104 Iowa L. Rev. 1455 (2019)
Download PDF


The National Rifle Association (“N.R.A.”) is urging states to declare in their constitutions that the right to keep and bear arms is fundamental and that any restraint on that right is invalid unless it meets the stringent demands of strict scrutiny. Three states have already embraced the N.R.A.’s proposal and Iowa is one-third of the way toward becoming the fourth. In this brief Essay, I make two overarching arguments. First, contrary to the apparent aims of the N.R.A. and its legislative partners, the proposed strict-scrutiny amendments leave courts with significant latitude to define the scope of the fundamental constitutional right to which the strict-scrutiny standard attaches. Second, courts can reasonably conclude that the right protected by these amendments is narrow in scope, encompassing little or no more than what federal courts today strongly protect under the Second Amendment. Far from securing the sweeping reform that many may desire and others may fear, therefore, the N.R.A.’s proposal may ultimately prove merely to ensure that, at the state level, the fundamental gun rights that receive powerful judicial protection cannot be reduced below the federal floor that the United States Supreme Court has already clearly established.

Friday, March 15, 2019