The Iowa Supreme Court rejected two bids to strike down as unconstitutional Iowa statutes that remove criminal offenders’ right to possess firearms. The Court was split in both cases, with the justices lining up differently in each case.

In State v. Cole, the Court affirmed the Story County District Court’s conviction of Jordan Cole for possessing firearms while subject to a protective order in violation of Iowa Code Section 724.26(2)(a). The Court disagreed with Cole’s argument that the statute violates both the U.S. and Iowa Constitutions. This decision was written by Justice Thomas Waterman joined by Chief Justice Susan Christensen and Justices Edward Mansfield and Christopher McDonald. Justice David May wrote a dissenting opinion joined by Justices Dana Oxley and Matthew McDermott.

In State v. Woods, the Court upheld the conviction of Kevin Woods on a charge of carrying a dangerous weapon while in possession of a controlled substance, disagreeing with Woods’ argument that he has a federal and state constitutional right to carry a firearm while committing an indictable offense. The plurality opinion for the Court was written by Justice McDonald joined by the Chief Justice and Justice Mansfield. Justice Oxley wrote separately to concur in judgment. Justice McDermott filed a dissent joined by Justices Waterman and May. Justice May wrote a separate dissent joined by Justices Waterman and McDermott.

The Court’s decision in State v. Cole

Cole had consented to a protective order entered in Hamilton County District Court that restrained him from committing acts or threats of abuse and contact with the protected person and which contained a provision that Cole “shall not possess, ship, transport or receive firearms, offensive weapons, or ammunition while this order is in effect pursuant to Iowa Code section 724.26(2)(a).” Cole did not appeal from the consent order and did not attack it in this appeal.

While still subject to the protective order, Cole was convicted in Story County District Court on two charges of possession of weapons in violation of Section 724.26(2)(a), which provides in part that “a person who is subject to a protective order under 18 U.S.C. § 922(g)(8) or who has been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9) and who knowingly possesses, ships, transports, or receives a firearm, offensive weapon, or ammunition is guilty of a class ‘D’ felony.”

In his appeal to the Iowa Supreme Court, Cole argued the firearms prohibition imposed by the Iowa statute is unconstitutional under the Second Amendment to the U.S. Constitution and Article I, Section 1A of the Iowa Constitution. The Court disagreed.

The Iowa statute references federal statute 18 U.S.C. § 922(g)(8), which prohibits defendants from possessing firearms if they are subject to a court order that meets certain requirements, which were met in Cole’s case. In 2024, the U.S. Supreme Court rejected a Second Amendment challenge to the prohibition imposed by that statute.

Although Cole distinguished that decision from his case, the Iowa Supreme Court rejected his challenges to the constitutionality of both the federal and Iowa statutes.

“We conclude Cole’s constitutional challenges must be rejected,” Justice Waterman wrote. “We rest this conclusion on waiver. Cole consented to the entry of the protective order. That order expressly prohibited Cole from possessing firearms.”

Justice Waterman wrote that “Iowans regularly waive constitutional protections with far less formality and without the court hearing and judicial imprimatur reflected in Cole’s consent order.” Justice Waterman cited as examples that individuals can waive their right to remain silent without a Miranda warning during noncustodial police questioning, their right to counsel at trial, their right to trial by pleading guilty, and their right to a trial by jury.

Justice May’s dissent in Cole, joined by Justices McDermott and Oxley

Justice May argued that the Court wrongly refused to consider the merits of Cole’s challenge to the constitutionality of the Iowa and federal firearms statutes based on his consenting to entry of a protective order in a separate civil proceeding that ended months before his felony prosecution.

Justice May wrote that he would find that Cole’s consenting to a protective order was not a valid waiver of his right to raise Second Amendment challenges in future criminal prosecutions. “Because Cole did not waive his right to bring a Second Amendment challenge here, we should proceed to the merits of that challenge,” he wrote.

