Commentary: A Constitutional Right Under Attack

One day in 1903 a police officer in Rutland accosted Andrew Rosenthal. We don’t know why he was accosted – whether he was in the act of committing a crime or otherwise attracted attention. In any case he was arrested and cited for “carrying a pistol loaded with powder and bullets, concealed on his person” without written permission from the mayor or chief of police, in violation of a city gun control ordinance.

Rosenthal defended himself by pointing out that “said ordinance is illegal, for that, so far as it prohibits the carrying of a pistol, it is repugnant to and inconsistent with the constitution and the laws of this state.”

In an opinion of two pages the Supreme Court unanimously found that the ordinance is “inconsistent with and repugnant to the Constitution of this state.” The Court thereby summarily disposed of local firearms laws violating constitutional rights – while not passing on existing state laws that made it a crime anywhere in the state for a person to carry a weapon with the intent of harming another person.

This long-existing legal precedent exemplifies what is known as the Dillon Rule, after an Iowa Supreme Court Justice who ruled in 1868 that local municipalities can only enact presumably constitutional ordinances authorized by the state legislature.

This is of sudden interest because a movement is afoot to repeal a 1988 Vermont law called the Sportsmens’ Bill of Rights. That law prohibits local governments from enacting their own gun control ordinances.

The act was enacted because gun control organizations had shown interest in passing various local gun control measures. Spurred on by the Vermont Federation of Sportsmens’ Clubs and Gun Owners of Vermont, the legislature decisively rejected that interest. The bill passed the House 125-8 and the Senate on a voice vote. Democratic Gov. Madeleine Kunin signed it. Democratic Lt. Gov. Howard Dean boasted that “I got it passed”.

Since 1988 Burlington and Montpelier voters have proposed to create their own gun control ordinances. Because of the Dillon Rule, city charter changes have to be approved by the General Assembly. All attempts to bypass the law proscribing local gun control measures have been pigeonholed.

The renewed interest in enacting local gun control measures has shifted from getting city charter exemptions to town by town action, notably in Woodstock. Michael Bloomberg-funded Gun Sense Vermont is launching a campaign to repeal the Sportsmen’s Bill of Rights in the name of local implementation of “meaningful steps to prevent gun violence”. Perhaps by licensing or prohibiting all guns in the town?

The major reason why Gun Sense thinks this is their year is the election of Sen. Phil Baruth (D-Burlington) as Senate President pro tem. Baruth, a novelist and English Professor at UVM, has long been an earnest advocate of gun control measures. He sponsored four such bills in the 2019-20 legislature (that weren’t considered). He has publicly announced that repeal of the Sportsmen’s Rights will be considered in the coming session.

Well, why not repeal the Sportsmen’s Bill of Rights and let every town adopt ordinances defining what kinds of firearms, if any, can be possessed, under what conditions and with what payment of fees, within the town?

Why not send today’s Andrew Rosenthal to the selectboard or police chief to get written permission to exercise his explicit constitutional right to carry a firearm “for defence of themselves and the state”?

Why not arrest and fine hunters passing through during hunting season for failing to obtain a firearm transit permit from each town en route? 

Why not send out the town ordinance enforcement team on suspicion that a resident failed to lock her firearm in an approved vault, instead of storing it where she can get it quickly if somebody invades her home?

Basically, it comes down to more than inconveniences. Repeal of the Sportsmens’ Bill of Rights means a town can prevent residents from enjoying whatever rights have been confirmed for them by Chapter 1 Article 16 of the Constitution.

Liberals surely would be aghast if each town could adopt its own rules about freedom of speech and press, or the right to “reproductive autonomy” just added to the Constitution. Turning every town in the state loose to enact its own interpretation of any constitutional right is not a responsible idea. Sen. Baruth needs to apply his legislative talents to some other cause.

John McClaughry is vice president of the Ethan Allen Institute


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