Case Information
*1 NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
No. 2019-266 State of Vermont Supreme Court
On Appeal from v. Superior Court, Bennington Unit,
Criminal Division Max Misch June Term, 2020 William D. Cohen, J.
Thomas J. Donovan, Jr., Attorney General, Benjamin D. Battles, Solicitor General, and Ultan Doyle, David Boyd, and Eleanor L.P. Spottswood, Assistant Attorneys General, Montpelier, for Plaintiff-Appellant.
Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and Carly Orozco, Law Clerk (On the Brief), Montpelier, for Defendant-Appellee.
David J. Haber, Unaffiliated Private Citizen, Burlington, Amicus Curiae.
Tristram J. Coffin, Jennifer McDonald and William T. Clark of Downs Rachlin Martin, PLLC, Burlington, Bridget C. Asay and Michael Donofrio of Stris & Maher LLP, Montpelier, J. Adam Skaggs of Giffords Law Center to Prevent Gun Violence, New York, New York, and Hannah Shearer of Giffords Law Center to Prevent Gun Violence, San Francisco, California, for Amici Curiae Giffords Law Center, Vermont Medical Society, and Gun Sense Vermont.
Jonathan T. Rose of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, Karl A. Racine, Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Sonya L. Lebsack, Assistant Attorney General, Washington, DC, for Amici Curiae District of Columbia, California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington. O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC, Burlington, and Eric Tirschwell, William J. Taylor, Jr., and Mark Anthony Frassetto of Everytown Law (On the Brief), New York, New York, for Amicus Curiae Everytown for Gun Safety Support Fund.
Stephen Coteus of Tarrant, Gillies & Richardson, Montpelier, Jonathan E. Lowy and Kelly Sampson of Brady, Washington, DC, Mark D. Selwyn, Arthur W. Coviello, and Kevin O’Brien of Wilmerhale LLP, Palo Alto, California, Lauren Fletcher of Wilmerhale LLP, Boston, Massachusetts, and Jon C. Weingart of Wilmerhale LLP, Washington, DC, for Amici Curiae Brady and Brady Vermont.
Ethan A Fenn, Law Office of Ethan A. Fenn, PLC, Burlington, Joseph G.S. Greenlee of Firearms Policy Coalition, Sacramento, California, David B. Kopel of Independence Institute, Denver, Colorado, and Ilya Shapiro and Trevor Burrus of Cato Institute, Washington, DC, for Amici Curiae Cato Institute, Firearms Policy Coalition, Firearms Policy Foundation, and Independence Institute.
Clark Bensen of Polidata LLC, Corinth, and David H. Thompson and Peter A. Patterson of Cooper & Kirk PLLC, Washington, DC, for Amicus Curiae Robert Kalinowski Jr.
PRESENT: Robinson, Eaton [1] and Carroll, JJ., Wesley and Pearson Supr. JJ. (Ret.),
Specially Assigned
PER CURIAM. This case requires us to decide whether Vermont’s ban on large- capacity magazines (LCMs), 13 V.S.A. § 4021(a), violates the right to bear arms under Chapter I, Article 16 of the Vermont Constitution. [2] We conclude that the magazine ban is a reasonable regulation of the right of the people to bear arms for self-defense, and therefore affirm the trial court’s denial of defendant’s motion to dismiss the charges against him for allegedly violating § 4021(a). Defendant was charged under 13 V.S.A. § 4021(a) with two counts of unlawfully
possessing a large-capacity magazine. Section 4021 states, “[a] person shall not manufacture, *3 possess, transfer, offer for sale, purchase, receive or import into this State a large capacity ammunition feeding device,” defined as:
a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept . . . more than 10 rounds of ammunition for a long gun; or . . . more than 15 rounds of ammunition for a hand gun.
Id. § 4021(a), (e)(1). Defendant allegedly traveled to a New Hampshire retailer, purchased two thirty-round magazines for a rifle, and transported them back into Vermont. Defendant moved to dismiss the charges on the grounds that the statute unconstitutionally impinges on the right to bear arms in Article 16 and that the grandfather provision of § 4021 violates the Common Benefits Clause of Chapter I, Article 7 of the Vermont Constitution by treating differently people who possessed large-capacity magazines before April 11, 2018, and those who acquire large-capacity magazines after that date. See id. § 4021(c)(1) (stating that prohibition shall not apply to devices lawfully possessed on or before statute’s effective date). In June 2019, the trial court denied defendant’s motion to dismiss. The court
described the two most common tests for determining the constitutionality of gun-control statutes
in other jurisdictions: the “reasonableness test” used by the majority of states, and the two-prong
test used by most federal circuit courts. The court concluded that § 4021 satisfies both tests. It
also rejected defendant’s argument under the Common Benefits Clause, reasoning that “[t]he
grandfather provision allowed the Legislature to gradually curtail the availability of large-capacity
magazines while lessening the burden on individuals that already possessed these devi[c]es,” and
that differential treatment based on the time a person acquired magazines “bears a reasonable and
just relation to the governmental purpose of protecting the public from gun violence.”
The trial court subsequently granted the parties’ joint motion for appeal on report
by agreement pursuant to Vermont Rule of Appellate Procedure 5(a)(1), reporting two questions
of law: whether § 4021 violates Chapter I, Article 16, and whether it violates Chapter I, Article 7.
*4
We accepted the appeal. The constitutionality of § 4021 is a pure question of law, which we review
without deference to the trial court.
[3]
See In re MVP Health Ins. Co.,
in self-defense, urges the Court to adopt the “reasonable regulation” standard used by most other states to evaluate the constitutionality of regulations impacting the right to bear arms, and contends that regardless of the standard applied, § 4021 does not violate Article 16. [4] Defendant argues that the right to bear arms under Article 16 is “express and without limitation,” that the statute “runs counter to the express requirements of the Vermont Constitution,” and that we should therefore presume it to be unconstitutional. With respect to the Common Benefits Clause, on appeal defendant argues for the
first time that § 4021 violates Article 7 because it exempts large-capacity magazines transferred to or possessed by government agencies and current and retired law-enforcement officers, thus giving preferential treatment to government officials over other groups. See 13 V.S.A. § 4021(d)(1)(A), (B), (D) (creating exceptions to prohibition of LCMs). Defendant does not pursue his argument that the grandfather exemption violates the Common Benefits Clause. In its reply brief, the State argues that defendant has waived his appeal as it relates to the grandfather clause, and that he failed to preserve his new claim relating to government officials.
We first determine that Article 16 protects a limited right to individual self-defense, and that the proper standard for Article 16 challenges is a reasonable-regulation test. Under this test, we will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the State’s power to protect the public safety and welfare. Applying this standard, we conclude that § 4021 satisfies the reasonable-regulation test because the statute has a valid purpose of reducing the lethality of mass shootings, the Legislature was within its authority in concluding that the regulation promotes this purpose, and the statute leaves ample means for Vermonters to exercise their right to bear arms in self-defense.
