (upholding

18 U.S.C. § 922(g)(9)), cert. denied, 135 S. Ct. 187 (2014); United States v. Staten, 666 F.3d 154,

159–68 (4th Cir. 2011) (same), cert. denied, 566 U.S. 950 (2012); United States v. Booker,

644 F.3d 12, 25–26 (1st Cir. 2011) (same), cert. denied, 565 U.S. 1204 (2012); United States v.

Skoien, 614 F.3d 638, 641–45 (7th Cir. 2010) (en banc) (same), cert. denied, 562 U.S. 1303 (2011).

50. See, e.g., United States v. Carter, 750 F.3d 462, 465–70 (4th Cir.) (upholding 18 U.S.C.

§ 922(g)(3)), cert. denied sub nom. 135 S. Ct. 273 (2014); United States v. Yancey, 621 F.3d 681,

683–87 (7th Cir. 2010) (same).

51. See, e.g., United States v. Meza-Rodriguez, 798 F.3d 664, 672–73 (7th Cir. 2015)

(upholding 18 U.S.C. § 922(g)(5)), cert. denied, 136 S. Ct. 1655 (2016); United States v. Huitron-

Guizar, 678 F.3d 1164, 1169–70 (10th Cir.) (same), cert. denied, 568 U.S. 893 (2012).

52. See, e.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126–29 (10th Cir. 2015)

(upholding 39 C.F.R. § 232.1(l)), cert. denied, 136 S. Ct. 1486 (2016).

53. See supra notes 6–8 and accompanying text.

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1464 IOWA LAW REVIEW [Vol. 104:1455

World War II, state courts have authored hundreds of opinions using

this test to determine the constitutionality of all sorts of gun control

laws. All but a tiny fraction of these decisions uphold the challenged

gun control laws as reasonable measures to protect public safety.

As Winkler explains, the states’ reasonableness requirement is not identical

to traditional rational-basis review; assessing a law’s reasonableness entails

evaluating the significance of the burdens the law imposes, for example, while

rational-basis review typically does not.

But the reasonableness standard is

certainly highly deferential and is less stringent than intermediate scrutiny.

Upholding a state ban on magazines capable of holding more than

fifteen rounds of ammunition, for example, the Colorado Court of Appeals

recently explained that firearms restrictions are permissible under the

Colorado Constitution so long as they constitute “a ‘reasonable exercise of

the state’s police power.’”

When presented with a challenge to a state

restriction on concealed weapons, the Wisconsin Supreme Court similarly

asked whether the law was “a reasonable exercise of the State’s inherent police

powers” and concluded that it was.

The Connecticut Supreme Court upheld

the state’s ban on “assault weapons,” reasoning that the right to bear arms “is

not infringed by reasonable regulation by the state in the exercise of its police

power to protect the health, safety and morals of the citizenry.”

The

54. Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 686–87 (2007)

(footnotes omitted). But see David B. Kopel & Clayton Cramer, State Court Standards of Review for

the Right to Keep and Bear Arms, 50 S

ANTA CLARA L. REV. 1113, 1119–20, 1185–218 (2010)

(arguing that, more frequently than Winkler acknowledges, state courts have demanded more

than mere reasonableness).

55. See Winkler, supra note 54, at 716–26.

56. Rocky Mountain Gun Owners v. Hickenlooper, 371 P.3d 768, 774 (Colo. App. 2016)

(quoting Robertson v. City & Cty. of Denver, 874 P.2d 325, 329 (Colo. 1994)) (interpreting

COLO. CONST. art. II, § 13 (“The right of no person to keep and bear arms in defense of his home,

person and property, or in aid of the civil power when thereto legally summoned, shall be called

in question; but nothing herein contained shall be construed to justify the practice of carrying

concealed weapons.”)).

57. State v. Cole, 665 N.W.2d 328, 338–45 (Wis. 2003) (interpreting W

IS. CONST. art. I,

§ 25 (“The people have the right to keep and bear arms for security, defense, hunting, recreation

or any other lawful purpose.”)). Other states’ courts have upheld concealed-weapons laws on

comparable reasoning. See, e.g., Bleiler v. Chief of Dover Police Dep’t, 927 A.2d 1216, 1220–23

(N.H. 2007) (interpreting N.H. CONST. pt. I, art. 2–a (“All persons have the right to keep and

bear arms in defense of themselves, their families, their property and the state.”)); Klein v. Leis,

795 N.E.2d 633, 638 (Ohio 2003) (interpreting OHIO CONST. art. I, § 4 (“The people have the

right to bear arms for their defense and security . . . .”)); Mosby v. Devine, 851 A.2d 1031, 1038–45

(R.I. 2004) (interpreting R.I. CONST. art. I, § 22 (“The right of the people to keep and bear arms

shall not be infringed.”)); State v. McAdams, 714 P.2d 1236, 1237–38 (Wyo. 1986) (interpreting

WYO. CONST. art. I, § 24 (“The right of citizens to bear arms in defense of themselves and of the

state shall not be denied.”)); see also State v. Robinson, 48 N.E.3d 1030, 1035–36 (Ohio Ct. App.

2015) (reaffirming the reasoning of Klein v. Leis).

58. Benjamin v. Bailey, 662 A.2d 1226, 1233 (Conn. 1995) (interpreting C

ONN. CONST. art. I,

§ 15 (“Every citizen has a right to bear arms in defense of himself and the state.”)); see also State

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Michigan Court of Appeals upheld that state’s felon-in-possession statute

because, in the court’s judgment, it was “a reasonable regulation by the state

in the exercise of its police power to protect the health, safety, and welfare of

Michigan citizens.”

With federal courts coalescing around a permissive application of

intermediate scrutiny for gun-rights claims that do not closely resemble the

claims vindicated in Heller and McDonald, and with most state courts firmly

attached to a highly accommodating reasonableness standard, the N.R.A. and

its allies hope to turn the tide with their campaign for strict-scrutiny

amendments at the state level.

They argue that state and federal judges have

relegated gun rights to “second class” status,

and so the time has come for

state legislators and voters to take decisive action. As I will now show, however,

the proposed strict-scrutiny amendments may fall far short of securing

significant reform.

The N.R.A.’s amendment campaign focuses on adopting the word

“fundamental” to describe the right to keep and bear arms and on requiring

strict scrutiny for any governmental restraints placed upon that right. As

ratified in Alabama, Louisiana, and Missouri, and as currently on the table in

Iowa, those amendments yield somewhat different final texts. In Alabama, the

constitution had already declared “that ‘every citizen has a right to bear arms

in defense of himself and the state.’”

When voters amended that provision

in 2014, they retained the textual link between defense and the right to bear

arms, added the adjective “fundamental” to describe the right, and inserted a

statement declaring that “[a]ny restriction on this right shall be subject to

strict scrutiny.”

In Louisiana, the constitution had already protected “[t]he

v. Jacobsen, No. H17CR140057617S, 2016 WL 4582164, at *5 (Conn. Super. Ct. Aug. 1, 2016)

(reaffirming the reasoning of Benjamin v. Bailey).

59. People v. Swint, 572 N.W.2d 666, 671 (Mich. Ct. App. 1997) (interpreting M

ICH.

CONST. art. I, § 6 (“Every person has a right to keep and bear arms for the defense of himself and

the state.”)); see also People v. Brady, No. 329037, 2017 WL 127745, at *2 (Mich. Ct. App. Jan.

12, 2017) (reaffirming the reasoning of People v. Swint). Other states’ courts have upheld felon-

in-possession laws using the same deferential standard. See, e.g., State v. Ricehill, 415 N.W.2d 481,

483–84 (N.D. 1987) (interpreting N.D.

