Does Bruen Herald the End of Constitutional Strict-Scrutiny Amendments?
This November, voters in Iowa will weigh in on a proposed state constitutional amendment that would make all gun regulations subject to strict scrutiny. The full text of the proposed amendment, which was approved by the state legislature in early 2021, is as follows (emphasis added):
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.
Multiple sources indicate that Iowa is one of only six states without a Second Amendment analogue in its state constitution currently (along with California, Maryland, Minnesota, New York, and New Jersey). Of those six states, Iowa is the only state to have voted for a Republican candidate for President in any of the past eight elections—doing so three times within that span.
This post will focus not on the surprising absence of a state Second Amendment-analogue in Iowa, but rather on the language of the proposed amendment. In the last sentence, Iowa’s proposed amendment says that “all restrictions of [the right to keep and bear arms] shall be subject to strict scrutiny.” If the amendment passes in November, Iowa would become the fourth state—after Alabama, Louisiana, and Missouri—to adopt NRA-endorsed language amending the state constitution to require “strict scrutiny” for any law that restricts the right to keep and bear arms. Each of the three prior measures passed with substantial popular support, ranging from 60.95% in Missouri to 73.45% in Louisiana.
In an insightful look at these strict-scrutiny provisions in the Iowa Law Review in 2019, Todd Pettys argued that they create “analytic murkiness” because state courts evaluating guns laws under a strict-scrutiny requirement may base their decisions on factors not normally considered within strict scrutiny (such as whether a certain class of people is outside the scope of the right to begin with, or whether the voters who approved the measure were aware of the specific gun regulation at issue), but then awkwardly force those factors through the strict-scrutiny analysis to reach the desired result. For example, in a 2015 decision, the Missouri Supreme Court upheld the state’s felon-in-possession ban under the state constitution after first noting that it is “routine” for courts to uphold statutes subject to strict scrutiny, and then citing Heller’s “longstanding prohibitions” passage. State v. McCoy, 468 S.W.3d 892, 897 (Mo. 2015). The Louisiana Supreme Court similarly upheld restrictions on concealed carry and juvenile possession of handguns under strict scrutiny. State ex rel. J.M., 144 So.3d 853 (La. 2014).
What should one make of these “strict scrutiny” amendments after Bruen, and what might they signal about challenges to guns laws under state constitutional provisions moving forward? Some critics of the proposed amendment in Iowa have posited since Bruen was decided that the amendment “would be even more protective of gun rights,” because a law meeting Bruen’s historical-tradition test “could very well violate the Iowa Constitution if a strict scrutiny amendment is adopted.” These scholars argue that a law such as a ban on felon gun possession might be well-established historically, but still fail to meet strict scrutiny. A felon gun ban might fail strict scrutiny, the argument goes, because “the means are not narrowly tailored” and the prohibition is therefore over-inclusive. If the legislature is attempting to address the concern that felons are more likely to use firearms violently, banning all felons (including those who have been convicted only of nonviolent crimes) may cast the net too wide.
As noted above, in McCoy, the Missouri Supreme Court reached a contrary result: it found that the state’s felon-in-possession law was narrowly tailored because felons are more likely “to engage in illegal and violent gun use.” Interestingly, McCoy cited to the Seventh Circuit’s opinion in United States v. Yancey for this proposition, even though Yancey expressly disclaimed any suggestion that it was applying conventional tiers of scrutiny and instead required the government to make “some form of strong showing” to justify it regulation.
As Tina Mehr and Adam Winkler noted in a 2010 survey of how lower courts had applied Heller to that point, some courts had applied strict scrutiny to gun laws but “to date no court applying strict scrutiny under the Second Amendment has invalidated a gun control law” (emphasis added). Often, it seems that these courts applied strict scrutiny to cover all of their bases in the uncertain aftermath of Heller—lacking guidance about what level of scrutiny to apply, they found that a certain law would meet any level of scrutiny (including strict scrutiny). It’s not especially controversial that protecting citizens from gun violence is a compelling interest, and courts almost always agreed that the state’s interest in these cases was sufficiently strong. Mehr and Winkler noted in 2010 that “[t]he narrow tailoring prong of strict scrutiny, which is often the greatest hurdle for challenged laws elsewhere in constitutional doctrine, has not proven to be a significant barrier for gun control yet.”