I. Legal Framework Under Article 16
¶ 8. Article 16 declares that “the people have a right to bear arms for the defence of themselves and the State.” Vt. Const. ch. I, art. 16. We have never defined the scope of the right to bear arms, nor have we set forth a standard to determine whether a law infringes upon that right. These are our first two tasks. When establishing a constitutional test, our goal is “to discover and protect the core
value that gave life to” a constitutional provision, and “to give meaning to the text in light of
contemporary experience.” State v. Kirchoff,
A. Scope of Right to Bear Arms We conclude that Article 16 protects a right to bear arms in individual self-defense,
subject to reasonable regulation. The constitutional text, considered in the historical context surrounding its enactment, is inconclusive as to the full scope and purpose of the right. To the *7 extent that Article 16 established a right to bear arms for the purpose of serving in a state militia, that aspect of the Article 16 right has no contemporary application. Considering the text alone, in light of its likely meaning at the time the Vermont Constitution was enacted, it is unclear whether Article 16 protected an individual’s right to possess guns for self-defense outside of the context of actual or potential state militia service. Nevertheless, our case law has assumed that Article 16 protects such an individual right subject to reasonable regulation, and courts in most states and the United States Supreme Court have all construed similar provisions to establish a limited right to possess guns for individual self-defense. This right has never been understood as unlimited, as evidenced by case law as well as regulations of firearms throughout Vermont history. Given these considerations, we conclude that recognizing that Article 16 includes a limited right to bear arms in individual self-defense is the best way to “give meaning to the text in light of contemporary experience.” Kirchoff, 156 Vt. at 6, 587 A.2d at 992. However, both our case law and the historical roots of Article 16 support an interpretation that allows for gun regulation in the interest of public safety.
1. Text The full text of Article 16 provides:
That the people have a right to bear arms for the defense of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.
Vt. Const. ch. I, art. 16. “We approach interpretation of the [Vermont] Constitution differently than we do
the interpretation of statutes.” State v. Hance,
a. Historical Context The historical context here is significant. Although the historical record contains
scant evidence of public debate concerning the right of individuals to keep or carry weapons for
nonmilitia purposes, the status and control of state militias and the desirability of a standing
national army were hotly debated throughout the states during the era when Vermont’s founders
adopted the first Vermont Constitution. K. Ehrman & D. Henigan, The Second Amendment in the
Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 14-34 (1989)
(describing widespread debate concerning protection of state militias in state constitutions, the
United States Constitution, and the federal Bill of Rights). The Virginia Declaration of Rights,
*9
which was the oldest and most influential declaration of rights, stated that “a well-regulated
Militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence
of a free State.” Id. at 16-17 (quoting Va. Declaration of Rights of 1776, art. 13). It did not
reference a specific right to “bear arms.” Id. The Pennsylvania Constitution was influenced by
the Virginia Constitution, and was the first to affirmatively declare a right to “bear arms” tied to
“defense of themselves” in the context of a comparable provision. Id. (quoting Pa. Declaration of
Rights of 1776, arts. VIII & XIII). Most of the remaining state constitutions drew from one or
both of these constitutions; only four of the state constitutions adopted prior to the federal
constitution included a right to “bear arms,” and only two, including Vermont’s, included a
reference to “defense for themselves.” Id. at 17. The Vermont Declaration of Rights incorporates
the language from the Pennsylvania Constitution verbatim. Id. n.91; see also Chittenden Town
Sch. Dist.,
as follows:
[I]n none of the conventions, writings, or debates preceding the second amendment was there any discussion of a right to have weapons for hunting, target shooting, self-defense, or any other non- militia purpose. No such discussion appears in the Constitutional Convention records, the Anti-Federalist writings, Virginia's ratifying debates, state constitutions or declarations of the 1770s, or Congressional debates on the Bill of Rights.
Ehrman, supra, at 33. Instead, the debate underlying these various provisions, including the Second Amendment to the United States Constitution, arose from a “fear of standing armies in the hands of a powerful central government” that had “instilled in Americans a belief that a militia was the proper form of defense.” Id. The goal animating these various provisions was to protect the ability of states to maintain effective state-regulated militias. Id. As Justice Stevens has explained, with reference to the Second Amendment to the United States Constitution,
The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger.
But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.
District of Columbia v. Heller,
b. “Bear Arms for the defense of . . . the State” The phrase “bear arms for the defense of . . . the State” by itself most likely meant,
in the eighteenth century, to bear arms for the purpose of serving in a state militia. To the extent *11 the right to bear arms is borne of and shaped by the purpose of ensuring a ready force to serve in the state militia, it does not apply in the modern context.
i. “Bear Arms” Our understanding of the meaning of the constitutional right to “bear arms” in 2021 is necessarily informed by an understanding of the meaning of that term when Vermont’s founders established the constitutional right, as reflected in general linguistic usage in the founding era as well as the specific terminology in the Vermont Constitution. In recent years, Brigham Young University has released two databases—the
Corpus of Founding Era American English, which contains over 120,000 texts, including legal
writings, books, pamphlets, letters, and other documents dated between 1760 and 1799, and the
Corpus of Early Modern English, which contains over 40,000 texts, including those published in
England as well as the United States. D. Baron, Corpus Evidence Illuminates the Meaning of Bear
Arms, 46 Hastings Const. L.Q. 509, 510 (2019); BYU Law & Corpus Linguistics, Corpus of Early
Modern
English
(BYU-COEME)
(last
visited
Jan.
8,
2021),
https://lawncl.byu.edu/byucoeme/concordances; BYU Law & Corpus Linguistics, Corpus of
Founding Era American English
(COFEA)
(last
visited
Jan. 8, 2021),
https://lawcorpus.byu.edu/cofea/concordances/search. Analyzing these databases, occasionally
alongside the Google Books database, several studies have reviewed hundreds of instances of
“bear arms” and have found that the phrase was “overwhelmingly used in a collective or military
sense.” D. Miller, Owning Heller, 30 U. Fla. J.L. & Pub. Pol’y 153, 160-61 (2020) (emphasis
omitted) (collecting studies); see also J. Jones, Comment: The “Weaponization” of Corpus
Linguistics: Testing Heller’s Linguistic Claims, 34 BYU J. Pub. L. 135, 161 (2020) (finding that
“bear arms was used more often [though not overwhelmingly more often] in the ‘figurative’
specialized sense than the ‘literal’ carrying sense”); Baron, supra, at 511-12 (analyzing
approximately 900 occurrences of the phrase “bear arms” before and during the founding era and
*12
finding only seven that were either ambiguous or carried no military connotation); J. Blackman &
J. Phillips, Corpus Linguistics and the Second Amendment, H.L. Rev. Blog (Aug. 7, 2018), https://
blog.harvardlawreview.org/corpus-linguistics-and-the-second-amendment/
[https://perma.cc/
4SEV-GQAZ] (analyzing sample of fifty sources and finding “overwhelming majority” were in
military context). While there was some contemporary use of the term “bear arms” in a literal or
individualistic sense, corpus data has revealed that “bear arms” most often meant to serve in a
military capacity. See also Heller,
“bearing arms” in the Vermont Constitution. The phrase “bear arms” in the first clause of Article
16 refers at least in part to the “defense of . . . the State,” and the latter two clauses of Article 16
clearly relate to the roles and power of the standing army and military. In this context, it makes
sense to read “bear arms” as being connected to militia service. And Chapter I, Article 9, the other
constitutional provision containing the phrase “bearing arms,” uses the term to refer to the duty to
bear arms in militia service. Article 9 contains a conscientious-objector clause: no person “who is
conscientiously scrupulous of bearing arms” can “be justly compelled thereto.” Vt. Const. ch. I,
art. 9. Use of the phrase “bearing arms” in Article 9 to mean military service reinforces an
inference that in Article 16 the phrase “bear arms” means to carry weapons in a military context.
