The N.R.A.'s Strict-Scrutiny Amendments

• Author: Todd E. Pettys
• Position: Associate Dean for Faculty, H. Blair and Joan V. White Professor of Law, and Faculty Advisor for the Iowa Law Review, The University of Iowa College of Law
• Pages: 1455-1482

1455

The N.R.A.’s Strict-Scrutiny Amendments

Todd E. Pettys*

ABSTRACT: 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.

INTRODUCTION

Frustrated with state and federal judges who have evaluated gun-control

laws under lenient standards of review,1 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 state or local restraint on

that right is invalid unless it satisfies strict scrutiny. The executive director of

the N.R.A.’s Institute for Legislative Action told Louisiana voters in 2012, for

example, that a constitutional amendment necessitating strict scrutiny would

provide “an iron wall around” their gun rights by protecting “them from anti-

*

H. Blair and Joan V. White Chair in Civil Litigation, The Unive rsity of Iowa College of Law.

1. See infra notes 40–60 and accompanying text (describing the lenient standards commonly

deployed in state and federal cases).

1456 IOWA LAW REVIEW [Vol. 104:1455

gun, activist judges.”2 In January 2018, the N.R.A. similarly encouraged its

members in Iowa and elsewhere to protect their gun rights with “iron plating”

by ensuring that judges are constitutionally obliged to evaluate gun

restrictions under “the highest standards of justification.”3 As every law

student knows, the strict-scrutiny standard of review sets a daunting path for

a challenged law to travel, demanding that the legislation be “narrowly

tailored” to achieve a “compelling” objective.4 “For decades,” the N.R.A.

argues, “anti-gun judges and lawyers” have insisted that strict scrutiny is

inappropriate for gun-rights claims, “because they know that without this gold

standard of legal protection, gun-ban politicians are virtually unbound to pass

any freedom-killing laws that infringe on your constitutional right to keep and

bear arms.”5

By overwhelming margins, voters in Alabama,6 Louisiana,7 and Missouri8

have adopted the N.R.A.’s recommendation. In March 2018, the Iowa

2. Chris W. Cox, November 6: A Historic Opportunity for Louisiana Voters to Protect Their Gun

Rights, NRA-ILA (Sept. 25, 2012), https://www.nraila.org/articles/20120925/november-6-a-

historic-opportunity-for-louisiana-voters-to-protect-their-gun-rights. After the Louisiana legislature

voted to send the measure to the state’s voters for ratification, Governor Bobby Jindal released a

celebratory statement picking up on the ferric imagery, declaring that “[w]e are adop ting th e

strongest, most iron-clad, constitutional protection for law-abiding gun owners.” Bill Barrow,

Gun Rig hts Constitutional Amendment Clears Senate, He aded for November Ballot, NOLA.COM

(May 29, 2012), https://www.nola.com/politics/index.ssf/2012/05/gun_rights _constitutional_

amen.html (quoting Governor Jindal).

3. “Strict Scrutiny” Amendments: Iron Plating for the Right to Keep and Bear Arms, NRA-ILA

(Jan. 26, 2018), https://www.nraila.org/articles/20180126/strict-scrutiny-amendments-iron-plating-

for-the-right-to-keep-and-bear-arms.

4. See, e.g., Citizens United v. FEC, 558 U.S. 310, 340 (2010).

5. Cox, supra note 2.

6. See Alabama Right to Bear Arms, Amendment 3 (2014), BALLOTPEDIA, https://ballotpedia.org/

Alabama_Right_to_Bear_Arms,_Amendment_3_(2014) (last visited Jan. 3, 2019) (reporting that

voters approved the amendment by a 73-27 margin); see also A LA. CONST. art. I, § 26(a) (amended

2014) (“Every citizen has a fundamental right to bear arms in defense of himself or herself and

the state. Any restriction on this right shall be subject to strict scrutiny.”).

7. See Louisiana Right to Bear Arms, Amendment 2 (2012), BALLOTPEDIA, https://ballotpedia.org/

Louisiana_Right_to_Bear_Arms,_Amendment_2_(2012) (last visit ed Jan. 3, 2019) (reporting that

voters approved the amendment by a 73-27 margin); see also LA. CONST. art. I, § 11 (amended 2012)

(“The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any

restriction on this right shall be subject to strict scrutiny.”). Louisiana lawmakers were driven in large

part by a desire to ensure that, if changes on the United States S upreme Court resulted in a narrower

interpretation of the Second Amendment, Louisianans would still have strongly protected gun

rights. See State v. Draughter, 130 So. 3d 855, 861 n.6 (La. 2013); see also infra notes 107–08 and

accompanying text (discussing the possibl e significance of this observation).

8. See Missouri Right to Bear Arms, Amendment 5 (August 2014), BALLOTPEDIA,

https://ballotpedia.org/Missouri_Right_to_B ear_Arms,_Amendment_5_(August_2014) (last visited

Jan. 3, 2019) (reporting that voters approved the amendment by a 61-39 margin); see also MO.

CONST. art. I, § 23 (amended 2014) (“That the right of every citizen to keep and bear arms,

ammunition, and accessories typical to the normal function of such arms, in defense of his home,

person, family and property, or when lawfully summoned in aid of the civil power, shall not be

questioned. The rights guaranteed by this section shall be unalienable. Any restricti on on these