Clark, Charity
From: Luke Nathan
Also, it would be helpful if you could provide a digital copy of the defense’s motion to amend Misch’s conditions of release and the AG’s written response.
Court records show that the defense’s motion was filed 9/11 and the AG’s response was filed on 9/16.
I just tried to get copies from the court clerk’s office but was told they weren’t available while the motion is under advisement.
Thanks, L 518‐448‐2162
> On Sep 17, 2019, at 10:12 AM, Luke Nathan
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: [email protected] 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.
2019 VT 66
No. 2018-342
Reed Doyle Supreme Court
On Appeal from v. Superior Court, Washington Unit, Civil Division
City of Burlington Police Department April Term, 2019
Mary Miles Teachout, J.
Anthony N.L. Iarrapino of Wilschek Iarrapino Law Office PLLC, and James Diaz and Lia Ernst of ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant.
Eileen M. Blackwood and Justin St. James, Office of City Attorney, Burlington, for Defendant-Appellee.
Jennifer Duggan and Elena Mihaly, Conservation Law Foundation, and Jamey Fidel and Jon Groveman, Vermont Natural Resources Council, Montpelier, for Amici Curiae Conservation Law Foundation and Vermont Natural Resources Council.
David Putter and Christopher D. Winters, Montpelier, for Amicus Curiae Jim Condos, Secretary of State of the State of Vermont.
Daniel P. Richardson and Stephen F. Coteus of Tarrant, Gillies & Richardson, Montpelier, and Timothy Cornell and Cornell Dolan, Boston, Massachusetts, for Amici Curiae Vermont Journalism Trust, New England First Amendment Coalition, and Vermont Press Association.
Carl Andeer, Vermont League of Cities and Towns, Montpelier, for Amicus Curiae Vermont League of Cities and Towns.
PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and Burgess, J. (Ret.), Specially Assigned
¶ 1. REIBER, C.J. Reed Doyle appeals the trial court’s denial of his motion for partial judgment on the pleadings pursuant to Vermont Rule of Civil Procedure 12(c). In his motion, plaintiff argued that the Burlington Police Department (BPD) unlawfully withheld public records in violation of the Public Records Act (PRA) when it charged a fee for costs that would be incurred by complying with his request. Based on the plain language of the PRA, we hold that the BPD cannot charge for staff time spent in complying with requests to inspect public records.
Accordingly, we reverse.
¶ 2. Plaintiff stated the following facts in his complaint. Plaintiff witnessed an incident involving BPD officers in a public park. Shortly thereafter, plaintiff submitted a citizen’s complaint form to the BPD to voice concerns about alleged officer misconduct and unreasonable use of force during the incident. Plaintiff subsequently requested to inspect body camera footage, among other records, related to the incident. The BPD denied his request. Plaintiff appealed the denial to BPD Chief Brandon del Pozo. In his response to the appeal, Chief del Pozo characterized plaintiff’s request as “seeking to inspect” records. He stated that, pursuant to statute, the BPD could only produce a heavily redacted form of the requested records, and the staff time to review and redact the records would cost plaintiff several hundred dollars.1 Chief del Pozo also informed plaintiff that he must pay a deposit before the BPD would begin reviewing and redacting the requested records.
¶ 3. After filing a complaint in the civil division against the BPD, plaintiff moved for a partial judgment on the pleadings. He argued that the BPD violated the PRA when it failed to provide the requested records for inspection free of charge. The trial court denied plaintiff’s motion. Plaintiff timely appealed.
¶ 4. “When reviewing a denial of a motion for judgment on the pleadings, the issue before the Court is whether the movant is entitled to judgment as a matter of law on the basis of the pleadings.” Fercenia v. Guiduli, 2003 VT 50, ¶ 6, 175 Vt. 541, 830 A.2d 55 (mem.). “[W]e accept as true all factual allegations contained in the complaint and all reasonable inferences that can be drawn from those allegations. . . . We . . . focus our analysis on the court’s conclusions of
1 Plaintiff does not challenge on appeal whether the redactions are required by law.
2 law, which we review de novo.” Flint v. Dep’t of Labor, 2017 VT 89, ¶ 3, 205 Vt. 558, 177 A.3d
1080 (quotation omitted).
¶ 5. The parties dispute whether the PRA authorizes state agencies to charge and collect fees for staff time spent complying with requests to inspect public records. This Court applies “a nondeferential and plenary standard of review to issues of statutory interpretation.” Vt. Human
Rights Comm’n v. Agency of Transp., 2012 VT 88, ¶ 7, 192 Vt. 552, 60 A.3d 702; see also 1
V.S.A. § 319(a) (directing trial court to review denials of PRA requests de novo). “[O]ur primary goal” when interpreting statutes is “to give effect to the Legislature’s intent.” Lydy v. Trustaff,
Inc., 2013 VT 44, ¶ 6, 194 Vt. 165, 76 A.3d 150. We begin our review with the statute’s plain meaning. People’s United Bank, NA v. Alana Provencale, Inc., 2018 VT 46, ¶ 8, 207 Vt. 362, 189
A.3d 71. “If the statute is unambiguous and its words have plain meaning, we accept the statute’s plain meaning as the intent of the Legislature and our inquiry proceeds no further.” Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287, 865 A.2d 350.
¶ 6. Section 316(c) authorizes an agency to “charge and collect the cost of staff time associated with complying with a request for a copy of a public record.” 1 V.S.A. § 316(c)
(emphasis added). By its plain language, this provision authorizes charges only for requests for copies of public records, not for requests for inspection. “We will not read an implied condition into a statute unless it is necessary in order to make the statute effective.” Brennan v. Town of
Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999) (quotation and emphasis omitted). If we interpret § 316(c) as also applying to requests to inspect, it would render “a copy of” mere surplusage. See In re Miller, 2009 VT 36, ¶ 14, 185 Vt. 550, 975 A.2d 1226 (“[W]e must not allow a significant part of a statute to be rendered surplusage or irrelevant.” (quotation omitted)).
¶ 7. Moreover, the plain language throughout § 316 indicates the Legislature’s intent to distinguish requests to inspect public records from requests to copy them. Section 316 begins by providing that “[a]ny person may inspect or copy any public record.” 1 V.S.A. § 316(a) (emphasis added). This disjunctive “or” creates a distinction between requests to “inspect” and to “copy” 3 that continues throughout the section. The statute specifies the times when a person may inspect public records in § 316(a)(1)-(2); authorizes charges associated with requests for copies in
§ 316(b) and § 316(c); and further addresses charges, equipment, monies, and formats for copies in § 316(d)-(i).
¶ 8. Notably, where § 316 authorizes charges for copies, it contemplates that agencies will transfer the copies to requesters—indicating the word “copy” is not interchangeable with
“inspect” for the purposes of the statute. Section 316(b) states an agency may “charge and collect from the person requesting the copy the actual cost of providing the copy. . . . The agency may also charge and collect from the person making the request, the costs associated with mailing or transmitting the record . . . .” (Emphasis added.) Section 316(c) states, after authorizing charges for “staff time associated with complying with a request for a copy,” that the “agency may require that . . . all charges be paid . . . prior to delivery of the copies.” (Emphasis added.) This language indicates that in authorizing charges for a “copy,” the Legislature meant a record that the requester could keep and review wherever and whenever the requester chooses. The plain language of § 316 thus separates requests to copy from requests to inspect, and the section only authorizes charges for staff time associated with requests for copies—not requests to inspect.
¶ 9. We acknowledge that here, where no one disputes that the BPD must redact exempted material before producing the record for inspection, the BPD cannot comply with the inspection request without first creating a second, redacted version of the requested material.2 See
1 V.S.A. § 318(e) (providing that agency must produce requested record with exempted material redacted rather than simply withholding record). In that situation, the BPD argues, the request to inspect is really a request for a copy. More generally, the BPD contends that the work involved in complying with a request determines whether a state agency may charge fees for staff time, not a
2 We make no decision regarding whether the BPD must make the redactions in this case. Rather, we assume, without deciding, that the BPD must do so because the parties do not dispute the issue. 4 semantic distinction between inspection and copying. In support of its rationale, the BPD points to Herald Association v. Dean, in which we held that the PRA “does not allow an agency to withhold public records simply because complying with the request is difficult or time consuming.” 174 Vt. 350, 359, 816 A.2d 469, 477 (2002). We held that the PRA “provides a different remedy in those circumstances”: the “agency may ‘charge and collect the cost of staff time associated with complying with a request for a copy of a public record.’ ” Id. (quoting 1
V.S.A. § 316(c)).
¶ 10. Herald Association is inapposite because it does not address a request for inspection. More importantly, as stated above, the statute’s plain language indicates that the
Legislature did not intend to authorize charges associated with staff time in complying with a request to inspect. Where “the meaning is clear” according to “the plain language of the statute,”
“we will enforce it according to its terms.” State v. Richland, 2015 VT 126, ¶ 6, 200 Vt. 401, 132
A.3d 702; see also State v. LeBlanc, 171 Vt. 88, 91, 759 A.2d 991, 993 (2000) (“[W]e presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended.” (quotation omitted)).
¶ 11. Furthermore, the PRA explicitly directs courts to “liberally construe[]” the Act to
“provide for free and open examination of records.” 1 V.S.A. § 315(a). “[T]he Act represents a strong policy favoring access to public documents and records.” Shlansky v. City of Burlington,
2010 VT 90, ¶ 12, 188 Vt. 470, 13 A.3d 1075 (quotation omitted). This policy is based on the
Legislature’s acknowledgment that “open access to governmental records is a fundamental precept of our society” and “it is in the public interest to enable any person to review and criticize [the] decisions [of officers of government],” who are “trustees and servants of the people.” Id.
(quotation omitted). Given this legislative policy, we should “resolve any doubt in favor of disclosure.” Sawyer v. Spaulding, 2008 VT 63, ¶ 8, 184 Vt. 545, 955 A.2d 532 (mem.); see also
5 Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215 (“[E]vidence of the legislative policy at which the statute was aimed [is an] indication[] of the Legislature’s intent.”).3
¶ 12. We note that both parties, as well as the many amici curiae, raise competing policy concerns regarding their respective positions. These concerns cannot control our analysis. “Our role is to interpret the law to give effect to the Legislature’s intent, not to impose our policy preferences on the public.” McGoff v. Acadia Ins. Co., 2011 VT 102, ¶ 13, 190 Vt. 612, 30 A.3d
680 (mem.); see also Rousso v. State, 239 P.3d 1084, 1095 (Wash. 2010) (en banc) (“It is the role of the legislature, not the judiciary, to balance public policy interests and enact law.”). “[W]e must accord deference to the policy choices made by the Legislature,” Badgley v. Walton, 2010 VT 68,
¶ 38, 188 Vt. 367, 10 A.3d 469, and “enforce [the statute] according to its terms,” Richland, 2015
VT 126, ¶ 6. See also Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Dep’t of Emp’t
& Training, 151 Vt. 123, 129, 558 A.2d 226, 229-30 (1989) (“[T]he policy issue is for the
Legislature, not this Court, where as here the statute is plain on its face.”).
¶ 13. Accordingly, we conclude that state agencies may not charge for staff time spent responding to requests to inspect public records pursuant to the PRA. We hold the trial court erred in denying plaintiff’s motion for partial judgment on the pleadings.
Reversed.