See State v. Lohr,
right in service of a collective responsibility. Members of the militia generally provided their own
weapons, and in Vermont, they were required to do so. P. Gillies, The Militia Governed by the
Civil Power, 44-SPG Vt. B.J. 14, 15 (2018); see also Commonwealth v. Davis,
ii. Modern Status of the State “Militia” To the extent that a right to “bear arms” is tied to the purpose of preserving a state
militia force, there is no modern predicate to application of the right. During the framers’ era, while the militia was made up of civilians, not professionals, it was an organized body, functioning both as part of the government and as an independent force to protect the community. See Ehrman, supra, at 24 (stating that for purposes of Second Amendment, “even though the militias were composed of a large body of male citizens, the militias were seen as state units”). The militia was, as two scholars described, “a trained, organized, and armed collection of qualified males, save those of conscientious scruple and others exempted from service by their states, called together from their normal pursuits to respond to occasional and particular threats, internal or external, to *14 community peace.” H. Uviller & W. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403, 598 (2000). Because militias were state- regulated, they also served as a state-based check on overreaching federal power. See Ehrman, supra, at 34-35 (noting that Second Amendment, among other things, ensured that federal government would not become overly oppressive and ensured states that they would have authority in federalist scheme); see also M. Driessen, Private Organizations and the Militia Status: They Don’t Make Militias Like They Used To, 1998 B.Y.U. L. Rev. 1, 7-14 (1998) (identifying salient characteristics of eighteenth-century citizen militia: membership was state-established and defined; it was composed of lay citizens rather than professional soldiers; operations were state- supported; the militia was independent of federal government; and militia forces were dedicated to public rather than private benefit). The Vermont militia, which was regulated by statute and in which every eligible
and nonexempt man was enrolled, was first and foremost a domestic defense force. See Vt. Const. of 1777, ch. II, § 5 (stating that “[t]he freemen of this Commonwealth, and their sons, shall be trained and armed for its defense”), https://sos.vermont.gov/vsara/learn/constitution/1777- constitution/ [https://perma.cc/B937-GMQ2]. “The essential duty of the militia was to be ready to respond, to be called out on a Colonel’s orders, ‘upon any alarm, invasion, or notice of the appearance of an enemy, either by water or land.’ ” Gillies, supra, at 15.
A state militia no longer exists. By 1840, the Vermont militia’s “glory days were
over,” and in 1941, “when a revised chapter on the National Guard was enacted . . . the practice of
requiring universal manhood military service finally ended for good in Vermont.” Gillies, supra,
at 16. The core function of the militia is now entrusted to the National Guard, which serves dual
*15
functions as “the militia of the states and a permanent reserve component of the U.S. Army.”
Uviller, supra, at 538. Although the National Guard is the closest living descendant of the colonial-
era militias, it is a distant cousin at best because the federal government controls its weapons and
supplies. See Driessen, supra, at 15-17. Moreover, because the government now supplies weapons
to members of the National Guard, regulations on firearms do not threaten the effectiveness of the
militia. See Davis,
in the state militia, this aspect of Article 16 has little meaning in today’s world. As one scholar noted about the Second Amendment, “[i]n the year 2000, the militia world contemplated by the Second Amendment no longer exists, and no plausible analogy to that nexus can be reconstructed.” Uviller, supra, at 547. In short, the institution of the state militia, with which the right to “bear arms” was associated, is not only distinct from individual self-defense, but has no modern manifestation. For these reasons, the right to “bear arms for the defense . . . of the State” is essentially obsolete. The predicate no longer exists in any meaningful way. But Article 16 goes *16 further by expressly stating that “the people” have a right to “bear arms for the defense of themselves and the State.” The textual and historical question is what this additional phrase adds to the meaning of the provision.
c. “For Defense of Themselves”
¶ 24. The inclusion of language indicating that the “people” have a right to bear arms “for the defense of themselves and the State” introduces the possibility that the founders intended to establish a broader right to “bear arms” in individual self-defense, unmoored from potential militia service. Especially in light of the considerations set forth above, the import of the “defense of themselves” language is equivocal. But the language of Article 16 is not inconsistent with the conclusion that the right to bear arms extends beyond potential militia service to individual self- defense. By its plain terms, the language of Article 16 describes a right of “the people” to
bear arms for the purpose of defending not only the State, but also “themselves.” This is the
strongest evidence that Article 16 was intended to establish a right to bear arms for individual self-
defense in addition to defense of the community. In fact, as noted above, citing this language from
the 1777 Vermont Constitution, and the essentially identical provision of the 1776 Pennsylvania
Constitution, the United States Supreme Court asserted that these constitutions “clearly adopted
individual rights unconnected to militia service.” Heller,
Article 16 establishes a right to bear arms to protect individual interests, the meaning of the text in historical context is equivocal. The association of the right with “the people,” rather than persons, distinguishes it from many, though not all, rights enumerated in the Vermont Constitution that protect individual liberty or action disconnected from the body politic. The Constitution recognizes that all “persons” are born equally free and independent, and have inherent, unalienable rights, ch. I, art. 1; requires compensation when any “person’s” property is taken for public use, *17 id. at art. 2; recognizes freedom of religion for all “persons,” id. at art. 3; indicates that every “person” ought to have a remedy at law for injuries or wrongs, id. at art. 4; provides a host of protections to a “person” in prosecutions for criminal offenses, id. at art. 10; provides that no “person” not employed in the army or actual militia service may be subject to martial law, id. at art. 17; and states that no “person” shall be liable to be transported out of state for trial for an offense committed in Vermont, id. at art. 21.
In contrast, the Vermont Constitution generally refers to “the people” when recognizing rights associated with the body politic, to be exercised collectively. For example, the rights of governing and regulating the internal police is assigned to “the people,” id. at art. 5; government is accountable to “the people,” id. at art. 6; free debate and deliberation in the Legislature is essential to the rights of “the people,” id. at art. 14; adherence to “justice, moderation, temperance, industry, and frugality” are necessary to preserve the blessings of liberty, and “the people” in directing their legislators and magistrates ought to pay particular attention to these principles, id. at art. 18; and “the people” have a right to assemble and petition the Legislature, id. at art. 20. But see id. at art. 13 (describing right of “the people” to freedom of speech as a basis for freedom of the press). Some Articles include both terms, depending on whether the specific context
implicates an individual or collective right or action. See, e.g., id. at art. 7 (referring to security of “the people” as an end of government, and prohibiting laws for particular emolument or advantage of “any single person, family, or set of persons”); id. at art. 9 (providing that no “person’s” property can be taken without consent, protecting rights of any “person” who is conscientiously opposed to bearing arms, and stating that “the people” are not bound by any law they have not assented to for their common good); id. at art. 11 (recognizing the right of “the people” to be free from search or seizure and providing that warrants to seize “any person or persons” without oath and sufficient foundation ought not be granted). Considering the Declaration of Rights in the Vermont Constitution as a whole, the
description of the right to bear arms in Article 16 as belonging to “the people” places it in the
category of rights generally associated with and exercised by the body politic as contrasted with
rights conferred on and exercised by an individual. See Lohr,
conclusion as to the likely historical meaning of Article 16 does not preclude a right to possess
firearms for individual self-defense. Cf. Heller,
¶ 31. In sum, the text of Article 16, as written in the eighteenth century, was likely designed to protect the right of the people to bear arms for the purpose of constituting and serving in the state militia—a purpose that renders the right essentially obsolete in modern times. However, this interpretation does not foreclose the possibility that the provision can and should be understood to protect the right of individuals to own firearms for individual self-defense, independent of service in a state militia. To help further elucidate the meaning of the constitutional provision, we turn to our case law interpreting Article 16.
