Criminalizing Gun Possession

Last fall a Danville High School student pulled into the school parking lot, after school hours, to pick up a pal to go bird hunting. A shotgun lay in plain view in the back seat of his car. A passing policeman spotted the shotgun and summoned school authorities. The student, innocent of any crime and with no evil intent whatsoever, was suspended for three days. Some local citizens - probably recent arrivals to rural Vermont - criticized the principal for not insisting on expulsion.

For some legislators this year's education issue, stimulated by last year's rampage at Columbine High School, is keeping any gun out of any school, and out of any school forest land and any other property owned, leased, controlled or subcontracted by the school. Firearms, viewed by eight generations of Vermonters as essential tools for hunting and for defense against violence and tyranny, are becoming the equivalent of high-level radioactive waste, harmful in and of itself.

This thinking is embodied in a bill (H. 270) passed by the House last spring and now awaiting Senate action. The bill requires public schools to "adopt and maintain a comprehensive plan for student discipline", including anger management, conflict resolution, and the like. It mandates policies for the expulsion of disruptive students.

Then comes the section that could apply to the next high school kid who stops by the school on his way to bird hunting. The bill establishes a criminal penalty of a $1000 fine and up to a year in jail for having a deadly weapon "on school property". There is an exclusion for an unloaded firearm kept in a motor vehicle occupied by an adult. Whether a baseball bat, used with such deadly effect in "The Godfather", ends up being a "deadly weapon" remains to be seen.

"School property" is broadly defined. The new crime appears to include a hunter crossing a forested area or athletic field owned by the school district. It appears to include a sportsman who enters the Barre Auditorium (leased for high school basketball finals) with a hunting knife during the Fish & Game Show. It certainly includes a kid with a shotgun locked up in his car in the high school parking lot.

Nothing in this bill has anything to do with the commission of a criminal act. As Defender General Robert Appel forcefully pointed out before the House, the new "crime" does not contain the traditional element of criminal intent. Further, he noted, it flies in the face of the Constitutional guarantee (Article 16) "that the people have a right to bear arms for the defence of themselves and the State".

The accused may have a perfectly good explanation for possessing a gun or a knife. No matter. The bill is based on the proposition that a firearm is evil in and of itself, and the mere possession of one on "school property" is sufficient reason to send the owner off to a year in jail.

Vermont school boards have long had the power to prohibit the possession of firearms on school property. They can also make reasonable exceptions and allowances for innocent misunderstandings. But once the legislature criminalizes such behavior, the gun or knife owner will go to jail for merely possessing, in a prohibited place, something that is common and perfectly legal, and in the case of the firearm, constitutionally protected.

Back in 1903 the Vermont Supreme Court - then composed of justices who honored our Constitution - had occasion to rule on a Rutland City ordinance prohibiting concealed carry of a firearm. The Court made quick work of striking it down. "The carrying of firearms for one's defense is a fundamental right of a citizen, " said the Court. "The ordinance is repugnant to the Constitution."

Senators ought to repeat those words one hundred times before they vote on a bill to criminalize the innocent possession of a firearm.

January 2000