To the surprise of no one, the Vermont Supreme Court last week upheld the constitutionality of an April, 2018 law banning high-capacity magazines. The 51-page ruling was, however, a deep dive into American history, the purpose being to bridge the gap between what the framers of Vermont’s Constitution intended in 1777 and what prevails as common wisdom today. The unanimous decision reflected the court’s welcome effort to put a touch of finality to the subject.

Given the issue and its highly controversial nature in Vermont, one would assume it had been addressed with some regularity over the last 244 years. It hasn’t. Only twice before — in 1903 and 1969 — have Vermont’s courts wrestled with Article 16, the Constitution’s “right to bear arms” provision. The world has changed fundamentally, and dramatically since; the court was exacting in making it clear there was “no modern day equivalent” to much of the framers’ intent: “…much has changed between 1969 and today. The right to bear arms as commonly understood today has little to do with the right to bear arms as understood by the framers. We must bridge the gap between those worlds, and we do so with the solemn understanding that this debate has had, and will continue to have, life or death consequences.”

The right to bear arms for the framers dealt exclusively with the need for states to raise their own militias and for members of the states’ militia to provide their own weapons. Without the right to bear arms, states would have been hobbled in their efforts to raise militias. It was the states’ preference to generate their own defenses, protecting their own sovereignty rather than to rely on federal protection. Thus, the need for the right to bear arms in a collective sense, not as individuals.

As the justices noted, the need for a state to raise its militia is long past. It was essentially over in 1840 and is now entrusted to the national guard, which came into being in the early 1940s. “There is no modern day equivalent to the militia that the framers of the Constitution sought to endear with the right to bear arms. It has little meaning in today’s world.”

Where the justices gave pause was with Article 16’s right to bear arms “for the defense of themselves” which the justices agreed was relevant, but not something that is boundless. The justices make the case that its challenge is to blend the past with the present: “…The challenge is to remain faithful to that historical ideal, while addressing contemporary issues that the framers undoubtedly could never have imagined.”

The court addressed these “contemporary issues” facing the backdrop of today’s weaponry and levels of violence and mass shootings; specifically, with the availability of large magazines for both pistols and automatic weapons. The court’s ruling centered around what’s termed the “reasonable-regulation approach” which has been adopted by the majority of states and federal courts.

The purpose of the law to ban gun magazines was to reduce the number of people who might be killed or injured in a mass shooting in Vermont. Legislators [the vast majority of them] believed preventing “catastrophic harm” to their constituents was reasonable. The court agreed. The court also determined that large-capacity magazines are rarely used for self-defense purposes: “The average number of shots fired in self-defense between 1997 and 2001 and 2011 to 2013, has been estimated to be 2.2 or fewer.”

In other words, a person’s right to bear arms “for the defense of themselves” isn’t relevant to the use of large capacity magazines. Obviously, the law does not impinge on an individual’s right to self protection if it’s not being used, nor is it an unreasonable exercise of the state’s police power to ban them. The ban makes Vermont a safer place to be.

The Vermont’s Supreme Court decision aligns with all federal circuit court rulings on the ban of large-capacity magazines [and even the ban on assault weapons] with the exception of the Ninth circuit court which ruled they should not be banned because they were so common place. Thankfully, Vermont’s court saw otherwise. It’s ruling pushes one concrete step closer to what most Vermonters think is “reasonable.”

by Emerson Lynn

(1) comment

Jim MacKenzie

Will the large capacity regulation apply to .22 caliber rifles, some of which have for over 60 years had tubular magazines with capacities upwards of 18 rounds?

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