2. Vermont Case Law In this Court’s history, we have relied on Article 16 only twice: in State v.
Rosenthal,
that case, we cited Article 16 in support of our holding that the Rutland city council had exceeded
its authority in making an ordinance that no person may carry a pistol without written permission
of the mayor or chief of police.
[U]nless a special permission is granted . . . a person is prohibited from carrying such weapons in circumstances where the same is lawful by the Constitution and the general laws of the state; and there is nothing in the ordinance to prevent the granting of such permission, notwithstanding it be in circumstances to constitute a crime under the general laws. The result is that Ordinance No. 10, so far as it relates to the carrying of a pistol, is inconsistent with and repugnant to the Constitution and the laws of the state, and it is therefore to that extent, void. Whether this renders the whole ordinance illegal, or whether it contains any other invalid provisions, are questions not now before the court.
Id. at 299,
This decision gives us little guidance in interpreting Article 16. Importantly, our
reasoning did not rest on the premise that any ordinance or law restricting the use of guns is
unconstitutional, or even that the ordinance at issue was unconstitutional. It relied only on the
premise that, absent express authorization from the Legislature, a municipality does not have the
authority to restrict the right to bear arms under the “general clause” of the city charter in a manner
that is inconsistent with state statute or the Vermont Constitution. Id. at 297,
¶ 35. However, the decision does reflect the general assumption that the Vermont Constitution protects the individual right to carry firearms outside of the militia context. By citing Article 16 in support of our conclusion that carrying firearms is generally permitted under Vermont law, and stating that an ordinance restricting the individual use of firearms is “repugnant to the Constitution,” we suggested that the right to bear arms applied without regard to a connection to state militia service. There is nothing in Rosenthal that suggested the right to bear arms was linked to the militia in any way. We also assumed that the right to bear arms may be validly restricted by the
Legislature. We acknowledged several statutes regulating the use of guns, now codified in Title 13: § 4003 (carrying dangerous weapon with intent to injure another), § 4004 (possessing firearm or dangerous or deadly weapon while on school property), and § 4011 (aiming gun at another). See Rosenthal, 75 Vt. at 297-98, 55 A. at 610. And we confirmed the enforceability of these regulations by holding that the municipality could not enact an ordinance that contravened them. While we did not squarely decide the scope of the Article 16 right or the Legislature’s power to regulate gun use, we strongly implied that the individual right to bear arms is protected by the Constitution and can be limited by legislative acts. The only case in which we have squarely addressed whether a statute is
constitutional under Article 16 is Duranleau,
The statute does not literally prohibit the ‘bearing’ of any arms, but only requires that, when rifles and shotguns are carried in mechanically propelled vehicles on public highways, that they be *22 unloaded. This restriction, even though it relates only to rifles and shotguns, admittedly somewhat conditions the unrestrained carrying and operation of firearms. But the language of the constitutional provision does not suggest that the right to bear arms is unlimited and undefinable. To require that two particular kinds of weapons, at certain specific places and under limited circumstances, be carried unloaded rather than loaded, is not such an infringement on the constitutional right to bear arms as to make the statute invalid. This conclusion is conditioned upon the presumption that the statutory purpose is reasonable, as it must be assumed to be, and on the necessary circumstance that in this case no facts that demonstrate an unconstitutional operation of the statute are before us.
Duranleau,
understanding that Article 16 applies to the individual “carrying and operation of firearms,” but is subject to regulation. Id. Again, nothing in Duranleau suggests that the right to bear arms is limited to bearing arms in service of a militia—rather, our decision implies that the right belongs to all individuals without regard to potential militia service. And we explicitly held that “the language of the constitutional provision does not suggest that the right to bear arms is unlimited and undefinable.” Id. (emphasis added). We made clear that, at least where a regulation only “somewhat conditions” the carrying and operation of firearms, Article 16 does not render firearms regulations invalid. Id. Duranleau also stands for the proposition that restrictions on the right to bear arms, like most statutes, are presumed to be reasonable and valid. See id.; see also State v. Noll, 2018 VT 106, ¶ 21, 208 Vt. 474, 199 A.3d 1054 (“We afford statutes a presumption of constitutionality.”).
3. Case Law from Sister States Case law from our sister states, while not binding on us as we interpret the Vermont
Constitution, supports the conclusion that the scope of the right to bear arms in Article 16 includes an individual right to possess arms for the purpose of self-defense. Courts in most states with constitutional provisions relating to a right to “bear arms,” whether they have constitutional *23 provisions very similar to Article 16 or substantially different, have concluded that their constitutions protect an individual right to bear arms for self-defense. Courts in states with constitutional provisions substantially identical to Vermont’s
in referencing a right of “the people” to bear arms for “the defense of themselves and the State”
have consistently construed these provisions to protect an individual right to bear arms for self-
defense. Considering the scope of its constitutional provision declaring that “[t]he people shall
have the right to bear arms for the defence of themselves, and the State,” the Oregon Supreme
Court reviewed the historical genesis of this language and concluded that the constitutional
provision includes, among other things, an individual’s right to bear arms “for defense of person
and property.” State v. Kessler,
to bear arms that do not include any reference to defense of “themselves,” have concluded that
their constitutions protect a right to bear arms for individual self-defense. See, e.g., State v. Bolin,
contemporary understanding that bearing arms for self-defense, albeit subject to restrictions, is *25 among the individual rights separately protected by many state constitutions, including those with language similar to Vermont’s.
4. Historical Regulation of Guns and Militia in Vermont Our conclusion that the right to bear arms for individual self-defense is subject to
limitations and regulation is consistent with Vermont’s history of public-safety regulations of both the militia and individual gun ownership. Article 16 itself admonishes that “the military should be kept under strict subordination to and governed by the civil power.” Vt. Const. ch. I., art. 16. And the Vermont Constitution specifically states, “The inhabitants of this State shall be trained and armed for its defense, under such regulations, restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the Legislature of this State, shall direct.” Id. ch. II, § 59. The militia was not an extralegal entity, and service in the Vermont militia— including firearm specifications and mandatory training—was regulated by state statute beginning in 1778 and by federal statute in 1792. See Gillies, supra, at 15. The Legislature frequently revised the militia statute. Id. at 16. Some of these regulations were in place to protect the public from militia members: in an overhaul of the statute in 1793, in response to concerns that citizens had been injured on or around training days, the Legislature enacted restrictions on firing guns during those periods. Id. Consistent with its purpose, and based on the express terms of the Vermont Constitution itself, the right to bear arms for the defense of the State—that part of Article 16 as to which there is no real dispute—was from the beginning clearly subject to regulation and restriction by the Legislature. If so, then it follows that the concurrent Article 16 “right to bear arms for the defense of themselves”—which we here explicitly recognize as establishing a right to possess and *26 use firearms for individual self-defense—is likewise subject to reasonable regulation by the Legislature. Accordingly, in addition to those militia-related enactments and the regulations
discussed in Duranleau and Rosenthal, Vermont has had, and continues to have, numerous firearms-related restrictions. See e.g., 13 V.S.A. § 4004 (prohibiting possession of firearms within a school building or school bus, or on school grounds); id. § 4010 (prohibiting manufacture or importation of gun suppressors); id. § 4011 (prohibiting pointing gun at another “except in self- defense or in the lawful discharge of official duty”); 10 V.S.A. § 4704 (prohibiting use and possession of machine guns and gun suppressors and limiting magazine capacity of autoloading rifles while engaged in hunting), id. § 4705 (prohibiting possession of loaded rifles or shotguns in mechanically-powered vehicles), id. § 4710 (prohibiting discharge of firearm within designated safety zones). Some regulations, including the ban on gun suppressors and the restrictions discussed in Rosenthal, have been in place for over a century. See, e.g., 13 V.S.A. § 4004 (originally enacted as 1892, No. 85, § 2); id. § 4010 (originally enacted as 1912, No. 237); id. § 4011 (originally enacted as 1872, No. 30, §§ 1, 2, 5). Vermont’s 1863 gunpowder storage law, which required more than one pound of powder be securely stored in a metal canister, placed a burden on the ability to rapidly prepare and fire multiple rounds of ammunition that is analogous to the magazine limit here. 1863 G.S. 119, § 28. Relative to many other states, Vermont’s historical regulation of firearms has been less extensive, but the historical record reflects that even in Vermont, the use of firearms has long been understood to be subject to regulation by the State.
