Staff Columnist

History offers a mystery on gun rights in Iowa

Amos Harris
Amos Harris
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So your Iowa Legislature has moved a big step closer to putting a gun rights amendment on the ballot, and perhaps into the Iowa Constitution.

“The right of the people to keep and bear arms shall not be infringed,” reads House Joint Resolution 2009, which passed both the House and Senate. “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.”

If the next General Assembly also approves the resolution, it will go to the voters in 2020.

Maybe you’re thinking the Second Amendment of the U.S. Constitution covers this right to bear arms stuff adequately. And maybe you’re wondering why Iowa’s current constitution, drafted in 1857, doesn’t have language similar to the federal amendment.

Too bad we can’t ask Amos Harris.

Harris, according to his official bio, was the first attorney to set up permanent shop in Appanoose County, in the town of Centerville. The Ohio native was elected as the local prosecutor and later as “district attorney” for the 2nd District of Iowa. He reportedly held that office “with fidelity, and to the satisfaction of his constituents.” He also served in the Iowa Legislature.

And, most importantly for our purposes, Harris was a delegate to the 1857 constitutional convention in Iowa City.

It was Harris, according to a record of the convention’s proceedings, who pointed out to delegates on the evening of Jan. 30, 1857, that a proposed amendment in Iowa’s Bill of Rights regarding “quartering of troops without the consent of the owner,” was lacking something. He compared it to language in Ohio’s constitution.

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“The people have the right to bear arms for their defense and security; but standing armies in time of peace are dangerous to liberty, and shall not be kept up; and military power shall be in strict subordination to the civil power,” Harris read from Ohio’s document.

“If gentlemen will take the trouble to compare these two provisions, they will see that the privilege allowed to the people to bear arms and keep them for their own defense, forms no portion of our Bill of Rights,” said Harris, who argued against keeping existing language for the sake of expediency.

The next day, Harris offered an amendment to section 14 of the Bill of Rights, which addresses the keeping of an army and its subordination of it to civil authority.

“The people have the right to bear arms in defense of their persons, property and the state, but all standing armies, in time of peace, are dangerous to liberty, and shall not be kept up. The military shall be in strict subordination to the civil power, and in time of war, no appropriation for a standing army shall be for a longer time than two years.”

“It does not change, in effect, anything in the present section, but adds more to it,” Harris said.

OK, grab your popcorn. We’re in for a gun rights donnybrook, 1850s style.

Well, not exactly.

“The question was taken, and the amendment was not agreed to,” the minutes say. And that’s it.

Maybe our reporter had to take a long walk to the nearest privy. Perhaps he had to change quills, or recharge his ink well. I mean, these guys argue for page upon page over how many copies of newspapers they’re entitled to receive. But gun rights, nothing.

“There’s no recorded discussion. No indication of reasons. No arguments that he made at length in favor of it. Nobody responded. It just says he proposed it and the delegates rejected it. It doesn’t even give it a vote count,” said Todd Pettys, a University of Iowa law professor whose new book. “The Iowa State Constitution” was published in December.

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It’s been suggested delegates didn’t think such protection was necessary. Gun rights were a given, a no-brainer. Government power was pretty limited at that time.

“That seems plausible to me,” Pettys said. “But I don’t have any evidence one way or the other to support that or any contrary theory.”

Pettys said it could be informative to look at Iowa Code books compiled around that time to see if firearms restrictions were an actual issue. I looked at online codes from 1860, 1873, 1880 and 1888.

Most references to “arms” were amid rules regulating the militia. In 1860, I found a law prohibiting disruption of Sabbath worship, through “riot, fighting, or offering to fight, or hunting, shooting, carrying firearms,” etc. with a possible $5 fine. In 1873, the code leveled penalties at persons who discharged a firearm where livestock are being fed. In 1888, a law prohibited selling firearms to minors, or giving a minor a pistol, real or toy.

In 1873, the Legislature made it a misdemeanor to carry a concealed weapon, with exceptions for police and people who serve warrants.

So did delegates shoot down Harris’ amendment because they couldn’t imagine significant gun restrictions, or because they believed the door for such restrictions should be kept open? Pending more evidence, we can’t say for certain.

What I can say is the current proposed amendment would be a remarkable historic revision. We may go from 160 years with no mention of gun rights in the constitution to enshrining personal firearm ownership as a right more valued and strictly protected than any other.

The amendment requires any firearms regulations to be subject to “strict scrutiny,” the most demanding standard of judicial review. No other right mentioned in the Iowa Bill of Rights is shielded by this sort of requirement. It’s supposed to guard against so-called “judicial activism,” backers claim, but really it’s a thumb on the scales of justice, shackling future generations with the uncompromising winner-take-all mentality of today’s acrid politics.

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If lawmakers truly wanted to clarify our mysterious history, they’d go with Amos Harris’ original amendment. I bet it would draw broad bipartisan support.

At least give it a real debate. This time we’ll write down what happens.

l Comments: (319) 398-8262; todd.dorman@thegazette.com

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