CONST. art. I, § 1 (“All individuals . . . have certain

inalienable rights . . . [including the right] to keep and bear arms for the defense of their person,

family, property, and the state, and for lawful hunting, recreational, and other lawful purposes,

which shall not be infringed.”)).

60. See, e.g., “Strict Scrutiny” Amendments, supra note 3 (arguing that lower courts “have largely

ignored” Heller and McDonald by adopting “‘intermediate scrutiny,’ a toothless standard that

allows antigun officials broad leeway to infringe the rights of law-abiding Americans”).

61. See Ruben & Blocher, supra note 41, at 1447–49 (recounting utterances of the “second

class” charge).

62. See Alabama Right to Bear Arms, supra note 6 (providing the pre-amendment text of Article I,

Section 26).

63. See id.

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1466 IOWA LAW REVIEW [Vol. 104:1455

right of each citizen to keep and bear arms,” but allowed the legislature “to

prohibit the carrying of weapons concealed on the person.”

Voters in 2012

struck the latter provision, added the adjective “fundamental” to describe the

right, and inserted a strict-scrutiny provision.

In Missouri, the original text

and the alterations were comparable (in relevant part) to those in Louisiana.

Today, Iowa is among the few states that do not have a right-to-bear-arms

constitutional provision,

and so the proposed amendment would add

entirely new language: “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.”

On a quick reading, it might be easy to overlook

one small but significant feature that all of those provisions (except

Alabama’s) have in common: they refer to “the right” to keep and bear arms.

That is where the N.R.A.’s “iron wall” first begins to weaken.

Recall that the Second Amendment similarly protects “the right of the

people to keep and bear Arms.”

In its landmark rulings in Heller and

McDonald, the Court found this phrasing significant because it suggests that

those who wrote and ratified the amendment were not creating a right ab

initio, but rather were taking action on a right with which they were already

familiar. Having pointed out that the text of the amendment indicates that it

concerns “a pre-existing right,” Justice Scalia’s majority in Heller relied heavily

upon English, colonial, and early American history to illuminate that right’s

contours—contours that would have been discernable at the time of the

Second Amendment’s ratification.

In McDonald, the Court relied upon that

same historical record to support its conclusion that the Second Amendment

64. See Richard P. Bullock, The Declaration of Rights of the Louisiana Constitution of 1974: The

Louisiana Supreme Court and Civil Liberties, 51 L

A. L. REV. 787, 814 (1991) (quoting the pre-

amendment text of Article I, Section 11).

65. See Louisiana Right to Bear Arms, supra note 7.

66. See Missouri Right to Bear Arms, supra note 8. Missouri voters added additional language

that is not relevant for my purposes here. See supra note 8 (parenthetically quoting the full

provision as amended).

67. See T

ODD E. PETTYS, THE IOWA STATE CONSTITUTION 103 (2d ed. 2018) (noting the

delegates’ refusal to include such a provision during Iowa’s 1857 constitutional convention). The

other states lacking arms provisions in their constitutions are California, Maryland, Minnesota,

New Jersey, and New York. See Guarantees of the Right to Arms in State Constitutions, NRA-ILA

(July 3, 2014), https://www.nraila.org/articles/20140703/guarantees-of-the-right-to-arms-in-stat.

68. See H.R.J. Res. 2009, 87th Gen. Assemb., Reg. Sess. § 1(A) (Iowa 2018).

69. Provisions like Alabama’s, which use the formulation “a right,” are not exempt from the

kind of categorical analysis that I will describe here in Part II—no constitutional right is entirely

unbounded. But the indefinite article would loosen the text’s ties to the historical baggage that I

will describe in a moment. Of course, that loosening would come at the cost of giving judges even

greater interpretive freedom.

70. U.S.

CONST. amend. II (emphasis added).

71. See District of Columbia v. Heller, 554 U.S. 570, 592–95 (2008).

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protects a fundamental, “deeply rooted” right and thus constrains state and

local governments just as much as it constrains their federal counterparts.

When one combines the Court’s emphasis on the right’s historical roots,

the Court’s insistence that “[c]onstitutional rights are enshrined with the

scope they were understood to have when the people adopted them,”

the

Court’s finding that the right “is not unlimited,”

and the Court’s illustrative

list of “presumptively lawful regulatory measures,”

one is plainly led to the

possibility that there are many gun-control laws that are constitutionally

permissible because they do not even bring the Second Amendment into play.

In other words, when presented with a Second Amendment claim, courts

should ask a threshold question before getting tangled up in levels of scrutiny:

Does this case involve a scenario to which the Second Amendment’s

circumscribed protections extend?

That is precisely the analytic framework that most lower federal courts

are adopting in the post-Heller era. In an influential ruling, the Third Circuit

in United States v. Marzzarella

concluded that Heller necessitates a two-step

analytic process whenever a court adjudicates the merits of a Second

Amendment claim:

As we read Heller, it suggests a two-pronged approach to Second

Amendment challenges. First, we ask whether the challenged law

imposes a burden on conduct falling within the scope of the Second

Amendment’s guarantee. . . . If it does not, our inquiry is complete.

If it does, we evaluate the law under some form of means-end

scrutiny. If the law passes muster under that standard, it is

constitutional. If it fails, it is invalid.

Before ever reaching questions concerning the applicable standard of review,

therefore, courts might conclude that there is something about many of the

72. McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (quoting Washington v.

Glucksberg, 521 U.S. 702, 721 (1997)).

73. Heller, 554 U.S. at 634–35.

74. Id. at 626; see also id. (stating that the mere fact that a constitutional provision protects

something called “the right to keep and bear arms” does not mean that people within that

jurisdiction have “a right to keep and carry any weapon whatsoever in any manner whatsoever

and for whatever purpose”).

75. Id. at 627 n.26; see also supra text accompanying notes 19–20.

76. Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical

Framework and a Research Agenda, 56 UCLA

L. REV. 1443, 1449–53 (2009) (arguing that it would

be proper for courts to reject some of the firearms claims that come before them on the ground

that those claims fall beyond the Second Amendment’s scope, with the amendment’s scope

determined by text, original meaning, tradition, and background legal principles); cf. Brown v.

Entm’t Merchs. Ass’n, 564 U.S. 786, 790–92, 795–98 (2011) (emphasizing the importance of

examining the historical record when identifying categories of speech not encompassed by the

First Amendment’s reference to “the freedom of speech”).

77. United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), cert. denied, 562 U.S. 1158 (2011).

78. Id. at 89 (citations omitted).

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1468 IOWA LAW REVIEW [Vol. 104:1455

rights-invoking claimants who appear before them, or something about those

claimants’ weapons or other circumstances, that categorically pushes their

claims beyond the Second Amendment’s reach. The Third Circuit concluded

that this is what the Heller majority likely had in mind when offering examples

of “presumptively lawful” gun-control measures, such as laws making it a crime

for convicted felons or persons suffering from mental illness to possess

firearms.

The court posited that those individuals simply do not possess the

right that the Second Amendment protects.

In rulings across the country, federal courts are deploying Marzzarella’s

two-step methodology.

In many cases, courts have upheld gun restrictions at

the first step. Based upon a combination of historical analysis and an

interpretation of Heller, some circuits have concluded, for example, that the

federal ban on firearm possession by convicted felons is permissible because

—unless they can favorably distinguish their circumstances from the norm

—convicted felons are not protected by the Second Amendment.

