{"id":84775,"date":"2022-08-23T11:50:53","date_gmt":"2022-08-23T16:50:53","guid":{"rendered":"https:\/\/milesfortis.com\/?p=84775"},"modified":"2022-08-23T11:50:53","modified_gmt":"2022-08-23T16:50:53","slug":"84775","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=84775","title":{"rendered":""},"content":{"rendered":"

The promoters of this state constitutional amendment have missed the boat, purposefully, or not I don’t know.
\nSCOTUS, in Bruen <\/em>\u00a0ended<\/strong> the tiers of judicial scrutiny for fundamental rights, specifically RKBA and mandated ‘Text, History and Tradition<\/em>‘ instead. If this state constitutional amendment were passed, it could be opposed on U.S. Constitutional grounds as SCOTUS in McDonald<\/em> incorporated RKBA, protected by the 2nd amendment, onto the states.
\nThis needs to go back for editing.<\/p>\n

Iowa gun rights amendment: What a \u2018yes\u2019 or \u2018no\u2019 vote could change<\/a><\/p>\n

Iowa voters in November will be asked to add language to the Iowa Constitution that states it is a \u201cfundamental individual right\u201d to keep and bear arms, and that any restraint on that right is invalid unless it meets the stringent demands of \u201cstrict scrutiny.\u201d<\/p>\n

A new coalition of gun safety advocates warns the pro-gun amendment will prohibit reasonable safety measures that Iowans support, such as firearm safety training, universal background checks and a license to carry a gun in public.<\/p>\n

Republicans have argued for the measure for years, saying Iowa is one of only six states without protections in its constitution for the right to keep and bear arms.<\/p>\n

Democrats and gun-safety advocates contend Republicans are misleading Iowans when they say the amendment is equivalent to the Second Amendment to the U.S. Constitution. The “strict scrutiny” language, they say, could prohibit reasonable safety measures that many Iowans support and could lead to courts overturning gun restrictions already on the books.<\/p>\n

\u201cInserting gun rights with strict scrutiny into the (Iowa) Constitution would tip the balance of power, elevating access to guns above public health and safety,\u201d said Connie Ryan, executive director of Des Moines-based Interfaith Alliance of Iowa and a member of the Iowans for Responsible Gun Laws coalition. \u201cThis is unacceptable and, quite frankly, it is dangerous.\u201d<\/p>\n

The Iowa Firearms Coalition, a gun-rights advocacy group, said in a statement that, \u201cU.S. courts have long recognized that the right to keep and bear arms is a fundamental right that preexisted the Constitution and which is protected \u2014 not granted \u2014 by the Second Amendment. Although it is the ultimate guarantor of our other rights, Iowa is one of only six states that do not protect that vital right in their constitutions.\u201d<\/p>\n

<\/p>\n

While true, Iowa constitutional law professors say the amendment goes a step further by dictating the level of judicial review Iowa courts must apply when considering whether gun restrictions in the state are permissible.<\/p>\n

Drake University\u2019s Constitutional Law Center Mark Kende
\nKende<\/p>\n

\u201cRegardless of what your positions are on guns, normally, the courts are the ones usually that decide the level of (judicial) scrutiny,\u201d said Mark Kende. director of Drake University\u2019s Constitutional Law Center.<\/p>\n

\u201cEven the U.S. Constitution (and its amendments) doesn\u2019t have levels of scrutiny in it.\u201d<\/p>\n

Kende said the ballot amendment presents a \u201cseparation-of-powers problem.\u201d<\/p>\n

\u201cDo we want the Legislature telling the courts how to do things?\u201d Kende asked of the questions Iowa voters will be asked to weigh when voting on the amendment this fall.<\/p>\n

Kende was not advocating a position on the amendment or how Iowans should vote.<\/p>\n

“It\u2019s the Legislature becoming more interventionist with what the court does in more specific ways that some people would argue creates separation-of-powers problems,\u201c he said.<\/p>\n

Rep. Steven Holt, R-Denison, who sponsored the gun amendment in the Iowa House, said it serves \u201cas an important firewall\u201d to protect Iowans\u2019 \u201cfundamental right to keep and bear arms\u201d to protect themselves.<\/p>\n

