Bruen Ends Tiers of Scrutiny? Take a Look…

by Michael Ware | Aug 30, 2022

Does Bruen Herald the End of Constitutional Strict-Scrutiny Amendments?  From an article at the Duke Center for Firearms Law, Andrew Willinger wrote the following:

This November, voters in Iowa will weigh in on a proposed state constitutional amendment that would make all gun regulations subject to strict scrutiny.  The full text of the proposed amendment, which was approved by the state legislature in early 2021, is as follows (emphasis added):

 

The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.

Iowa’s Freedom Amendment contains “strict scrutiny” language which is the 3rd and final sentence of the amendment.  Simply put, it is the highest level of judicial review.  In layman’s terms, a judge or judges should have a compelling reason to tinker with the law or case they’re reviewing.  Interestingly, Bruen, moves past scrutiny tiers and solidifies the original context:

This issue is, in many ways, the primary point of contention between the majority and the dissent in Bruen:  do tiers of scrutiny create a situation where courts too often “defer to the determinations of legislatures,” and does a history-focused test actually constrain such judicial deference?  Bruen entirely repudiates tiers of scrutiny in the Second Amendment context.  If one believes that Bruen’s historical-analogue test is more constraining and faithful to the original meaning of the Second Amendment, then it would be odd to simultaneously advocate for the type of strict-scrutiny amendment currently on the table in Iowa.  It seems likely that those who supported strict-scrutiny constitutional amendments at the state level in past years will now turn their attention to attempting to harmonize the interpretation of state constitutional provisions with the interpretation of the federal Second Amendment.[2]  This also makes sense as a practical matter: once the federal constitutional right reaches a high level of protection, there’s no longer much to do at the state level—it only really matters that the right is protected by one of the two provisions.

 

If Bruen’s test is indeed on par with, or tougher than, strict scrutiny, we can expect this fact to halt the recent spurt of strict-scrutiny constitutional amendments at the state level.  Instead, we’re likely to see a broader shift where state courts increasingly use the Bruen test to evaluate challenges under state constitutional analogues to the Second Amendment, even in states without a strict rule that such analogous provisions are construed in tandem.

I found this article, IFC Board Member and Chief Lobbyist, Richard Rogers, sent me both helpful and insightful.  Here’s the context for all of us in Iowa.  Strict Scrutiny, which we all agree should be applied to ALL questions of your basic human and civil rights, will be intact for your protection in Iowa.  Whether future SCOTUS cases strengthen or diminish this will be realized in the future.  But Iowa can have protection placed in its State Constitution.

Yes, there are gun grabbers, liberty haters, and the dangerous members of society out there that seek to thwart this virtuous endeavor.  But what everyone should be asking themselves is pretty simple.  Is there ANY human right or basic civil right that DOESN’T deserve strict scrutiny when discussing their restriction or curtailment?

In Libertatem,

Michael Ware – IFC Board