Gatekeeping the Right to Bear Arms: Waiver, Bruen Step Zero, and the Iowa Supreme Court
This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
In a recent post, I discussed State v. Kieffer (Iowa 2024), in which the Iowa Supreme Court relied on the Supremacy Clause of the U.S. Constitution to hold that Article I, Section 1A of the Iowa Constitution had no bearing on federal firearm statutes. At the time, the Court was considering State v. Cole and State v. Woods, both of which raised federal and state constitutional challenges. As a former trial judge, I had hoped that the decisions in Cole and Woods would provide Iowa trial judges with clear frameworks for resolving constitutional challenges to firearms statutes. They did not.
The seriously divided Court has yet to reach the merits of a constitutional challenge—federal or state—to a firearms law by applying either the federal Bruen standard or the strict scrutiny standard under the Iowa Constitution. In Kieffer, the Court invoked the Supremacy Clause to bar state review of a federal statute. In Cole, it held that a defendant who consented to a domestic violence protective order with a temporary firearms ban waived his right to later challenge the constitutionality of his prosecution for carrying a gun. That same day, in Woods, the Court ruled that a defendant found with a small amount of marijuana in a backpack containing a gun was not a “law-abiding citizen” and thus fell outside the “people” protected by the Second Amendment. Taken together, these decisions resolve the individual controversies but leave trial courts without any guiding framework for analyzing constitutional challenges to firearms restrictions.
State v. Cole
In State v. Cole, the Iowa Supreme Court confronted a familiar question in the post-Bruen landscape: whether the Second Amendment permits the disarmament of individuals subject to domestic abuse protective orders. Under federal law, 18 U.S.C § 922(g)(8), and its Iowa analogue, Iowa Code § 724.26(2)(a), a person subject to a qualifying protective order is prohibited from possessing firearms during the duration of the order. The U.S. Supreme Court had already upheld the federal statute in Rahimi, concluding that disarming individuals subject to protective orders comported with the nation’s historical tradition of firearm regulation.
Cole invited the Iowa Supreme Court to distinguish his case from Rahimi’s. Cole acknowledged on appeal that Rahimi rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(8). Both Rahimi and Cole consented to their domestic abuse orders. However, Rahimi’s restraining order explicitly found “family violence” and a “credible threat” to the protected party’s “physical safety,” findings absent in Cole’s order. Accordingly, Cole distinguished his case from Rahimi because, unlike Rahimi, there was no finding that he posed a danger.
The majority, however, declined to reach the merits. Writing for the four-justice majority, Justice Waterman held that Cole waived his federal and state constitutional claims by consenting to the protective order. Waterman analogized the consent order to a contractual waiver: just as criminal defendants may accept probation conditions that include firearms restrictions, Cole could accept a civil protective order that imposed a temporary firearms disability. Citing decisions from Connecticut and Texas that had treated probation agreements as contracts, the majority reasoned that Cole knowingly and voluntarily relinquished his federal and state constitutional rights when he opted to consent to the order rather than proceed to an evidentiary hearing. By framing the case as one of waiver, the majority avoided having to apply Bruen’s framework and the Iowa Constitution’s strict scrutiny requirement.
Justice Waterman observed that Iowans regularly waive their constitutional protections with “far less formality,” pointing to examples such as consent searches, waivers of the right to remain silent, and waivers of the right to counsel. From the majority’s perspective, the protective order presented Cole with a simple choice: accept the consent order without a finding of abuse, and temporarily forfeit his firearm rights—or reject the order and litigate the allegations. Having chosen the former, Cole was deemed to have waived any subsequent challenge to the firearms prohibition.
Justice May, joined by Justices Oxley and McDermott, sharply dissented. In their view, treating Cole’s consent as a valid waiver of constitutional rights elided a critical safeguard: the requirement of a formal, on-the-record inquiry before finding that a defendant has knowingly and voluntarily relinquished a constitutional right. Drawing on Johnson v. Zerbst (1938), which required trial courts to confirm that defendants understood the rights they were surrendering when waiving counsel, the dissent insisted a comparable colloquy was necessary before finding Cole had waived his Second Amendment rights. Cole’s signature on the consent order, the dissent concluded, did not establish that he understood he was giving up his Second Amendment rights and would not be able to invoke the Second Amendment as a defense in any future criminal prosecution for possessing firearms.