Holt as well called the argument that the amendment would lead to courts overturning gun restrictions already on the books \u2014 including background checks and prohibitions on felons owning firearms \u2014 \u201c utterly ridiculous,\u201d and he believes \u201cvoters in Iowa will reject it.\u201d<\/p>\n

\u201cIt\u2019s a compelling government interest narrowly tailored,\u201d Holt said. \u201cWe don\u2019t want felons to have firearms. We don\u2019t want violent people to have firearms.<\/p>\n

\u201cReasonable firearm laws on the books are not going to be impacted and federal requirements for background checks aren\u2019t going to be impacted.\u201d<\/p>\n

But some Iowa legal experts say the issue is not so clear.<\/p>\n

Strict scrutiny
\n\u201cStrict scrutiny\u201d is the highest legal hurdle for legislation to clear. It would require any restrictions on gun rights to be narrowly tailored to achieve a compelling government interest, such as public safety, Drake University\u2019s Kende said.<\/p>\n

\u201cMost attempts to regulate guns are going to be struck down by the courts because strict scrutiny means exactly what it says,\u201d he said. \u201cThe court very much want to see precision in the law, and if they see any imprecision or think the law goes too far or doesn\u2019t accomplish what it\u2019s supposed to, they\u2019ll strike it down.\u201d<\/p>\n

The Iowa Firearms Coalition states on its website that \u201cstrict scrutiny\u201d is \u201ca near-impossible test for an infringement on a fundamental right. In addition, it would be a state-level backstop if federal courts lessen or continue to ignore Second Amendment protections, even if the amendment was repealed.\u201d<\/p>\n

What the amendment does
\nKende and University of Iowa law professor Todd Pettys, who has written on gun-rights issues, said the proposed amendment would establish a much narrower legal framework for passing new gun restrictions in Iowa \u2014 one more stringent than that at the federal level.<\/p>\n

Until just recently, federal courts first asked whether a challenged law placed a burden on gun rights protected by the Second Amendment. If yes, the courts\u2019 examined a challenged law with different levels of scrutiny, depending on how burdensome the requirement was and how important the protected right, Pettys said.<\/p>\n

Most often, they applied a test called \u201cintermediate scrutiny,\u201d Pettys said. It asks whether the government asserted an important interest in the regulation \u2014 in this case, public safety \u2014 and whether the regulation actually advanced that interest.<\/p>\n

Courts often decided that question by judging the empirical evidence a state put forward, such as evidence that a law designed to reduce shooting deaths actually did so.<\/p>\n

The legal landscape, though, shifted following a June U.S. Supreme Court decision. In New York State Rifle and Pistol Association v. Bruen, the court overturned a New York gun safety law requiring a license to carry a gun outside the home and to “demonstrate a special need for self-protection\u201c in public places.<\/p>\n

It is the first major Second Amendment decision from the Supreme Court since its 2008 decision in District of Columbia v. Heller, which protected the right to have a handgun for self-defense in the home.<\/p>\n

It marked the first time the Supreme Court affirmed an individual right \u2014 as opposed to a collective right \u2014 to gun ownership that was separate from the “militia clause” in the Second Amendment, Pettys said.<\/p>\n

Writing for the majority in that 5-4 Heller decision, Justice Antonin Scalia, now deceased, said the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”<\/p>\n

Scalia’s opinion opened the door to eliminating some public carry regulations and bans, but it did not immediately strike down many long-standing prohibitions on firearms. The vast majority of challenges to gun regulations in years subsequent to the Heller decision failed, Pettys said \u2014 hence the push by the National Rifle Association urging states to pass \u201cstrict scrutiny\u201d amendments.<\/p>\n

Defending the handgun licensing law, New York argued the right to carry a weapon for self-defense outside the home was not absolute.<\/p>\n

The increasingly conservative Supreme Court, though, held the New York law stretched the bounds of Heller because it gave too much discretion to state officials. The majority opinion said the law violated the 14th Amendment by “preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public.”<\/p>\n

The court\u2019s six conservative justices found New York\u2019s proper cause requirement was inconsistent with the nation\u2019s historical tradition of firearm regulation, and that historical precedent was needed to justify a modern law.<\/p>\n