Courts

have reached similar conclusions regarding juveniles,

non-citizens who are

in the country unlawfully,

individuals who illegally use controlled

79. See id. at 91–92; see also Heller, 554 U.S. at 626–27 n.26 (offering examples of “presumptively

lawful” gun-control measures). For a critical discussion of Heller’s categoricalism, see Joseph Blocher,

Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U.

L. REV. 375, 404–29 (2009).

80. See Binderup v. Attorney General, 836 F.3d 336, 346 (3d Cir. 2016) (“Nearly every court

of appeals has cited Marzzarella favorably. Indeed, it has escaped disparagement by any circuit

court.” (citations omitted)), cert. denied, 137 S. Ct. 2323 (2017).

81. The possibility that one’s status as a convicted felon does not automatically doom one’s

Second Amendment claim flows from Heller’s statement that felon-in-possession laws and the like

are “presumptively lawful.” Heller, 554 U.S. at 627 n.26 (emphasis added). As the Seventh Circuit

has noted, “Heller referred to felon disarmament bans only as ‘presumptively lawful,’ which, by

implication, means that there must exist the possibility that the ban could be unconstitutional in

the face of an as-applied challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir.), cert.

denied, 562 U.S. 1092 (2010). Although it is not the most natural reading of the text, perhaps the

Heller Court meant merely to acknowledge that there might be other grounds—having nothing

to do with the Second Amendment—on which a convicted felon might challenge the ban, such

that the Court was not speaking the language of formal presumptions.

82. See, e.g., Binderup, 836 F.3d at 348–53 (upholding 18 U.S.C. § 922(g)(1), at least as

applied to those who have been convicted of “serious” felonies); United States v. Moore, 666 F.3d 313,

316–20 (4th Cir. 2012); United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir.),

cert. denied, 560 U.S. 958 (2010); United States v. Vongxay, 594 F.3d 1111, 1116–18 (9th Cir.),

cert. denied, 562 U.S. 921 (2010). Presented with cases arising under states’ felon-in-possession

laws, some state courts have reached the same conclusion. See, e.g., State v. Craig, 826 N.W.2d 789,

793–98 (Minn. 2013). Some federal courts have relied entirely upon Heller’s dicta, seeing no

need for deeper analysis. See, e.g., United States v. Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013);

United States v. Khami, 362 F. App’x 501, 507–08 (6th Cir.), cert. denied, 560 U.S. 934 (2010);

United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied, 559 U.S. 970 (2010);

United States v. Irish, 285 F. App’x 326, 327 (8th Cir. 2008).

83. See, e.g., United States v. Rene E., 583 F.3d 8, 12–16 (1st Cir. 2009) (upholding

18 U.S.C. § 922(x)(2)(A)), cert. denied, 558 U.S. 1133 (2010).

84. See, e.g., United States v. Carpio-Leon, 701 F.3d 974, 983 (4th Cir. 2012) (upholding

18 U.S.C. § 922(g)(5)), cert. denied, 571 U.S. 831 (2013); United States v. Portillo-Munoz,

643 F.3d 437, 439–42 (5th Cir. 2011) (same), cert. denied, 566 U.S. 963 (2012); cf. United States

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substances,

individuals who are subject to certain kinds of protective

orders,

and individuals who have been convicted of domestic violence

misdemeanors.

By referring to “the right . . . to keep and bear arms,” the proposed strict-

scrutiny amendment in Iowa and the constitutional provisions recently

adopted in Louisiana and Missouri explicitly invite the same kind of historical

analysis aimed at discerning the contours of the familiar, preexisting right to

which those constitutional texts refer.

Some people, weapons, and

circumstances will fall within the protected right’s historically recognized

ambit (and the government’s rationale for intervening in a given instance

either will or will not satisfy the applicable standard of review), while other

people, weapons, and circumstances will fall beyond the right’s boundaries

entirely.

Categoricalism of this sort has occasionally appeared in state courts’ past

gun-rights rulings. The Oregon Supreme Court observed in 1980, for

example, that the Oregon Constitution’s protection of the right to possess

“arms” does not extend to heavy weaponry “used exclusively by the military.”

But determining whether certain categories of people, weapons, and

circumstances fall wholly outside the boundaries of the state constitutional

right to keep and bear arms has not been a dominant mode of judicial

decision-making. Nor should one have expected otherwise. Because state

courts have required that gun-control legislation merely be a reasonable

exercise of the legislature’s police power to protect citizens’ health, safety, and

welfare,

not much has depended on whether claimants and their

circumstances actually fall within the state constitutional right’s scope.

Adopting the N.R.A.’s proposed “fundamental” and “strict scrutiny” language,

however, should place scope-defining inquiries squarely in the foreground of

judicial analysis. Just as lower federal courts have developed a two-step analytic

framework in response to Heller and McDonald’s recognition of a fundamental,

strongly protected individual right with historically defined boundaries,

strict-scrutiny amendments ought to spur state courts to consider categorical

v. Flores, 663 F.3d 1022, 1022–23 (8th Cir. 2011) (incorporating by reference the analysis in

Portillo-Munoz), cert. denied, 567 U.S. 938 (2012).

85. See, e.g., United States v. Seay, 620 F.3d 919, 924–25 (8th Cir. 2010) (upholding

18 U.S.C. § 922(g)(3)), cert. denied, 562 U.S. 1191 (2011); cf. United States v. Richard, 350 F.

App’x 252, 260 (10th Cir. 2009) (upholding § 922(g)(3) entirely on the strength of Heller).

86. See, e.g., United States v. Bena, 664 F.3d 1180, 1182–85 (8th Cir. 2011) (upholding

18 U.S.C. § 922(g)(8)).

87. See, e.g., United States v. White, 593 F.3d 1199, 1205–06 (11th Cir. 2010) (upholding

18 U.S.C. § 922(g)(9)).

88. With respect to states that use the formulation “a right,” see supra note 69.

89. State v. Kessler, 614 P.2d 94, 99 (Or. 1980) (interpreting article 1, section 27 of the

Oregon Constitution).

90. See supra notes 54–59 and accompanying text.

91. See supra notes 77–87 and accompanying text.

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1470 IOWA LAW REVIEW [Vol. 104:1455

questions of scope before evaluating how a challenged law fares under the

prescribed standard of review.

If the N.R.A.’s aim is to help states build an “iron wall” around a broad

range of gun rights by greatly reducing judges’ decision-making flexibility,

one can see already that the proposed strict-scrutiny amendments are not a

recipe for assured success. The job of ascertaining the scope of the strongly

protected fundamental right to keep and bear arms will fall to judges—the

very same people whose purported “anti-gun activism” the N.R.A. says

necessitates these amendments in the first place.

On each occasion when a

court finds that a claim lies beyond the boundaries of the fundamental right

protected by that state’s arms provision, the strict-scrutiny language at the

heart of the N.R.A.’s amendment campaign will be inconsequential. The

court will uphold the contested legislation without ever having to determine

whether the government’s interest is compelling or whether the government

is pursuing that interest in a narrowly tailored manner. A strict-scrutiny

amendment may deepen the protection that the fundamental firearms right

receives under a state’s constitution, but it will do nothing to ensure the

right’s breadth.

III

Once strict-scrutiny amendments push state courts to carefully evaluate

who and what are encompassed by the fundamental, powerfully protected

right to keep and bear arms, what will those courts conclude? For a number

of reasons, state courts may find that the range of people and activities

protected by these amendments is little or no greater than the range already

strongly protected by the Second Amendment in the post-Heller era.

