Editor’s note: This commentary is by Robert Kaplan, a litigation attorney and partner with Kaplan and Kaplan of Burlington.
[W]hen President Donald Trump announced his “Muslim ban” early in his administration, there was an appropriate public outcry. The righteous argument against the “Muslim ban” was it was transparently motivated by ethnic and cultural bias, it reflected a stunning and willful ignorance of the peoples it sought to regulate and there was zero evidence that a “Muslim ban” would do anything to enhance public safety. Now, the same people who clamored indignantly against Trump’s “Muslim ban” are clamoring just as indignantly in favor of “high capacity” “magazine bans” which suffer the exact same failings as Trump’s “Muslim ban.”
Let me first offer two presuppositions which I accept as true. The first is that the gun control debate in Vermont is a struggle based on class and culture. I wear a suit, I drive a German car and I like guns. People like me do not seem very numerous in this community. The friends I have made who share my interest in firearms largely drive pickup trucks and wear Carhartt. The other business-attired folk I know tend not to have any interest in firearms. These two groups of people, in my experience, seem to view each other with muted ill-ease and defensive suspicion. The second is that gun owners have a greater incentive than the general public to keep guns away from deranged individuals. Gun owners would happily stand behind firearms restrictions that could be effective against deranged individuals both to prevent tragedy and also to sidestep the sorts of senseless gun restrictions now under consideration here and elsewhere.
The incidence of guns used in crimes in Vermont is very low. By way of example, the well regarded VPR study of gun deaths in Vermont from 2011-2016 found only 42 homicides from non-police shootings during that five-year period. Others who have studied this data more carefully put the number of criminal gun homicides for that period well below 40. That is on the order of seven to nine deaths per year. Criminal charges which involve the use of a gun in a crime are likewise rare in Vermont. The ATF is very aggressive about tracing guns used in crimes in Vermont, particularly when a gun is used in a crime by a person who is prohibited from gun possession. The point is that the facts and circumstances surrounding the use of guns to commit crimes in Vermont, and how the criminals acquired those guns, can be very easily studied because the small sample size to examine. There is no excuse for a lack of facts and data to support the need or efficacy of any gun restriction now under consideration in the Vermont Legislature. Ignorance about these facts and data is, at this point, simply willful.
The gun restriction proposals, such as the magazine capacity restrictions and universal background checks, now up for vote in the Vermont Legislature will not enhance public safety. To those of us who are knowledgeable about firearms, and particularly for those of us knowledgeable about firearms and how guns are used in crimes in Vermont, these gun restriction measures are transparently motivated by cultural bias, reflect a stunning and willful ignorance of the devices they seek to regulate and there is zero evidence that these laws would have any impact on public safety. The proposed gun laws are just as defective as Trump’s “Muslim ban” and for the same reasons.
With respect to the “magazine ban” now up for vote, which will restrict magazine capacity to 10 rounds, there is no track record to demonstrate this restriction will ever save even one life in Vermont. There are literally hundreds of thousands of magazines already in private ownership in Vermont which would fit the device description in this ban. Magazines of this type have been in wide circulation for at least 100 years. I challenge any member of the Vermont Legislature to come forward with the name of the murdered Vermonter who would still be alive if the murder weapon had been limited to 10 rounds in a single magazine. I challenge anyone to come forward with the particulars of a crime in all of Vermont’s history in which the criminal fired more than 10 rounds from a single magazine. Beyond the lack of historical evidence to support the public safety benefit of a magazine capacity limit, the 10-round limit is arbitrary and without a rational basis. In fact, the two most-produced handguns still in wide distribution in this country, the Glock 17 and the Beretta 92, have standard magazine capacity of 17 rounds. The two most widely distributed semi-automatic rifles, the AR-15 and AK-47, were designed for a standard capacity magazine of 30 rounds. The characterization of a magazine holding 11 rounds as “high capacity” is an arbitrary fiction founded on emotion and not on any firearm industry standard. In fact, YouTube’s recently announced and controversial policy on firearms content characterizes magazines of more than 30 rounds as being high capacity. Any halfway competent shooter can change magazines in a firearm in less than a few seconds. Some people can do it in less than a second. Inconveniencing a deranged, homicidal maniac to carry three 10-round magazines instead of two 15-round magazines hardly seems a worthwhile justification for infringing on the rights of tens or hundreds of thousands of law-abiding Vermonters.
Finally, I would note that there does not appear to be wide support among law enforcement for this proposed “magazine ban.” The proposed “magazine ban” will have a substantial chilling effect on the ability of law-abiding Vermont gun owners to have access to new firearms, particularly handguns, as most newly produced handguns are designed with a standard magazine capacity of more than 10 rounds. For this restriction on a constitutionally protected right, there is no evidence that one single crime will be prevented.
An identical case can be made against the public safety justification for universal background checks. The guns used in crimes in Vermont are a known entity. The origin of these guns, particularly when used by a prohibited person, is investigated and reported. If prohibited persons were obtaining firearms through private sales that would be stopped by universal background checks, the facts and data to demonstrate this would be available. To my knowledge, the House Judiciary Committee was not provided with even one specific example of a prohibited person using a gun in a crime which was obtained in a transfer that universal background checks would have blocked. In fact, prohibited persons regularly obtain guns in Vermont through straw purchasers, trading drugs for guns and buying guns from people who are fully aware that the transfer is a federal felony. Universal background checks would have no impact on the access to firearms by prohibited persons through the methods that are actually used by prohibited persons to get guns. On the other side of the safety vs. infringement calculus, universal background checks would substantially infringe on the constitutionally protected right of Vermonters to access firearms. Universal background checks presumes that gun dealers will facilitate private sales by doing background checks for non-customers. There has been no survey or poll of Vermont gun deals to report whether or not they will actually do background checks on private sales. Second, universal background checks will disproportionately impact the poor. Whereas a well-to-do person might not be dissuaded from a firearm purchase because of a $50 background check fee, that same fee might make a firearm acquisition impossible for a working class person who simply can’t spare the extra $50. It speaks volumes that the Vermont Legislature, which has distinguished itself by its concern for the rights of the disadvantaged, has not even contemplated capping the fees charged by gun dealers for private transfer background checks or allocating public monies to pay these fees for the poor and indigent. The case could be made that the Legislature is either deliberately or thoughtlessly making it more difficult for the poor to access firearms.
I can report that firearms enthusiasts feel strongly to be innocent victims of a culture war in this state between those who adhere to traditional Vermont values and those who wish to instill values from other places into Vermont culture. Many firearms enthusiasts, like me, feel we are being discriminated against by others who hold a cultural bias against our interests and who do not care to understand us or our interests. The public statements by those in the Vermont Legislature who support the proposed gun control measures demonstrate clearly that these individuals have undertaken no serious effort to understand the operation and use of the firearms they propose to restrict and have not stopped to question whether any of the proposals might actually enhance public safety. Firearms are specifically protected by the Second Amendment of the United States Constitution and Article 16 of the Vermont Constitution. Regulating firearms is different than regulating other types of public hazards like motor vehicle traffic or toxic waste. Before any legislator in Vermont votes to support a restriction on firearms, that legislator is obligated by his or her oath of office to be very certain that there is a solid public safety justification for doing so. To date, no evidence has been presented to the Legislature upon which such an assessment could be based.