The decision, though, does not undo objective licensing requirements, such as fingerprinting, background and mental health records checks and firearms training that exist in many states to possess a firearm. It also does not repeal existing state and federal prohibitions regarding who is qualified to possess a firearm, according to national legal experts.<\/p>\n

Justices also said gun regulations banning weapons in sensitive places such as schools and government buildings were permissible.<\/p>\n

Iowa\u2019s proposed amendment, however, would be even more protective of gun rights, according to Pettys and Kende.<\/p>\n

\u201cIn the U.S. Supreme Court\u2019s Heller decision \u2014 Justice Antonin Scalia says there\u2019s an important right to bear arms, but that doesn\u2019t preclude certain historically-based restrictions, and one of the examples was prohibitions on felons owning firearms, Kende said.<\/p>\n

\u201cEven Justice Scalia \u2014 who certainly was a supporter of gun rights \u2014 said there were permissible restrictions, but it\u2019s not 100% clear that some of them would survive under explicit strict scrutiny in Iowa.\u201d<\/p>\n

Pettys agreed.<\/p>\n

“Laws restricting gun rights for felons have some good historic lineage to them \u2026 of there being prominent restrictions of when you commit a serious crime you lose your guns,\u201c he said.<\/p>\n

But such restrictions could very well violate the Iowa Constitution if a strict scrutiny amendment is adopted, Pettys and Kende said.<\/p>\n

\u201cSo a law saying all felons (including those convicted of non-violent crimes who have served their time) are still being told they can\u2019t have a gun, that would be the ideal plaintiff,\u201d Pettys said.<\/p>\n

While they likely would not have a valid Second Amendment claim under the U.S. Constitution, they would have a strong claim under the amended Iowa Constitution, he said.<\/p>\n

Because while the goal is compelling to protect public safety, the means are not narrowly tailored, Pettys said.<\/p>\n

\u201cBecause we\u2019re not asking anything about the nature of the crime committed or your tendency to violence,\u201d he said. \u201c\u2026 All we want to know is, once upon a time you did something that could have been punishable by a year or more in prison. And, knowing nothing more, we say, take away your guns.\u201d<\/p>\n

\u2018Common-sense gun laws\u2019 in jeopardy?
\nThe Iowa Firearms Coalition contends \u201cstrict scrutiny\u201d is the appropriate test for fundamental rights, such as those granted under the First and Second Amendments to the U.S. Constitution.<\/p>\n

\u201cThere is (a) significant political element that wishes to either reinterpret the contemporary understanding of the meaning of the Second Amendment through overturning Supreme Court precedent \u2014 by packing the court if necessary \u2014 or by amending or repealing the amendment itself,\u201d the coalition said in a statement.<\/p>\n

\u201cIf such were to occur, the presence of the Freedom Amendment\u201d \u2014 what the Iowa Firearms Coalition is calling the ballot amendment \u2014 \u201cin Iowa’s Constitution would preserve strong protection of those rights at the state level.\u201d<\/p>\n

But for Iowans who support gun rights \u2014 but do not feel those rights are absolute and support what they see as sensible gun laws \u2014 \u201cthey\u2019re in trouble because they will not get reasonable limitations upheld as frequently under this (amendment), if at all,\u201d Kende said.<\/p>\n

He said a \u201cperson\u2019s belief in reasonable gun restrictions will be nullified if they vote for this particular (amendment) under strict scrutiny.\u201d<\/p>\n

\u201cBut their belief in gun (rights) \u2014 to the extent they have one \u2014 and being able to have guns without restrictions, relatively, that would be upheld,\u201d Kende said. \u201cIf they do have a strong belief in \u2018common-sense gun laws,\u2019 then those laws would all be in jeopardy.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

The promoters of this state constitutional amendment have missed the boat, purposefully, or not I don’t know. SCOTUS, in Bruen \u00a0ended the tiers of judicial scrutiny for fundamental rights, specifically RKBA and mandated ‘Text, History and Tradition‘ instead. If this state constitutional amendment were passed, it could be opposed on U.S. Constitutional grounds as SCOTUS … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50],"tags":[],"class_list":["post-84775","post","type-post","status-publish","format-standard","hentry","category-goobermint"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/84775","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=84775"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/84775\/revisions"}],"predecessor-version":[{"id":84776,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/84775\/revisions\/84776"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=84775"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=84775"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=84775"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}