Emboldened by supermajorities in both chambers and a “sea change” in public opinion, Democrats and Progressives in the Vermont Statehouse carried three significant pieces of firearms legislation across the finish line this legislative session.
It was, in the estimation of Senate President Pro Tempore Phil Baruth, D/P-Chittenden, one of the most successful sessions for gun control advocates in recent years — matching what he called the urgency posed by gun violence rates in Vermont and across the country.
This year’s roster consisted of S.3 — already signed into law — which bans paramilitary-style training camps such as Slate Ridge; S.4, which would primarily bring Vermont state laws on straw purchasing and serial number tampering in line with federal law; and most high-profile of all, H.230, which would implement safe storage rules, broaden existing red flag laws and institute 72-hour waiting periods for gun purchases.
While S.4 and H.230 have yet to become law — and might require a veto override to do so — the central question on the minds of both supporters and opponents is: Will they hold up in court?
‘A sea change’
Democrats and Progressives had the numbers on their side this year.
They held onto their 23-seat majority in the Senate in last November’s elections and expanded their hold on the House to a combined 109 out of 150 seats. That gave enough seats to reliably override vetoes by Republican Gov. Phil Scott, who has repeatedly said that he doesn’t believe Vermont needs to institute additional gun control measures following the historic package he signed into law in 2018.
Beyond the parties’ strengthened hand, Baruth said this year just felt different on the issue of guns. “That something that’s in the air is fear,” he told VTDigger last week.
“Within a week’s time, there are multiple mass shootings of different kinds, disturbing in different ways — involving children, involving trans Americans, involving gay nightclubs, churches, supermarkets, racist shootings, people driving cars and shooting into groups of migrants,” he said. “So I think there’s a genuine fear that we’re living in a time where the number of guns is astronomical, and the trend is in the wrong direction.”
Even among Vermont Democrats, Rep. Alyssa Black, D-Essex Town, noted that there has not historically been consensus on the issue of gun control, and fears of electoral blowback have pervaded in a state with a long history of gun ownership and sportsmanship. The last Democratic governor, for example — Peter Shumlin — opposed nearly every piece of gun control legislation contemplated during his tenure.
This year, though, she pointed to “the fatigue of gun violence” among voters and her legislative colleagues. “It’s palpable,” she said.
“I think that we’ve gotten to a point where we’re just sick to death of it,” Black said. “These legislators have always been very fearful of what this would mean for elections. You know, there’s a very vocal minority, and it can be intimidating. And I think that it’s not just Vermont — I think this country, I think we’re just tired of it… It just felt like there was a sea change last summer.”
Politically brilliant or dishonest?
Unlike S.3 and S.4, H.230 was titled as a suicide prevention bill. Breaking legislative tradition, the bill was first assigned to the House Health Care Committee, rather than the House Judiciary Committee.
Black, the bill’s primary sponsor and a member of the health care committee, testified to her colleagues about her son, Andrew Black, who died by suicide using a firearm in 2018, mere hours after he purchased it.
Black described to her colleagues the gruesome reality of death by firearms — how she had to clean her son’s brain matter off the walls of his bedroom, and, when she couldn’t remove it all, how she painted over it. She and medical professionals such as Dr. Rebecca Bell, a pediatric critical care physician at the University of Vermont Children’s Hospital, described the suddenness of a gunshot, explaining that suicide attempts by firearm are far more deadly than other forms, such as medication or self-harm. Ninety percent of patients who survive a suicide attempt don’t ultimately die by suicide, Bell testified to lawmakers — but for those who attempt suicide by gun, there’s rarely any going back.
The point they were trying to make was that gun deaths — particularly those that are self-inflicted and those that are suffered by young people — constitute a public health crisis.
Baruth called the move politically “brilliant.” As Republicans nationally have adopted a strategy of pointing to mental health — not the prevalence of guns — as the root cause of gun deaths, Baruth said H.230’s stalwarts flipped the script.
“What they were trying to do was build a record of testimony that this bill would affect the suicide rate,” Baruth said. “And so they built that record, painstakingly.”
Chris Bradley, president and executive director of the Vermont Federation of Sportsmen’s Clubs, on the other hand, told VTDigger he thought the bill’s machinations curtailed an honest debate.