Rather, the minority of courts who applied strict scrutiny often concluded under various theories that the law at issue was narrowly tailored—although these cases dealt with group prohibitions narrower than a blanket felon prohibitor. See, e.g., United States v. Erwin, 2008 WL 4534058, at *2 (N.D.N.Y. Oct. 6, 2008) (finding restraining-order prohibitor narrowly tailored); United States v. Booker, 570 F. Supp. 2d 161, 164 (D. Me. 2008) (finding domestic violence prohibitor narrowly tailored). To be sure, some courts applied strict scrutiny to strike down gun laws pre-Bruen. For example, in Tyler v. Hillsdale County Sheriff’s Dept., the Sixth Circuit held that the mentally-ill prohibition in 18 U.S.C. § 922 (g)(4) failed strict scrutiny as applied in that instance—but the court also noted that the mentally-ill prohibition on its face satisfied strict scrutiny and that “Congress, in its efforts to keep firearms away from the mentally ill, may cast a wider net than is necessary to perfectly remove the harm.” Moreover, as Adam Winkler has separately observed, in a study of constitutional law cases generally, strict scrutiny does not necessarily mean (as many assume) that a challenged law is dead on arrival. Rather, Winkler found that—in approximately 30% of all applications of strict scrutiny—the challenged law was actually upheld.
What of the felon gun bans that some suggest might be upheld under Bruen, yet fail strict scrutiny? It’s not only that strict scrutiny is less likely to be the insurmountable obstacle one might think. In my view, it’s also not clear that these laws actually satisfy Bruen’s historical-tradition test. Some scholars who have examined the Founding-era evidence regarding felons and guns conclude that the sources used to support a tradition of prohibiting all felons from possessing guns “are surprisingly thin,” consisting mainly of proposed, but unsuccessful, amendments in state constitutional ratifying conventions, and that “no colonial or state law in eighteenth century America formally restricted the ability of felons to own firearms.” Bruen’s focus on historical regulatory practice suggests that a blanket felon ban may be on tenuous footing—but, of course, that depends entirely on the level of generality at which one conducts the inquiry. There were certainly laws disarming groups considered to be dangerous at the time of the Founding, as discussed in our recent piece on the Antonyuk v. Bruen case.
This issue is, in many ways, the primary point of contention between the majority and the dissent in Bruen: do tiers of scrutiny create a situation where courts too often “defer to the determinations of legislatures,” and does a history-focused test actually constrain such judicial deference? Bruen entirely repudiates tiers of scrutiny in the Second Amendment context. If one believes that Bruen’s historical-analogue test is more constraining and faithful to the original meaning of the Second Amendment, then it would be odd to simultaneously advocate for the type of strict-scrutiny amendment currently on the table in Iowa. It seems likely that those who supported strict-scrutiny constitutional amendments at the state level in past years will now turn their attention to attempting to harmonize the interpretation of state constitutional provisions with the interpretation of the federal Second Amendment. This also makes sense as a practical matter: once the federal constitutional right reaches a high level of protection, there’s no longer much to do at the state level—it only really matters that the right is protected by one of the two provisions.
If Bruen’s test is indeed on par with, or tougher than, strict scrutiny, we can expect this fact to halt the recent spurt of strict-scrutiny constitutional amendments at the state level. Instead, we’re likely to see a broader shift where state courts increasingly use the Bruen test to evaluate challenges under state constitutional analogues to the Second Amendment, even in states without a strict rule that such analogous provisions are construed in tandem.
 That decision was later vacated and reversed by the en banc Circuit, which endorsed intermediate scrutiny.
 Some state courts construe state constitutional provisions in the same manner as corresponding federal provisions when those provisions are “virtually identical” or “where no difference in intent is discernable.” E.g., State v. Agnello, 593 N.W.2d 427, 433-34 (Wisc. 1999); Ehrlich v. Perez, 908 A.2d 1220, 1234 (Md. 2006). However, other state courts take a softer approach—generally finding federal interpretations of analogous provisions persuasive, but not binding. Harvey v. State, Dep't of Mgmt. & Budget, Bureau of Ret. Servs., 664 N.W.2d 767, 770 (Mich. 2003). And still others accord much less deference, if any, to case law interpreting similar federal provisions—an approach which the Supreme Court itself has sanctioned. E.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980).