FOR THE COURT:
Chief Justice
¶ 14. EATON, J., dissenting. In my view, the plain language of the relevant provision of the Public Records Act (PRA) authorizes public agencies to charge fees for record requests
3 The briefings devoted significant attention to the legislative history regarding § 316(c). We need not consider the legislative history here because the plain language of the statute is unambiguous. See Flint, 2017 VT 89, ¶ 5 (“[W]e resort to other tools of statutory construction— such as legislative history—only if the plain language of the statute is unclear or ambiguous.”). 6 requiring staff time to review and expunge exempt portions of the requested records. Accordingly,
I would uphold the trial court’s order denying plaintiff’s motion for judgment on the pleadings.
¶ 15. As enacted in 1976, the PRA allowed any person to “inspect or copy” public records during certain hours and permitted public agencies with photocopying machines to collect copying costs. 1975, No. 231 (Adj. Sess.), § 1; see 1 V.S.A. § 316(a). The key provision at issue here, 1
V.S.A. § 316(c), was added in a 1996 amendment that dealt more specifically with permitted charges for providing access to public records, including electronic records. See 1995, No. 159
(Adj. Sess.), § 1. Section 316(c) provides, in relevant part, that:
in the following instances an agency may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record: (1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes.
(Emphasis added.)
¶ 16. The question here is whether this provision authorizes an agency to charge staff time for producing a redacted copy of a record for which exemptions are required by law. I would answer that question in the affirmative, given the plain language of § 316(c) and other related provisions in the statute. See Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶ 20,
194 Vt. 12, 72 A.3d 346 (determining legislative intent requires examining entire statute rather than isolated phrases). I find little, if any, support for plaintiff’s and the majority’s position that reimbursement for staff time is unavailable when a requester seeks to inspect a record without obtaining a personal copy of the record, irrespective of the amount of time it takes agency staff to redact exempt information from the requested record and create a copy. In either case, the request requires the production of a copy.
¶ 17. A public agency’s lawfully required duties in responding to record requests, not the wording of the particular request, should determine whether the agency is authorized to charge for staff time. When a request is made for a record that contains confidential information exempt from 7 public access, a public agency may not withhold the record on that basis, but rather must “redact the information it considers to be exempt and produce the record accompanied by an explanation of the basis for denial of the redacted information.” 1 V.S.A. § 318(e). Further, absent legal authority to do so, custodians of public records “shall not destroy, give away, sell, discard, or damage any record or records in his or her charge.” Id. § 317a(b).
¶ 18. Therefore, when a person seeks access to a record that contains confidential information unavailable to the public, the custodian is compelled to create a new record—a redacted copy of the requested record—for public access. The cost of staff time to create the new record is explicitly permitted under § 316(c)(2). To the extent the redacted copy cannot be considered a new record because it does not contain any additional information beyond that contained in the original record, it then must be considered a copy—a redacted copy—of the original record, for which the cost of staff time beyond thirty minutes is collectible under
§ 316(c)(1).
¶ 19. It has to be one or the other. The answer cannot be that no reimbursement for staff time is available because the requester did not seek a personal copy of the record. It makes no sense for the Legislature to authorize reimbursement for staff time reviewing, redacting, and producing records for which a copy is sought, but not for the exact same work when a person seeks only to inspect a redacted copy.
¶ 20. Nothing in § 316(c) compels such an improbable construction of the statute.
Construing § 316(c) to authorize reimbursement for staff time to produce redacted copies of requested records does not render the provision’s reference to “a request for a copy” surplusage, as plaintiff asserts. The provision encompasses instances both when a copy is made upon a request for a copy and when a redacted copy is produced upon a request to inspect a record that contains exempt information. Indeed, removing the phrase “for a copy” would permit an agency to be reimbursed for staff time associated with any request, including requests to inspect records that contained no confidential material and thus required no redacted copy. 8 ¶ 21. Nor is such a construction compelled by the Legislature providing: (1) in § 316(b) that an agency may charge a person requesting a copy “the actual cost of providing the copy,” including “the costs associated with mailing or transmitting the record,” or (2) in § 316(c) that an agency may require record requests in writing and payment in whole or part “prior to delivery of the copies.” The fact that the Legislature authorizes such charges when personal copies are requested should not mean that charges are restricted solely to instances when there is a copy sent to the requester.
¶ 22. To the extent that § 316(c) could be considered ambiguous with respect to the issue before us, nothing in the legislative history cited by plaintiff compels the construction of the provision adopted by the majority. Indeed, in the most recent amendment of the PRA, the
Legislature declined to enact proposed language explicitly stating that a public agency may not collect fees in response to a request to inspect public records. See 2017, No. 166 (Adj. Sess). To be sure, “[l]egislative inaction has been called ‘a weak reed upon which to lean’ and a ‘poor beacon to follow.’ ” Lake Bomoseen Ass’n v. Vt. Water Res. Bd., 2005 VT 79, ¶ 21, 178 Vt. 375, 886
A.2d 355 (quoting 2B N. Singer, Sutherland on Statutes and Statutory Construction § 49:10, at
112-14, 117 (6th ed. 2000)). But that principle applies equally well to plaintiff’s heavy reliance on past legislative inaction.
¶ 23. Without question, the laudatory policy underlying the PRA is “to provide for free and open examination of records consistent with . . . the Vermont Constitution.” 1 V.S.A. § 315(a).
But at the same time the Legislature recognized that record requests “entail expending public resources to fulfill requests” and thus established in the PRA “a process for public agencies to charge requesters for the actual costs of copying public records and for staff time associated with fulfilling requests.” Sawyer v. Spaulding, 2008 VT 63, ¶ 11, 184 Vt. 545, 955 A.2d 532 (mem.)
(citing 1 V.S.A. § 316).
¶ 24. Taken to its logical extreme, the majority’s holding bars public agencies from obtaining reimbursement for significant staff time in response to onerous requests to inspect 9 records requiring redactions—for example, a request for all body camera footage from a municipal police department for any given period of time. See Final Legislative Council Staff Report on
Public Records, Privacy, and Electronic Access in Vermont at 11 (Jan. 2005), https://www.sec.state.vt.us/media/26883/Public_records_study_report.pdf [https://perma.cc/9S43
-DZUH] (stating that “[i]t is not uncommon for state agencies to receive requests for massive amounts of public records or to receive multiple requests from the same individual,” and that “[t]he task of gathering, reviewing, and when appropriate, redacting information in documents is time intensive and costly”). To be sure, in “unusual circumstances,” an agency “may request that a person seeking a voluminous amount of separate and distinct records narrow the scope of a public records request,” 1 V.S.A. § 318(d) (emphasis added); however, nothing in the statute precludes a requester from resisting any attempts by the agency to have the request narrowed. Adhering to
§ 316(c)’s plain language would avoid compelling agencies to respond to such burdensome requests without obtaining reimbursement for reasonable staff time associated with the requests.
¶ 25. For the reasons stated above, I respectfully dissent.
¶ 26. I am authorized to state that Justice Carroll joins this dissent.
Associate Justice
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https://ago.vermont.gov/open-government/ 3/3 From: James Therrien To: Gengler, Bart Subject: DAY CARE SUIT Date: Wednesday, September 4, 2019 11:53:21 AM
Hello
I am writing about the judge's ruling in favor of a summary judgement relative to trooper Zink in the suit by a former daycare operator but not for the two DCF employees.
Hope to get your comment on this development.
Jim Therrien
Cell: 413-281-2646 --
Jim Therrien
Reporter-Editor New England Newspapers Bennington Banner Manchester Journal Brattleboro Reformer Cell: 413-281-2646 Office - 802-447-7567 Twitter: @BB_therrien From: Jandl, Lauren To: Luke Nathan Subject: RE: Amicus briefs in Misch appeal? Date: Tuesday, October 15, 2019 2:57:00 PM Attachments: 2019-10-14 District of Columbia Multi-State Amici Brief.pdf Amicus Brief 10.14.19.PDF 2019-266 Amicus Brief.pdf Amicus Brief for State of VT v. Max Misch.pdf
Hi Luke,
Glad you got a copy of the press release. I’ve attached the amicus briefs.
Best,
Lauren
From: Luke Nathan
Hi Lauren,
We received your press release re: the state's brief in the Misch brief—thanks.
I saw that it mentioned a coalition had filed amicus briefs yesterday. Do you have copies of those you can share?
Thanks, -- Luke Stoddard Nathan Reporter The Bennington Banner | The Manchester Journal Bennington: 802-447-7567 ext. 111 Manchester: 802-855-7861
No. 2019-266
IN THE SUPREME COURT OF THE STATE OF VERMONT
STATE OF VERMONT, PLAINTIFF-APPELLANT,
V.
MAX MISCH, DEFENDANT-APPELLEE.