The dissent also noted that the majority’s reliance on waiver cases was misplaced. Those cases involved waivers within the same proceeding, such as the defendant agreeing to probation conditions. Cole’s situation was different: he agreed to a civil consent order without judicial findings of abuse, and later faced criminal prosecution for possessing firearms in violation of that order. The dissent questioned whether a waiver in the first case (the civil domestic abuse case) could properly preclude Cole from raising constitutional defenses in the subsequent criminal case.
On the merits, the dissent, applying Bruen, concluded the Second Amendment precluded disarming Cole absent a judicial finding that he presented a threat of violence. Chief Justice Christensen, writing separately, rejected the dissent’s dangerousness requirement. She emphasized that no federal precedent required a finding of dangerousness and warned that this requirement would put domestic abuse victims at greater risk, referring to the well-documented empirical link between firearms and domestic violence deaths and injuries.
In light of Cole, what should trial judges do when a defendant raises a Second Amendment defense to a firearms charge based on a consent order? The easy path is to treat the issue as waived and move the case off the docket. But the dissent in Cole suggested a different approach: a Zerbst-style colloquy to ensure the defendant knowingly and voluntarily consents to the order’s firearm restriction.
The lesson from Cole is twofold. Doctrinally, waiver functions as a gatekeeping device that allows courts to sidestep substantive constitutional review. Practically, however, trial judges should guard against perfunctory waivers by conducting a careful colloquy before accepting a defendant’s consent to an order that limits firearms rights.
State v. Woods
In State v. Woods, the Iowa Supreme Court again sidestepped substantive constitutional review, this time by creating a threshold “law-abiding citizen” requirement, also referred to as “Bruen Step Zero.” (A term coined by Jeff Campbell in a 2023 law review article.) By disposing of the case at this preliminary stage, the Court effectively circumvented both a proper Bruen analysis and the necessary inquiry into whether the defendant posed a genuine danger, leaving the core constitutional questions unresolved.
Kevin Woods was stopped while driving a commercial vehicle with inoperable taillights on its trailer. Having smelled marijuana and seen a THC vape pen on the center console, the officer conducted a search, including a backpack on the center console. Inside the backpack, he found a small quantity of marijuana consistent with personal use and a nine-millimeter semiautomatic pistol with a loaded magazine.
Woods was charged with possession of marijuana, a serious misdemeanor, and carrying a dangerous weapon while in the illegal possession of a controlled substance or while committing an indictable offense. (The indictable offense was the illegal possession of marijuana.) Woods moved to dismiss the dangerous weapons charge, arguing that it violated both his federal and state constitutional rights to keep and bear arms. The trial court denied the motion. Woods then pleaded guilty to both charges, while preserving his right to challenge the constitutionality of his conviction on the firearms charge.
The Court divided sharply. Writing for the plurality, Justice McDonald began his analysis with a blunt conclusion: “There is no federal or constitutional right to carry a firearm while criming.” He explained that, under the first step of the Bruen test, courts must determine (1) whether the challenger is among “the people” protected by the Second Amendment, and (2) whether “the Second Amendment’s plain text covers the individual’s conduct.” If so, the “Constitution presumptively protects that conduct.”
Applying this threshold test, McDonald first asked if Woods was a “law-abiding citizen,” interpreting Heller and Bruen as requiring that inquiry in the first instance. Because marijuana is illegal in Iowa, and Woods possessed it, he was not a virtuous “law-abiding citizen” and therefore not among “the people” entitled to Second Amendment protection. Analysis complete.
In Heller, the Court made clear that the Second Amendment right belongs to “the people,” a term that extends to all members of the political community rather than an unspecified, narrower subset. The Court did not condition constitutional protection on whether an individual was “law-abiding.” That phrase appeared only descriptively to characterize the petitioners’ status, not as a limitation on the right itself.