5. Summary Concerning Scope of Article 16 Right to Bear Arms Much changed in the almost two hundred years between Vermont’s adoption of its
Constitution in 1777 and our decision in Duranleau in 1969. And 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 *27 do so with the solemn understanding that this debate has had, and will continue to have, life-or- death consequences. We conclude that Article 16 protects a right to possess firearms for self-defense.
As understood in modern times, this right is tied to the defense of self, family, and home, and is
not tied to prospective military use in the context of a state militia. Its scope is accordingly limited.
Cf. Kolbe v. Hogan,
challenges of constitutional interpretation. As we stated in Baker:
Out of the shifting and complicated kaleidoscope of events, social forces, and ideas that culminated in the Vermont Constitution of 1777, our task is to distill the essence, the motivating ideal of the framers. The challenge is to remain faithful to that historical ideal, while addressing contemporary issues that the framers undoubtedly could never have imagined.
B. Standard for Evaluating Constitutionality of Restrictions In determining the standard for evaluating Article 16 challenges, we first describe
the two-part test used by a majority of federal courts and the reasonable-regulation test adopted by a majority of states. We then conclude that the state reasonable-regulation approach is most *29 consistent with our case law, our interpretation of Article 16, the nature of the right to bear arms, and our constitutional doctrine as a whole.
1. Approaches in Other Jurisdictions The vast majority of jurisdictions apply one of two general tests in right-to-bear-
arms cases. Following Heller,
challenges under the Second Amendment. That case involved a District of Columbia law that banned handgun possession in the home and required any firearm in the home to be disassembled or bound by a trigger lock at all times. Id. at 628. The Court struck down the law, reasoning that the handgun ban “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society” for self-defense, and that the requirement that firearms be kept inoperable in the home made it “impossible for citizens to use them for the core lawful purpose of self-defense.” Id. at 628, 630. The Court declined to specify the standard that applied to Second Amendment protections, holding instead that “[u]nder any of the [heightened] standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.” Id. at 628-29 (quotations, footnote, and citation omitted).
Following Heller, the majority of federal circuit courts have developed a two-step
framework for addressing Second Amendment claims. This approach, as the Second Circuit has
described, requires courts to first “consider whether the restriction burdens conduct protected by
the Second Amendment,” and if it does, “determine and apply the appropriate level of scrutiny,”
generally intermediate or strict scrutiny. N.Y. State Rifle & Pistol Ass’n,
Second Amendment, courts have concluded that some “presumptively lawful regulatory
measures” may regulate the use or sale of firearms, but do not affect conduct protected by the
Second Amendment. United States v. Focia,
In deciding what level of scrutiny to apply under the second prong of the test, courts
typically consider how severely the law restricts the “core” Second Amendment right to self-
defense. See, e.g., N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 258 (noting level of scrutiny
depends on “(1) ‘how close the law comes to the core of the Second Amendment right’ and (2)
‘the severity of the law’s burden on the right’ ” (quoting Ezell v. City of Chicago,
“reasonable regulation” or “reasonable exercise” approach. Of the forty-three states with right-to-
bear-arms provisions protecting an individual right, over half have expressly adopted some form
of the reasonable-regulation test, and several others have implicitly adopted a similar test. B. Black
& K. Kapp, State Constitutional Law as a Basis for Federal Constitutional Interpretation: The
Lessons of the Second Amendment, 46 N.M. L. Rev. 240, 251-52 & n.57-58 (2016); see also
Benjamin v. Bailey,
2. Applicable Standard Under Article 16
¶ 58. We conclude that the state reasonable-regulation test is the most appropriate standard for Article 16 challenges because it is consistent with our approach in Duranleau, the text and motivating ideals of Article 16, the nature of the right to bear arms, and our previous rejection of rigid “level-of-scrutiny” tests. Under the reasonable-regulation test, the government may regulate firearms under its police power as long as its exercise of that power is reasonable. Regulation is not reasonable if it effectively abrogates Article 16. We elaborate on these considerations below.
a. Rationale for Adopting Reasonable-Regulation Test The reasonable-regulation test is the best approach to evaluating restrictions on the
right to bear arms under Article 16 for several reasons. First, our approach in Duranleau aligns
with the reasonable-regulation approach. We noted that we presumed the regulation was
reasonable, which the defendant did not appear to contest in that case.
ideals underlying Article 16. It ensures the right to bear arms for self-defense, while recognizing *34 that the right to bear arms has historically been subject to reasonable restrictions in the discretion of the Legislature. See supra, ¶ 44-45.
Third, the right to bear arms is distinct from other individual rights in the degree to
which its exercise is associated with serious risks of harm to self and others. As other states have
recognized, “[g]un control legislation . . . is not inherently suspicious” because there is a
“compelling state interest in protecting the public from the hazards involved with guns.” Bleiler,
[t]he risk inherent in firearms and other weapons distinguishes the Second Amendment right from other fundamental rights that have been held to be evaluated under a strict scrutiny test, such as the right to marry and the right to be free from viewpoint discrimination, which can be exercised without creating a direct risk to others.
Bonidy,
the Vermont Constitution, we have rejected the “rigid categories utilized by the federal courts
under the Fourteenth Amendment,” and similarly reject them here. Baker,
b. The Contours of the Test Under Article 16 Under the reasonable-regulation balancing test we now adopt, the right to bear arms
in self-defense may be “regulated but not prohibited.” Rocky Mountain Gun Owners, 2020 CO
66, ¶ 60.
[20]
This means that the government may regulate firearms as long as any enactment is a
reasonable exercise of police power and there is a reasonable fit between the purpose and means
of regulation. See id. ¶ 55. Regulation of firearms is not reasonable if it renders Article 16 a
nullity. See id. ¶ 56. In applying this test to restrictions on specific firearms, ammunition, or
accessories, courts may consider, among other factors, “characteristics of the particular weapon
restricted,” the “typical use of the proscribed weapon,” and the “number and nature of the weapons
subjected to the ban [compared] with the number and nature of the weapons that remain available
for the vindication of the right.” Benjamin,
The reasonable-regulation test requires the statute to be a reasonable exercise of the
police power. The police power in this context “signifies the governmental power of conserving
and safeguarding the public safety, health, and welfare.” State v. Quattropani,
Article 16 “stands as an independent, substantive limitation on otherwise rational government
action.” Rocky Mountain Gun Owners, 2020 CO 66, ¶ 61. The reasonable-regulation test
“requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare.”
