JURIST Guest Columnist Joyce Lee Malcolm of George Mason University School of Law discusses Vermont’s evolving gun law…

Much to the frustration of gun control advocates who rate Vermont as “F,” the state with the highest per capita gun ownership in the country and virtually no gun restrictions, has a murder rate so low it is “off the charts.” The FBI reported that in 2012 there were just eight murders in Vermont of which only two involved firearms. As a 2014 article put it, Vermont is “Safe and Happy and Armed to the Teeth.” The Vermont Constitution gives residents a robust right “to bear arms for the defense of themselves and the State.” Any Vermont resident or visitor to Vermont who legally owns a gun can carry it. Various state statutes reinforce this right while local governments cannot pass gun restrictions without the approval of the state legislature. This Vermont model has inspired other states—Alaska, Arizona, Arkansas, Wyoming and now Kansas—to repeal their previous restrictions on bearing arms to allow legal gun owners to carry a weapon without any permit or special training. Thirty-nine states also now have “shall issue,” rather than discretionary, concealed carry, ensuring all law-abiding residents who fulfill basic requirements the right to carry a concealed firearm.

It is Vermont’s traditional lack of gun restrictions that makes passage of the new firearms statute surprising. On second thought however the new regulations are less surprising than is their minimal impact, for while Vermont’s exceptionally low rate of firearms crime has not changed, its population has. Guns are a partisan political issue throughout the country and Vermont’s politics have altered dramatically. Vermont used to be a solidly Republican state. For more than a hundred years from 1854 to 1963, every governor of Vermont was a Republican. Beginning in the 1960s and 1970s though, residents of Massachusetts and New York began deserting urban areas seeking a more rural life. Vermont and New Hampshire were popular destinations, with New Hampshire’s low taxes attracting more conservative immigrants, Vermont more leftist ones. Vermont’s present governor, Peter Shumlin, is a Democrat. The state is the only one to send a socialist to the US Senate. Buoyed by newcomers Vermont’s population grew from about 400,000 in 1970 to more than 620,000 in 2014. In the presidential election of 2008 Vermont was candidate Obama’s second best state, just behind his native Hawaii. This influx of new residents has altered the state’s culture bringing more liberal views on land conservation, firearms and much else. Since removal of guns from civilian hands is a favorite Democratic Party goal, the fact that Vermont has managed very well without strict gun laws does not matter. Shumlin told reporters, “The current laws that Vermont has in place around guns serve us well,” but when presented with the new legislation he signed it.

The current effort to impose more gun controls on Vermont is part of the recent national experience. The landmark cases of District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, which acknowledged the individual right to keep and bear arms, overturning the strictest gun laws in the country, did not stop the political divide on the issue. While Heller affirmed the right to keep and carry a firearm for self defense and other lawful purposes it left the way open for the retention of gun regulations banning possession by felons and the mentally disturbed and preserving bans on gun carriage in such “sensitive places” as schools and court houses. And although the Heller opinion included the individual right “to bear” as well as “keep” arms since the Washington and Chicago laws that were overturned focused on banning possession, some courts and proponents claimed there was no right to carry a gun outside of the home. Both US Supreme Court cases were decided by 5/4 majorities leaving diehard gun control advocates hopeful they might be reversed. As a result efforts by the District of Columbia and states such as Maryland and New Jersey, for example, have continued to limit gun ownership as narrowly as possible, declaring gun carriage off limits in wide areas and demanding an applicant who wanted to carry a gun demonstrate a “good reason” for carrying a weapon that satisfies the local police.

After the Sandy Hook school massacre in December 12, 2012 there seemed to be a renewed opportunity to pass more stringent gun regulations. While President Obama’s efforts to pass regulations through Congress failed, New York State and Connecticut both succeeded in passing sweeping new requirements. Even Vermont felt the pressure. The effort to pass new firearms restrictions is a part of the effort to control civilian firearms, within the scope, despite, if necessary, of Heller and McDonald.

The new Vermont law appears to toughen background checks for ownership of a gun, a sure way to limit carrying a firearm, but the result must be a disappointment to the gun control groups intent on passing truly expansive measures. The latest state legislative session saw defeat of a spate of potential new gun regulations, including a universal background check that would include for the first time all private sales. Virtually the only way such a requirement could be enforced, opponents pointed out, was through a universal gun registry. To gun rights advocates a gun registration would allow the government to know where privately owed guns were permitting their confiscation, as it has in other countries whenever a government decided to disarm citizens. The Vermont legislature handily defeated all the various proposals with the exception of an expanded, but not universal, background requirement, but one that simply duplicates the federal background prohibitions.

Since 1998 Vermonters like other Americans have been subject to the FBI National Instant Criminal Background Check before purchasing a firearm. Vermont’s new legislation restricts purchase by people who have committed a violent felony and requires state courts to report findings of mental illness, designations that already prohibit those so-named from buying a gun. The rationale given for duplicating the federal requirement is that the US Attorney’s Office does not always have the resources to prosecute these cases. How this would help is uncertain. John Campbell, the bill’s lead sponsor, claimed this state prohibition against violent felons having a gun would be another “tool in the arsenal of stopping drug dealers from coming into the state.”

The second new aspect is the requirement that state courts report a finding of mental illness that would be entered in the records used for background checks. Anyone later found cured would have his/her name removed. New York State’s similar requirement has met with vigorous opposition from the mental health community who fear it would keep people from seeking their help and brand everyone doing so as a potential threat to society. This is a legitimate concern, but so is the worry about anyone obtaining firearms whose mental illness made him a danger to himself or someone else.

Passage of any gun law in Vermont, however useless, has given gun control advocates bragging rights and does carry the potential to insist in the future that there are loopholes that must be plugged, beginning a round of ever tighter restrictions. The test will be whether the Vermont model survives in Vermont or whether the state’s more liberal residents can bring it into the shrinking column of state intent on limiting firearms.

Joyce Lee Malcolm is the Patrick Henry Professor of Constitutional Law and the Second Amendment. She specializes in the areas of British Constitutional and Criminal Law, Constitutional Law, Right to Self Defense and Second Amendment.

Suggested citation: Joyce Lee Malcolm, Vermont: When Armed and Safe Is Not Enough, JURIST – Academic Commentary, May 27, 2015, http://jurist.org/forum/2015/25/joyce-malcolm-vermont-armed.php