The Gun Controllers Return

Once upon a time a Vermont city council decided to impose a gun control law. If a person wanted to carry a gun in the city, he had to get a permit from the mayor or the police chief. A citizen named Rosenthal was found carrying within the city without a permit, and was prosecuted. He defended himself by claiming that under Article 16th of the Vermont Constitution, "the people have a right to bear arms for the defence of themselves and the State", and his exercise of that right could not be made dependent on the whims of a local official.

In those days the Vermont Supreme Court was made up of five old men who took the constitution seriously. Unlike the current Court ("the "Five Supreme Legislators"), the Court of that day was not given to creating new rights out of thin air. It did its business by laying a challenged provision of law against the plain language of the Constitution. Where there was a conflict, the Constitution prevailed.

It took a unanimous Court about two pages of opinion to dispose of State v. Rosenthal. With admirable clarity, the Court said "the carrying of firearms for one's defense is a fundamental right of a citizen. The ordinance is repugnant to the Constitution."

The city was Rutland. The year was 1903.

That was the end of the gun control movement in Vermont until 1968. In the wake of the assassination of Dr. Martin Luther King Jr., the House Judiciary committee, chaired by future Governor Thomas P. Salmon, started thinking about a gun control bill. A strong citizen outcry, led in part by future Senator Julius Canns of St. Johnsbury, put an end to that notion.

In 1989 Sen. Stephen Reynes of Windsor had another run at it. His bill disappeared when Gov. Madeleine Kunin, always a loyal soldier for the National Rifle Association, dismissed it at a news conference. In 1994 Sen. Althea Kroger of Chittenden offered a ban on "assault weapons". A sportsmen's rally at the Capitol put an end to that initiative.

Meanwhile in 1988 the legislature passed and Gov. Kunin signed the state's premption statute (Act 178). It gave statutory force to the Article 16 decision in State v. Rosenthal. It prohibits municipal governments from regulating hunting, fishing or the carrying of firearms. Gov. Howard Dean has told gun owners that "I got it passed" as Lt. Governor, a bold assertion that mystifies many, since the bill passed the Senate without controversy on a voice vote.

Now the gun controllers are back again. On town meeting day 2000 the voters of Montpelier by a 1781-938 margin authorized their city council to "enact civil ordinances regulating the carrying of loaded firearms." Such a charter change requires legislative approval. To that end, Rep. Francis Brooks of Montpelier has introduced a bill (H. 54) to exempt that city from the Sportsmen's Bill of Rights. Interestingly, Brooks was one of those who voted 128-5 to enact Act 178 in 1988.

Advocates say there is no "need" for citizens to go about carrying firearms without government permission. Unfortunately for that argument, Vermont's constitution says that that is not a question for the government to decide. Vermonters may peaceably carry firearms in the defence of themselves and the State, although they are subject to law if they threaten or endanger others by brandishing or recklessly discharging, or carry within a school, courthouse, or public building.

In addition to affirming the right to self-defense, the 18th century framers of Article 16 protected the right of every citizen to be part of "a populace numerous and armed" to resist tyrannical encroachment on their liberties. While very few citizens feel any urge to pack iron on State Street in Montpelier, their right to do so is a vital part of Vermont's constitutional agreement. If the gun controllers want to change that agreement, the constitutional amendment process will be available to them in 2003. Until such a change is made, a citizen's constitutional right to carry a firearm without government permission cannot be taken away by a mere statute or ordinance.

The Supreme Court's decision on this point of law is crystal clear. One would hope that those who hail recent constitutional declarations of the Supreme Court as infallible would similarly accept the Court's decision on this issue.

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January 2001