*37
Id. It “focuses on the balance of the interests at stake, rather than merely on whether any
conceivable rationale exists under which the legislature may have concluded the law could
promote the public welfare.” Bleiler,
II. Application to 13 V.S.A. § 4021 Applying the reasonable-regulation test to the large-capacity magazine ban, 13
V.S.A. § 4021, we conclude that the statute does not violate the right to bear arms under Article
16. For the purpose of this analysis, we assume without deciding that at least some of the firearms
to which such magazines may attach, and at least some of the magazines themselves, are within
the general scope of Article 16’s protections, subject to reasonable regulation. Cf. N.Y. State Rifle
& Pistol Ass’n,
A. Purpose and Connection Section 4021 states, “A person shall not manufacture, possess, transfer, offer for
sale, purchase, or receive or import into this State a large capacity ammunition feeding device.” *38 13 V.S.A. § 4021(a). A large-capacity ammunition feeding device is defined, with some exceptions, as “a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept: (A) more than 10 rounds of ammunition for a long gun; or (B) more than 15 rounds of ammunition for a hand gun.” Id. § 4021(e)(1). The statute provides for imprisonment of up to one year and a fine of up to $500 for those who violate the statute. Id. § 4021(b). It does not apply to possession of large-capacity magazines purchased prior to April 11, 2018, id. § 4021(c)(1), or to large-capacity magazines transferred to or possessed by governmental agencies or law enforcement, id. § 4021(d)(1), in addition to several other
exceptions. The Legislature enacted § 4021 in April 2018, in the wake of a threatened mass
shooting in Fair Haven, Vermont. See 2017, No. 94 (Adj. Sess.), §§ 8, 11. On February 14,
2018—the same day a mass shooter killed seventeen people in a high school in Parkland,
Florida
[23]
—the Fair Haven Police Department received a report about a possible threat to Fair
Haven Union High School. See State v. Sawyer,
prior to the Fair Haven mass-shooting scare, the bill proposed only “to expand Vermont’s territorial jurisdiction over prohibited regulated drug sales.” S.55, 2017-2018 Gen. Assem., Adj. Sess. (Vt. 2018) [hereinafter S.55] (bill as introduced), https://legislature.vermont.gov/Documents/ 2018/Docs/BILLS/S-0055/S-0055%20As%20Introduced.pdf [https://perma.cc/2L2M-4V9D]. In February and March of 2018, the Senate expanded the bill and retitled it: “An act relating to the disposition of unlawful and abandoned firearms.” S.55 (as passed by Senate), https:// legislature.vermont.gov/Documents/2018/Docs/BILLS/S-0055/S-0055%20As%20passed%20by %20the%20Senate%20Official.pdf [https://perma.cc/RX7P-GZFK]. At that stage, the bill included measures addressing the disposition of unlawful firearms, establishing regulations on the transfer of firearms, and prohibiting the sale of firearms to persons under twenty-one years of age. Id. In the aftermath of the Fair Haven scare, and after extensive testimony in the House Judiciary Committee, the House proposed amendments to add a number of additional restrictions related to firearms, including a prohibition of large-capacity magazines. See S.55 (as proposed by House), https://legislature.vermont.gov/Documents/2018/WorkGroups/Senate%20Judiciary/Bills/S.55/ S.55~Erik%20Fitzpatrick~House%20Proposal%20of%20Amendment~3-30-2018.pdf [https:// perma.cc/XD9B-GQ2N]. After further hearings in the Senate Judiciary Committee, the Senate concurred in the House amendments. S. Jour. 650, 2017-2018 Gen. Assem., Adj. Sess. (Vt. Mar. 30, 2018). With the Governor’s signature, the large-capacity magazine ban codified in § 4021 was enacted into law, effective immediately. See S. Jour. 699, 2017-2018 Gen. Assem., Adj. Sess. (Vt. Apr. 12, 2018). Although Act 94 did not contain legislative findings or a statement of purpose, we
understand from reviewing the legislative record that the purpose of § 4021 is to reduce the number of people who would be killed or injured in a mass shooting in Vermont. There is no question that reducing the potential for injury and death in the event of a mass shooting is a proper Legislative purpose within the police power. The Legislature’s aim was to prevent catastrophic harm to the people of Vermont—one of its core functions as our lawmaking body. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power . . . than the suppression of violent crime and vindication of its victims.”); Kolbe, 849 F.3d at 150 (Wilkinson, J., concurring) (“Providing for the safety of citizens within their borders has long been state government’s most basic task.”). And we conclude that the Legislature acted within its constitutional authority in
determining that the limitation on large-capacity magazines furthers this goal. There is ample
support in the public arena for the proposition that the use of large-capacity magazines is correlated
with higher numbers of deaths and injuries in mass shootings. In a report detailing shooting
incidents where large-capacity magazines were used, the Violence Policy Center
[25]
stated, “Large
capacity ammunition magazines are the common thread running through most mass shootings in
the United States.” Violence Policy Center, Large Capacity Ammunition Magazines, 1 (Feb. 13,
2020), https://www.vpc.org/fact_sht/VPCshootinglist.pdf
[https://perma.cc/6PTM-PXR8].
[26]
*41
There is extensive evidence that “the use of LCMs in mass shootings increases the number of
victims shot and the fatality rate of struck victims.” Rocky Mountain Gun Owners,
147 (2020). Koper reported that average fatalities are 38% to 85% higher, and total victims killed or wounded are two to three times higher when LCMs are used. Id. at 152.
Substantial available data supports the conclusion that bans on large-capacity
magazines may be effective in reducing the fatalities and injuries in the event of a mass shooting.
Large-capacity magazine bans “reduce[] the number of shots that can be fired from one gun,
making numerous injuries less likely.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney General
N.J.,
J.L. & Pub. Pol’y 375, 382-83 (2020) (citing studies). In the Koper study described above, Koper reviewed comparisons of mass shootings with and without LCM firearms and concluded that LCM restrictions could potentially reduce total fatalities by 11% to 15%, and total injuries by 24% to 26% across all firearm mass-murder incidents. Koper, supra, at 153. Focusing particularly on public mass shootings, he cautiously projected that total deaths and injuries could potentially decline in these cases by somewhere between one-third and one-half. Id. at 153-54. Koper concluded that restrictions on assault weapons and LCMs “are not a complete solution for the problem of mass shootings or public mass shootings more specifically”; nevertheless, “they are modest policy measures that can likely help to reduce the incidence and severity of mass shootings over time.” Id. at 163.
