Iowa High Court Adds to Confusion Over New Right-to-Bear-Arms Amendment

The Iowa Supreme Court recently made a first attempt to interpret the state’s new constitutional provision protecting gun rights — and it was, in a word, wobbly. The splintered decision left more questions than it answered.

Iowa’s Amendment 1A was approved by voters in November 2022 and included an unusual feature: It expressly required Iowa judges to apply strict scrutiny to gun regulations. The initial hope of gun rights advocates who lobbied for the amendment was that requiring strict scrutiny would doom gun laws upheld in federal Second Amendment cases under the lesser standard of intermediate scrutiny. (The U.S. Supreme Court scrapped intermediate and strict scrutiny in 2022’s New York State Rifle & Pistol Association v. Bruen, which turbocharged Second Amendment protections with a test rooted in text, history, and tradition. Bruen was decided after the process to enact Amendment 1A began but before it was voted into effect.) Iowa was the fourth state to pass such a provision, after Alabama, Louisiana, and Missouri. Other states including Oklahoma and Kansas have subsequently considered, but failed to adopt, similar amendments.

In In the Interest of N.S., the Iowa Supreme Court considered Amendment 1A in a challenge to the state process for restoring gun rights revoked by federal law after an involuntary commitment. The three opinions in the case demonstrated widespread disagreement about what strict scrutiny requires and the limits of state constitutional law when challenging a complex federal-state regime. There’s a tendency to view federal and state gun laws as separate, but this case shows how they frequently play off one another in ways that complicate legal challenges.

The case concerned an Iowan — identified only as N.S. — whom a judge committed to a mental institution in 2006 when he was 16 years old. The judge found clear and convincing evidence that N.S. was “seriously mentally impaired” and “likely to injure himself if allowed to remain at liberty.” N.S.’s parents had requested the commitment because of his behavior, including threats “to take the life of his family — then his own.” In 2008, N.S.’s aunt and maternal grandfather petitioned for another committal because N.S. had threatened to kill his mother and burn down a house with occupants inside, broke windows and punched holes in walls, and struggled with paranoia and suicidal ideation. In that instance, an evaluating psychiatrist recommended outpatient treatment.

The involuntary commitment in 2006, which proceeded under state law, triggered a federal law that barred N.S. from possessing firearms. The federal bar on gun possession could be lifted, however, if N.S. could satisfy an Iowa restoration process that placed the burden on the petitioner to demonstrate non-dangerousness by a preponderance of the evidence.

In 2022, the same year Iowa voters passed Amendment 1A, N.S. petitioned to restore his firearm rights. The judge denied his request after N.S. made a series of inaccurate and misleading statements, including denying any history of psychiatric illness. The court concluded that N.S. had failed to carry his burden. Under the state law, N.S. had to wait two years before he could reapply for restoration of his gun rights.

N.S. appealed from the denial of his restoration petition, arguing in part that placing the burden to prove non-dangerousness on him violated the newly passed Amendment 1A. Instead, he said, strict scrutiny required the burden to be on the government to prove continued dangerousness to justify denial of his petition.

The Iowa Supreme Court split dramatically over how Amendment 1A impacted N.S.’s bid to restore his gun rights. The court upheld the constitutionality of the restoration law by a 4–3 vote, but the four justices in the majority fractured 2–2 about why the provision was constitutional.

Justice Thomas Waterman’s opinion, joined by Chief Justice Susan Christensen and labeled as “for the court,” held that the law survived strict scrutiny. The opinion noted that courts in other states with strict scrutiny gun rights amendments had rejected challenges to firearm prohibitions. Waterman likewise surveyed recent Second Amendment case law but said those opinions were off point because they involved Bruen’s test of “text, history, and tradition” rather than strict scrutiny. Waterman concluded that “federal decisions applying heightened scrutiny to firearm restrictions before Bruen” would be more relevant to the evaluation of Amendment 1A. That itself is interesting, since the U.S. Supreme Court declared in Bruen that those opinions were wrongly decided as a doctrinal matter. Surveying some of those earlier decisions, Waterman deduced that “when a restoration procedure is available, courts have rejected Second Amendment challenges” to gun bans. Waterman ultimately declared that Iowa’s restoration law was “narrowly tailored to serve a compelling state interest in preventing gun violence and suicides.”

