As a hunter and gun owner, I understand and appreciate the historical, cultural and practical significance of the right to bear arms under both the Second Amendment and Article 16 of Vermont Constitution.
As a constitutional rights lawyer, however, I also appreciate the fact that these rights are not, and have never been, absolute. And it’s from both of these perspectives that I view the recent lawsuit filed in Vermont Superior Court challenging Vermont’s new law limiting firearm magazine capacity.
Rather than challenging the law under the Second Amendment, like many other gun rights advocates, the Plaintiffs in this case are pursuing their claims in state court under Article 16 of the Vermont Constitution – which makes sense because under our federal form of government, the Vermont Supreme Court gets to define the meaning of Vermont constitutional rights.
That is, no state law or constitution can provide less protection than the U.S. Constitution demands, but state supreme courts are free to interpret their own state constitutions so that they provide more protection to individual rights. So it’s at least possible that the Vermont Supreme Court could conclude that the Vermont constitution protects the right to bear arms to a greater extent than the U.S. Constitution. But the Plaintiffs’ claims still face an uphill legal battle for at least two reasons.
First, case law that does exist in Vermont indicates that limits on high capacity magazines are likely constitutional. For example, in State v. Durnanleau, the Vermont Supreme Court upheld a law banning the transport of a loaded firearm on state highways without a permit - explaining that Article 16 "does not suggest that the right to bear arms is unlimited and undefinable." In other words, the legislature may constitutionally adopt laws that impact the right to bear arms.
Second, when there’s limited case law on an issue in a particular jurisdiction, courts generally look to other jurisdictions to see how they’ve interpreted similar issues. And federal case law indicates that state laws limiting high capacity magazines are constitutional because they’re reasonably related to a substantial state interest in public safety and preventing crime.
While the Plaintiffs may dispute this point, legal precedent from other jurisdictions suggests the Court will likely conclude that Vermont’s law is constitutional under Article 16 of the Vermont Constitution - consistent with its holding in Durnanleau that the right to bear arms is not unlimited.