More than a decade later, in Bruen, the Court adopted a two-step “text and history” approach. Under this framework, step one asks whether the Second Amendment’s plain text covers an individual’s conduct. If it does, the conduct is presumptively protected, and the burden shifts to the government to justify regulation by reference to the nation’s historical tradition of firearm regulation. The majority opinion described the petitioners as “law-abiding” more than a dozen times, but it did not expressly prescribe that the description is a formal threshold requirement apart from the text and history analysis.
Nevertheless, some lower courts have treated that language as authorizing what some commentators call “Bruen Step Zero.” In Woods, for instance, Justice McDonald required the defendant first to qualify as “law-abiding” before moving on to the text and history analysis. That additional hurdle transforms descriptive language in Bruen into a threshold exclusionary rule. In practice, it allows judges to bypass the text and history framework entirely, despite the Supreme Court never having made “law-abiding” status an explicit doctrinal threshold. A more faithful reading of Bruen would focus on whether a person’s conduct or status reflects a tradition of disarming those deemed dangerous, rather than simply invoking the “law-abiding” label as a categorical gatekeeper.
Justice Oxley concluded that the conviction should be upheld but argued that the plurality’s analysis and broad holding were not tethered to the facts. The plurality, she said, went far beyond what was necessary to decide the case. The precise issue was whether the state can impose on Woods a temporary firearm disability because he possessed a firearm near a small amount of marijuana consistent with personal use. But the plurality, unnecessarily and without support, declared that carrying a firearm during any indictable offense is never protected by the Second Amendment or Article I, section 1.
In addition, Justice Oxley noted that the plurality did not distinguish between possessing a firearm with a small quantity of marijuana and possessing one to facilitate drug trafficking. The cases the plurality cited involved firearms possessed to facilitate drug trafficking, and none involved the misdemeanor possession of marijuana while possessing a firearm. And, despite no evidence that Woods’ traffic stop presented any danger to the officer or the public, the plurality concluded that “guns and drugs are a dangerous combination,” and that traffic stops involving them are “inherently dangerous.”
Oxley rejected “Bruen Step Zero,” emphasizing that the scope of the Second Amendment right must be defined by the amendment’s text and history. She pointed out that the plurality did not ask the right question and should have asked, “Was Woods carrying a firearm for an illegal purpose?” To answer this in the affirmative, she wrote, “[t]here must be a nexus between the firearm and the criminal conduct before the plurality’s underlying premise---that the right to carry a firearm for self-protection does not extend to carrying the firearm for an illegal purpose---applies.
Justice Oxley concluded Woods did not meet his burden under step one because he failed to show his firearm possession was unconnected to unlawful activity. While rejecting the plurality’s categorical exclusion, her concurrence nevertheless imposed an additional burden on Woods not contemplated by Bruen: the need to prove a negative, that he was not carrying for an unlawful purpose. But Bruen asks only whether the conduct is covered by the Amendment’s text. Under Bruen, this should be a light, threshold burden, satisfied here by Woods’ possession of a firearm, even if near marijuana. Both the plurality and Justice Oxley added an unnecessary step. The plurality required Woods to show he was “law-abiding.” Oxley required him to prove a negative: that he was not carrying for an unlawful purpose.
As Justice May pointed out in his dissent, under Bruen’s step one, Woods needed only to show he carried for self-defense, a plausible inference from the record, and he met that threshold. That the gun was near the marijuana should not defeat Woods’ initial burden. And May also noted that Oxley’s concurrence would incorrectly shift the burden of proof to Woods, observing that “[n]othing in Bruensuggests that Woods would need to prove that he lacked an unlawful purpose for exercising his textually guaranteed fundamental constitutional right to carry.”
May asked whether an 80-year-old grandmother who uses medical marijuana for a chronic medical condition, who carries a pistol for her own safety, and who keeps the marijuana and firearm in her purse be subject to criminal liability just like Woods? May says yes, she would. But, just like the grandmother, he points out it is highly plausible that Woods had independent reasons for possessing the gun and the marijuana: the gun for protection and the drug for recreation or medicinal use. Under the analysis of Justices McDonald and Oxley, Grandma would suffer the same fate as Woods.
