Iowa’s secretary of state has handed Iowans a late and wholly unintentional holiday gift. Nonetheless, it shouldn’t be squandered.
Amending the Iowa Constitution is a lengthy, complex process. Adding specific protections for firearms began during the last General Assembly, when lawmakers approved language for a new amendment: “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.” The language would need to be approved by the following General Assembly, which began Monday, before it could be placed on the ballot and presented to all Iowans.
But Iowa law also requires citizens to be made aware of the proposal through published legal notices — a requirement the Secretary of State’s Office failed to meet. So, instead of the amendment language appearing on the 2020 ballot as advocates had hoped, the earliest it could now come before voters is 2022. And it will appear on ballots at that time only if its language is completely agreed to by this and the next General Assembly.
This opens a window of opportunity, because the next General Assembly will be a yet unknown product of the 2020 presidential election.
Specifically, Iowans now have an opportunity to debate whether or not the state should become only the fourth in the nation to require all firearms laws to automatically be subject to strict scrutiny — a level of judicial review not required at the federal level for firearms, often reserved for people’s most basic rights. For instance, strict review was the judicial standard applied when a federal court considered Skinner v. Oklahoma, a case brought against a law that required sterilization of people convicted of three or more felonies involving moral turpitude — “three strikes and you’re snipped.” It’s the review standard applied to our most fundamental individual rights — race, procreation, religion, etc. — because its requirement of a compelling state interest, narrowly written to achieve only that interest, consistently produces court outcomes that favor the interest of the individual, not the state. From a legal standpoint, it is the highest possible threshold.
The U.S. Supreme Court, in 2008, stopped short of applying this high bar to firearms cases, even as it affirmed an individual right to bear arms. The Court stressed the right “is not unlimited,” but declined to define a standard of review.
As a result, and in addition to possible safety concerns such as the downfall of felon possession laws, the three states that have required strict scrutiny for firearm regulation challenges (Louisiana, Missouri and Alabama) have become legal testing grounds — an expensive experiment for taxpayers who foot the bill for such legal challenges. A fiscal note filed by the Missouri State Auditor noted the cost of such amendments “is substantial,” estimating more than $220 million in expenses for the state and more than $30 million at the local level in a two-year period.
Iowans now have the unexpected gift of more time. They should use it wisely.
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