ON CERTIFICATION FROM THE VERMONT SUPERIOR COURT, BENNINGTON UNIT, CRIMINAL DIVISION, DOCKET NO. 173-2-19 BNCR
BRIEF FOR THE 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 AS AMICI CURIAE IN SUPPORT OF APPELLANT
KARL A. RACINE Attorney General for the District of Columbia
LOREN L. ALIKHAN Solicitor General
CAROLINE S. VAN ZILE Deputy Solicitor General
JONATHAN T. ROSE (ERN #6128) SONYA L. LEBSACK (ERN #10788) Dunkiel Saunders Elliott Assistant Attorney General Raubvogel & Hand, PLLC Office of the Solicitor General 91 College Street Office of the Attorney General P.O. Box 545 441 4th Street, NW, Suite 630 South Burlington, VT 05401-0545 Washington, D.C. 20001 (802) 860-1003 (202) 724-5667 [email protected] [email protected]
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ...... 1
SUMMARY OF ARGUMENT ...... 2
ARGUMENT ...... 6
I. The Right To Bear Arms Is Compatible With A Range Of State- Law Measures To Address Gun Violence And Gun Fatalities ...... 6
A. The right to bear arms preserves States’ authority to enact firearm restrictions in furtherance of public safety ...... 7
B. Vermont made a considered and well-supported judgment that restricting LCMs permissibly promotes public safety ...... 13
CONCLUSION ...... 19
ii
TABLE OF AUTHORITIES Cases
Appeal of Newton Enters., 167 Vt. 459, 708 A.2d 914 (1998) ...... 13
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106 (3d Cir. 2018) ...... 4, 5, 15
Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469 (2010) ...... 17
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ...... 13
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ...... 13
District of Columbia v. Heller, 554 U.S. 570 (2008) ...... 3, 6, 8
Duncan v. Becerra, 742 F. App’x 218 (9th Cir. 2018) ...... 4
Ex parte Guerra, 94 Vt. 1, 110 A. 224 (1920) ...... 9
Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) ...... 13
Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) ...... 4, 12, 17
Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015) ...... 4, 5, 14
Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) ...4, 5, 14, 15, 16, 17
Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) ...... 4, 12, 14, 15, 16, 17, 18
McDonald v. City of Chicago, 561 U.S. 742 (2010) ...... 5, 6, 7, 8, 9
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ...... 18
N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) ...... 4, 5, 13, 14, 16
Oregon v. Ice, 555 U.S. 160 (2009) ...... 9
Patterson v. New York, 432 U.S. 197 (1977) ...... 12 iii
State v. Curley-Egan, 2006 VT 95, 180 Vt. 305, 910 A.2d 200 (2006) ...... 8
State v. Diamondstone, 132 Vt. 303, 318 A.2d 654 (1974) ...... 12
State v. Duranleau, 128 Vt. 206, 260 A.2d 383 (1969) ...... 5, 6, 8
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ...... 17
Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173 (2017) ...... 9
United States v. Lopez, 514 U.S. 549 (1995) ...... 7, 18
United States v. Morrison, 529 U.S. 598 (2000) ...... 7
Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 2019) ...... 4
Worman v. Healey, 922 F.3d 26 (1st Cir. 2019) ...... 4, 16, 17 Constitutional and Statutory Provisions 13 V.S.A. § 4021 ...... 2, 11
U.S. Const. amend. II ...... 5, 6, 8
Cal. Penal Code §§ 16740, 32310 ...... 3
Colo. Rev. Stat. §§ 18-12-301, -302, -303 ...... 3
Conn. Gen. Stat. § 53-202w ...... 3
D.C. Code § 7-2506.01(b) ...... 3
Haw. Rev. Stat. Ann. § 134-8(c) ...... 3
Md. Code Ann., Crim. Law § 4-305(b) ...... 3
Mass. Gen. Laws ch. 140 §§ 121, 131M ...... 3
N.J. Stat. Ann. §§ 2C:39-1, 2C:39-3, 2C:39-9...... 3, 11
N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.10, 265.11 ...... 3 iv
Vt. Const., ch. I, art. 5 ...... 7
Vt. Const., ch. I, art. 16 ...... 6
Other Authorities
Kevin Dolak & Justin Weaver, Woman Wrestled Fresh Ammo Clip from Tucson Shooter as He Tried to Reload, ABC News (Jan. 9, 2011) ...... 15
Everytown for Gun Safety, Assault Weapons and High-Capacity Magazines (Mar. 22, 2019) ...... 3
FBI, Aggravated Assault: Crime in the United States 2018 ...... 10
FBI, Law Enforcement Officers Killed and Assaulted ...... 10
FBI, Murder: Crime in the United States 2018 ...... 10
FBI, Uniform Crime Reporting Statistics: Their Proper Use (May 2017) ...... 10
H.R. Rep. No. 103-489 (1994) ...... 16
Law Ctr. To Prevent Gun Violence, Concealed Carry: Summary of State Law ...... 11
Law Ctr. To Prevent Gun Violence, Large Capacity Magazines ...... 11
Law Ctr. To Prevent Gun Violence, Universal Background Checks: Summary of State Law ...... 11
S. 55 (Act 94), Bill Status ...... 14
Violence Policy Ctr., High-Capacity Ammunition Magazines (June 3, 2019) ...... 3
Adam Winkler, The Reasonable Right to Bear Arms, 17 Stan. L. & Pol’y Rev. 597 (2006) ...... 9
Katie Zezima, 12 People Killed, Including Sheriff's Deputy, in ‘Horrific’ California Bar Shooting, Wash. Post (Nov. 8, 2018) ...... 16
v
INTEREST OF AMICI CURIAE The District of Columbia, for itself and on behalf of the States of California,
Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan,
Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode
Island, Virginia, and Washington (“Amici States”), files this brief under Rule 29 of the Vermont Rules of Appellate Procedure.1 Together, the Amici States seek to protect their governmental prerogative to enact and implement sensible legislation that promotes public safety and reduces the incidence and lethality of gun violence, including mass shootings that have become all too prevalent. The Amici States have each taken different approaches to addressing gun violence based on their own determinations about the measures that will best meet the needs of their residents.
They join this brief not to endorse Vermont’s particular limitations on large-capacity ammunition magazines or to suggest that they would be optimal for all States, but to emphasize that the challenged law represents a policy choice that Vermont is constitutionally free to adopt.
1 No party or counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No entities other than amici curiae, their members, or their counsel made a monetary contribution to the brief’s preparation or submission.
Well-reasoned decisions from a number of federal courts of appeals establish that reasonable restrictions on large-capacity magazines are fully compatible with the right to bear arms. That is true under the Second Amendment of the United
States Constitution, and it is equally true under Article 16 of the Vermont
Constitution. The Amici States urge this Court to defer to Vermont’s well- considered judgment in enacting laws that restrict particularly lethal weapons and protect its residents and law enforcement officers.
SUMMARY OF ARGUMENT In 2018, the State of Vermont prohibited the manufacture, importation, possession, and sale of large-capacity magazines (“LCMs”) that, with some exceptions (including for magazines lawfully possessed before the law’s effective date), hold more than 10 rounds of ammunition for a long gun or more than 15 rounds for a hand gun. 13 V.S.A. § 4021. LCMs jeopardize public safety by allowing the rapid fire of ammunition without the need to reload, resulting in more shots fired in a given period of time, more victims wounded, more wounds per victim, and more fatalities. Vermont determined that restricting LCMs would reduce the lethality and
2
injuriousness of firearms used in unlawful activity—particularly mass shootings— without significantly burdening the right to bear arms in self-defense.2
That conclusion is consistent with those reached by California, Colorado,
Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, and the
District of Columbia, all of which have enacted similar laws.3 It is also consistent with the conclusion of numerous federal courts of appeals that have upheld those laws under the Second Amendment, which the U.S. Supreme Court has recognized as “analogous” to Vermont’s right-to-bear-arms provision. District of Columbia v.
Heller, 554 U.S. 570, 600-01 (2008) (noting that each codified an individual right
2 Since 1980, LCMs have been involved in at least 74 mass shootings, resulting in 720 fatalities and 1,116 persons injured. See Violence Policy Ctr., High-Capacity Ammunition Magazines (Aug. 19, 2019), http://vpc.org/fact_sht/ VPCshootinglist.pdf (last visited Oct. 10, 2019). An analysis of mass shootings from 2009 to 2017 revealed that, of the incidents with known magazine capacity data, 58 percent involved LCMs, resulting in twice as many fatalities and 14 times as many injuries per incident on average compared to those that did not involve LCM use. Everytown for Gun Safety, Assault Weapons and High-Capacity Magazines (Mar. 22, 2019), https://everytownresearch.org/assault-weapons-high-capacity-magazines (last visited Oct. 10, 2019). As Vermont notes in its brief, its LCM restrictions were prompted in part by the arrest of a Vermont teenager who intended to commit a mass shooting at Fair Haven Union High School. 3 See Cal. Penal Code §§ 16740, 32310; Colo. Rev. Stat. §§ 18-12-301 to -303; Conn. Gen. Stat. § 53-202w; Haw. Rev. Stat. Ann. § 134-8(c); Md. Code Ann., Crim. Law § 4-305(b); Mass. Gen. Laws ch. 140 §§ 121, 131M; N.J. Stat. Ann. §§ 2C:39- 1(y), 2C:39-3(j), 2C:39-9(h); N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.10, 265.11; D.C. Code § 7-2506.01(b).
3
“inherited from our English ancestors”); see Worman v. Healey, 922 F.3d 26, 30-31
(1st Cir. 2019), petition for cert. filed (U.S. Sept. 23, 2019) (No. 19-404); Ass’n of
N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 110 (3d Cir. 2018)
(affirming the denial of a preliminary injunction); Kolbe v. Hogan, 849 F.3d 114,
135, 138 (4th Cir.) (en banc), cert. denied, 138 S. Ct. 469 (2017); Fyock v. City of
Sunnyvale, 779 F.3d 991, 1001 (9th Cir. 2015) (affirming the denial of a preliminary injunction); Friedman v. City of Highland Park, 784 F.3d 406, 412 (7th Cir.), cert. denied, 136 S. Ct. 447 (2015);4 N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d
242, 261-64 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486
(2016); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1260-64 (D.C.
Cir. 2011). But see Duncan v. Becerra, 742 F. App’x 218, 221 (9th Cir. 2018)
(affirming the grant of a preliminary injunction).5 This Court, applying Vermont law, should reach the same result.
4 In a recent challenge to a “materially indistinguishable” LCM law enacted by a county in Illinois, the Seventh Circuit refused to “revisit [its] holding in Friedman.” Wilson v. Cook County, 937 F.3d 1028, 1029, 1036-37 (7th Cir. 2019). 5 The Ninth Circuit has thus upheld lower court rulings both denying and granting preliminary injunctions against LCM laws. Compare Fyock, 779 F.3d at 1000, with Duncan, 742 F. App’x at 221-22. As an unpublished disposition, however, Duncan, is non-precedential, and its divided panel relied heavily on the abuse-of-discretion standard of review and refused to reweigh the district court’s evidentiary determinations. 742 F. App’x at 221-22. The Ninth Circuit is presently considering Duncan on the merits, following summary judgment. Duncan v. Becerra, No. 19-55376 (appeal filed Apr. 4, 2019). 4
The right to bear arms enshrined in Vermont’s Constitution is fully compatible with restrictions on LCMs. Indeed, both this Court and the U.S. Supreme Court have affirmed that the right to bear arms “does not imperil every law regulating firearms.”
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion); State v.
Duranleau, 128 Vt. 206, 210, 260 A.2d 383, 386 (1969) (“[T]he language of
[Vermont’s] constitutional provision does not suggest that the right to bear arms is unlimited[.]”). Limiting the market for, or possession of, a particular type of firearm or firearm accessory, even if those limits burden a protected right, is well within the realm of permissible public safety regulation.6
6 For the reasons stated by Vermont and other amici, it is not clear that Vermont’s LCM law burdens conduct protected by Vermont’s right to bear arms in self-defense. Cf. Kolbe, 849 F.3d at 135-37 (LCMs are not protected under the Second Amendment because they are “like M-16 rifles”—i.e., “weapons that are most useful in military service”; they “enable a shooter to hit multiple human targets very rapidly” (internal quotation marks omitted)). Even if there is some burden associated with not being able to shoot more than 10 rounds without having to reload, the law does not “render any lawfully possessed firearms inoperable, nor does it restrict the number of magazines that an individual may possess.” Fyock, 779 F.3d at 999; Cuomo, 804 F.3d at 260 (same); Heller II, 670 F.3d at 1261-62 (same); Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d. at 118 (same).
5
ARGUMENT
I. The Right To Bear Arms Is Compatible With A Range Of State-Law Measures To Address Gun Violence And Gun Fatalities. This Court and the U.S. Supreme Court have each determined that the right to bear arms does not amount to “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626 (federal constitutional right); Duranleau, 128 Vt. at 210, 260 A.2d at 386 (state constitutional right is not “unlimited”). As relevant here, the right under the Vermont Constitution is textually committed to self-defense. Vt. Const., ch. I, art. 16 (“[T]he people have a right to bear arms for the defence of themselves[.]”).7 The Second Amendment similarly “protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald, 561 U.S. at 780 (plurality opinion); Heller, 554 U.S. at 626-27, 636. Further, within these parameters, a State may address the problem of gun violence, including the lethality of mass shootings, in a manner consistent with local needs and values. Duranleau, 128 Vt. at 211, 260
A.2d at 386 (legislature may place reasonable conditions on the Article 16 right); see McDonald, 561 U.S. at 785 (plurality opinion) (under the Second Amendment
“state and local experimentation with reasonable firearms regulations will continue”
7 The right is also textually committed to the purpose of militia service. Vt. Const., ch. I, art. 16 (“defence . . . of the State”). Defendant Misch has made no argument that Vermont’s LCM law burdens his ability to defend the State. 6
(emphasis added) (quotation marks and brackets omitted)). In restricting the possession of and market for LCMs, Vermont has made a constitutional choice.