Justice May also questioned the theory that, although the protective order contains no finding that Cole presents a threat to anyone and the record contains no evidence that would have supported such a finding, the Court should infer such a finding from the fact that a protective order was issued. “Respectfully, I do not believe such reasoning can justify Cole’s disarmament,” he wrote.

Chief Justice Christensen’s concurring opinion in Cole

While agreeing with the majority opinion that Cole waived his federal and Iowa constitutional rights, the Chief Justice wrote separately to address the dissent’s arguments regarding the judicial determination of dangerousness in Cole’s case.

“Domestic violence is a widespread, enduring problem, and firearms are a major contributor to that problem. In fact, firearms are responsible for more intimate partner homicides than all other weapons combined,” she wrote, adding that the threat is not limited to intimate partners but includes police officers.

“The dissent contends that there was not a finding of dangerousness in this case sufficient to restrain the defendant from possessing firearms, but that conclusion is not in line with current federal law and could have harmful consequences in Iowa,” she wrote. “A reversal of Cole’s conviction would set a dangerous precedent, endangering victims of domestic abuse even further.”

The Court’s decision in State v. Woods

Kevin Woods was charged with possession of a controlled substance and carrying a dangerous weapon while in possession of a controlled substance or while committing an indictable offense in violation of Iowa Code Section 724.8B. The charge was based on a police officer’s search of Woods’ vehicle and backpack that yielded marijuana, a scale, a pistol with a loaded magazine, three additional magazines, and a total of 68 rounds of ammunition.

Woods moved to dismiss the dangerous-weapon charge on grounds it violated his rights under the federal and state Constitutions; the Polk County District Court denied that motion. Woods entered a conditional guilty plea pending this appeal to the Iowa Supreme Court in which he argued his conviction for carrying a dangerous weapon in violation of Iowa Code Section 724.8B violates his federal and state constitutional right to keep and bear arms.

The Court held that Woods’ appeal failed the initial step of a test established by the U.S. Supreme Court in a 2022 decision, which said that, if an activity regulated by the government falls outside the original scope of the Second Amendment, that regulated activity is not constitutionally protected. “The Second Amendment does not cover or protect a right to carry a firearm while also illegally possessing a controlled substance or while committing an indictable offense,” Justice McDonald wrote in the plurality opinion joined by Chief Justice Christensen and Justice Mansfield. An indictable offense is a crime that can be brought by a grand jury based on evidence presented by a prosecutor; under Iowa law, possession of marijuana is an indictable offense.

Even if Woods had cleared that first hurdle, his challenge to his illegal firearms conviction under the Second Amendment would fail as well, Justice McDonald wrote. Justice McDonald based this conclusion on the U.S. Supreme Court’s test for the validity of a government firearms regulation, which requires the government to demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.

Iowa Code Section 724.8B is based on traditional concerns for public safety, Justice McDonald wrote. “Carrying a firearm during the commission of an indictable offense increases the risk of danger and violence to the perpetrator, the victim, if any, and those investigating or responding to the crime, including members of the public, private security officers, and public peace officers. There is no category of crime where the perpetrator’s possession of a pistol during the commission of the crime makes the situation safer.”

Woods’ case demonstrates that concern, Justice McDonald wrote. “Woods was pulled over because of an inoperable light on the trailer of his commercial vehicle. During the traffic stop, the officer observed a THC vape pen on the center console of the vehicle and smelled marijuana wafting from the cabin, indicating that Woods may have been using while driving and while in possession of a loaded pistol. The loaded pistol was contained in a backpack on the center console, readily accessible to Woods. Although Woods did not use the loaded pistol to avoid apprehension in this case, that does not make the potential for death or physical injury to the officer and Woods any less real.”

The plurality cited several cases from other federal and state courts holding that statutes similar to Iowa’s are consistent with this nation’s historical tradition of firearm regulation.