At the outset, familiar separation-of-powers principles tilt the playing

field against individuals seeking to overturn gun-control legislation under an

expansive judicial interpretation of the fundamental right to keep and bear

arms. To ensure that courts do not overstep their proper role in our

democratic system of government, they have repeatedly underscored their

reluctance to find duly enacted legislation unconstitutional in close cases. The

Iowa Supreme Court declared long ago, for example, that it will strike down

a statute only when the constitutional violation is “clear, palpable and plain.”

The Missouri Supreme Court explained much more recently—in a case

concerning that state’s newly ratified strict-scrutiny amendment—that it is

obliged to uphold challenged legislation if doing so “is possible . . . by any

92. Because state courts are accustomed to moving directly to standard-of-review analysis

when presented with gun-rights claims, it may take some time before they fully recognize the

importance of attending to questions of scope. See infra notes 149–55 and accompanying text.

93. See Cox, supra note 2.

94. See supra note 2 and accompanying text.

95. Morrison v. Springer, 15 Iowa 304, 347 (1863).

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reasonable construction of the Constitution.”

In a recent case involving

Louisiana’s strict-scrutiny amendment, the Louisiana Supreme Court

similarly emphasized that a litigant who alleges a statute is unconstitutional

“must demonstrate clearly and convincingly that it was the constitutional aim

of that provision to deny the legislature the power to enact the legislative

instrument in question.”

If a court has doubts about whether the protections

afforded by that state’s strict-scrutiny amendment extend to a particular

claimant or set of circumstances, therefore, the court should resolve that

uncertainty in favor of the challenged statute and thereby leave the matter in

the hands of the state’s politically accountable policymakers. Absent a clear

showing that a strict-scrutiny amendment precludes gun-control legislation of

the kind that a litigant is challenging, a court likely cannot strike down the

challenged legislation without practicing the same kind of judicial activism

that the N.R.A. accuses judges of practicing when their firearms rulings cut in

the other direction.

With that overarching separation-of-powers orientation in mind,

consider some of the more specific obstacles that a claimant may face when

arguing that a strict-scrutiny amendment was ratified in order to provide

“iron-clad”

protection to people in circumstances like his or her own. Some

of those obstacles are fairly practical in nature. Consider a scenario, for

example, in which a claimant challenges a gun-control statute that was on the

books when his or her state’s strict-scrutiny amendment was ratified. If the

lawmakers who proposed that amendment saw the challenged law as part of

the problem they were aiming to solve,

100

a court might well ask, why didn’t

they repeal the legislation, rather than launch the cumbersome amendment

process and leave the objectionable law’s fate to the vagaries of future

litigation?

A claimant challenging a law that was on the books at the time of

ratification might face similar obstacles in the form of statements made by the

lawmakers themselves. When campaigning to secure the political support

necessary for ratification, the amendment’s legislative proponents may have

assured voters that the amendment would not disrupt the regulatory status

quo. In a 2018 televised interview, for example, an Iowa legislator told viewers

that the proposed strict-scrutiny amendment “isn’t going to take us into a path

96. State v. Clay, 481 S.W.3d 531, 537 (Mo. 2016) (quoting Liberty Oil Co. v. Dir. of Revenue,

813 S.W.2d 296, 297 (Mo. 1991)).

97. State v. Webb, 144 So. 3d 971, 976 (La. 2014) (quoting La. Fed’n of Teachers v. State,

118 So. 3d 1033, 1048 (La. 2013)).

98. See supra notes 2–5 and accompanying text.

99. Barrow, supra note 2 (quoting Louisiana’s then-Governor Bobby Jindal, who picked up

the ferric imagery from the N.R.A.).

100. See generally Amending State Constitutions, B

ALLOTPEDIA, https://ballotpedia.org/Amending_

state_constitutions (last visited Jan. 3, 2019) (noting that legislators in all 50 states are authorized

to launch the amendment process).

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or down a road that is extreme where we’re undoing the regulations we have

in the books now.”

101

Such statements will never be fully dispositive when

courts confront questions of constitutional interpretation, but courts

nevertheless do commonly take them into account. When upholding

Louisiana’s long-established felon-in-possession law against a challenge

brought under that state’s strict-scrutiny amendment, for example, the

Louisiana Supreme Court noted that one of the amendment’s legislative

sponsors had said that the state had “close to forty gun laws right now and

those laws will stay in effect.”

102

So far as ordinary voters’ role in the ratification process is concerned,

103

public opinion polling conducted during the ratification period may similarly

shape later assessments of the protected right’s scope. The Wisconsin

Supreme Court cited such polling data, for example, when concluding in

2003 that voters had not intended to undercut the state’s ban on carrying

concealed weapons when they placed a right-to-bear-arms provision in their

constitution.

104

If gun-control advocates worry that a proposed strict-scrutiny

amendment would confer undesirable gun rights of a particular kind, and if

they think polling would reveal that the larger public shares their normative

convictions,

105

they could try to shore up the government’s future litigation

position by commissioning the appropriate polling during the ratification

campaign. They would advance their cause still further if they found

legislators willing to publicly declare that they support the proposed

amendment on the understanding that it will not protect rights of that

particular variety.

Litigants hoping to secure robust firearms protections broader than

those already available under the Second Amendment may also find

themselves facing difficulties arising from a surprising source: the Court’s

opinion in Heller itself. To ascertain the content of the arms right that the

founding generation intended the Second Amendment to protect, the Heller

Court examined legal authorities that were in place in late eighteenth-century

and early nineteenth-century America, including firearms provisions

contained in early state constitutions.

106

By identifying the protections that

101. See, e.g., Gun Control and Second Amendment-Related Issues, IOWA PRESS (Mar. 30, 2018),

http://www.iptv.org/iowapress/story/30301/gun-control-and-second-amendment-related-issues

(featuring an interview with Iowa Representative Matt Windschitl).

102. State v. Eberhardt, 145 So. 3d 377, 384 (La. 2014) (quoting Louisiana Senator Neil Riser).

103. See generally Jennie Drage Bowser, Constitutions: Amend with Care, N

AT’L CONF. OF STATE

LEGISLATURES (Sept. 1, 2015), http://www.ncsl.org/research/elections-and-campaigns/constitution-

amend-with-care.aspx (“Delaware is the only state that allows the legislature to amend the

constitution without a popular vote.”).

104. State v. Cole, 665 N.W.2d 328, 345 (Wis. 2003) (interpreting W

IS. CONST. art. I, § 25).

105. For a sample of national polling indicating popular support for gun-control laws, see

Guns, G

ALLUP, https://news.gallup.com/poll/1645/guns.aspx (last visited Jan. 3, 2019).

106. See District of Columbia v. Heller, 554 U.S. 570, 584–85, 585 n.8, 600–03 (2008)

(examining the constitutions of Alabama, Connecticut, Indiana, Kentucky, Maine, Massachusetts,

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2019] THE N.R.A.’S STRICT-SCRUTINY AMENDMENTS 1473

were available during that period at the state level, the Heller Court believed it

was better able to discern the contours of the pre-existing right that the

founding generation wished to protect at the federal level. Fast-forward to the

present day, when a strict-scrutiny amendment obliges a court to define the

contours of the firearms right that a state’s people have declared to be

fundamental and worthy of strict scrutiny. Tracking Heller’s own methodology,

a court could sensibly look to the U.S. Supreme Court’s pre-ratification

pronouncements for illumination. After all, the Court’s declaration in Heller

that the Second Amendment strongly protects a fundamental right to keep

an operable handgun in one’s home for self-defense provides state courts with

precisely the same kind of contextual evidence of the public’s ratification-era

understanding that the Heller Court itself seized upon when trying to uncover

the founding generation’s intentions. Drawing upon both the mode of

reasoning and the holding in Heller, therefore, a state court might conclude

that voters’ chief purpose when ratifying a strict-scrutiny amendment was to

provide state-level protection for the same right that was honored at the

federal level in Heller. Indeed, a state court might struggle to find comparably

clear evidence that voters wanted a strict-scrutiny amendment to accomplish

much else.