Similarly, a group of scholars at Johns Hopkins University analyzed data from the FBI and other publicly available databases to calculate state-level annual incidence of fatal mass shootings from 1984-2017. See D. Webster et al., Evidence Concerning the Regulation of Firearms Design, Sale, and Carrying on of Fatal Mass Shootings in the United States, 19 Criminology & Pub. Pol’y 171 (2020). After performing a statistical analysis of the association between fatal mass shootings and these gun laws, they concluded that bans of large-capacity *43 magazines were one of two policies associated with reductions in the incidence of fatal mass shootings. Id. at 187; see also L. Klarevas et al., The Effect of Large-Capacity Magazine Bans on High-Fatality Mass Shootings, 1990-2017, 109 Am. J. Pub. Health 1754, 1758-60 (2019) (analyzing 69 high-fatality mass shootings from 1990 to 2017, finding that incidence of high- fatality mass shootings was more than double and annual number of deaths more than three times higher when comparing non-LCM ban states to LCM ban states, with similar results in multivariate analyses, and ultimately concluding that LCM bans appear to reduce both incidence of, and number of people killed in, high-fatality mass shootings). Reports from actual mass shooting events suggest that a ban on large-capacity
magazines could create opportunities for victims to flee or intervene in the event of a mass
shooting. See Ass’n of N.J. Rifle & Pistol Clubs, Inc.,
magazine bans. See, e.g., Worman v. Healey, 922 F.3d 26, 40 (1st Cir. 2019) (“[T]he
Massachusetts legislature’s conclusion that the Commonwealth’s legitimate interests are best
served by proscribing semiautomatic assault weapons and LCMs rests on substantial (although not
incontrovertible) evidence regarding the inordinate dangers associated with the proscribed
weapons”); N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 263-64 (“[L]arge capacity magazines
result in more shots fired, persons wounded, and wounds per victim than do other gun attacks.”
(quotation omitted)); Friedman v. City of Highland Park,
effect of creating a greater sense of security among the public. While this effect and purpose alone may not be sufficient to survive scrutiny under Article 16, it nevertheless is meaningful to the wellbeing of people of Vermont, particularly children. Mass shootings are “highly salient” events and cause significant stress for both adults and teenagers. Friedman, 784 F.3d at 412. The *45 legislative record includes a number of communications from Vermonters describing the impact of the potential for mass shootings on children and teenagers in Vermont. As the Seventh Circuit recognized, “If a ban on . . . large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” Id.
We do not recount the above evidence because this Court necessarily concurs with the Legislature’s assessment that the limit on large-capacity magazines will in fact substantially reduce the risks and harms of mass shootings, or to signify that we credit the above accounts, studies, and arguments, and discount the thoughtful analyses and arguments of those opposed to the legislation. Rather, we recite the above to explain our conclusion that the Legislature had ample information, facts, and data, either actually in-hand or available in the public arena, to support its conclusion that the limit on large-capacity magazines will have an appreciable impact in reducing the injuries and fatalities in the event of mass-shooting events. In the face of this support and in the absence of a showing that § 4021 imposes a disproportionate burden on the Article 16 right, which we discuss next in Part B, the Legislature’s policy determination that the LCM limit at issue is a reasonable regulation is within its constitutional authority, and we will not set it aside. When it enacted § 4021, the Legislature did not formally make any legislative
findings, and we cannot determine what facts and information in the record it found most persuasive. Legislative findings can be helpful, but are not required. We can and do evaluate the constitutionality of legislation under the Vermont Constitution in the absence of an express that they were “very worried” or “somewhat worried” about the possibility of a shooting at their school, and the same was true for 63% of parents. N. Graf, A Majority of U.S. Teens Fear a Shooting Could Happen at Their School, and Most Parents Share Their Concern, Pew Research Center (Apr. 18, 2018), https://www.pewresearch.org/fact-tank/2018/04/18/a-majority-of-u-s- teens-fear-a-shooting-could-happen-at-their-school-and-most-parents-share-their-concern/ [https://perma.cc/477R-L7T2]. Concern was greater among Black and Hispanic teens and parents as well as lower-income parents. Id.
statutory statement of the legislative basis or intent. See, e.g., Baker,
to or relied upon by the Legislature, or by us in reviewing the statute’s constitutionality, must be “evidence,” of a sort that would be admissible in a court proceeding under the Vermont Rules of Evidence, that necessarily proves what it purports to establish. Although we will not uphold a law restricting the right to bear arms on the basis of hypothetical rationales for which there is no basis, or which are overwhelmingly refuted by contrary evidence, Vermont courts will not second- guess the Legislature’s weighing of the facts and information supporting its enactments when its *47 legislation is supported by adequate evidence in light of the constitutional rights potentially implicated by its legislation.
B. Burden on Right to Bear Arms
¶ 82. The available evidence supports the Legislature’s conclusion that a large-capacity magazine ban does not significantly impair the right to bear arms for self-defense. Section 4021 does not prevent Vermonters from buying or using the gun of their choice—it restricts only the capacity to shoot more than ten or fifteen rounds at a time, and thus places minimal restriction on their ability to bear arms in self-defense. Additionally, in contrast to their ubiquity among mass shootings, large-capacity magazines appear to be rarely used for self-defense purposes. Therefore, the large-capacity magazine ban does not render Article 16 a nullity. Our conclusion on this point is in line with the recent decision by the Colorado Supreme Court and almost all federal circuits to have considered a large-capacity magazine ban. Section 4021 restricts only magazine capacity. It does not purport to restrict the
use of firearms that accept large-capacity magazines. The Legislature has chosen not to restrict
individuals’ choice of firearms for self-defense or other purposes, but instead has sought to curb
the potential of those weapons to inflict large-scale harm. It has done this by “set[ting] a limit on
the number of rounds that can be fired before a shooter needs to reload.” Rocky Mountain Gun
Owners,
And it appears from the available data that the tool—the large-capacity magazine—
is almost never used for self-defense. 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. Kolbe,
*49 ¶ 85. This conclusion is consistent with the Colorado Supreme Court’s recent decision in
Rocky Mountain Gun Owners,
All but one federal circuit court to have considered a large-capacity magazine ban
have also upheld such bans, often alongside bans on assault rifles. The Fourth Circuit determined
that large-capacity magazines are not protected by the Second Amendment, and therefore upheld
the regulation at the first step of the federal two-step test. Kolbe,
magazine ban under the Second Amendment. Duncan v. Becerra,
Defendant and amici urge us to adopt similar reasoning here. They argue that there
has been “common possession of repeat arms” in this state since the Constitution was enacted, that
magazines of more than ten or fifteen rounds are as common now as the handguns at issue in
Heller, and therefore that banning them for self-defense purposes is categorically unconstitutional.
We decline to adopt this reasoning for two reasons. First, we are not bound by the Supreme Court’s
decision in Heller in interpreting the Vermont Constitution. See Badger,
defendant advances, and affirm the trial court’s denial of defendant’s motion to dismiss.
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice Karen R. Carroll, Associate Justice John P. Wesley, Superior Judge (Ret.), Specially Assigned
Dennis R. Pearson, Superior Judge (Ret.), Specially Assigned
Notes
[1] Justice Eaton was present for oral argument but did not participate in this decision.
[2] In a separate appeal from the Vermont Superior Court, Washington Unit, Civil Division, appellants Vermont Federation of Sportsmen’s Clubs; Vermont State Rifle & Pistol Association, Inc.; Powderhorn Outdoor Sports Center, Inc.; John Fogarty; and Samuel Frank, challenged the constitutionality of 13 V.S.A. § 4021. This opinion addresses arguments raised in that appeal to the extent that they differ from those raised in this case, and we have decided that case in its own docket today in a published entry order. See Vt. Fed’n of Sportsmen’s Clubs v. Birmingham, 2021 VT 11, __ Vt. __, __ A.3d __ (mem.).
[3] The constitutional issues in this case are based only on Article 16 and the Common Benefits Clause of the Vermont Constitution. Defendant raises no claim under the Second Amendment or Equal Protection Clause of the United States Constitution. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Equal Protection Clause prohibits states from making laws that deny any person “equal protection of the law.” U.S. Const. amend. XIV. The federal case law referenced in this opinion is cited as persuasive authority only.
