Is the Freedom Amendment Deceptive?

by Michael Ware | Oct 24, 2022

No.  Unfortunately, there are always a certain number of people, albeit small, that fall into a hapless category.  There are usually just 2 basic types in case you didn’t know.  1), The folks that seek to spin the issue in the interests of confusing otherwise reasonable people.  2), The folks that simply have a fundamentally flawed understanding of the subject matter.  

One stratum of folks is innocent and misinformed.  And that’s fine.  We all didn’t know what we didn’t know until we did, right?  The other folks?  They don’t believe your civil liberties should be protected.  They want all theirs, but they’ll pick and choose what you should and shouldn’t have.  Jim Crow was born of this thought and lives on today in them through every action they offer and every sad thought they muster.  But, every now and then, one of them breaks the spell and embraces love for others universally.

Richard Rogers, IFC’s Chief Lobbyist, and longtime Board Member, recently offered up some thoughts I’d like to share with you all.  He’s a sharp guy with really well-thought-out concepts to share.  In short, Richard offers you the truth of the matter.  And in a time when categories 1 & 2 both need help with context and reality, this is well-timed.  Enjoy:

The Language of the Freedom Amendment Is Not Deceptive

Opponents have claimed that the wording of the Freedom Amendment is deceptive, but there is nothing deceptive in this simple three-sentence amendment.

1.) “The right to keep and bear arms shall not be infringed.” – This line is taken directly from the Second Amendment to the U.S. Constitution. Justice Thomas, in the recent 6-3 majority opinion in N.Y.S.R.P.A. v. Bruen, which ruled unconstitutional New York state’s 109-year-old gun control law, stated that this statement is the Second Amendment’s “unqualified command”. He has repeatedly stated that Second Amendment rights are NOT second-class rights. So, there is nothing deceptive or even controversial in this line of the proposed amendment.

2.) “The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right.” – Throughout the history of this nation, the right to keep and bear arms was generally recognized as both a fundamental and individual right. (It was really only during the period from about 1940 through the 1970s that there was a broad attempt to reinterpret that right as either a collective right only of those members of an organized militia or of the states themselves.) This ahistorical argument was thoroughly dispensed with in SCOTUS’s Washington D.C. v. Heller decision in 2008, which affirmed that that right is a fundamental individual right. Therefore, unless one expects to overturn both the historical record and the Heller, McDonald, and Bruen Supreme Court decisions, there is nothing deceptive or confusing about this second line of the amendment.

3.) “Any and all restrictions of this right shall be subject to strict scrutiny.” – “Strict scrutiny” may not be common parlance, but it is hardly deceptive and ought not to be controversial. It provides the most stringent test of three levels in a long-standing framework of judicial review. Within that framework, it provides the most appropriate test for the constitutionality of a challenged law or regulation that affects the core of a fundamental right. To survive “strict scrutiny”, such a regulation must be determined by the court to be necessary in order to address “a compelling state interest” and to be “narrowly tailored” to achieve the compelling purpose, using the “least restrictive means” to do so. While the strict scrutiny standard of review is the standard most appropriate in controversies addressing fundamental rights, the lower federal courts have consistently refused to use it in cases involving Second Amendment rights. Instead, they have used a version of the lesser “intermediate scrutiny” standard, which requires only that a law or regulation addresses an “important state interest” and is “substantially related” to accomplishing the desired goal. This standard, in practice, has generally resulted in courts giving great deference to legislative efforts at all levels of government and has shown relatively little regard for rights nominally protected by the Second Amendment.

This proposed “Freedom Amendment” to Iowa’s Constitution merely instructs Iowa Courts as to what framework of review to use – the strict scrutiny standard. After all, not only has the U.S. Supreme Court now affirmed in multiple decisions that the Second Amendment protects fundamental rights, but that fact is self-evident, in that the Framers placed it in second place in the Bill of Rights. These rights were also considered fundamental rights of English subjects long before the Revolution.

In any case, the Supreme Court in its Bruen decision has now instructed lower courts to forego any “interest balancing test” or “means-end” test, such as intermediate or strict scrutiny. Instead, courts considering cases implicating the Second Amendment must now determine whether a challenged law restricts a protected right. If it does, according to the text of the Second Amendment, then the law must be presumed to be unconstitutional unless it can be shown that the history and traditions of our nation – at the time of the ratification of the Bill of Rights (or, in some cases perhaps, of the Fourteenth Amendment) – that a similar or sufficiently analogous law was common.

This test (as used in Heller and McDonald) is much more rigid. As a result, the question of the strict scrutiny standard in Iowa Courts is likely to be moot, unless at some future date the Supreme Court’s rulings are altered or overturned. This amendment to the Iowa Constitution was first drafted in early 2011 when it was obviously impossible to predict a Supreme Court decision that would be delivered in the Summer of 2022.

The opponents of this amendment ask, “Why not just use the exact words of the Second Amendment? We might support putting those words into Iowa’s Constitution.” Well, that is a trap. Those who oppose the free exercise by Americans of their constitutionally protected right to keep and bear arms have worked for well over a century to get around those words – and they have been quite successful until very recently.

They oppose the “strict scrutiny” standard, as well as the reiteration that this is a fundamental individual right because they know that it will likely forever dash their hopes of bringing New York and California-style gun control laws to Iowa. They have unleashed an unfounded campaign of fear in hopes of defeating this amendment – falsely claiming that it may somehow “allow violent felons and convicted domestic abusers to possess and carry guns.” This is nonsense, if for no other reason than that federal law makes that a felony. In addition, the history and tradition of our nation have consistently maintained restrictions of that sort.

Don’t give in to the fearmongering! On Nov. 8, FLIP your ballot over and vote YES to add strong state-level protections for your precious Second Amendment rights. Do it for your grandchildren – and for their grandchildren.

Join me in thanking Richard for his well-arranged thoughts.

In Libertatem,

Michael Ware – IFC Board