“If you look at the trajectory of this bill, H.230 was a short-form bill up until the last minute,” Bradley said, referring to the bill’s brief, vague nature upon its initial introduction. “No, that is not how bills get done — not in my experience, not when we’re being forthright and honest about what’s being discussed.”
The Bruen question
But even with the caucus numbers and public opinion polls on Vermont lawmakers’ side, a new precedent set by the U.S. Supreme Court threatens to undermine firearms legislation passed not just this year, but in years past.
In a majority opinion issued last year, the U.S. Supreme Court struck down New York’s decades-old gun licensing system. The precedent set by the case, New York State Rifle and Pistol Association, Inc. v. Bruen, established a new legal test requiring that, “to justify a firearm regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
The “historical tradition” test has sent federal courts into a tailspin, inspiring well-funded interest groups to challenge both old and new firearms regulations in courts across the country.
Within the first weeks of this year’s session, the Vermont Legislature’s legal counsel warned that the new Bruen precedent could land lawmakers in uncharted legal territory should they pass any new gun control measures. Heeding those words of caution, members of the Senate Judiciary Committee — including Baruth — stripped language from S.4 that would have prohibited Vermonters under 21 years old from obtaining semi-automatic weapons, explicitly citing the section’s legal vulnerabilities under Bruen.
But lawmakers opted to keep the 72-hour waiting period in H.230, despite hand-wringing by gun rights advocates, the Office of the Defender General and the governor’s office over its constitutionality. They did, however, add what’s known as a severability clause to the bill — a sign they recognize the likelihood of a legal challenge.
“In general, all our statutes are considered by (legislative) counsel to be separable, so if one piece is unconstitutional, the rest can continue,” Baruth said. “But H.230 has an explicit severability piece, so there’s no doubt that if waiting periods were struck down, safe storage would remain in force, expanded (red flag laws) would remain in force.”
Jason Maulucci, a spokesperson for Scott, told VTDigger last week that the governor remains skeptical of the provision’s constitutionality. Scott could sign the bill, veto it or allow it to become law without his signature. Of those three options, Maulucci said a signature was “unlikely.”
Should Scott opt for a veto, the vote records on H.230 suggest that legislative leaders would be able to marshal the two-thirds majority required to override him. The House gave final approval to the bill in a 106-34 vote, while the Senate granted preliminary approval in a 21-9 vote.
While Bradley isn’t thrilled about any provision of the bill, the Vermont Federation of Sportsmen’s Clubs chief said that H.230’s 72-hour waiting period provision is “really the most nasty, in my humble opinion.”
“The absolute core of the Second Amendment is self defense,” Bradley said. “If you had some scumbag threatening you or wanting to do bad things, you have a constitutional right to be able to say, ‘I’m going to defend myself. I don’t want to be a victim.’”
With the addition of a severability clause, Bradley said lawmakers showed their hand in questioning the constitutionality of their own bill.
“Now, there’s only one reason they put a severability clause in: That’s because they knew — they knew — they were not sure of its constitutionality,” Bradley said.
A lawsuit in the making?
Bradley declined to say this week whether the federation would sue the state should H.230 take effect. “You’re not putting any words in my mouth. Sorry. That’s off the table,” he said when pressed.
The gun rights group did unsuccessfully sue the state when Scott signed a slew of gun control measures into law in 2018. After a Senate Judiciary Committee hearing on S.4 in January, Bradley harked back to that lawsuit, saying at the time, “We’re not backing away from our stance to support our rights, even if it means taking things to court.”
This week, he stayed mum on the federation’s legal strategy, but he did point to pending legal challenges to waiting periods in Colorado and California. “And there’s going to be others,” he added.
“If you’re familiar with the Bruen decision, on top of (previous decisions), there’s no way a waiting period can stand constitutional scrutiny for the simple reason that, at the time of our founding, or up to the date of ratification of the 14th Amendment, there were no laws whatsoever that said, ‘Chris Bradley can’t go right out and buy a gun,’” Bradley said.
Black said she knows that the waiting period provision could be challenged in court. She also said that she’s confident that a similar law could have saved her son’s life. As battles over gun laws unfold throughout the country, she questioned why Vermont should take a wait-and-see approach.
“Are we supposed to just sit back and wait years and years and years?” Black asked. “How many more people have to die while we wait?”