[4] Pursuant to Appellate Rule 5(a)(3), the State is treated as the appellant in criminal actions appealed on report by agreement.
[5] We do not address defendant’s Common Benefits Clause arguments. Because defendant
did not challenge the constitutionality of the grandfather clause in his brief on appeal, we do not
address it here. See State v. Godfrey,
[6] The quoted language here reflects the spelling of “defense” at the time the Constitution was drafted; however, we use the modern spelling, “defense,” throughout the remainder of the opinion for consistency, except when quoting language from another state’s constitution.
[7] The right to bear arms appeared in the 1777 Constitution at Article XV; the language of Article 16 of the 1793 Constitution—the current constitution—is essentially identical.
[8] We are mindful that the United States Supreme Court has interpreted the language of
Article 16 of the Vermont Constitution to establish a right to individual self-defense that is
independent of militia service. Heller,
[9] We note that some of the more recent evidence of the public meaning of “bear arms” during the late eighteenth century that informs our analysis was not available to the United States Supreme Court when it decided Heller in 2011.
[10] Historian Gillies has noted that the militia performed other duties as well. For example, in 1778, ten Vermont militia members were “ordered to march and tread snow from Charlestown, New Hampshire to Wilmington, Vermont, to pack the ground for the sleighs that would follow.” Gillies, supra, at 15.
[11] See People v. Brown,
[12] Other cases have referenced the “right[] of self-defense” as an affirmative defense to a
criminal charge. State v. Buckley,
[13] The current version reads: “The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.” Fla. Const. art. I, § 8(a).
[14] Many state constitutions more explicitly describe a right to bear arms in a way that leaves no question that the right extends to individual self-defense. See, e.g., Colo. Const. art. II, § 13 (“The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”); Conn. Const. art. I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state.”); N.H. Const. part 1, art. 2-a (“All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.”).
[15] The ubiquity of this view is reflected in the State’s own defense of the statute in this case. The State has not questioned that Chapter 1, Article 16, establishes a right to bear arms for the purpose of defending self and home. The argument that Vermont’s Constitution does not protect the right to bear arms for individual defense but instead is “an individual right exercised collectively, through military action, for the common good” was advanced by an amicus curiae in a “friend-of-the-court brief.”
[16] Because the regulation at issue here restricts magazines to be used in firearms, we do
not address the broader question of whether the right to bear arms in Article 16 encompasses
weaponry other than firearms. See, e.g., Kessler,
[17] The Court acknowledged that “this law, like almost all laws, would pass rational-basis
scrutiny,” but stated, “Obviously, [rational-basis scrutiny] could not be used to evaluate the extent
to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the
guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.” Heller,
[18] The application of the two-prong test is not universal. For instance, the Seventh Circuit
eschewed the levels-of-scrutiny analysis, noting that levels of scrutiny “do not resolve any concrete
dispute,” and focused instead on “whether a regulation bans weapons that were common at the
time of ratification or those that have some reasonable relationship to the preservation or efficiency
of a well regulated militia, and whether law-abiding citizens retain adequate means of self-
defense.” Friedman v. City of Highland Park,
[19] The constitutions of the two states that apply strict scrutiny to limitations on the
constitutional right to bear arms—Louisiana and Missouri—expressly require strict scrutiny of
firearms regulations. La. Const. art. I, § 11; Mo. Const. art. I, § 23. Even in these states, courts
have recognized that “the fundamental right at issue is one where some degree of regulation is
likely to be necessary to protect the public safety.” Eberhardt,
[20] We reject defendant’s assertion that any statutory regulation of the Article 16 right must
at the outset be presumed to be invalid or unreasonable. Even those states that hold the right to
bear arms is a “fundamental right,” and therefore any statutory regulation must pass a higher level
of “intermediate scrutiny,” recognize that such laws “are not ‘presumptively invalid.’” See supra,
note 18; see also, e.g., Badgley,
[21] We do not address in this decision the factors to be considered in determining whether other kinds of provisions potentially impacting the right to bear arms—such as limitations on where individuals can possess firearms, regulations concerning the sale or transfer of firearms, requirements relating to securing or carrying firearms, or limitations concerning who may possess firearms—might constitute unreasonable exercises of the police power or effectively nullify the right to bear arms in defense of home, person, or property.
[22] In fact, in the equal protection context, at least in the context of classifications subject
to “rational basis” review under the Equal Protection Clause of the United States Constitution, we
have held that the Vermont Constitution may require more rigorous review than the United States
Constitution. See Baker,
[23] E. Chuck, A. Johnson & C. Siemaszko, 17 Killed in Mass Shooting at High School in Parkland, Florida, NBC News (updated Feb. 15, 2018, 10:20 AM), https://www.nbcnews.com/news/us-news/police-respond-shooting-parkland-florida-high-school- n848101 [https://perma.cc/576C-NVEC].
[24] See N. Higgins DeSmet, Fair Haven Shooting Threat: ‘By the Grace of God’ Vermont Avoided Disaster, Burlington Free Press (updated Feb. 23, 2018 3:51 PM), https://www.burlingtonfreepress.com/story/news/2018/02/16/teen-arrested-fair-haven-school- shooting-threat/344409002/ [https://perma.cc/XJ6F-5U2D].
[25] The Violence Policy Center is a national 501(c)(3) that conducts research and education on firearms violence. Violence Policy Center, https://vpc.org/ [https://perma.cc/LX2B-XR5J] (last visited Jan. 11, 2021).
[26] It is clear that not all mass shootings involve high-capacity magazines, and it is unknown in some cases precisely what type of magazines were used. For instance, an initial Public Safety Commission report of the Parkland shooting reported that “[e]ight 30- and 40-round capacity magazines were recovered from the scene,” Marjory Stoneman Douglas High School Public Safety Commission, Initial Report 262 (Jan. 2, 2019), http://www.fdle.state.fl.us/MSDHS/ CommissionReport.pdf [https://perma.cc/L6PN-7UCV], but at least one court has credited evidence that the shooter used only ten-round magazines, see Duncan v. Becerra, 366 F. Supp. 3d
[27] The American Psychological Association reported that 75% of those between the ages of 15 and 21 and 62% of adults overall felt stressed by mass shooting events. Am. Psychological Ass’n, Stress in America: Generation Z (Oct. 2018) https://www.apa.org/news/press/releases/stress/2018/stress-gen-z.pdf [https://perma.cc/S76N- 7699]. Similarly, according to the Pew Research Center, 57% teens in the United States reported
[28] Again, we use the term “evidence” here in its broadest sense to denote information, facts, and data actually presented to the Legislature or available to it from the public sphere, as well as testimony (whether or not under oath) and statements to the Legislature (or individual legislators or legislative committees), all of which is available to us for consideration.
[29] Again, we do not decide here whether the estimate of “2.2 shots” for self-defense is in fact correct, but simply acknowledge that it is a significant, relevant, and widely accepted data point that supports the Legislature’s conclusion that the LCM prohibition does not unreasonably nullify Vermonters’ right to self-defense. Even if that specific statistic is genuinely contested, it is still true that no one has come forward with even anecdotal examples of any LCM being necessary for individual self-defense.
[30] The plaintiffs’ latter argument rested on their interpretation of the specific Colorado statute at issue. Id. ¶ 65.