A. The right to bear arms preserves States’ authority to enact firearm restrictions in furtherance of public safety.
States have primary responsibility for ensuring public safety, which includes reducing the likelihood that their citizens will fall victim to preventable firearm violence, and minimizing fatalities and injuries when that violence does occur. See
United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power . . . reposed in the States[] than the suppression of violent crime and vindication of its victims.”); Vt. Const., ch. I, art. 5 (“[T]he people of this state by their legal representatives, have the sole, inherent, and exclusive right of governing and regulating the internal police of the same.”). As States address the problem of firearm violence—and the lethality of mass shootings involving LCMs specifically—they “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” United States v. Lopez,
514 U.S. 549, 581 (1995) (Kennedy, J., concurring).
Indeed, the U.S. Supreme Court has explained that the federal codification of the right to keep and bear arms “by no means eliminates” States’ “ability to devise solutions to social problems that suit local needs and values.” McDonald, 561 U.S. at 785 (plurality opinion); see also id. at 877, 902-03 (Stevens, J., dissenting); id. at
7
926-27 (Breyer, J., dissenting). Within constitutional limits, policymakers retain “a variety of tools for combating” gun violence. Heller, 554 U.S. at 636. The Second
Amendment does not “protect the right of citizens to carry arms for any sort of confrontation, just as . . . the First Amendment [does not] protect the right of citizens to speak for any purpose.” Id. at 595 (emphasis in original); cf. McDonald, 561 U.S. at 802 (Scalia, J., concurring) (“No fundamental right—not even the First
Amendment—is absolute.”). The Court accordingly generated a list—which did
“not purport to be exhaustive”—of “presumptively lawful” regulations, such as prohibitions on carrying concealed weapons, bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in sensitive places, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”
Heller, 554 U.S. at 625, 626-27 & n.26.
The Vermont Constitution is in complete accord. This Court has explained that where “the statutory purpose is reasonable, as it must be assumed to be,” laws that “condition[] the unrestrained carrying and operation of firearms” are constitutional. Duranleau, 128 Vt. at 210, 260 A.2d at 386. This Court “presume[s] that the legislative act in question is valid unless it bears no just relation to the purposes underlying the police power or amounts to a plain and palpable invasion of constitutional rights.” State v. Curley-Egan, 2006 VT 95, ¶ 12, 180 Vt. 305, 310-
11, 910 A.2d 200, 204 (2006) (footnote and internal quotation marks omitted). In 8
other words, the mode of constitutional interpretation is not “so narrow as to present an obstacle to” the Legislature’s ability to define the “working details” of a policy, a range of which may be “possible and constitutional.” Turner v. Shumlin, 2017 VT
2, ¶ 24, 204 Vt. 78, 95, 163 A.3d 1173, 1183 (2017) (internal quotation marks omitted).
Indeed, many States, including the Amici States—consistent with the flexibility provided by the federal and their own state constitutional provisions— have addressed the threat to public safety posed by firearm violence along a variety of tracks. See Ex parte Guerra, 94 Vt. 1, 110 A. 224, 227 (1920) (“Subject to
[federal] constitutional limitations, a state Legislature is authorized to pass measures for the general welfare of the people of the state in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted.”); Adam
Winkler, The Reasonable Right to Bear Arms, 17 Stan. L. & Pol’y Rev. 597, 598
(2006) (noting the “uniform application of a deferential ‘reasonable regulation’ standard to laws infringing on the arms right”). This reflects that States are
“laboratories for devising solutions to difficult legal problems,” Oregon v. Ice, 555
U.S. 160, 171 (2009), and that, while firearm violence is a national phenomenon,
“conditions and problems differ from locality to locality,” McDonald, 561 U.S. at
783 (plurality opinion).
9
For instance, the Federal Bureau of Investigation (“FBI”) has identified many factors “known to affect the volume and type of crime occurring from place to place.”8 These factors include demographic conditions such as population density, composition, and stability, and the extent of urbanization; economic conditions such as median income, poverty level, and job availability; the strength of law enforcement; and the policies of other components of the criminal-justice system, including prosecutors, courts, and probation and correctional agencies. These and many other factors vary widely across States and within them. As a result, the number of murders and aggravated assaults committed with firearms varies significantly from State to State.9 There are also regional variations in the number of law enforcement officers killed by firearms in the line of duty.10 Because of such local and regional differences, an approach that may be appropriate or effective in one State may not be appropriate or effective in another.
8 FBI, Uniform Crime Reporting Statistics: Their Proper Use (May 2017), https://ucr.fbi.gov/ucr-statistics-their-proper-use (last visited Oct. 10, 2019). 9 See FBI, Murder: Crime in the United States 2018, tbl. 20, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-pages/tables/ table-20 (last visited Oct. 10, 2019); FBI, Aggravated Assault: Crime in the United States 2018, tbl. 22, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.- 2018/tables/table-22 (last visited Oct. 10, 2019). 10 See FBI, Law Enforcement Officers Killed and Assaulted, https://www.fbi.gov/services/cjis/ucr/leoka (last visited Oct. 10, 2019).
10
These differences help explain policymakers’ varied responses to firearm violence. Thirty-five States and the District of Columbia, for example, require a permit to carry a concealed firearm, but they afford different degrees of discretion to licensing authorities.11 Twenty-one States and the District of Columbia require some form of background check for certain firearms transactions.12 And nine States
(including Vermont) and the District of Columbia have enacted laws that restrict assault weapons, LCMs, or both.13 Even within restrictions on LCMs, there is a diversity of approaches. New Jersey, for example, prohibits the possession of LCMs regardless of when they were made or owned, with specified exemptions, N.J. Stat.
Ann. §§ 2C:39-1(y), 2C:39-3(j), while Vermont chose to grandfather LCMs lawfully possessed before the law’s effective date, 13 V.S.A. § 4021(c)(1)-(2).
Whatever measures a State may adopt, all States have an interest in maintaining the flexibility, within the constraints established by the U.S.
11 Law Ctr. To Prevent Gun Violence, Concealed Carry: Summary of State Law, http://smartgunlaws.org/gun-laws/policy-areas/guns-in-public/concealed-carry/#state (last visited Oct. 10, 2019). 12 Law Ctr. To Prevent Gun Violence, Universal Background Checks: Summary of State Law, http://smartgunlaws.org/gun-laws/policy-areas/background- checks/universal-background-checks/#state (last visited Oct. 10, 2019). 13 Law Ctr. To Prevent Gun Violence, Large Capacity Magazines, https://lawcenter.giffords.org/wp-content/uploads/2019/09/Giffords-Law-Center- Large-Capacity-Magazines.pdf. In 2019, 11 additional States introduced legislation to ban LCMs. Id. 11
Constitution and their own State constitutions, to enact regulations aimed at minimizing the adverse effects of gun violence while ensuring that law-abiding citizens may use arms in self-defense. Indeed, a State’s ability to craft innovative solutions is most pronounced in areas, like police powers and criminal justice, where
States have long been understood to possess special competencies. State v.
Diamondstone, 132 Vt. 303, 318 A.2d 654, 656 (1974) (“The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the states.” (citing Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1908))); cf.
Patterson v. New York, 432 U.S. 197, 201 (1977) (courts should “not lightly construe the Constitution so as to intrude upon” a State’s crime-fighting efforts).
Because the use of firearms touches on a range of public safety concerns, it is not possible “to draw from the profound ambiguities of [a constitutional provision] an invitation to courts to preempt this most volatile of political subjects and arrogate to themselves decisions that have been historically assigned to other, more democratic, actors.” Kolbe, 849 F.3d at 150 (Wilkinson, J., concurring); see
Friedman, 784 F.3d at 412. States and localities should not be prevented from adopting reasonable restrictions to combat advances in firearm technology, access, or use. Neither the policy choices of other States, nor the policy preferences of the criminal defendant here, should limit Vermont’s ability to respond to gun violence within its borders. 12
B. Vermont made a considered and well-supported judgment that restricting LCMs permissibly promotes public safety. As this Court has observed, the State’s “paramount obligation” is to “protect the safety and general welfare of the public.” Appeal of Newton Enters., 167 Vt.
459, 465, 708 A.2d 914, 918 (1998); accord, e.g., Cuomo, 804 F.3d at 261 (“It is beyond cavil that [New York and Connecticut] have substantial, indeed compelling, governmental interests in public safety and crime prevention” (internal quotation marks omitted)). Determinations made by other States, including the Amici States, that restricting LCMs will promote public safety and reduce the incidence and lethality of mass shootings—upheld against Second Amendment challenge by every federal court of appeals to have reviewed an LCM prohibition on the merits— strongly support Vermont’s well-considered judgment here. See Cuomo, 804 F.3d at 264 (crediting expert testimony that banning possession of LCMs may “prevent and limit shootings in the state over the long run”).14
14 The U.S. Supreme Court has recognized that States may rely not only on legislative records amassed by other jurisdictions, but also on the judicial decisions incorporating those records. See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (permitting litigants to rely on “studies and anecdotes pertaining to different locales altogether”); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51 (1986) (“Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the detailed findings summarized in the Washington Supreme Court’s Northend Cinema opinion” (internal quotation marks omitted)); City of Erie v. Pap’s A.M., 529 U.S. 277, 297 (2000) (recognizing that the City of Erie “could reasonably rely on the evidentiary foundation set forth in Renton and [Young v.]
13
As federal courts of appeals have recognized—on the basis of extensive records—LCMs are disproportionately used in mass shootings and result in increased wounds and fatalities. See Cuomo, 804 F.3d at 264 (because LCMs allow shooters to fire without pausing to reload, they “result in more shots fired, persons wounded, and wounds per victim than do other gun attacks” (internal quotation marks omitted)); Heller II, 670 F.3d at 1264 (LCMs “greatly increase the firepower of mass shooters”). Indeed, “[o]ne study of sixty-two mass shootings between 1982 and 2012 . . . found that the perpetrators were armed with . . . [LCMs] in 50% or more” of the attacks, and another showed that, in 1994, LCMs “were used in 31% to
41% of” murders of on-duty law enforcement officers. Kolbe, 849 F.3d at 126-27; see Fyock, 779 F.3d at 1000-01 (summarizing the evidence that LCMs “are disproportionately used in mass shootings as well as crimes against law enforcement”); Heller II, 670 F.3d at 1264 (noting that LCMs “tend to pose a danger to innocent people and particularly to police”). That LCMs are particularly lethal is by “design[]”: They are “most suitable for military and law enforcement
American Mini Theatres[, Inc., 427 U.S. 50 (1976)]”). As Vermont’s brief explains, the Vermont legislature considered testimony from dozens of witnesses, both for and against the legislation, and an extensive documentary record, including the decisions in Cuomo and Kolbe. See generally, S. 55 (Act 94), Bill Status, https://legislature.vermont.gov/bill/status/2018/S.55 (last visited Oct. 10, 2019). 14
applications” and they “enhance a shooter’s capacity to shoot multiple human targets very rapidly.” Kolbe, 849 F.3d at 125 (internal quotation marks omitted).
Vermont’s decision to restrict LCMs means that a mass shooter must reload his weapon more frequently to continue his onslaught. This provides would-be victims with a chance to escape the carnage and for law enforcement officers to apprehend the assailant. See Kolbe, 849 F.3d at 127; Heller II, 670 F.3d at 1264
(noting that “the 2 or 3 second pause during which a criminal reloads his firearm can be of critical benefit to law enforcement” (internal quotation marks omitted)).
