Explore The NRA Universe Of Websites

“Strict Scrutiny” Amendments: Iron Plating for the Right to Keep and Bear Arms

Friday, January 26, 2018

“Strict Scrutiny” Amendments: Iron Plating for the Right to Keep and Bear Arms

The Iowa legislature is considering House Joint Resolution 13 to add a right to keep and bear arms to the state’s constitution. Should the introduced language eventually be adopted, the Hawkeye State would become the fourth – behind Louisiana, Missouri, and Alabama – to explicitly designate strict scrutiny as the required judicial standard for adjudicating restrictions on the right to keep and bear arms. This change would rocket Iowa from one of the few states without any constitutional right to arms into an elite group that provides the strongest possible protection for the most fundamental of civil rights. 

Unlike the federal Bill of Rights, state constitutional provisions rarely grab headlines. Yet they are a very important backstop for civil rights and greatly contribute to the American tradition of individual liberty. 

In America’s constitutional system, states cannot infringe on “fundamental” rights protected by the U.S. Constitution.  Many of these rights are spelled out in the Bill of Rights itself, but others – like the right to interstate travel – have been recognized by courts as emanating from other, more explicit guarantees or constitutional principles.

But while the U.S. Constitution sets a “floor” on certain individual liberties, states can exceed that floor with additional protections of their own that apply within their borders to the official acts of state functionaries. States can also create constitutional protections – like the right to hunt and fish – that are not expressly mentioned in the Bill of Rights. 

These principles are especially important as applied to the right to keep and bear arms. 

The U.S. Supreme Court, of course, has recognized that the Second Amendment protects an individual right to arms. But anti-gun lower courts – many of which for years denied the existence of any such individual right at all – have largely ignored the Supreme Court’s Second Amendment rulings and have continued to interpret the provision into near irrelevance. Federal rulings on the Second Amendment are replete with references to “intermediate scrutiny,” a toothless standard that allows antigun officials broad leeway to infringe the rights of law-abiding Americans, including with bans on popular firearms and virtual bans on public carry.

Meanwhile, anti-gun activists and academics have not given up hope of returning to the days when the constitutional right to keep and bear arms did not have to be paid any lip service at all. Calls for the repeal of the Second Amendment remain common after high-profile crimes committed with firearms, and academics are busily re-writing history to bolster what they hope will be future rulings overturning the Supreme Court’s 21st Century jurisprudence on the Second Amendment.

Should that happen, state constitutional provisions could still provide a measure of protection to activity within the state’s borders.  

Some mistakenly believe that including strict scrutiny within a state right to arms somehow invites regulation of the right and that constitutional phrases like “shall not be infringed” preclude any sort of restrictions whatsoever.

Needless to say, history and experience prove otherwise. Legislatures have passed restrictive laws against the backdrop of every sort of constitutional phraseology ever devised, usually while claiming perfect allegiance to the Constitution. 

What strict scrutiny does is ensure that when the matter goes before a court on a constitutional challenge, the state is held to the highest standards of justification for its actions.  And even if the state can substantiate a compelling reason for its law, it still has to structure the law in the most narrowly-tailored way possible to achieve that objective.

The result is that shoddy exercises in political grandstanding – which defines most of the gun control agenda – will not pass muster.

On the other hand, legitimate public safety measures – such as laws banning firearm possession by violent felons or those serving a criminal sentence – will still be permissible, as has been shown time and again in the states that have adopted “strict scrutiny” standards.

The NRA strongly endorses the adoption of strict scrutiny for state constitutional rights to arms. As NRA-ILA Executive Director Chris Cox has said, these measures “build an iron wall” around your freedoms and protect them from antigun officials and activist judges.

TRENDING NOW
ATF Skirts Legal Formalities and Springs Another Gun Control Rule on the American People

News  

Monday, April 22, 2024

ATF Skirts Legal Formalities and Springs Another Gun Control Rule on the American People

On Friday, ATF provided the unpleasant surprise of yet another rulemaking to implement the noxious Bipartisan Safer Communities Act (BSCA). 

Colorado: Gun Control Bills Pass House After Weekend Votes

Sunday, April 21, 2024

Colorado: Gun Control Bills Pass House After Weekend Votes

After holding late-night votes until close to midnight on Saturday, April 20th, the Colorado House passed three anti-gun bills on their third reading, including liability insurance mandates, an 11% excise tax, and a state-level permitting systems for FFL's. 

“Unquestionably in Common Use Today” – Study Confirms National Standard for Detachable Magazine Capacity is Over Ten Rounds

News  

Monday, April 22, 2024

“Unquestionably in Common Use Today” – Study Confirms National Standard for Detachable Magazine Capacity is Over Ten Rounds

Along with “assault weapon” bans, so-called “high capacity” magazine restrictions are a cornerstone of modern gun control.

NRA Scores Legal Victory in Dispute with DC Attorney General

News  

Thursday, April 18, 2024

NRA Scores Legal Victory in Dispute with DC Attorney General

The National Rifle Association of America (NRA) has announced a legal victory in a high-profile governance matter brought by the Office of the Attorney General for the District of Columbia (DCAG).

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

Monday, April 1, 2024

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

NRA Members Among the Largest Class Protected from Draconian Rule

Nevada Supreme Court Upholds “Ghost Gun” Regulations

Monday, April 22, 2024

Nevada Supreme Court Upholds “Ghost Gun” Regulations

The Supreme Court of Nevada upheld Nevada’s regulations on so-called “ghost guns” in Sisolak v. Polymer80, holding that the statutes are not unconstitutionally vague.

With a Stroke of the Pen, Biden ATF Criminalizes Tens of Thousands of Private Firearm Sellers

News  

Friday, April 12, 2024

With a Stroke of the Pen, Biden ATF Criminalizes Tens of Thousands of Private Firearm Sellers

We have long been warning of the rule the Biden ATF has been preparing to redefine who is considered a firearm “dealer” under U.S. law.  The administration’s explicit objective was to move as close to so-called “universal background ...

Iowa: Governor Reynolds Signs Two Pro-Gun Bills into Law

Monday, April 22, 2024

Iowa: Governor Reynolds Signs Two Pro-Gun Bills into Law

On Friday April 19th, Governor Kim Reynolds signed House File 2586 and House File 2464 into law. The NRA would like to thank Governor Reynolds and the supporters in the Iowa legislature for their continued commitment to ...

Colorado: Semi-Auto Ban Passes House and "Sensitive Places" Expansion to be Heard in Committee

Monday, April 15, 2024

Colorado: Semi-Auto Ban Passes House and "Sensitive Places" Expansion to be Heard in Committee

On Sunday, HB24-1292 the semi-auto ban, received final passage in the House and has been transmitted to the Senate where it awaits a committee assignment. 

Maine: Contact the Governor and Urge Her to Veto All Gun Control Bills!

Thursday, April 18, 2024

Maine: Contact the Governor and Urge Her to Veto All Gun Control Bills!

After a nearly 24-hour marathon legislative session, the Maine House and Senate finally adjourned until "Veto Day" in the coming weeks. 

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.