Of course, using Heller’s interpretive methodology in this way would be

virtually a non-starter if it left a strict-scrutiny amendment with no legal

function to serve. As we frequently see in the context of statutory

interpretation, courts are reluctant to interpret a legal text in a manner that

renders it pointless.

107

What is the purpose of a strict-scrutiny amendment if

it does no more than protect the same core right already deemed

fundamental in Heller and already held applicable to the states in McDonald?

The Louisiana Supreme Court has pointed toward an answer. Upholding that

state’s felon-in-possession statute, the court found that Louisiana’s lawmakers

had not proposed a strict-scrutiny amendment in order to extend strong

protection to the likes of convicted felons; rather, lawmakers had simply

feared that the Court’s 5-4 rulings in Heller and McDonald “might later be

threatened by a change in the composition of the Supreme Court.”

108

Depending on the interpretive evidence available to them, courts in other

states could reach similar conclusions, finding that strict-scrutiny

Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, Tennessee, and Vermont); see also

supra notes 71–72 and accompanying text (discussing the Heller Court’s reasoning).

107. See, e.g., Rowley v. Yarnall, 22 F.3d 190, 192 (8th Cir. 1994) (acknowledging “the very

important and well-settled canon of statutory construction that the legislature is presumed not to

have done a vain thing, inserting language for no purpose”).

108. See, e.g., State v. Draughter, 130 So. 3d 855, 861 n.6 (La. 2013); see also id. at 861 (stating that

“[t]he slim majority supporting the holdings in Heller and McDonald prompted Louisiana legislators to

introduce legislation which ultimately resulted in the amendment of the state constitution” and that

lawmakers’ goal “was to secure a continued individual right to bear arms by Louisiana citizens under

the Louisiana Constitution, protected from possible future judicial or legislative erosion”); State v.

Eberhardt, 145 So. 3d 377, 383 n.3 (La. 2014) (making the same observations).

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1474 IOWA LAW REVIEW [Vol. 104:1455

amendments were adopted principally to provide state-level assurance that

strongly protected gun rights cannot fall below the threshold that Heller and

McDonald have clearly established.

A state’s own regulatory history may create additional obstacles in the

path of those seeking a broad interpretation of a state constitutional right to

keep and bear arms. The manner in which a state has historically regulated

firearms might reveal quite a lot about the contours of the pre-existing

firearms right (whether natural or constitutional in nature

109

) that a state’s

lawmakers and voters have opted to describe as fundamental and deserving of

strict scrutiny. To be sure, a state’s sovereign people might ratify a strict-

scrutiny amendment precisely because they wish to reject the state’s historically

narrow perception of gun rights. But that is a proposition that would have to

be clearly borne out by the available evidence, and locating such evidence

might not be easy. In Iowa, for example, the proposed amendment states that

there already exists a right to keep and bear arms (“the right”), but the

amendment’s text does nothing to disclaim Iowans’ longstanding perception

of what that right encompasses. Unless they believe that all of their state’s gun

laws can survive strict scrutiny, lawmakers themselves implicitly acknowledge

the probative value of their state’s regulatory background when they assure

voters that a proposed strict-scrutiny amendment will not invalidate any

existing gun restrictions.

Let us assume, then, that a state court concludes that examining the local

history of firearms regulation could help it better understand the scope of the

pre-existing right that the state’s people regard as fundamental and worthy of

powerful protection. What would the court discover? Although a state-by-state

survey of the history of firearms regulation is well beyond the scope of this

Essay,

110

consider, by way of illustration, several features of the historical

record in Iowa. There is room for lawyers to disagree about the best inferences

to draw from Iowa’s record; I do not aim to provide an unassailable

interpretation of that record here. My purpose is simply to show how readily

109. Iowa is among the few states that do not currently have arms provisions in their

constitutions, see supra note 67 and accompanying text, but the history of firearms regulation in

a state like Iowa can nonetheless help to illuminate lawmakers’ and citizens’ historic perception

of their gun rights. The absence of an explicit arms provision in their constitution hardly means

that Iowans have historically disclaimed gun rights altogether. The first provision of its bill of

rights declares, for example, that “[a]ll men and women . . . have certain inalienable rights

—among which are those of enjoying and defending life and liberty, acquiring, possessing and

protecting property, and pursuing and obtaining safety and happiness.” I

OWA CONST. art. I, § 1

(emphasis added). And, of course, people commonly believe they have natural or constitutional

rights regardless of what the text of their constitution declares. I thus reject Kopel and Cramer’s

suggestion that, in a state like Iowa, “legislators may have enacted gun control laws without paying

the slightest attention to whether those laws infringed the right to keep and bear arms.” Kopel

& Cramer, supra note 54, at 1122–23.

110. See generally P

ATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM

COLONIAL MILITIAS TO CONCEALED CARRY passim (2018) (discussing the history of firearms

regulation in America).

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2019] THE N.R.A.’S STRICT-SCRUTINY AMENDMENTS 1475

one can use regulatory histories of the sort one finds in Iowa to try to

demonstrate that citizens have a narrow conception of the fundamental

firearms right that a strict-scrutiny amendment would protect.

For roughly a century, Iowa’s lawmakers have identified certain types of

firearms that citizens ordinarily are not authorized to possess. In 1927, for

example, the legislature made it a crime to possess a “machine gun.”

111

1976, lawmakers revised the definition of that species of firearm, they placed

machine guns within a newly announced category of “offensive weapons,” and

they placed numerous other kinds of weapons on the proscribed list.

112

With

minor modifications, that regulatory arrangement remains in place today.

113

This history suggests that Iowans do not perceive they have a fundamental

right to possess weapons of these kinds, and that the pending strict-scrutiny

amendment thus would not protect them. With respect to especially

dangerous weapons that become available in the future, or currently existing

weapons that prove to be more dangerous than now believed, this history

might further suggest to a reviewing court that Iowans do not believe they

should have a strongly protected right to possess firearms that future

legislatures identify as unusually offensive to Iowans’ public-safety sensibilities.

Iowa’s lawmakers have also long identified certain classes of people who,

as a general rule, are not permitted to possess one or more types of guns. In

1884, for example, the Iowa legislature made it a crime to “sell, present or

give any pistol [or] revolver . . . to any minor,”

114

a restrictive regime that (with

narrow exceptions) remains in place today.

115

In 1976, the Iowa General

Assembly made it illegal for convicted felons to possess firearms of any kind,

a ban that still stands today.

116

In 2010, lawmakers expanded the ban to

include individuals “who ha[ve] been convicted of a misdemeanor crime of

domestic violence” and those against whom courts have issued specific kinds

of protective orders.

117

These statutory enactments suggest that, in Iowans’

judgment, individuals falling into these specified groups do not possess the

111. Act of Apr. 19, 1927, ch. 234, § 1, 1927 Iowa Acts 201. The legislature defined a

machine gun as a gun “capable of being fired from the shoulder or hip of a person, and by the

recoil of such gun.” Id. Four years later, the legislature broadened the ban to encompass “any

machine gun of any nature or kind.” Act of Apr. 4, 1931, ch. 239, § 1, 1931 Iowa Acts 173.

