Second Amendment, second thoughts for Iowa Constitution change

If you haven’t heard, there’s a state constitutional amendment on the ballot for Iowans in November. If approved by voters and enacted by legislators, the amendment would add the following language to the state constitution:

“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 first two clauses of this proposed amendment are self explanatory. It would codify the right to bear arms into Iowa’s state constitution. The move would be a little redundant (The Supreme Court has incorporated the Bill of Rights’ Second Amendment, which means it applies to states whether they want it to or not,) but is legally valid. According to Ballotpedia, 44 other states already have gun rights enshrined in their own constitutions.

What sets Iowa’s proposal apart, however, is that last clause. More specifically two words set off alarm bells for me, as someone with a degree in political science: “strict scrutiny.”

Those are not buzz words, they have a carefully established meaning in legal doctrine. Coined in 1942 and infamously defined (if misapplied) in the 1944 case Korematsu v. United States, the phrase is the highest standard of legal review, evaluating the constitutionality of laws based on whether they’re “narrowly tailored to achieve a compelling government interest,” using the “least restrictive” means available to further that government interest.

It is difficult to overstate how rare it is for courts to hold laws to such a standard. Even the First Amendment — you know, the big one, ostensibly the absolute highest priority of the American ideal — is not held to this standard 100% of the time.

The Supreme Court has held that strict scrutiny applies to expressive words and symbolism, but not necessarily to expressive actions, all of which fall under that first item from the Bill of Rights. That’s why it’s legal, for example, to express anti-draft views to whoever you like, but not to burn one’s draft card on the steps of the South Boston Courthouse, as did one David Paul O’Brien, leading to the United States v. O’Brien Supreme Court case in 1968.

While the Court later held that laws on some expressive actions were subject to strict scrutiny (interracial marriage and flag burning, for instance) it has stuck to lower standards for most First Amendment issues that go beyond words and images.

As critically important as the freedom of expression is, this distinction makes sense. Words and actions should probably be held to different standards. It would be absurd to apply strict scrutiny to both.

“A law prohibiting the destruction of Selective Service certificates no more abridges free speech on its face than … a tax law prohibiting the destruction of books and records,” Chief Justice Earl Warren wrote in the majority opinion for the O’Brien case. “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”

Beyond the First Amendment, strict scrutiny is sometimes applied to the 14th Amendment. Once again, however, not to the whole amendment: just the “equal protection” and “due process” clauses.

I went to school for journalism, I know less about the standard’s role in these cases. But in one example known by most Americans, the Court ruled in Brown v. Board of Education of Topeka (1954) that school segregation laws posed an inherent risk to equal protection, even if those schools were in fact equal, as in, “separate but equal.”

“There are findings below that the (Black) and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors,” wrote Chief Justice Warren in the milestone ruling’s majority opinion. “Our decision, therefore, cannot turn on merely a comparison of these tangible factors … We must look instead to the effect of segregation itself on public education.”

When it is applied, very few laws survive the burdens of strict scrutiny, roughly 30% depending on which study you cite. The standard makes no exceptions for popularity or utilitarian cost-benefit analysis: if a law infringes on one person’s fundamental right, it’s generally thrown out.

Under its rarely-applied usage, that’s generally a good thing. Brown v. Board and Loving v. Virginia are compelling examples of times that strict scrutiny spelled out undeniable protection for rights we now consider absolutely inalienable in all cases, no matter what.

Sometimes, however, strict scrutiny can go further in its protection than most Americans are comfortable with, especially on more controversial matters.

Flag burning provides one recent example. While the symbolic act of burning the American flag is a fundamental right subject to strict scrutiny per the 1989 case Texas v. Johnson, doing so in close proximity to a dense crowd of people, perhaps right outside the 2016 Republican National Convention, might get you arrested. Such an arrest would not be a response to your protest of the RNC, but to the fire hazard you allegedly created.

This was the argument of the city of Cleveland, who arrested Gregory “Joey” Johnson (The same guy from Texas v. Johnson, it turns out,) on exactly those grounds. By 2019 however, the city paid Johnson a $225,000 settlement, not excited about its prosecutorial prospects of following through on a case where it would have been held to the standard of strict scrutiny.

Another, more decisive example regards a case between a neo-Nazi party and the village of Skokie, Illinois. The alt-right group applied to hold a parade in the town, which was home to a sizable Jewish population, but its permit was rejected by municipal officials. The case made its way to SCOTUS, which ruled partially in favor of those neo-Nazis in 1977, much to the surprise and disgust of many Skokie citizens.

“The display of the swastika, as offensive to the principles of a free nation as the memories it recalls may be, is symbolic political speech intended to convey to the public the beliefs of those who display it,” read the Per Curiam majority opinion of the Skokie case. “It does not, in our opinion, fall within the definition of ‘fighting words,’ … We do not doubt that the sight of this symbol is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display. Yet it is entirely clear that this factor does not justify enjoining defendants' speech.”

This brings us back to gun rights. They’re already outlined in the Bill of Rights and incorporated, but Iowa’s amendment would go one step further by requiring courts to follow a standard currently limited to a very limited list of rights anywhere in the nation.

That doesn’t mean other rights aren’t important — nobody would argue that action-based speech is less important than verbal or symbolic speech, for instance — It just means that sometimes, having different standards makes sense.

Strict scrutiny on gun laws would make it remarkably difficult to pass restrictions of any kind. As generic as the criteria of “narrowly tailored” and “furthering a government interest” may seem at first glance, the reality is that it’s an often impossible bar for most laws, even popular ones.

I’m not a legal expert, but I struggle to believe bump stock restrictions would be sufficiently “narrow and tailored,” to abide by such a rule. I can certainly see a case under such an amendment against background checks or restrictions on firearm ownership by convicted criminals or production of 3D printed guns.

Maybe you’re OK with that. State Sen. Julian Garrett certainly seems to believe that’s the whole point.

"We have found that liberal judges are willing to just take away your right to keep and bear arms, the individual right,“ Garrett said to the Des Moines Register. ”This is an attempt to do everything we can to make that harder to do."

Others, however, seem to underestimate or oversimplify the implications of such wording.

“If current or future laws are narrowly tailored to advance a compelling government interest regarding this fundamental individual right, they will be safe,” said State Rep. Steven Holt, a sponsor of the amendment, also to the Des Moines Register. “If they do not fit that category, they will not be safe and they should not be on the books."

I’m not here to tell you whether strict scrutiny should or should not be applied to gun rights in Iowa. But if you’re anything other than 100% opposed to gun laws 100% of the time, it may be worth giving the matter a second thought before you go to check yes or no in November.

Comments: Kalen.McCain@southeastiowaunion.com

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