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2022 Midterms Gun Watch

  • Date:
  • November 11th, 2022

By: Andrew Willinger

In the same vein as our SCOTUS Gun Watch reports, this post summarizes the results of two major gun-related initiatives that were on the ballot in Tuesday’s midterm elections.

Iowa Amendment No. 1

Iowa voters considered a ballot initiative that would add the following provision 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.

As I detailed in a prior post, Iowa was one of six states (along with California, Maryland, Minnesota, New York, and New Jersey) without a state constitutional provision protecting the right to keep and bear arms.  The more unusual portion of the Iowa amendment is the strict-scrutiny requirement, which would make Iowa only the fourth state (after AlabamaLouisiana, and Missouri) to adopt NRA-endorsed language requiring courts to apply “strict scrutiny” to any law that restricts the right to keep and bear arms. 

Iowa voters approved the proposed amendment on Tuesday, with 65.1% in favor.  The amendment enjoyed strong support across the state, with only two counties—Story County (whose largest city is Ames, home to Iowa State University) and Johnson County (whose largest city is Iowa City, home to the University of Iowa)—voting against the amendment.  The overall percentage voting “for” is roughly in line with the percentage of voters who supported similar amendments in Alabama, Iowa, and Missouri.  More than 60% of voters in each state voted in favor of the amendment. 

As I’ve previously written, it is not entirely clear that strict scrutiny is a more exacting standard than Bruen’s historical-analogical test.  There may be laws which satisfy strict scrutiny because the government interest is highly compelling, but lack sufficient historical analogues from the Founding Era (and the inverse is also true: certain historically-grounded regulations might be ineffective or overbroad and thus fail to meet strict scrutiny). 

Now that Iowa has passed the amendment, Iowa courts will presumably have to conduct two separate legal inquiries if a law is challenged under both the federal Second Amendment and the state constitution.  Iowa courts won’t be able to “borrow” the federal standard, because the state’s constitution now specifies a different legal test.  One advocate of the amendment argued that it was warranted even post-Bruen because, “On the off-chance something nutty happens in 10, 15, 100 years in the future with the federal government, we would still have a high level of protection in Iowa.”  But it is possible that even supporters will become disillusioned with the strict scrutiny provision if it is applied in a less exacting manner than Bruen’s test—after all, Bruen itself appeared to say that all tiers of scrutiny amount to improper interest-balancing in the Second Amendment context.  Case law from Missouri and Louisiana, for example, suggests that strict scrutiny may not be fatal to some kinds of regulations, such as restrictions on felons and juveniles possessing and carrying guns.  

Second, because the amendment combines the “right to keep and bear arms” language with a strict-scrutiny provision, it is impossible to determine voter levels of support for each provision independently.  It could be, for example, that many voters support adding the protection itself to the state constitution, but are unaware that federal Second Amendment challenges are not—and have rarely been—evaluated under strict scrutiny.  For a rough indicator of public knowledge about the judiciary and decisional law, consider that a 2018 C-Span survey found that 52% of respondents could not name a single sitting Supreme Court justice, and 50% of respondents could not name a single case decided by the Supreme Court (another 36% of respondents named only Roe v. Wade in response).

Third, it seems likely that initiatives such as Iowa Amendment No. 1, which provide protection for individual rights not yet enumerated in the state constitution but protected by the federal constitution, are likely to garner substantial support for the simple reason that many voters feel they should be protected in the same manner by their state constitution as under the federal Constitution.  For example, a 1968 New Hampshire ballot measure to add guarantees of free speech and freedom of the press to the state constitution was supported by nearly 87% of voters, and a 1998 Nebraska initiative to add a Fourteenth-Amendment-style equal protection provision to the state constitution passed with over 72% of the vote.  By contrast, where the baseline protection is not (or no longer) established by the federal Constitution—as with abortion currently—voting results on measures to add such protections to state constitutions have been much closer.

Oregon Measure 114

In Oregon, voters considered a ballot initiative that would institute a permit-to-purchase requirement, mandate safety training, fingerprinting, and a criminal background check to obtain a gun permit, and ban magazines capable of holding more than 10 rounds of ammunition.  While initial Election Day returns indicated an extremely tight vote that was still too close to call, on Wednesday OregonLive reported that the measure was likely to pass.  Although the margin still stood at a razor-thin 51% for and 49% against, “[m]ost of the votes left to be tallied were in Multnomah, Washington and Clackamas counties, all favoring or heavily favoring the measure.”  As of 9:00 am on November 11, NBC showed the returns at 50.9% for and 49.1% against, with 90% of the expected vote counted.  Overall, the measure received strong support in Portland, Eugene, and surrounding areas; the measure was defeated by large margins in all Eastern counties. 

By requiring a permit to purchase a firearm, Oregon would join 9 other states with such requirements in place (3 other states, including New York, require a permit to own a gun).  The ban on magazines capable of holding more than 10 rounds would add Oregon to a list of 8 states and D.C. that currently ban “large-capacity” magazines with any firearm (note that these states vary in how they define the prohibited magazines, with some states setting the cutoff higher than 10 rounds).

Bruen appeared to place great emphasis on the fact that New York’s may-issue licensing rule was a “contemporary outlier” because “the vast majority of States—43 by our count—are ‘shall issue’ jurisdictions.”   As Justin Driver has observed, in other contexts the Court has similarly struck down state laws “that, although perhaps once prevalent, ha[ve] now receded and exist[] in, at most, a few remaining jurisdictions.”  If the rationale for this kind of outlier suppression is a modernizing mission where the Court invalidates statutes “out of touch with sentiment in the society at large, on a subject on which local variation is not likely to persist,” a state referendum supporting a certain type of regulation seems like a clear indication that the law is not (or at least, not yet) “out of touch.”

Finally, we can expect court decisions soon evaluating similar magazine-capacity restrictions under Bruen.  While courts generally upheld such laws prior to Bruen, applying intermediate scrutiny, in early July the Supreme Court vacated and remanded legal challenges to magazine-capacity regulations in California and New Jersey for reconsideration in light of Bruen.  Those cases are still working their way through the lower federal court system.