Capitol Recap: Vermont lawmakers paddle into uncharted legal waters with gun control bill
Vermont lawmakers are poised to move ahead with new restrictions on gun ownership that are all but certain to invite a constitutional challenge due to a U.S. Supreme Court decision last year that upended legal precedent over the right to bear arms.
One hundred and forty-two Vermonters died by suicide in 2021, the highest yearly total in state history. Most of those deaths happened by gun.
Lawmakers want to bring those numbers down by making it harder for people in crisis to gain access to firearms. And legislation making its way through the House of Representatives would establish a 72-hour waiting period for all gun purchases, and a so-called “safe storage” provision that would require gun owners to keep their weapons securely locked if a child, or someone else who shouldn’t have a gun, would otherwise be able to gain access.
Essex Rep. Lori Houghton, the Democratic chair of the House Committee on Health Care said that suicide deaths now outnumber highway fatalities. And she said the new gun proposals represent a public health approach to addressing the problem.
“We really needed to look at it from a health care perspective,” Houghton said. “You know, losing 142 individuals in the most recent year that we have data, when they’re preventable, is really unacceptable when it comes to health care.”
Gun stats prompt legislative proposals
Waiting periods and safe storage, Houghton said, would be particularly effective mechanisms to reduce suicides by gun.
Dr. Rebecca Bell, a pediatric intensivist at the University of Vermont Children’s Hospital and president of the Vermont chapter of the American Academy of Pediatrics, told lawmakers that young people in Vermont are less likely than their peers in other states to report feelings of sadness or hopeless or suicidal thoughts. And yet the rate of suicide deaths in the state is higher than the national average in every age group.
"What we’ve heard our legislative counsel say is, ‘It’s really hard to tell on whether certain policies will end up being constitutional or not.’”South Burlington Rep. Martin LaLonde
Houghton said testimony from Bell and other medical experts has convinced her that ready access to guns likely accounts for the incongruity in those statistics. Research conducted by the RAND Corporation found that gun ownership rates in Vermont are 50% higher than the national average. And Houghton noted studies that show that children who live in a home with a firearm are four times more likely to die by suicide than children who don’t.
“And Vermont has a high percentage of homes with guns in them, and a high percentage where they do not lock them,” Houghton said. “And so we just felt to make the biggest impact immediately is to focus on the lethality.”
Bell told lawmakers that suicidal impulses are often fleeting, and not the result of underlying mental health conditions that would otherwise make someone susceptible to death by suicide. The majority of people who attempt suicide, she said, do not do so again.
“There’s often times a thought, well, if somebody has a thought in their mind that they want to die by suicide, they’re just going to find a way. So if they can’t get a firearm, they’re just going to find another way to do it,” Bell said. “But that’s not actually what we find. We find that sometimes just thwarting the plan in their mind is enough to actually make no attempt.”
The more time between the moment someone has a suicidal impulse, and the moment they’re able to obtain a firearm, Bell said, the less likely it is they’re going to die.
Waiting periods and safe storage help buy that time, according to Bell. And she said that’s why the legislation has the support of the Vermont Medical Society, the Vermont Academy of Family Physicians, the Vermont Psychiatric Association and the University of Vermont Health Network.
Gun rights advocates argue their case
Eric Davis, president of Gun Owners of Vermont, said members of his organization are also concerned about suicide deaths in Vermont.
“We value the right to keep and bear arms as the natural corollary of the human right of self-defense, and we do so because we value life as precious and sacrosanct,” Davis told lawmakers.
But Davis said the duty of preserving those lives falls on individuals, not the state or federal government.
“The attitude that we must turn to government rather than ourselves to solve these issues exacerbates the problem,” he said. “The proper role of government is to preserve rights.”
Davis and other gun rights advocates’ opposition to waiting periods and safe storage isn’t merely philosophical. They now have some new legal arguments.
Last year, in a case called the New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court struck down a law that required New Yorkers to obtain a license in order to carry a concealed firearm.
In issuing their majority ruling, Supreme Court justices created a new precedent for the manner in which courts should assess the constitutionality of restrictions on gun ownership.
"Is someone going to go into your home and inspect your home and determine whether you’ve put your firearms away? I mean, how far are we going to go with this?”Gov. Phil Scott
The issue of whether or not the state has a compelling interest in restricting gun rights — for suicide prevention, for example — is now moot. Under the new framework established by Bruen, wherever the Second Amendment’s “plain text covers an individual's conduct” — in the Bruen case it was the ability to walk freely with a concealed firearm — then courts must presume that regulations against that conduct are unconstitutional.
States can only overcome that presumption by demonstrating that the regulation is “consistent with the Nation’s historical tradition of firearm regulation.”
Davis said forcing someone to wait three days to acquire a gun, or mandating the location of its placement in their homes, is clearly “conduct” protected by both the Second Amendment and Article 16 of the Vermont Constitution. And he said historical traditions of firearms regulations never contemplated anything akin to what Vermont wants to do now.