112. Act of June 28, 1976, ch. 1245, § 2401, 1976 Iowa Acts 549, 574. The legislature defined

a machine gun as “a firearm which shoots or is designed to shoot more than one shot, without

manual reloading, by a single function of the trigger.” Id. § 2401(1).

113. See I

OWA CODE §§ 724.1, 724.3 (2017). Exceptions are made for narrowly defined

groups of people, such as “peace officer[s]” and members of the military. Id. § 724.2.

114. Act of Mar. 29, 1884, ch. 78, § 1, 1884 Iowa Acts 86.

115. See IOWA CODE § 724.22 (making it a crime to sell, give, or loan a rifle, shotgun, pistol,

or revolver to a person under the age of 21).

116. See Act of June 28, 1976, ch. 1245, § 2426, 1976 Iowa Acts 549, 579 (codified as amended

at I

OWA CODE § 724.26).

117. Act of Mar. 22, 2010, ch. 1083, § 4(2)(a), 2010 Iowa Acts 358, 358 (codified as amended

at I

OWA CODE § 724.26).

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1476 IOWA LAW REVIEW [Vol. 104:1455

fundamental right that the proposed strict-scrutiny amendment would

powerfully protect. Just as with especially dangerous weapons, perhaps this

regulatory history further suggests that Iowans do not believe the right

enshrined in the proposed strict-scrutiny amendment should extend to

additional groups of people whom future legislatures identify as presenting

an unacceptably high risk of harm.

Iowa’s legislature has also identified circumstances in which people who

would otherwise qualify to carry a firearm become (at least temporarily)

unqualified to do so.

118

In 1976, for example, lawmakers declared that a

person could not obtain a permit to carry firearms if he or she was “addicted

to the use of alcohol or any controlled substance.”

119

Under the law as it stands

today, those who are “addicted to the use of alcohol” remain ineligible for a

permit.

120

As for people who do not have an alcohol addiction and who obtain

a permit, their permits are invalid during those times when they are “under

the influence of an alcoholic beverage or other drug,” have a blood-alcohol

concentration of .08 or more, or have “any amount of a controlled substance”

in their “blood or urine.”

121

What underlying presuppositions might that

regulatory arrangement reflect? One theory might be that a person continues

to have a right to possess a firearm even when any of those disqualifying

criteria are met, but that the intoxication provides the government with a

sufficient justification for restricting that right. This theory is at least

superficially plausible, though one wonders whether all of those restrictions

could withstand strict scrutiny. For example, is the provision invalidating a

permit when there is “any amount” of any “controlled substance” in a person’s

blood or urine truly narrowly tailored to serve compelling public-safety

concerns? Here is an alternative theory: maybe these statutory provisions

reflect Iowans’ judgment that a person simply does not have a fundamental

right to possess a firearm in any location where a permit has traditionally been

required, and that the legislature accordingly has greater latitude to regulate

in those domains.

122

Might that be true?

118. For an example that is plainly outdated in its specifics but is consistent with the larger

theme, consider the following. In 1890, Iowa lawmakers barred possession of firearms by “tramps,”

defined as males “sixteen years of age or over, who [are] physically able to” work, not making any

good-faith effort to find employment, and “wandering about having no visible calling or business to

maintain [themselves].” See Act of May 3, 1890, ch. 43, §§ 2, 4, 1890 Iowa Acts 68, 68–69. That law

remained on the books for three-quarters of a century, until the legislature repealed it in 1976 as

part of a major overhaul of the state’s criminal code. See Act of June 28, 1976, ch. 1245, § 526,

1976 Iowa Acts 549, 774–75 (repealing section 746.3 of the 1975 Iowa Code).

119. Act of June 28, 1976, ch. 1245, § 2408(3), 1976 Iowa Acts 549, 576.

120. I

OWA CODE § 724.8(2).

121. Act of Apr. 29, 2010, ch. 1178, § 4, 2010 Iowa Acts 600, 601 (codified at I

OWA CODE

§ 724.4C and incorporating by reference the definition of intoxication found at I

OWA CODE

§ 321J.2); see also I

OWA CODE § 321J.1(4) (defining a “controlled substance” as a substance listed

in section 124.204 or section 124.206 of the Iowa Code).

122. Today, unless a statutory exception applies, a person needs a permit to carry a concealed

firearm in any geographic location, to carry “a pistol or revolver, or any loaded firearm of any

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2019] THE N.R.A.’S STRICT-SCRUTINY AMENDMENTS 1477

Consider what Iowa lawmakers have historically said about where it is

lawful to carry a firearm without a permit. Consistent with Heller’s emphasis on

the primacy “of hearth and home,”

123

numerous legislative enactments have

signaled that one’s home, land, and place of business are places where Iowa

officials should leave law-abiding adults largely to their own devices when it

comes to possessing ordinary firearms. In 1935, for example, the legislature

declared that no permit was required to carry a concealed weapon on one’s

own land or in one’s own home or place of business,

124

a rule that remains in

place today.

125

Legislation that traces its roots to 1970 allows operators of

snowmobiles and all-terrain vehicles to carry loaded firearms without a permit

if they are on land that they own or possess.

126

In 1976, the legislature enacted

a law stating that, when the governor declares “a state of public disorder

emergency,” the governor could also bar ordinary civilians from carrying

firearms anywhere other than their “place of residence or business.”

127

That

authorization remained in place until April 2017, when lawmakers struck it

from the code.

128

When one places those rules alongside the restrictions

concerning alcohol and controlled substances,

129

a picture begins to take

shape. Perhaps Iowans have long perceived that—with the possible exception

of periods of governor-declared public disorder—their core right to keep and

bear arms is limited primarily to their own dwellings, land, and businesses,

and that once they step beyond those locations they are properly subject to

greater regulation.

130

kind, whether concealed or not” within a city’s limits, or to carry “in a vehicle a pistol or revolver.”

OWA CODE § 724.4(1). Other laws speak to the legality of carrying guns in other specified places.

See, e.g., id. § 724.4B (barring carrying guns on school grounds, with limited exceptions).

123. District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

124. See Act of May 4, 1935, ch. 122, § 4, 1935 Iowa Acts 171, 171–72.

125. See I

OWA CODE § 724.4(1), (4)(a).

126. See Act of Apr. 6, 2016, ch. 1070, 2016 Iowa Acts 127 (codified at I

OWA CODE

§§ 321G.13(2), 321I.14(2)) (addressing snowmobiles and all-terrain vehicles, respectively). That

legislation has several predecessors. See Act of June 4, 1991, ch. 236, § 3, 1991 Iowa Acts 488, 488

(current version at I

OWA CODE § 321G.13(2)(a)) (authorizing “nonambulatory person[s]” to

operate snowmobiles and all-terrain vehicles while “carry[ing] an uncased and unloaded

firearm”); Act of May 27, 1989, ch. 244, § 25, 1989 Iowa Acts 477, 482–83 (current version at

OWA CODE § 321I.14(2)) (extending the rules governing operators of snowmobiles to operators

of all-terrain vehicles); Act of May 27, 1974, ch. 1196, § 8, 1974 Iowa Acts 695, 697 (current

version at IOWA CODE § 321G.13(2)(a)) (allowing firearms on snowmobiles so long as they were

“unloaded and enclosed in a carrying case”); Act of Mar. 4, 1970, ch. 1158, § 13(6), 1970 Iowa

Acts 202, 205 (banning all firearms on snowmobiles).

127. Act of June 23, 1976, ch. 1074, § 4(e), 1976 Iowa Acts 120, 121 (repealed 2017).

128. See Act of Apr. 13, 2017, ch. 69, § 34, 2017 Iowa Acts 168, 176 (repealing I

OWA CODE

§ 29C.3(4)(e)).