“Reducing the capacity of the magazine to which a shooter has access means that the shooter will have fewer bullets immediately available and will need to either change weapons or reload to continue shooting.” Ass’n of N.J. Rifle & Pistol Clubs,
910 F.3d at 119.
High-profile mass shootings demonstrate the life-saving impact of giving bystanders more opportunities to flee, shelter, or intervene. Id. at 113 (citing incidents). At Sandy Hook Elementary School, “[n]ine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom.” Kolbe, 849 F.3d at 120. In the 2011 mass shooting in Tucson, where six were killed and thirteen were wounded, bystanders disarmed the shooter when he paused to reload his gun. Kevin Dolak & Justin Weaver,
Woman Wrestled Fresh Ammo Clip from Tucson Shooter as He Tried to Reload, 15
ABC News (Jan. 9, 2011); see also H.R. Rep. No. 103-489, at 15 (1994), as reprinted in 1994 U.S.C.C.A.N. 1820 (commuters on the Long Island Railroad “overpowered” a mass shooter “while [he was] trying to reload”). And in 2018, between 30 and 35 patrons reportedly escaped a mass shooting at a bar in California when the gunman paused to reload after emptying his magazine. Katie Zezima, 12 People Killed,
Including Sheriff's Deputy, in ‘Horrific’ California Bar Shooting, Wash. Post (Nov.
8, 2018).
Conversely, there are almost no instances of people firing (or even needing to fire) more than ten bullets in self-defense. Evidence from the National Rifle
Association itself demonstrates that the “average number of shots fired in self- defense” between 1997-2001 and 2011-2013 was 2.2 or less. Kolbe, 849 F.3d at
127. Courts often observe the paucity of evidence that LCMs are used or are well- suited for this purpose. See, e.g., id. (noting that no party “could identify a single incident in which a Marylander . . . needed to fire more than ten rounds[] to protect herself”); Cuomo, 804 F.3d at 260 (an LCM prohibition does “not . . . substantially affect [individuals’] ability to defend themselves” (quoting Heller II, 670 F.3d at
1262)). When the First Circuit recently examined Massachusetts’s LCM law, it noted that “when asked directly, not one of the plaintiffs or their six experts could . . . identify even a single example of a self-defense episode in which ten or more shots were fired.” Worman, 922 F.3d at 37. The court therefore concluded 16
that, “[v]iewed as a whole, the record suggests that wielding [LCMs] for self-defense within the home is tantamount to using a sledgehammer to crack open the shell of a peanut.” Id. Indeed, the Amici States are not aware of any evidence that LCMs are commonly used for self-defense.15
Legislators in Vermont therefore acted well within constitutional limits when they placed restrictions on magazine capacity. As federal courts considering the
Second Amendment have concluded, the best way to evaluate how crime, self- defense, and LCMs relate to each other “is through the political process and scholarly debate.” Friedman, 784 F.3d at 412. This Court, too, has explained that where—as here—the Legislature has evaluated data and drawn a conclusion about what is in the best interest of public safety, the Court will “accord deference to the
[Legislature’s] policy choices.” Badgley v. Walton, 2010 VT 68, ¶ 38, 188 Vt. 367,
384, 10 A.3d 469, 481 (2010); cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
665 (1994) (courts “accord substantial deference” to a State’s “predictive judgment[]”); Worman, 922 F.3d at 41 (“[W]e are obliged to cede some degree of
15 By contrast, even when used by law-abiding civilians, LCMs remain dangerous because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.” Heller II, 670 F.3d at 1263-64; see also Kolbe, 849 F.3d at 127 (“[W]hen inadequately trained civilians fire weapons equipped with large-capacity magazines, they tend to fire more rounds than necessary.”). 17
deference to the decision of the Massachusetts legislature about how best to regulate the possession and use of [LCMs].”).
Neither Vermont nor any other State should be prevented from
“experimenting and exercising their own judgment in an area to which [they] lay claim by right of history and expertise.” Lopez, 514 U.S. at 583 (Kennedy, J., concurring). To do so “would be the gravest and most serious of steps,” as it would
“impair the ability of government to act prophylactically” on a “life and death subject.” Kolbe, 849 F.3d at 150 (Wilkinson, J., concurring); cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“Denial of the right to experiment may be fraught with serious consequences to the nation.”).
18
CONCLUSION This Court should hold that Vermont’s law restricting LCMs is constitutional.
Respectfully submitted,
KARL A. RACINE Attorney General for the District of Columbia
LOREN L. ALIKHAN Solicitor General
CAROLINE S. VAN ZILE Deputy Solicitor General
JONATHAN T. ROSE (ERN #6128) SONYA L. LEBSACK (ERN #10788) Dunkiel Saunders Elliott Assistant Attorney General Raubvogel & Hand, PLLC Office of the Solicitor General
91 College Street Office of the Attorney General P.O. Box 545 441 4th Street, NW, Suite 630 South Burlington, VT 05401-0545 Washington, D.C. 20001 (802) 860-1003 (202) 724-5667 [email protected] [email protected]
Submitted October 14, 2019
19
Also on behalf of:
XAVIER BECERRA WILLIAM TONG Attorney General Attorney General State of California State of Connecticut 455 Golden Gate Avenue, Suite 11000 55 Elm Street San Francisco, CA 94102 Hartford, CT 06106
KATHLEEN JENNINGS CLARE E. CONNORS Attorney General Attorney General State of Delaware State of Hawaii 820 North French Street 425 Queen Street Wilmington, DE 19801 Honolulu, HI 96813
KWAME RAOUL BRIAN E. FROSH Attorney General Attorney General State of Illinois State of Maryland 100 West Randolph Street 200 Saint Paul Place Chicago, IL 60601 Baltimore, MD 21202
MAURA HEALEY DANA NESSEL Attorney General Attorney General Commonwealth of Massachusetts State of Michigan One Ashburton Place, 20th Floor P.O. Box 30212 Boston, MA 02108 Lansing, MI 48909
KEITH ELLISON GURBIR S. GREWAL Attorney General Attorney General State of Minnesota State of New Jersey 75 Rev. Dr. Martin Luther R.J. Hughes Justice Complex King Jr. Blvd. P.O. Box 080 St. Paul, MN 55155 Trenton, NJ 08625
HECTOR BALDERAS LETITIA JAMES Attorney General Attorney General State of New Mexico State of New York 408 Galisteo Street 28 Liberty Street Santa Fe, NM 87501 New York, NY 10005
ELLEN F. ROSENBLUM JOSH SHAPIRO Attorney General Attorney General State of Oregon State of Pennsylvania 1162 Court Street NE Strawberry Square Salem, OR 97301 Harrisburg, PA 17120
PETER F. NERONHA MARK R. HERRING Attorney General Attorney General State of Rhode Island Commonwealth of Virginia 150 South Main Street 202 North Ninth Street Providence, RI 02903 Richmond, VA 23219
ROBERT W. FERGUSON Attorney General State of Washington P.O. Box 40100 Olympia, WA 98504
CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation in Vermont
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JONATHAN T. ROSE
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JONATHAN T. ROSE
CERTIFICATE OF SERVICE I certify that on October 14, 2019, copies of this brief were served through electronic mail and first-class mail to the following attorneys of record:
Benjamin D. Battles Ultan Doyle Vermont Solicitor General 109 State Street, Third Floor Montpelier, VT 05609-1001 [email protected] [email protected] [email protected] [email protected] [email protected]
Rebecca Turner Office of the Defender General 6 Baldwin Street, 4th Floor Montpelier, VT 05633-3301 [email protected] [email protected]
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JONATHAN T. ROSE
IN THE SUPREME COURT OF THE STATE OF VERMONT DOCKET NO. 2019-266
State of Vermont, Appellant
v.
Max Misch, Defendant-Appellee
APPEAL FROM SUPERIOR COURT, CRIMINAL DIVISION (BENNINGTON) Docket No. 173-2-19 Bncr
AMICUS BRIEF OF GIFFORDS LAW CENTER, VERMONT MEDICAL SOCIETY, AND GUN SENSE VERMONT IN SUPPORT OF APPELLANT STATE OF VERMONT
Of Counsel: Tristram J. Coffin, Esq. J. Adam Skaggs, Esq. Jennifer McDonald, Esq. Giffords Law Center to Prevent Gun Violence William T. Clark, Esq. 223 West 38th St. #90 Downs Rachlin Martin, PLLC New York, NY 10018 P.O. Box 190 (917) 680-3473 Burlington, VT 05402-190 (802) 863-2375
Hannah Shearer, Esq. Bridget C. Asay, Esq. Giffords Law Center to Prevent Gun Violence Michael Donofrio, Esq. 268 Bush St. #555 Stris & Maher LLP San Francisco, CA 94104 28 Elm Street, 2nd Floor (415) 433-2062 Montpelier, VT 05602 (802) 858-4285
Counsel for Amici Curiae TABLE OF CONTENTS
Table of Contents ...... ii
Table of Authorities ...... iii
Interest of Amici Curiae ...... 1
Introduction and Summary of Argument ...... 2
I. Vermont’s LCM ban survives any standard of review...... 4
A. LCMs allow shooters to kill more people and thus pose an unjustifiable threat to public health and safety...... 5 B. Courts have upheld LCM bans as permissible regulations to protect public safety and reduce crime...... 13 C. The Vermont Legislature relied on substantial and compelling evidence to address an unprecedented risk to public safety...... 16 II. The Vermont Constitution permits reasonable restrictions on dangerous weapons to protect public safety...... 22
A. The rights protected by Article 16 do not extend to military-style weapons that are not reasonably needed or useful for self-defense...... 22 B. Consistent with text, history, and precedent, the Court should construe Article 16 in a manner that respects the Legislature’s traditional authority to regulate public safety...... 25 C. The Court should construe Article 16 in a manner that affords deference to reasonable legislative judgments ...... 30 Conclusion ...... 33
ii TABLE OF AUTHORITIES
Page(s)
Cases
Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106 (3d Cir. 2018) ...... 12, 13
Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469 ...... 27, 31
Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999) ...... passim
Bleiler v. Chief, Dover Police Dep’t, 927 A.2d 1216 (N.H. 2007) ...... 30
Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632 (Del. 2017) ...... 1
Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997) ...... 31
Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016) ...... 13
District of Columbia v. Heller, 554 U.S. 570 (2008) ...... passim
Duncan v. Becerra, 742 F. App'x 218 (9th Cir. 2018) ...... 14
Duncan v. Becerra, No. 17-CV-1017-BEN-JLB, 2019 WL 1510340 (S.D. Cal. Apr. 4, 2019) ...... 14
Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) ...... 1, 13, 15
Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) ...... 13, 14
Ex parte Guerra, 94 Vt. 1, 110 A. 224 (1920) ...... 25
iii Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)...... 14
Hertz v. Bennett, 751 S.E.2d 90 (Ga. 2013) ...... 29
Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) ...... passim
Lincoln v. Smith, 27 Vt. 328 (1855) ...... 26
McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) ...... 1
N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015) ...... 13, 14
Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995) ...... 11
National Shooting Sports Foundation, Inc. v. California, No. S239397, 2018 Cal. LEXIS 4696 (Cal. Jun. 28, 2018) ...... 1
People v. Schwartz, No. 291313, 2010 WL 4137453 (Mich. Ct. App. Oct. 21, 2010) ...... 29
State v. Christian, 307 P.3d 429 (Or. 2013) ...... 29
State v. Cole, 665 N.W.2d 328 (Wis. 2003) ...... 29
State v. Curley-Egan, 2006 VT 95, 180 Vt. 305, 910 A.2d 200...... 25
State v. Duranleau, 128 Vt. 206, 260 A.2d 383 (1969) ...... 25, 26
State v. Fernandez, 808 S.E.2d 362 (N.C. Ct. App. 2017) ...... 29
State v. Flowers, 808 N.W.2d 743, 2011 WL 6156961 (Wis. Ct. App. Dec. 13, 2011) ...... 29
State v. Jorgenson, 312 P. 3d 960 (Wash. 2013) ...... 29, 30
iv State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991) ...... 26
State v. Record, 150 Vt. 84, 548 A.2d 422 (1988) ...... 26
State v. Sawyer, 2018 VT 43, 187 A.3d 377 ...... 3, 16
Turner v. Shumlin, 2017 VT 2, 163 A.3d 1173 ...... 30
Vermont Supreme Court Admin. Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036 (1990) ...... 27, 28
Wilson v. Cook Cty., No. 18-2686, 2019 WL 4063568 (7th Cir. Aug. 29, 2019) ...... 15
Worman v. Healey, 922 F.3d 26 (1st Cir. 2019) ...... 13
Zullo v. State, 2019 VT 1, 205 A.3d 466 ...... 28, 30
Constitution and Statutes
Vt. Const. ch. I, art. 6 ...... 21
Vt. Const. ch. I, art. 7 ...... 27
Vt. Const. ch. I, art. 12 ...... 27, 28
Vt. Const. ch. I, art. 16 ...... 22
10 V.S.A. § 4704 ...... 20
13 V.S.A. §§ 4007-4008 ...... 21
13 V.S.A. § 4010 ...... 20
13 V.S.A. § 4021 ...... 4, 24
1896 Vt. Acts & Resolves No. 111 ...... 20
1904 Vt. Acts & Resolves No. 152, § 1 ...... 20
1912 Vt. Acts & Resolves No. 229 ...... 21
v 1912 Vt. Acts & Resolves No. 237 ...... 20
1923 Vt. Acts & Resolves No. 130 ...... 20
Boulder Revised Code §§ 5-8-2, 5-8-28 ...... 5
Cal. Penal Code §§ 16740, 32310 (West 2015) ...... 4
Colo. Rev. Stat. Ann. §§ 18-12-301(2), 18-12-302 (West 2013)...... 4
Conn. Gen. Stat. Ann. §§ 53- 202w(a)(1), 53-202w(b) (West 2013) ...... 4
Cook Cnty., Ill., Code of Ordinances §§ 54-211 – 54-213 ...... 5
D.C. Code Ann. § 7-2506.01(b) (West 2012) ...... 4
Haw. Rev. Stat. Ann. §§ 134-1, 134-4, 134-8(c) (West 2013) ...... 4
Mass. Gen. Laws Ann. ch. 140, §§ 121, 131M (West 2014) ...... 4
Md. Code Ann., Crim. Law §§ 4-306(b)(1) (West 2013) ...... 4
N.J. Stat. Ann. §§ 2C:39-1(y), 2C:39-3(j), 2C:39-9(h) (West 2014) ...... 4
N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.10 (McKinney 2018) ...... 4
S.F. Police Code § 619 ...... 5
Sunnyvale, Cal., Municipal Code § 9.44.050 ...... 5
Other Authorities
159 Cong. Rec. S2743 (daily ed. Apr. 17, 2013) ...... 7
2017 Adj. Sess., No. 94 ...... 4
Sherry Barkas, California Massacre: Officers Relive Terror Attack, Desert Sun (Nov. 29, 2016), https://www.desertsun.com/story/news/local/rancho- mirage/2016/11/30/san-bernardino-mass-shootings-one-year-later- police-lt-michael-madden/94294804/ ...... 7
The Bennington evening banner (Bennington, Vt.), 16 March 1911. Chronicling America: Historic American Newspapers. Lib. of Congress, available at http://chroniclingamerica.loc.gov/lccn/sn95066012/1911-03-16/ed- 1/seq-2/ ...... 21
vi The Bennington evening banner (Bennington, Vt.), 23 March 1912. Chronicling America: Historic American Newspapers. Lib. of Congress, available at https://chroniclingamerica.loc.gov/lccn/sn95066012/1912-03-23/ed- 1/seq-4/ ...... 20
Larry Buchanan et. al., Inside the Las Vegas Gunman’s Mandalay Bay Hotel Suite, N.Y. Times (Oct. 4, 2017), https://www.nytimes.com/interactive/2017/10/04/us/vegas-shooting- hotel-room.html ...... 6
Jennifer Calfas and Mahita Gajanan, What to Know About the South Texas Church Shooting, Time Magazine (Nov. 6, 2017), http://time.com/5010772/texas-sutherland-springs-church-shooting/ ...... 6
Sandy Candiotti, Greg Botelho, and Tom Watkins, Newtown Shooting Details Revealed in Newly Released Documents, CNN (Mar. 29, 2013), https://www.cnn.com/2013/03/28/us/connecticut-shooting- documents/index.html ...... 7
Castleton Poll Measures Vermonters’ Support for Gun Control Measures, Complete Poll Results (Feb. 21, 2013), http://www.castleton.edu/academics/undergraduate- programs/political-science/poll-results/castleton-poll-measures- vermonters-support-for-gun-control-measures/ ...... 18
Center for Disease Control and Prevention, Homicide Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/homicide_mortality/ho micide.htm ...... 24
Charging Document, State v. Sawyer, Docket No. 142-2-18 Rdcr (Sup. Ct. Rutland Unit, Feb. 16, 2008), https://www.documentcloud.org/documents/4380795-Jack-Sawyer- Charging-Document.html#document/p3 ...... 3
Jen Christensen, Gunshot Wounds Are Deadlier Than Ever As Guns Become Increasingly Powerful, CNN (Jun. 14, 2016), http://www.cnn.com/2016/06/14/health/gun-injuries-more-deadly/ ...... 8
James Dao, Aurora Gunman’s Arsenal: Shotgun, Semiautomatic Rifle, and, at the End, a Pistol, N.Y. Times (July 23, 2012), https://www.nytimes.com/2012/07/24/us/aurora-gumans-lethal- arsenal.html ...... 7
vii Jack Date et al., Orlando Shooter Bought Weapons at Nearby Gun Shop, ABC News (Jun. 13, 2016), https://abcnews.go.com /US/orlando-shooter-bought-weapons-nearby-gun- shop/story?id=39817471 ...... 7
John Donohue and Theodora Boulouta, That Assault Weapon Ban? It Really Did Work, N.Y. Times (Sept. 4, 2019), https://www.nytimes.com/2019/09/04/opinion/assault-weapon- ban.html ...... 10
Everytown Research, Analysis of Recent Mass Shootings (Dec. 2018), https://everytownresearch.org/reports/mass-shootings-analysis/ ...... 6
FBI Records: The Vault, 2011 Tucson Shooting Part 01 of 09, Case ID No. 89A-PX-86099, https://vault.fbi.gov/2011-tucson-shooting/2011- tucson-shooting%20Part%2001%20of%2009/view ...... 7
Federal Bureau of Investigations, Crime in the United States 2016, Table 3, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.- 2016/cius-2016 ...... 24
Final Report, Sandy Hook Advisory Commission (Mar. 6, 2015), http://www.shac.ct.gov/SHAC_Final_Report_3-6-2015.pdf ...... 13
Meagan Flynn, How Vermont’s NRA A-Rated Governor was “Shocked” into Backing New Gun Laws, Washington Post, (Apr. 12, 2018), https://www.washingtonpost.com/news/morning- mix/wp/2018/04/12/how-vermonts-nra-a-rated-governor-was- shocked-into-backing-new-gun-laws/ ...... 18
Nicole Gaudiano, Parkland and Santa Fe Schools Disclose Devastating After-Effects of Shootings, Politico (Oct. 10, 2019), https://www.politico.com/news/2019/10/10/parkland-santa-fe-school- shootings-effects-students-043687 ...... 32
J. George, Shoot to Kill, Baltimore Sun (Sep. 30, 2016), http://data.baltimoresun.com/news/shoot-to-kill/ ...... 8
Abbey Gingras, Herring Pleads Guilty to Four Murder Charges, Burlington Free Press, (July 6, 2017), https://www.burlingtonfreepress.com/story/news/2017/07/06/herring -hearing-homicide-barre-vt/453332001/ ...... 17
viii Paul Heintz, In Range: The Week That Changed Vermont’s Gun Politics, Seven Days (Feb. 28, 2018), https://www.sevendaysvt.com/vermont/in-range-the-week-that- changed-vermonts-gun-politics/Content?oid=13165766; ...... 18
Paul Heintz, Taylor Dobbs, and John Walters, In Historic Shift, Vermont’s GOP Governor and Democratic Leaders Embrace Gun- Control Measures, Seven Days (Feb. 22, 2018), https://www.sevendaysvt.com/OffMessage/archives/2018/02/22/in- dramatic-shift-vermonts-democratic-leaders-unite-behind- background-checks ...... 19
Peter Hirschfeld, In Less Than a Week, Scott and Lawmakers Put Gun Control Bills on Fast Track, VPR (Feb. 22, 2018), http://digital.vpr.net/post/less-week-scott-and-lawmakers-put-gun- control-bills-fast-track#stream/0 ...... 18
John Holl, New Jersey Man is Accused of Plotting Attack in Vermont, N.Y. Times (July 15, 2005), https://www.nytimes.com/2005/07/15/nyregion/new-jersey-man-is- accused-of-plotting-attack-in-vermont.html ...... 17
Alex Horton, Las Vegas Shooter Modified a Dozen Rifles to Shoot Like Automatic Weapons, Washington Post, Oct. 3, 2017, https://www.washingtonpost.com/news/checkpoint/wp/2017/10/02/vi deo-from-las-vegas-suggests-automatic-gunfire-heres-what-makes- machine-guns-different/? ...... 3
JOURNAL OF THE SENATE OF THE STATE OF VERMONT (1923) ...... 20
Alan J. Keays, Sawyer ruled ‘youthful offender’; heading to out-of-state treatment facility, VT Digger (Mar. 29, 2019), https://vtdigger.org/2019/03/29/sawyer-ruled-youthful-offender- heading-state-treatment-facility/ ...... 16
Testimony of Madison Knoop (March 14, 2018), Compilations of Constitutent Emails regarding S.55 (Entered on March 23, 2018), https://legislature.vermont.gov/committee/document/2018/18/Bill/85 082#documents-section ...... 19
D. Livingston et al., Unrelenting Violence: An Analysis of 6,322 Gunshot Wound Patients at a Level I Trauma Center J. Trauma Acute Care Surg. 2 (2014) ...... 8
ix Marjory Stoneman Douglas High School Public Safety Commission Report, Fl. Dep’t of Law Enforcement (Jan. 2, 2019), http://www.fdle.state.fl.us/MSDHS/CommissionReport.pdf ...... 6, 12
Mike McIntire, Weapons in San Bernardino Shootings Were Legally Obtained, N.Y. Times (Dec. 3, 2015), https://www.nytimes.com/2015/12/04/us/weapons-in-san- bernardino-shootings-were-legally-obtained.html ...... 7
Memorandum and Exs. in Support of Government’s Mot. for Detention, U.S. v. Greene, Docket No. 2:06-CR-22 (D. Vt. filed April 10, 2006), http://lawcenter.giffords.org/wp-content/uploads/2018/07/US-v.- Greene-ECF-14.pdf; http://lawcenter.giffords.org/us-v-greene-ecf-14- 1/; http://lawcenter.giffords.org/us-v-greene-ecf-14-2/ ...... 17
Veronica Miracle, Thousand Oaks Mass Shooting Survivor: “I Heard Somebody Yell, ‘He’s Reloading,’” ABC News, (Nov. 8, 2018), https://abc7.com/thousand-oaks-survivor-i-heard-somebody-yell-hes- reloading/4649166 ...... 13
“More People Dying from Gunshot Wounds as Chicago Marks 400 Homicides,” Chicago Tribune (Jul. 28, 2017), https://www.chicagotribune.com/news/breaking/ct-400-homicides- chicago-violence-shootings-20170728-story.html ...... 8, 9, 10