The placement of the burden of persuasion did not doom the law, Waterman wrote, again noting that other states’ restoration regimes discussed in opinions upholding firearm prohibitions also placed the burden on the petitioner. Neither N.S. nor the dissenting judges could point to any contrary authority. To meet strict scrutiny, Waterman emphasized, a law “need not be perfectly tailored, simply narrowly tailored.”

Justice Matthew McDermott wrote a dissenting opinion, joined by justices Edward Mansfield and David May. The dissenting justices disagreed with the district judge who denied restoration of gun rights but struggled to channel that disagreement into a constitutional argument. Their opinion was instead long on emotional appeal, emphasizing that N.S. had received a GED, gotten married, had children, and maintained employment as a truck driver and mover. They concluded that, “It is simply incongruous and wrong to force the party under the restraint to prove that the restraint no longer belongs rather than the other way around.”

Both Waterman’s opinion and the dissent failed to engage with the fact that the restraint was a federal one and that the challenge was solely to Iowa’s restoration regime. As such, N.S.’s case did not target the underlying prohibition that kept him from possessing a gun in the first place. All the precedent discussed in Waterman’s opinion, for example, dealt with the constitutionality of laws banning gun possession, not those set up to restore gun rights after the initial prohibition.

Only Justice Christopher McDonald’s concurrence, joined by Justice Dana Oxley, homed in on the fact that it was a federal law that barred N.S. from having a gun. McDonald found that determinative. He explained that absent the restoration law, Amendment 1A “could not have provided N.S. with any ability to own or possess a firearm because state constitutional provisions are inferior to and cannot override federal statutes,” pointing to the federal Constitution’s Supremacy Clause. McDonald then observed that the state restoration regime was “an enlargement or expansion of the right to keep and bear arms rather than an infringement or restriction” of that right. As such, he said, Amendment 1A, “and its attendant strict-scrutiny standard, is inapplicable here.” This rendered the question of which party bears the burden of proof under the restoration law “merely a nonconstitutional inquiry,” he wrote. (It was not immediately clear why Waterman’s opinion, not McDonald’s, was labeled that of the court, since both attracted the support of an equal number of justices.)

The concurring opinion was the most elegant of the three. It explained, in effect, that N.S. brought the wrong challenge: He challenged a state restoration of rights process but should have challenged the underlying denial of rights. If he had done so, however, he would have needed to bring a federal constitutional challenge under the Second Amendment rather than a state constitutional challenge under Amendment 1A.

What can we take away from the Iowa Supreme Court’s first opportunity to apply its new gun rights amendment? Most simply, Iowa’s restoration regime is constitutional under state law. But it is difficult to articulate a more nuanced lesson. In particular, the fractured opinions in In the Matter of N.S. offer scant guidance to lower court judges who will undoubtedly see more gun rights cases in the years to come.

The case perhaps offers a lesson for efforts to impose strict scrutiny on judges through constitutional amendments. Amendment 1A removes the traditional judicial discretion to decide what standard of review to apply in a case — whether intermediate scrutiny, strict scrutiny, or some other test. But it does not remove all doctrinal discretion because there are different understandings of how to “do” strict scrutiny: some versions are stricter than others. Moreover, litigants seeking to take advantage of strict scrutiny in challenges to regimes that combine federal and state prohibitions — which are common in gun law cases — will be disappointed as judges become bogged down in the first-order question of whether state constitutional law is implicated at all.

Eric Ruben is an associate professor of law at SMU Dedman School of Law and a fellow at the Brennan Center.

Suggested Citation: Eric Ruben, Iowa High Court Adds to Confusion Over New Right-to-Bear-Arms Amendment, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/iowa-high-court-adds-confusion-over-new-right-bear-arms-amendment-0