At Bruen step two, the burden shifts to the state to show a historical tradition justifying the disarmament. The issue of the nexus between the gun and the drugs, and any potential increased risk, I think, belongs in Bruen step two, not step one. The key issue is whether the government can demonstrate a historical basis for disarming those considered a danger. An underlying issue is whether that requires an individualized showing of dangerousness or whether it is enough to categorize Woods as a person in a group historically deemed dangerous.
Again, Justice McDermott’s dissent presents the stronger argument. The plurality’s failure to distinguish between dangerous and nondangerous conduct, he said, is fatal to the plurality’s analysis. The plurality said the right to bear arms applies only to “an ordinary, law-abiding citizen,” and Woods, because he possessed marijuana, is not law-abiding and not protected by the Second Amendment. This cursory analysis, though, “short-circuits” the dangerousness determination that normally is part of the Bruenstep-two inquiry. The plurality was “wrong” to stop after prong one, in McDermott’s view.
McDermott then uses a step-two analysis, employing several different levels of generality to determine whether the state satisfied the burden of showing the challenged statute is “relevantly similar” to historically permitted firearm restrictions. On a lower rung on the abstraction ladder, McDermott acknowledged there is no historical precedent for prohibiting someone who possesses a personal-use amount of marijuana from carrying a firearm; but, on a higher level of generality, there are historical analogues for preventing persons or classes of persons who were dangerous from carrying firearms.
But, as McDermott observed, there is no evidence of actual danger in this record and no historical analogues of disarming drug or alcohol users, absent a showing of carrying while under the influence of alcohol or drugs. Woods, the record shows, was sober. Although marijuana possession for recreational use is not yet legal in Iowa, the bordering states of Missouri, Illinois, and Minnesota have legalized the sale for recreational use. Based on this, McDermott said one cannot reasonably conclude that the marijuana was illegally obtained. Marijuana can be lawfully, peacefully obtained.
Having concluded the Iowa statute, as applied to Woods, violated the Second Amendment, Justice McDermott moved to the question of whether it was constitutionally infirm under article I, section 1A of the Iowa Constitution. That amendment requires Iowa courts to apply the strict scrutiny test, or to ask whether the challenged regulation is “narrowly tailored” to achieve a “compelling state interest” and is “the least restrictive means” of doing so.
That the state had a compelling state interest in preserving public and officer safety was not disputed. However, the state fails the strict scrutiny test, McDermott said, because the statute makes no distinction between dangerous and non-dangerous crimes. He noted that, although there are well-recognized dangers associated with drug trafficking, there is no danger in the simple possession of marijuana. To narrowly tailor the statute to advance the goal of safety, the law might simply make it a crime to possess distributable quantities of marijuana.
After his incisive strict scrutiny analysis, Justice McDermott ends by saying:
I fear that the upshot from the plurality’s opinion today, which in my view focuses too much on whether an act has been labeled a crime and not enough on whether that act is in fact dangerous, will not make communities and officers safer, but will only make it less likely that people will avail themselves of their constitutional right to bear arms.
This dictum is troubling. It assumes that more guns mean more safety—a claim both empirically shaky and irrelevant to the legal question. By injecting a personal policy view into a constitutional analysis, the judge fuels criticism that originalists let ideology, not law, drive their decisions, and in doing so, weakens the persuasive force of his opinion.
In short, the waiver in Cole and the Step Zero approach in Woods have only deepened doctrinal uncertainty in Iowa’s Second Amendment jurisprudence, leaving trial courts and litigants without meaningful guidance and little prospect of clarity given the Court’s current divisions. Step Zero departs from the text-and-history framework mandated by Bruen, substituting judicial discretion for constitutional analysis and conflating criminality with inherent dangerousness. This approach may well treat every statutory violation as evidence of unfitness to possess firearms, regardless of whether the conduct involves an actual risk of violence. Moving forward, Iowa courts should ensure that defendants fully understand the consequences of consent orders through a Zerbst-style colloquy, abandon the unsanctioned “law-abiding citizen” threshold, and instead adhere rigorously to Bruen’s text-and-history test and Iowa’s strict scrutiny standard. Only by doing so can trial courts resist the temptation of procedural expedience and maintain fidelity to constitutional guarantees.
-The author wishes to thank Professor Peter Hanson of Grinnell College for his thoughtful comments on earlier drafts of this piece.