Editor’s note: This commentary is by Casey Jennings, a forester who divides his time between Rutland and Lunenberg. This story originally published in Vt. Digger Dec.11,2019.
Sen. Phil Baruth’s proposal to restrict the carrying of semi-automatic firearms from most public places is ill advised and unconstitutional. It has been long established in case law in Vermont that citizens have a right, protected by Article 16 of the Vermont Constitution, to carry a firearm for the purpose of self-defense.
One of the most significant of these cases is the case State v. Rosenthal from 1903. In this case the Vermont Supreme Court overturned a Rutland ordinance requiring a license to carry a handgun as “inconsistent with and repugnant to the Constitution and the laws of the state.”
The U.S. Supreme Court in its decision in D.C. v. Heller (2008) found that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” The Supreme Court in that same decision also stated that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
While the Supreme Court has not to date heard a case specifically concerning bans on semiautomatic firearms, when certiorari was not granted in the Friedman v. Highland Park case in 2015, Justice Thomas, with Justice Scalia concurring, wrote an opinion on the subject. Justice Thomas stated the following: “Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”
Thus while the court has allowed for regulation of extremely dangerous weapons such as weapons of mass destruction, explosives, and likely machine guns, a ban on a very commonly owned civilian semiautomatic rifle or handgun fails to be acceptable under the Second Amendment. If a weapon is protected by the amendment, and both it and our state equivalent protects a right to carry weapons for self-defense, it logically follows that we have a right to carry the same weapons we have a right to own in most of the places we normally spend our time. It’s illogical at best to say we have a right to carry a revolver in the same place we’re forbidden from carrying a more common pistol.
It is significant to note that the handgun at the center of the dispute in D.C. v. Heller was in fact a semi-automatic handgun. The majority of handguns sold in the U.S. are semi-automatic. ATF data on manufacturing available for 2016 shows that 4,720,075 pistols were manufactured in that year as opposed to 856,291 revolvers. The majority of the pistols manufactured would be semi-automatic as single shot pistols are not particularly popular. Revolvers represent only about 18% of the handgun production for 2016. Semi-automatic handguns are overwhelmingly popular, in common use, and absolutely protected by the Second Amendment. Baruth’s proposal is clearly unconstitutional on these grounds, as it attacks the right to carry the most popular type of handgun. It likely has issues under the First Amendment as well given its planned limits on protesters. It is also something worse.
There has been a troubling trend in this country in recent years in which legislatures are increasingly weaponized against segments of the population. Both sides of the political aisle have their sacred cows and both sides hate the other enough in this country that they push legislation aimed not at making our society better but at attacking their political enemies, real or perceived. We can see this with the far right’s attacks on abortion, environmental protections, public lands, and marriage equality. The far left regularly attacks firearms rights with laws that accomplish little but make life as difficult as possible for firearms owners.
Watching some of the annual proposals for gun legislation and the behavior of some in committees and in public hearings, it is clear to me that there are some in the Legislature who have a personal dislike for the gun owners of this state. I have no doubt our representatives know this proposal won’t make any of us safer. Mass shooters already routinely violate laws against bringing weapons into schools and other locations, as one might expect from people who will also violate laws against killing people. I believe it’s of far more value to consider who has guns, not what guns people own or carry.
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As someone who extensively studied history in my undergrad years, particularly the American Civil War, I find this trend extremely troubling. This country is in a precariously divided state in many ways similar to that which existed in the 1850s. Speculation on the possibility of a second civil war has entered the mainstream for historians, the media, and politicians. It is frequently stated that we are in a cold civil war. I find myself agreeing with that more and more often. We must avoid going further down this road as a nation, though, as nothing but misery will come of it. We need leaders who will bring the people of this country back together. We don’t need leaders to further divide us. Our Legislature in the coming months needs to reject this proposal.