Joe Mozingo, ‘The worst thing imaginable:’ Bodies and blood everywhere after San Bernardino terrorist attack, DOJ report shows, L.A. Times, Sept. 9, 2016, https://www.latimes.com/local/lanow/la- me-san-bernardino-terror--20160909-snap-story.html ...... 3
Sam Petulla, Here is 1 Correlation Between State Gun Laws and Mass Shootings, CNN, (Oct. 5, 2017), https://www.cnn.com/2017/10/05/politics/gun-laws-magazines-las- vegas/index.html...... 11
Police Executive Research Forum, Guns and Crime: Breaking New Ground By Focusing on the Local Impact 24 (2010), https://www.issuelab.org/resources/14333/14333.pdf ...... 9
Wilson Ring, Christopher Williams Pleads Innocent in Shooting Spree, Rutland Herald, (Aug. 26, 2006), http://www.rutlandherald.com/articles/christopher-williams-pleads- innocent-in-shooting-spree/ ...... 17
x Laura Santhanam, What We Know About the El Paso and Dayton Shooters’ Guns, PBS (Aug. 6, 2019, 4:52 PM), https://www.pbs.org/newshour/nation/why-the-weapons-used-in- this-weekends-shootings-are-controversial ...... 6
A. Sauaia et al., Fatality and Severity of Firearm Injuries in a Denver Trauma Center, 2000-2013, 315 JAMA 2465 (Jun. 14, 2016) ...... 8
Gov. Phil Scott, Official Statement on Act 94 (Mar. 30, 2018), http://governor.vermont.gov/press-release/official-statement-s55- s221-h422 ...... 16
Brian J. Siebel, Brady Ctr. to Prevent Gun Violence, Assault Weapons: Mass Produced Mayhem (2008), http://www.american- manifesto.com/wordpress/wp-content/uploads/2008/10/mass- produced-mayhem.pdf ...... 23
Robert Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 Law & Cont. Probs. 55 (2017) ...... 19
Alain Stephens, The Gun Industry is Betting on Bigger High-Capacity Magazines, Trace (Jun. 12, 2019), https://www.thetrace.org/2019/06/gun-industry-high-capacity- magazine-size/ ...... 24
U.S. Dep’t of Justice, Federal Bureau of Investigation, A Study of the Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013 (June 2018), https://www.fbi.gov/file- repository/pre-attack-behaviors-of-active-shooters-in-us-2000- 2013.pdf/view ...... 11
Violence Policy Center, Backgrounder on Pistol and Ammunition Magazines Used in Attack on Representative Gabrielle Giffords and Others 1 (Jan. 2011), http://www.vpc.org/fact_sht/AZbackgrounder.pdf ...... 24
VPR — Vermont PBS Poll (July 2018), http://projects.vpr.org/vpr- vermont-pbs-poll-july-2018 ...... 18
Vt. Federation of Sportsmen’s Clubs et al. v. Birmingham, Dkt. No. 224-4-18 Wncv (Vt. Sup. Ct. July 24, 2018) ...... 1
J. Walters, Thousands Attend March for Our Lives Rally in Montpelier, Seven Days (Mar. 24, 2018), https://www.sevendaysvt.com/OffMessage/archives/2018/03/24/walt ers-thousands-attend-march-for-our-lives-rally-in-montpelier; ...... 17
xi Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America (2011) ...... 19
Adam Winkler, The Reasonable Right to Bear Arms, 17 Stan. L. & Pol’y Rev. 593 (2006) ...... 29
Holly Yan et al., The Dayton Gunman Killed 9 People by Firing 41 Shots in 30 Seconds. A High-Capacity Rifle Helped Enable that Speed, CNN (Aug. 5, 2019, 5:57 PM), https://www.cnn.com/2019/08/05/us/dayton-monday-shooter- stopped-in-seconds/index.html ...... 6
xii INTEREST OF AMICI CURIAE
Amicus curiae Giffords Law Center to Prevent Gun Violence, formerly the
Law Center to Prevent Gun Violence, is a national, nonprofit organization dedicated to reducing gun deaths in America. The organization was founded in 1993 after a gun massacre at a San Francisco law firm, perpetrated by a shooter armed with semiautomatic pistols and large-capacity magazines, and was renamed Giffords
Law Center in October 2017 after joining forces with the gun-safety organization founded by former Congresswoman Gabrielle Giffords. Today, the organization provides legal expertise in support of effective gun safety laws, and has filed amicus briefs in District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of
Chicago, Ill., 561 U.S. 742 (2010), Friedman v. City of Highland Park, 784 F.3d 406
(7th Cir. 2015), Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), Bridgeville
Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632 (Del. 2017), National Shooting
Sports Foundation, Inc. v. California, No. S239397, 2018 Cal. LEXIS 4696 (Cal.
Jun. 28, 2018), Vt. Federation of Sportsmen’s Clubs et al. v. Birmingham, Dkt. No.
224-4-18 Wncv (Vt. Sup. Ct. July 24, 2018), and numerous other cases.
Amicus curiae Vermont Medical Society is a nonprofit member service organization with over 2,500 members, representing about 60% of practicing physicians and physician assistants in Vermont. It is dedicated to protecting the health of all Vermonters and to improving the environment in which Vermont physicians and physician assistants practice medicine. Consistent with its longstanding policy position, the Vermont Medical Society supports legislation like
1 Act 94 that restricts the sale and private ownership of large-capacity magazines.
Vermont pediatrician Dr. Rebecca Bell testified in support of Act 94 on behalf of both the Vermont Medical Society and the Vermont Chapter of the American
Academy of Pediatrics, explaining why firearms injuries and deaths are a public health crisis.
Amicus curiae GunSense Vermont, Inc. is a grassroots Vermont organization formed in 2013 following the shooting at the Sandy Hook elementary school in
Connecticut. GunSense Vermont represents a growing coalition of concerned
Vermonters who support common-sense laws designed to save lives and reduce gun violence. Its members include gun owners, non-gun owners, members of all three major political parties in Vermont, and others who recognize that gun violence poses a serious threat to public safety. GunSense Vermont supported Act 94, including its restriction on large-capacity magazines.
INTRODUCTION AND SUMMARY OF ARGUMENT
Large capacity magazines (“LCMs”) holding more than 10 rounds of ammunition—in some cases up to 100 rounds—allow shooters to inflict mass casualties by continuously firing without pausing to reload. The fatality and injury numbers are staggering and speak for themselves. In 2011, a gunman at
Congresswoman Gabrielle Giffords’ constituent meeting in Tucson, Arizona fired 33 rounds in 15 seconds, hitting 19 victims and killing six; in 2012, the Sandy Hook gunman fired 154 rounds in minutes, killing 26 children and teachers; in 2015, the
San Bernardino shooters shot over 100 rounds in three minutes, hitting 36 and
2 killing 14; in 2016, the Orlando gunman shot over 100 people, killing 49; in 2017,
the Las Vegas gunman killed 58 and injured almost 500, firing nearly continuously
into a crowd for approximately ten minutes; and in 2018, the shooter in Parkland,
Florida used 30 to 40 round magazines to shoot 34 students, faculty, and staff and
kill 17 of them.1 LCMs are the common denominator.
The day after the Parkland school shooting last year, Vermonters were jolted
by a frightening near-miss: the state police arrested an 18-year-old man who had
detailed plans to use an AR-15 rifle, a 9mm handgun, and a 12-gauge shotgun to
“beat the highest casualty count of all the other school shootings” at Fair Haven
High School. He specifically planned to purchase ammunition that “he believed
would cause greater casualties and injuries.”2 See State v. Sawyer, 2018 VT 43, ¶ 7,
187 A.3d 377, 381 (2018) (noting that the defendant “told the officers that he
wanted to exceed the body count from the Virginia Tech shooting and that he had
chosen his ammunition accordingly”).
Following two months of hearings and deliberation, in April 2018 the
Vermont Legislature passed several measures aimed at preventing gun
1 See e.g., Alex Horton, Las Vegas Shooter Modified a Dozen Rifles to Shoot Like Automatic Weapons, Washington Post, Oct. 3, 2017, available at https://www.washingtonpost.com/news/checkpoint/wp/2017/10/02/video-from-las-vegas- suggests-automatic-gunfire-heres-what-makes-machine-guns-different/?; Joe Mozingo, ‘The worst thing imaginable:’ Bodies and blood everywhere after San Bernardino terrorist attack, DOJ report shows, L.A. Times, Sept. 9, 2016, available at https://www.latimes.com/local/lanow/la-me-san-bernardino-terror--20160909-snap- story.html 2 Charging Document, State v. Sawyer, Docket No. 142-2-18 Rdcr (Sup. Ct. Rutland Unit, Feb. 16, 2008), https://www.documentcloud.org/documents/4380795-Jack-Sawyer- Charging-Document.html#document/p3.
3 violence. See 2017 Adj. Sess., No. 94 (“Act 94”). Act 94 included a ban on the manufacture, possession, transfer, sale, purchase, or receipt in Vermont of
LCMs. Id. § 8 (codified at 13 V.S.A. § 4021). Vermont’s LCM legislation is similar to laws in other jurisdictions that have been upheld by the First,
Second, Third, Fourth, Seventh, and D.C. Circuits, and by other state and federal courts. See infra § I.B.
This Court should affirm the decision below. First, Act 94’s LCM restrictions are constitutional under any standard of review. LCMs pose an unjustifiable risk to public health and safety, as evidenced by history and common sense and as reflected in the decisions by numerous federal and state courts upholding similar laws. Second, the Court should reject Defendant’s unprecedented and extreme interpretation of Article 16 of the Vermont Constitution. Consistent with precedent construing Article 16 and other provisions of the state constitution, the Court should defer to the Legislature’s measured judgment that LCMs pose an unacceptable risk to public health and safety.
ARGUMENT
I. Vermont’s LCM ban survives any standard of review.
When Governor Scott signed Act 94, Vermont joined state and local governments across the country that have saved lives by banning LCMs.3 LCMs are
3 See Cal. Penal Code §§ 16740, 32310 (West 2015); Colo. Rev. Stat. Ann. §§ 18-12- 301(2), 18-12-302 (West 2013); Conn. Gen. Stat. Ann. §§ 53- 202w(a)(1), 53-202w(b) (West 2013); D.C. Code Ann. § 7-2506.01(b) (West 2012); Haw. Rev. Stat. Ann. §§ 134-1, 134-4, 134-8(c) (West 2013); Md. Code Ann., Crim. Law §§ 4-306(b)(1) (West 2013); Mass. Gen. Laws Ann. ch. 140, §§ 121, 131M (West 2014); N.J. Stat. Ann. §§ 2C:39-1(y), 2C:39-3(j), 2C:39-9(h) (West 2014); N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.10 (McKinney 2018);
4 repeatedly and predictably used in mass shootings and attacks on law enforcement
officers because they allow shooters to fire more bullets without stopping. Shooters
use LCMs to kill and wound more people—more parents, teachers, police officers,
students, and children—much more quickly than they otherwise could with a single
weapon. LCMs are intended for military-style assaults. They are not necessary or
suitable for self-defense.