129. See supra notes 119–20 and accompanying text.

130. Other legislative enactments suggest that this might well be the case. In 1965, for

example, lawmakers declared that a person could publicly carry an unloaded pistol or revolver

without a permit, so long as it was for a lawful purpose and the weapon was placed either in the

trunk of a vehicle or was stored in a closed container too large to be concealed on the person or

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1478 IOWA LAW REVIEW [Vol. 104:1455

That theory grows even more plausible when one considers the ways in

which Iowa has historically handled the issuance of permits to carry firearms.

From 1913 until 2010—nearly a century—the decision whether to issue such

permits rested with sheriffs or other chief law enforcement officers.

131

The law

tasked those individuals with making discretionary judgments about the

merits of permit applications as they came in. That longstanding,

government-empowering arrangement certainly did not suggest that Iowans

believed they had a powerful right to carry firearms in locations where the law

required permits.

In 2010, Iowa lawmakers stripped law enforcement officers of their

permit-issuing discretion (and thereby made Iowa a “shall issue” state),

132

move that might signal a broadened perception of Iowans’ fundamental gun

freedoms. But one should take a careful look at the 2010 legislation before

concluding that Iowans have indeed jettisoned a century-long understanding.

Rather than wholly discard the permit regime, the legislature in 2010 shifted

to its own shoulders the task of identifying all of the requirements that an

applicant for a permit must meet.

133

Under the legislation in place today, a

person is not eligible for a “nonprofessional” permit to carry a firearm if he

or she is under 21 years old,

134

has not completed a training course,

135

has not

filed the paperwork that triggers a background check,

136

“[i]s addicted to the

his or her clothing. See Act of May 26, 1965, ch. 437, § 2, 1965 Iowa Acts 828–29; see also Act of

Mar. 6, 1980, ch. 1015, § 68, 1980 Iowa Acts 126, 141 (adding “securely wrapped package[s]” to

the list of authorized bulky carrying devices). Today, those rules remain largely in place. See I

OWA

CODE § 724.4(4)(e), (f); cf. id. § 483A.36 (“A person, except as permitted by law, shall not have

or carry a gun in or on a vehicle on a public highway, unless the gun is taken down or totally

contained in a securely fastened case, and its barrels and attached magazines are unloaded.”).

The requirement that a weapon be unloaded and securely boxed or wrapped is in tension with

Heller’s finding that, when it comes to handguns that one keeps at home for self-defense, the

government cannot require that the weapons be kept unloaded and either disassembled or

locked. See District of Columbia v. Heller, 554 U.S. 570, 630 (2008). Of course, that tension

dissolves if the fundamental right recognized in Heller does not extend to the kinds of public

places to which these Iowa statutes speak.

131. See, e.g., Act of Apr. 19, 1913, ch. 297, §§ 1, 3, 4, 1913 Iowa Acts 307, 307–08 (making it a

crime to carry a concealed weapon without a permit and stating that the decision whether to issue

a permit rested with the sheriff, who was to determine whether, in his “judgment,” the applicant

“should be permitted to go so armed”); Act of June 28, 1976, ch. 1245, §§ 2406, 2410, 1976 Iowa

Acts 549, 576–77 (stating that an applicant had to “reasonably justify his or her going armed” and

that “the issuance of the permit shall be by and at the discretion of the sheriff or commissioner”).

132. See Act of Apr. 29, 2010, ch. 1178, § 5, 2010 Iowa Acts 600, 601 (codified as amended

at I

OWA CODE § 724.7).

133. Some of the requirements that the legislature imposed had already been statutorily in

place. See, e.g., Act of June 28, 1976, ch. 1245, § 2408, 1976 Iowa Acts 549, 576–77 (imposing a

variety of requirements).

134. I

OWA CODE § 724.8(1).

135. See id. §§ 724.7(1), 724.9.

136. See id. §§ 724.7(1), 724.10.

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2019] THE N.R.A.’S STRICT-SCRUTINY AMENDMENTS 1479

use of alcohol,”

137

has been convicted of a felony,

138

is subject to a specified

kind of protective order or has been convicted of a domestic-violence

misdemeanor,

139

has “been convicted of any serious or aggravated

misdemeanor” assault within the past three years,

140

has committed

“documented specific actions”—with “at least one of [those] actions” being

committed within two years of the permit application—that provide probable

cause to believe that the applicant will use the weapon unlawfully,

141

or “[i]s

prohibited by federal law from shipping, transporting, possessing, or receiving

a firearm.”

142

Unless one supposes that every one of those requirements

corresponds either (1) to a category of individuals who are wholly excluded

from the right to keep and bear arms or (2) to circumstances in which the

restrictions would survive strict scrutiny—a doubtful proposition

143

—a court

could reasonably conclude that Iowans continue to disclaim a fundamental,

strongly protected right to carry firearms in places where permits have

traditionally been required.

On the reading I have tentatively sketched here, Iowa’s regulatory history

harmonizes remarkably well with the Second Amendment regime that now

prevails in our post-Heller era. There are narrowly defined realms in which the

government should not interfere with law-abiding adults’ freedom to possess

traditional firearms, absent an exceptionally powerful justification: one’s

home in Heller and McDonald,

144

or one’s home, land, or place of business

under Iowa legislation. Beyond those domains, however, the government can

(and often does) exert far greater regulatory control.

145

137. Id. § 724.8(2).

138. See id. § 724.8(4) (referencing persons subject to section 724.26).

139. See id. (referencing persons subject to section 724.26).

140. Id. § 724.8(5).

141. Id. § 724.8(3).

142. Id. § 724.8(6).

143. Assume, for example, that Iowans do not believe people categorically lose their right to

keep and bear arms immediately upon developing an addiction to alcohol, just as today’s statutory

law suggests Iowans do not believe people categorically lose their firearms rights upon first

developing an addiction to mind-altering substances of other varieties. If the legislature is

concerned about harms caused by people who—for substance-abuse reasons—lack the capacity

to handle firearms responsibly, isn’t the focus on alcohol addiction plainly both over- and under-

inclusive? There are many who suffer from alcohol dependency but manage to remain functional

at high levels of society; why conclude that they merit more unyielding treatment than the users

of controlled substances who merely have their permits temporarily invalidated pursuant to

section 724.4C? See supra note 120 and accompanying text. Such questions lose much of their

force, of course, if the right to carry a firearm in locations where permits have traditionally been

required is not fundamental in nature and if something less than strict scrutiny should

accordingly be put to work.

144. See supra notes 13–31 (discussing Heller and McDonald).

145. See supra notes 39–52, 77–87 and accompanying text (describing the regulatory freedom

that the Second Amendment currently affords to state and federal policymakers).

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1480 IOWA LAW REVIEW [Vol. 104:1455

Absent clear evidence that there are key portions of Iowa’s regulatory

regime that Iowans now wish to reject, what does Iowa’s history enable one to

say about the contours of the already extant firearms right that the proposed

constitutional amendment would describe as fundamental and worthy of strict

scrutiny? One can say with considerable confidence that the right

encompasses law-abiding adults who wish to possess ordinary firearms in their

own homes and businesses and on their own property, just as the victorious

claimants in Heller and McDonald had a right to possess handguns in their

homes for self-defense. Beyond those narrowly circumscribed realms,

however, Iowa’s regulatory history may very well present obstacles that

litigants cannot overcome.

