As Vermont lawmakers begin to take up a fresh slate of gun control bills this legislative session, the imminent threat of litigation looms like never before.
A panel of senators on Friday held their first hearing on S.4, a wide-ranging, nine-part bill that would, among other measures, ban straw purchasing of firearms at the state level, in which someone buys a gun for another person who couldn’t buy one; prohibit tampering with firearms’ serial numbers; prohibit the possession of semi-automatic weapons by Vermonters under 21 years old; and make juvenile case records available for background checks conducted prior to new gun purchases.
The Legislature’s Democratic supermajority appears eager to take up new gun control legislation this year, holding a historic majority in both chambers that could easily override a veto by Republican Gov. Phil Scott. And helming the upper chamber for his first biennium as Senate President Pro Tempore is Sen. Phil Baruth, D/P-Chittenden Central, an impassioned advocate for gun control.
But also new this year is the U.S. Supreme Court’s recent ruling on New York State Rifle and Pistol Association, Inc. v. Bruen, which struck down New York’s gun licensing system. Decided by the nation’s highest court in October, the Bruen precedent has thrown into question the constitutionality of a litany of gun control measures — including some that have already been upheld as constitutional in the past.
“In legislating, there’s always an unknown in a certain sense,” said Erik FitzPatrick from Vermont’s legislative counsel. “But this is probably more unknown and more uncertain than it has been in a long time.”
At the heart of the Bruen precedent is a new legal test which found that “to justify a firearm regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
According to FitzPatrick, the new Bruen precedent has upended courts’ usual methods for determining whether a law violates the U.S. Constitution’s Second Amendment. Previously, he said, judges utilized a means-end test on such cases, attempting to balance a state’s interest in regulating firearms with the rights protected in the Second Amendment, like a cost-benefit analysis.
Now, the “historical tradition” test has sent courts in a tailspin, he said. Courts have begun hiring historians to try to decipher historical traditions on any number of gun regulations. And as Baruth noted in Friday’s hearing, “Historians, like everybody else, have different opinions.”
Even the Supreme Court admitted in its majority opinion that, “Historical analysis can sometimes be difficult and nuanced.”
“(B)ut reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack (of) expertise’ in the field,” the majority opined.
To deface a gun’s serial number is already a federal crime, and S.4 in its current form would make it a crime at the state level, as well. But FitzPatrick said that three separate federal courts have recently taken up newly filed cases against the serial number law, and, in light of Bruen, come to different conclusions.
“Two of them have said it’s actually OK, that it passed the new Bruen standard. One of them said that it didn’t,” FitzPatrick said. “You’ve got three different courts using the same standard, Bruen, and they reached different results. I think that illustrates how unpredictable this is.”
A rarity in his career in legislative counsel, FitzPatrick said on Friday that he simply couldn’t give an answer as to whether S.4, if passed, would be found constitutional if challenged in court with the new Bruen case precedent the law of the land.
“Go into it, whatever you’re going to do with this bill or any other firearms legislation, with your eyes wide open on it, and knowing that what could happen in the future is up in the air,” FitzPatrick said. “Take that into account.”
Though a court’s final ruling on S.4 or any other bill may be impossible to predict, litigation seems likely. Well-resourced interest groups have shown themselves eager to challenge new and existing gun control legislation with the Bruen precedent in place.
In Vermont in 2018, the Vermont Federation of Sportsmen’s Clubs sued the state over a package of gun control legislation Scott signed into law. After Friday’s hearing, the federation’s president Chris Bradley harkened back to that lawsuit.
“The federation put a great deal of our money into the challenge to the Vermont Supreme Court to try to see if that was constitutional,” Bradley told VTDigger Friday. “We’re not backing away from our stance to support our rights, even if it means taking things to court.”
As lawmakers consider their next steps on S.4 and other gun control legislation, Sen. Nader Hashim, D-Windham, who is vice chair of the Senate Judiciary Committee, told VTDigger on Friday that lawmakers need to weigh the state’s potential legal liability against their principles.
“It’s a balancing act to try to figure out, how much risk is there, versus how vital are these goals that we want to accomplish,” Hashim said.
As the state braces for potential legal battles, FitzPatrick reminded them that the U.S. Supreme Court is the ultimate legal authority.
“The Supreme Court does not have the final word, because they’re infallible,” he said, quoting a former law professor of his. “But they are infallible because they have the final word.”