“Arms in direct possession of the common man has long been the greatest deterrent of aggression from bad actors and tyrants alike, and the founders understood this,” Davis said. “We can’t imagine how any court acting under these precedents and guidelines could possibly uphold things like waiting periods … or mandatory lockup requirements as constitutional.”
Gun rights advocates aren’t the only ones who view the new legal landscape through that lens.
Rebecca Turner, the supervising attorney at the Appellate Division in the Office of the Defender General, addressed the House Judiciary Committee earlier this week.
“Our position right out of the gate is we oppose this bill in its entirety,” Turner told lawmakers. “This law under the Second Amendment is presumptively unconstitutional.”
Turner said it’s hard to see how the safe storage provision, for instance, doesn’t regulate conduct — the keeping of a firearm in a home — that is covered in the plain text of the Second Amendment.
“And you’re now criminalizing the failure to store it in the right place, unless you’re keeping it on your body in control,” she said.
Since the conduct being regulated in the Vermont bill is “conduct protected by the Second Amendment,” Turner told lawmakers, then they are on the verge of enacting a measure that is almost certainly unconstitutional.
“So I want that to sit, because what that means is you will pass a presumptively unconstitutional statute and now that is just ripe for when there’s the right litigant to challenge,” she said. “And who has the burden to prove it is not unconstitutional? … We know that is the state.”
Supporters of new gun restrictions counter
Billy Clark is a Burlington lawyer who serves as the litigation attorney at the Giffords Law Center to Prevent Gun Violence.
While the Bruen decision may have altered the legal analysis, he said the new precedent does not prevent states “from passing common sense gun violence prevention laws,” such as waiting periods and safe storage.
“States can and must continue to exercise their traditional police powers to fight the epidemic of gun violence in this country,” he said.
A 2008 Supreme Court ruling that first established an individual’s explicit right to bear arms, according to Clark, also held that that right is not unlimited. And it expressly allowed for laws restricting possession of guns by felons, restricting guns in sensitive places like hospitals or schools, as well as laws that impose condition on the commercial sale of firearms.
Clark said the Bruen decision did not in any way erode that prior ruling. And he noted that Justice Brett Kavanagh wrote in a concurring opinion in the Bruen case that “the Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check.”
“Properly interpreted,” Kavanaugh wrote, “the Second Amendment allows a ‘variety’ of gun regulations.”
Clark told lawmakers that the safe storage and waiting periods clearly fall within the bounds of proper regulation.
Someone arguing the unconstitutionality of the safe storage provision, Clark said, would have to show that the Second Amendment protects the right to keep a firearm where a child is likely to find it.
“It’s not safe storage in all contexts, it’s in the context of when there is a child or prohibited person who the person knows or should know is likely to gain access,” Clark said. “And carrying or keeping a weapon in a way that a child or prohibited person such as a felon … could gain access to it, strikes me as not what the Second Amendment is about.”
As for waiting periods, Clark said the 2008 Supreme Court ruling found that while individuals have a right to bear arms, “states could continue to impose commercial sales restrictions and background check requirements before a person takes possession of a firearm, and that commercial sales restrictions were presumptively lawful.”
Clark said that the Bruen decision did not override that previous ruling.
The murky legal path forward
South Burlington Rep. Martin LaLonde, chair of the House Judiciary Committee, said the legal analysis facing his committee is daunting. While he said committee members will consider arguments from witnesses like Rebecca Turner, Erik Davis and Billy Clark, he said they ultimately rely on the legal advice their own lawyers in the Legislature.
“And what we’ve heard our legislative counsel say is, ‘It’s really hard to tell on whether certain policies will end up being constitutional or not,’” LaLonde said.
LaLonde said he’s confident the state can make a compelling case for the provisions in court.
“But it’s really still kind of an open question,” he said.
That ambiguity won’t stop lawmakers from moving forward with the legislation. The bill is scheduled for a vote on the House floor next week. And Senate President Pro Tem Phil Baruth is a leading proponent of both waiting periods and safe storage.
“We have a suicide by gun problem in Vermont, and these policies are directed at lethality of the method of using a firearm to try to commit suicide,” LaLonde said. “And I think that we shouldn’t just be waiting around for however long it’s going to take for this to play out in the courts. We have a problem now, and this a solution that we can implement now.”
Passing both chambers of the Legislature won’t necessarily mean the bill passes into law.
Gov. Phil Scott said this week that any new significant gun measures are a “nonstarter” for him this year. Scott previously vetoed waiting period legislation, and indicated he’d do so again this year.
“I don’t think that that helps the situation,” he said.
And he raised concerned about how the state would enforce the safe storage provision.
“Who’s going to have oversight of that? … Is someone going to go into your home and inspect your home and determine whether you’ve put your firearms away?” Scott said. “I mean, how far are we going to go with this?”
The fate of the bill could hinge on veto override votes in the House and Senate.
If it does get enacted into law, Vermont could become one of the testing grounds for what U.S. gun laws will look like in the future.
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