146

When you put everything together—the proposed strict-scrutiny

amendments’ silence regarding the hallmarks of gun rights that are

fundamental in nature, courts’ reluctance to strike down legislation unless the

constitutional violation is clear, the factors favoring retention of firearms

restrictions that are already on a state’s books when a strict-scrutiny

amendment is ratified, the influence of any public opinion polls that reveal a

favorable disposition toward gun-control laws of particular types, the scope-

narrowing effects of deploying Heller’s own interpretive methodology, and the

insights one gleans from studying a state’s own history of firearms

regulations—the odds are stacked against anyone who hopes that the N.R.A.’s

proposed strict-scrutiny amendments will guarantee strong judicial

enforcement of a broad range of gun rights. Indeed, those amendments

might do no more than ensure powerful state-level protection of individual

rights that federal courts already strongly protect under the Second

Amendment. Whether these amendments are worth the political and

financial resources it takes to enact them might thus depend, in the end, on

how likely one thinks it is that the nation will repeal the Second Amendment

or that the U.S. Supreme Court will retreat from its holdings in Heller and

McDonald.

For states that do ratify strict-scrutiny amendments, some closing words

of caution are in order. Because state courts have long reviewed gun-control

legislation under a highly forgiving reasonableness standard, they are not

accustomed to systematically evaluating whether the facts of gun-rights

claimants’ cases place them within the scope of state constitutional

protection.

147

After all, why devote valuable judicial time to answering

questions about the constitutionally protected firearms right’s boundaries

146. Cf. State ex rel. J.M., 144 So. 3d 853, 860 (La. 2014) (finding that Louisiana’s strict-

scrutiny amendment “reflects an expectation of sensible firearm regulation held by the voters,

and comports with historical restrictions with respect to the acquisition, possession or use of

firearms for lawful purposes found in Louisiana law”).

147. See supra notes 54–59, 89–90 and accompanying text.

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2019] THE N.R.A.’S STRICT-SCRUTINY AMENDMENTS 1481

when the requisite reasonableness analysis will almost certainly produce a win

for the government in any event? As I have argued, the N.R.A.’s proposed

amendments should impel courts in ratifying states to consider, as a threshold

matter, whether the facts in a given claimant’s case bring the fundamental

right to keep and bear arms into play.

148

Thus far, however, courts in states

with strict-scrutiny amendments have largely failed to give this gateway

question its due, resulting in occasionally problematic rulings.

In some instances, the problem is analytic murkiness. In State v. Dixon,

149

for example, the Louisiana Court of Appeal first determined that Louisiana’s

felon-in-possession statute satisfied strict scrutiny,

150

but the court then

pivoted toward categoricalism in the ruling’s final passages. The court wrote

that “[t]he restrictions imposed on firearm possession . . . for convicted felons

do not fall within the scope of liberties that [Louisiana’s strict-scrutiny

amendment] was enacted or ratified to protect” and that “the right to bear

arms does not extend to the defendant as a convicted felon.”

151

Why work

through strict-scrutiny analysis if convicted felons do not even qualify for the

constitutional provision’s protection in the first place? To which of the court’s

two competing rationales should litigants most closely pay attention in future

cases?

More worryingly, when courts’ judicial sensibilities incline them to

believe that certain firearms claims lack merit, but those courts fail to consider

the scope of the fundamental right that the claimants are invoking, their

rulings can threaten to degrade the meaning of strict scrutiny and thereby

blunt that standard of review’s ability to serve its historic purposes when

deployed in other contexts. After all, strict scrutiny is a mode of legal analysis

whose demands do not typically change as one carries it from one legal

battleground to another; if a court waters down strict scrutiny’s requirements

in one setting, it thus threatens to water down those requirements in all of the

other settings in which that standard applies. Consider two examples, one

drawn from Louisiana and the other from Missouri.

In State ex rel. J.M.,

152

the Louisiana Supreme Court held that the state’s

bans on carrying concealed weapons and on juveniles’ possession of

handguns both survived strict scrutiny.

153

One of its chief rationales, however,

was that these were longstanding bans with which voters were familiar when

they ratified the state’s strict-scrutiny amendment.

154

Voters’ apparent

148. See supra notes 77–87 and accompanying text.

149. State v. Dixon, 146 So. 3d 662 (La. Ct. App. 2014).

150. See id. at 668–74.

151. Id. at 675.

152. State ex rel. J.M., 144 So. 3d 853 (La. 2014).

153. See id. at 866.

154. See id. at 860 (“In our opinion, the reference to restrictions on the right to keep and

bear arms in [Louisiana’s strict-scrutiny amendment] reflects an expectation of sensible firearm

regulation held by the voters, and comports with historical restrictions with respect to the

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1482 IOWA LAW REVIEW [Vol. 104:1455

intentions seem far more useful for determining the scope of the protected

right than they are for determining whether the challenged bans are narrowly

tailored to achieve compelling public-safety goals. Will strict scrutiny’s rigor

in Louisiana’s future cases—including cases having nothing to do with

firearms—now be diluted by attention to the electorate’s longstanding

embrace of the challenged governmental regulations?

In State v. McCoy,

155

the Missouri Supreme Court held that the state’s

felon-in-possession statute satisfied strict scrutiny.

156

Remarkably, the court

introduced its discussion by emphasizing that “[c]ourts routinely uphold laws

when applying strict scrutiny”

157

and “that laws regulating the right to bear

arms are not ‘presumptively invalid’”

158

—hardly the kind of framing one

typically finds at the beginning of an opinion in which full-blooded strict

scrutiny is about to be unleashed. That framing, coupled with the brevity of

the McCoy court’s narrow-tailoring discussion, leaves one wondering just how

perfunctorily strict scrutiny might be applied in future Missouri cases.

If J.M. and McCoy do illustrate judicial missteps, they underscore the

importance of attending to the threshold questions of scope on which I have

focused here. If juveniles, convicted felons, and others lie beyond the

boundaries of the fundamental firearms right that a state’s strict-scrutiny

amendment protects, courts would do well to find their way to the resulting

conclusions without threatening to diminish the vitality of the strict-scrutiny

standard of review in the process. In any state where a strict-scrutiny

amendment is being considered but has not yet been ratified, lawmakers and

voters should ask themselves a related pair of questions: What are we trying to

achieve, and is the language of the proposed amendment likely to achieve it?

acquisition, possession or use of firearms for lawful purposes found in Louisiana law.”); id. at 862

(stating that the ban “on the juvenile possession of . . . handgun[s] is the type of long-standing

limitation on the right to keep and bear arms with which voters were familiar” when they ratified

the strict-scrutiny amendment); id. at 865 (stating that the ban on concealed weapons is “a long-

standing limitation on the right to keep and bear arms in Louisiana”); id. (stating that the ban

on concealed weapons “is the kind of historical restriction of which the voters of Louisiana were

aware when they voted for the constitutional amendment”).

155. State v. McCoy, 468 S.W.3d 892 (Mo. 2015). The McCoy court determined that

Missouri’s strict-scrutiny amendment was not retroactively applicable to this defendant’s case, but

that strict scrutiny was nevertheless appropriate because it was the standard that Missouri courts

would have applied regardless of the amendment’s ratification. See id. at 895–97.

156. Id. at 899.

157. Id. at 897 (quoting Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis

of Strict Scrutiny in the Federal Courts, 59 V

AND. L. REV. 793, 795 (2006)).

158. Id. (quoting Dotson v. Kander, 464 S.W.3d 190, 198 (Mo. 2015)). The Missouri

Supreme Court deployed the same reasoning in another ruling handed down the same day.

See State v. Merritt, 467 S.W.3d 808, 813–15 (Mo. 2015).