A constitutional challenge of Vermont’s new ban on high-capacity magazines will hinge less on the Second Amendment than on Article 16 of the Vermont Constitution.
The lawsuit filed by gun-rights groups last week doesn’t include a single mention of the Second Amendment in the U.S. Constitution. Instead, their case relies exclusively on the interpretation of Article 16 in the Vermont Constitution.
Vermont Law School professor Jared Carter said there’s a good reason for this legal strategy:
“I think it is possible that the Vermont Supreme Court could interpret the Vermont Constitution to provide more protection to the right to bear arms than the federal Constitution,” Carter said.
Unlike the Second Amendment, the right to bear arms in Vermont is untethered from language about a well-regulated militia. The first clause of Article 16 states, simply, “That the people have a right to bear arms for the defence [sic] of themselves and the State.”
Carter said there’s another reason plaintiffs in the case might want steer clear of the federal Constitution:
“The case law is not good from the plaintiff’s perspective,” Carter said.
"I think it is possible that the Vermont Supreme Court could interpret the Vermont Constitution to provide more protection to the right to bear arms than the federal Constitution." — Jared Carter, Vermont Law School professor
Vermont isn’t the first state to ban the sale or purchase of high-capacity magazines; laws in other states have been challenged as well.
But in all of those suits, federal appeals courts have ruled those bans do not violate citizens’ right to bear arms, under the Second Amendment.
And that means if gun rights groups are going to be successful with this challenge, they’re going to have to convince a judge that Article 16 is somehow different than what’s in the Bill of Rights.
Montpelier lawyer Dan Richardson said the plaintiffs are going out of their way to do that.
The suit was filed in Washington County Superior Court last week, and it talks at length about Ethan and Ira Allen, and the gun-toting civilian enforcers back in early days of Vermont, "where … the need for self-defense was a much more realistic proposition,” Richardson said.
"And because of the lack of jurisprudence, it does create this open question — you know, how should Article 16 be interpreted?" — Dan Richardson, Montpelier lawyer
The plaintiff’s suit alleges that because certain common rifles come equipped standard with magazines that carry more than 10 rounds, the Vermont law therefore infringes on Vermonters’ rights to home and self-defense.
It’s the first gun law in Vermont in 50 years, and one of the very few restrictions on gun ownership enacted in state history.
“And because of the lack of jurisprudence, it does create this open question — you know, how should Article 16 be interpreted?” Richardson said.
Vermont courts have weighed in on Article 16 before, most notably in a 1969 case that challenged a ban on the carrying of loaded firearms in moving vehicles on a public highway. The court upheld that law, and Carter said it issued a critical precedent in the process.
The opinion issued in that case, called State vs. Duranleau, said Article 16 "does not suggest that the right to bear arms is unlimited and undefinable."
Not “unlimited” and not “undefinable” — Vermont Attorney General TJ Donovan says that’s the same rationale courts have used to uphold magazine bans under the Second Amendment.
“Whether it’s Vermont constitutional law or whether it’s the federal Constitution you’re talking about, the government when it has a basis can put reasonable limitations in place,” Donovan said.
"Whether it's Vermont constitutional law or whether it's the federal Constitution you're talking about, the government when it has a basis can put reasonable limitations in place." — Vermont Attorney General TJ Donovan
The state generally needs a “compelling state interest” in order to restrict a constitutional right. Richardson and Carter both said the public safety justification for the magazine ban likely meets that requirement.
And Carter said that's going to going to make overturning the law a lot tougher.
“I think that the plaintiffs have an uphill battle here,” Carter said.
Caledonia County Sen. Joe Benning — a practicing attorney who voted against the magazine ban, but is not involved in the lawsuit — said the plaintiffs do have at least one thing going for them: Even if the state can prove a compelling interest, Benning said it has to show that the law has been “narrowly drawn,” and “directly related to what the compelling state interest is.”
“And that’s where I think the trouble will begin [for the state],” Benning said.
The law bans the sale or purchase of rifle magazines that carry more than 10 rounds, or pistol magazines that carry in excess of 15 rounds. But it doesn’t ban the possession or use of magazines already in existence, which means the tens or perhaps hundreds of thousands of high-capacity magazines already in circulation can continue to be lawfully used.
Benning said if the state’s rationale for imposing the ban is public safety, then it will be hard-pressed to show the court how that public safety is served when the law does nothing to address the high-capacity magazines already in existence.
“So I think there are questionable grounds as to whether it is narrowly drawn … to meet the state’s compelling interest,” Benning said. “If you had banned them outright, and just left it at that, it probably would have been a lot more narrowly drawn to meet the problem that’s perceived.”
The lawyers representing the plaintiffs are no strangers to the subject matter at hand.
The suit was filed by the Vermont Federation of Sportsmen’s Clubs, the Vermont State Rifle & Pistol Association, and firearms dealers in Williston and Bethel — but they’re represented by lawyers from a Washington, D.C., firm called Cooper & Kirk.
Cooper & Kirk has represented the National Rifle Association in several high-profile cases in the past, and it is spearheading the NRA’s challenge of gun laws enacted in Florida after the school shooting in Parkland.
None of the plaintiffs contacted for this story responded to a request for comment; the lawyer to whom they referred media inquiries also did not respond.