“Woods is asking this court to do what no other court in the country has done and hold that there is a federal constitutional right to carry a firearm while simultaneously in the illegal possession of a controlled substance or while simultaneously engaged in indictable criminal activity,” Justice McDonald wrote.

The plurality concluded these same arguments apply to the Iowa Constitution, which says in an amendment ratified by voters in 2022: “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.”

But, just as the federal constitutional right to keep and bear arms applies to Woods’ case, the firearms right under the Iowa Constitution does not include the right to carry a firearm while in the illegal possession of a controlled substance or while committing an indictable offense, the plurality said. And, even if the Iowa statute could be considered an infringement of firearms rights, it would survive strict scrutiny as applied in Woods’ case.

Justice Oxley’s concurring opinion in Woods

While Justice Oxley agreed with the plurality opinion that Woods’ challenge to the federal and Iowa statutes fails, she argued the plurality went too far in broadly declaring that carrying a firearm while engaging in any indictable offense is never protected by the Second Amendment to the U.S. Constitution or Article I, Section 1A of the Iowa Constitution.

“I am unaware of any federal or state case that holds, as the plurality would, that an individual has no constitutional right to possess or carry a firearm while that person is committing any indictable offense, no matter the underlying offense or the connection (or lack thereof) between the firearm and the offense,” she wrote. “And the plurality cites none. Instead, it extrapolates well beyond the cases on which it relies to effectively announce a categorical rule.”

Justice Oxley posed the question, for example, of whether an individual who is barred from driving loses his constitutional right to carry a firearm when he then illegally drives to the corner store. “In my view, that depends on whether it could be said that carrying his firearm had the potential to facilitate the underlying crime of driving while barred, i.e., whether he carried it for an unlawful purpose. That case is not before us, and the resolution of that issue must await a constitutional challenge in a case that presents that issue.”

Justice McDermott’s dissent in Woods, joined by Justices Waterman and May

Justice McDermott wrote in a dissenting opinion that he would hold Section 724.8B unconstitutional under both the Second Amendment of the U.S. Constitution and Amendment 1A of the Iowa Constitution as applied to Woods.

Addressing the plurality’s conclusion that Woods was not law-abiding because he possessed marijuana and thus cannot claim a Second Amendment right, Justice McDermott argued the commission of a criminal act by itself does not extinguish one’s constitutional right to bear arms. In order to justify disarming a person for public safety reasons under the Second Amendment, he said, the firearm restriction must address a material danger posed by the person whose firearms rights are restricted.

Section 724.8B, however, criminalizes the carrying of a firearm by someone merely possessing marijuana, even if the person is sober, he wrote.

“The constitutional right to bear arms becomes an empty promise if any criminal act that creates an interaction with law enforcement—regardless of the act’s dangerousness—is enough to justify a firearm restriction,” Justice McDermott wrote. “Speeding, failing to use a turn signal, driving with a malfunctioning taillight, fishing without a license—all are examples of crimes that might bring about an interaction with law enforcement. And despite the lack of danger inherent in any of them that might be enhanced by carrying a firearm, each would justify a firearm regulation under the plurality’s reasoning.”

Justice May’s dissent in Woods joined by Justices McDermott and Waterman

Justice May wrote in a separate dissent that, while he agreed with much of Justice Oxley’s concurrence on the need for limiting principles on gun regulation, he disagreed with how she would apply the appropriate limiting principle to the question of whether Woods was carrying the weapon for an unlawful purpose.

The fact that Woods carried his loaded firearm in public in the same backpack as illegal drugs is not enough to strip his Second Amendment protection, Justice May wrote, and he cited a hypothetical example of a grandmother who carries a pistol for self defense in her purse that also contains crumbs from homemade marijuana brownies she uses for a chronic medical condition.

There is no difference between the two situations, Justice May said, and because it was not shown that Woods was carrying the firearm for an illegal purpose, he is protected by the Second Amendment from being punished for doing so.

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