Act 94’s ban on LCMs satisfies any level of judicial scrutiny. Multiple federal
courts have upheld LCM restrictions under the Second Amendment, even applying
heightened scrutiny. As explained below, see infra Part II, the Vermont
Constitution permits reasonable regulations of firearms and does not require courts
to apply heightened scrutiny. But with respect to Act 94, the State’s indisputable
interest in public safety is so compelling that the standard of review does not
matter. The horrific toll of casualties and injuries from mass shootings and
everyday gun violence confirms that Act 94’s ban on LCMs survives scrutiny under
any standard of review.
A. LCMs allow shooters to kill more people and thus pose an unjustifiable threat to public health and safety.
With LCMs, a shooter can fire more bullets without pausing to reload,
inflicting mass casualties in an extremely short timeframe using a single weapon.
This fact amply justifies Act 94. A review of mass shootings between 2009 and 2017
Cook Cnty., Ill., Code of Ordinances §§ 54-211 – 54-213; Boulder Revised Code §§ 5-8-2, 5-8- 28; S.F. Police Code § 619; Sunnyvale, Cal., Municipal Code § 9.44.050. California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, and the District of Columbia define an LCM as a magazine capable of holding over 10 rounds, while Colorado defines an LCM as a magazine capable of holding over 15 rounds.
5 found that shootings involving LCMs resulted in twice as many fatalities, with 14
times as many injuries per incident on average, compared to those without.4 Indeed,
the horrific nature of mass shootings involving LCMs is now burned into the
national consciousness and has irreparably scarred communities across the country:
• August 2019: A gunman in Dayton, Ohio used an assault weapon and a drum magazine that held 100 rounds to fire at least 41 rounds of ammunition in under 30 seconds, killing nine and wounding 26 others.5 Just thirteen hours earlier in Texas, a shooter at an El Paso Walmart used large-capacity magazines to kill 22 people and injure 24 others.6
• February 2018: A gunman used a weapon equipped with 30- to 40-round magazines to kill 17 students and educators at a high school in Parkland, Florida.7
• November 2017: A gunman massacred 26 worshippers and injured 20 others during a church service in Sutherland Springs, Texas. Law enforcement “collected hundreds of shell casings from the church, including 15 magazines with 30 rounds each.”8
• October 2017: A gunman opened fire from the 32nd floor of a hotel in Las Vegas, killing 58 people and injuring hundreds. He was armed with at least 20 firearms, including two assault rifles and 12 LCMs – each holding up to 100 rounds.9
4 Everytown Research, Analysis of Recent Mass Shootings (Dec. 2018), https://everytownresearch.org/reports/mass-shootings-analysis/. 5 Holly Yan et al., The Dayton Gunman Killed 9 People by Firing 41 Shots in 30 Seconds. A High-Capacity Rifle Helped Enable that Speed, CNN (Aug. 5, 2019, 5:57 PM), https://www.cnn.com/2019/08/05/us/dayton-monday-shooter-stopped-in-seconds/index.html. 6 Laura Santhanam, What We Know About the El Paso and Dayton Shooters’ Guns, PBS (Aug. 6, 2019, 4:52 PM), https://www.pbs.org/newshour/nation/why-the-weapons-used-in- this-weekends-shootings-are-controversial 7 See Marjory Stoneman Douglas High School Public Safety Commission Report, Fl. Dep’t of Law Enforcement, at 32, 262-63 (Jan. 2, 2019), available at http://www.fdle.state.fl.us/MSDHS/CommissionReport.pdf. 8 Jennifer Calfas and Mahita Gajanan, What to Know About the South Texas Church Shooting, Time Magazine, (Nov. 6, 2017), http://time.com/5010772/texas-sutherland- springs-church-shooting/. 9 Larry Buchanan et. al., Inside the Las Vegas Gunman’s Mandalay Bay Hotel Suite, N.Y. Times, (Oct. 4, 2017), https://www.nytimes.com/interactive/2017/10/04/us/vegas- shooting-hotel-room.html.
6 • June 2016: A gunman entered an Orlando, Florida nightclub with 30-round magazines and a semiautomatic rifle, shooting over 100 people and killing 49. His victims “suffered more than 200 gunshot wounds.”10
• December 2015: Assailants shot 36 people in less than four minutes in an attack in San Bernardino, California.11 The shooters were armed with “at least four high-capacity magazines and more than a thousand rounds of ammunition.”12
• December 2012: A gunman killed 26 people at Sandy Hook Elementary School in Newtown, Connecticut. Twenty of the dead were young children. The gunman was armed with a Bushmaster XM-15 assault rifle, two handguns, multiple 30-round magazines, and hundreds of rounds of ammunition.13
• July 2012: A gunman using an assault weapon equipped with a 100-round drum magazine opened fire in a movie theater in Aurora, Colorado, shooting 58 people and killing 12.14
• January 2011: A gunman opened fire at Representative Gabrielle Giffords’ constituent meeting in a supermarket parking lot in Tucson, Arizona. The gunman emptied his 30-round magazine, killing 6 and wounding 14, including Rep. Giffords.15 The victim killed by the shooter’s 13th bullet was a nine-year-old girl.16
10 Jack Date et al., Orlando Shooter Bought Weapons at Nearby Gun Shop, ABC News, (Jun. 13, 2016), https://abcnews.go.com/US/orlando-shooter-bought-weapons-nearby-gun- shop/story?id=39817471. 11 Sherry Barkas, California Massacre: Officers Relive Terror Attack, Desert Sun, (Nov. 29, 2016), https://www.desertsun.com/story/news/local/rancho-mirage/2016/11/30/san- bernardino-mass-shootings-one-year-later-police-lt-michael-madden/94294804/. 12 Mike McIntire, Weapons in San Bernardino Shootings Were Legally Obtained, N.Y. Times, (Dec. 3, 2015), https://www.nytimes.com/2015/12/04/us/weapons-in-san-bernardino- shootings-were-legally-obtained.html. 13 Sandy Candiotti, Greg Botelho, and Tom Watkins, Newtown Shooting Details Revealed in Newly Released Documents, CNN, (Mar. 29, 2013), https://www.cnn.com/2013/03/28/us/connecticut-shooting-documents/index.html. 14 James Dao, Aurora Gunman’s Arsenal: Shotgun, Semiautomatic Rifle, and, at the End, a Pistol, N.Y. Times, (July 23, 2012), https://www.nytimes.com/2012/07/24/us/aurora- gunmans-lethal-arsenal.html. 15 FBI Records: The Vault, 2011 Tucson Shooting Part 01 of 09, Case ID No. 89A-PX- 86099, at p.15 of 120, https://vault.fbi.gov/2011-tucson-shooting/2011-tucson- shooting%20Part%2001%20of%2009/view. 16 See 159 Cong. Rec. S2743 (daily ed. Apr. 17, 2013) (statement of Sen. Leahy) (quoting Judiciary Committee testimony of Captain Mark Kelly).
7 Medical research confirms that mass shootings involving LCMs are deadlier
than ever before.17 A research letter in the Journal of the American Medical
Association described how, even as trauma medicine has improved, more patients
are dying from gunshots because they have been shot multiple times, more
severely.18 Between 2000 and 2013 in one major American trauma center, the
“number of severe [gunshot wounds] per patient increased significantly” and, as a
result, patients were more likely to die from gunshots than they were in the
preceding decade.19 Increased gunshot mortality was unique: the trauma center did
not observe the same mortality spike for any other class of traumatic injury,
including stabbings, car crashes, and falls or accidents.20 Other hospitals, cities,
and states that have analyzed the number of gunshot wounds per patient have
observed the exact same trend: more victims coming in with multiple bullet wounds,
making them more likely to die from their injuries.21
17 See, e.g., Jen Christensen, Gunshot Wounds Are Deadlier Than Ever As Guns Become Increasingly Powerful, CNN, (Jun. 14, 2016), http://www.cnn.com/2016/06/14/health/gun- injuries-more-deadly/. 18 See A. Sauaia et al., Fatality and Severity of Firearm Injuries in a Denver Trauma Center, 2000-2013, 315 JAMA 2465 (Jun. 14, 2016), https://jamanetwork.com/journals/jama/fullarticle/2528198 (noting that in one trauma center, “[f]irearm in-hospital case-fatality rates increased, contrary to every other trauma mechanism, attributable to the rising severity and number of injuries”). 19 Id. 20 Id. 21 See J. George, Shoot to Kill, Baltimore Sun, (Sep. 30, 2016), http://data.baltimoresun.com/news/shoot-to-kill/ (in Maryland, statewide “the number of victims shot five to nine times doubled” from 2005 to 2015, “as did those shot 10 or more times”); D. Livingston et al., Unrelenting Violence: An Analysis of 6,322 Gunshot Wound Patients at a Level I Trauma Center, 76 J. Trauma Acute Care Surg. 2 (2014) (hospital in Newark, New Jersey saw that the percentage of patients with three or more bullet wounds increased from 10 percent in 2001 to 23 percent in 2011); see also “More People Dying from Gunshot Wounds as Chicago Marks 400 Homicides,” Chicago Tribune, (Jul. 28, 2017),
8 Social science research also documents strong links between LCM use, deadly mass shootings, and everyday gun crimes. A 2016 analysis of mass shooting data by
Dr. Louis Klarevas observed that high-fatality “gun massacres” have become deadlier and more frequent since 1966, reaching “unprecedented” levels in the past decade.22 The analysis concluded that LCM use is “the factor most associated with high death tolls in gun massacres.”23 A 2017 study by Dr. Christopher Koper similarly found that LCMs are “particularly prominent in public mass shootings and those resulting in the highest casualty counts.”24
The same study highlighted the role LCMs play in fueling gun crimes generally, finding that after federal magazine restrictions were repealed in 2004, criminals began using large-capacity firearms much more frequently. Such guns grew as a share of firearms recovered in crime by between 33% and 112% and were disproportionately used in murders of law enforcement officers.25 Police surveys corroborate these results by confirming that since 2004, nearly 40% of the nation’s major police departments reported marked increases in criminals’ use of magazines holding more than ten rounds of ammunition.26 As a result of the increased criminal
https://www.chicagotribune.com/news/breaking/ct-400-homicides-chicago-violence- shootings-20170728-story.html. 22 Louis Klarevas, Rampage Nation: Securing America from Mass Shootings, 78-79 (2016). 23 Id. at 257; see also id. at 215-25. 24 Christopher S. Koper et al., Criminal Use of Assault Weapons and High-Capacity Semi-Automatic Firearms: An Updated Examination of Local and National Sources, 95 J. of Urban Health (Issue 3) 313, 319 (2018). 25 Id. at 313. 26 Police Executive Research Forum, Guns and Crime: Breaking New Ground By Focusing on the Local Impact 24 (2010), https://www.issuelab.org/resources/14333/14333.pdf
9 use of LCMs, some police departments witnessed an uptick in gun fatalities despite fewer shootings, because shooters are firing more rounds during a single shooting.27
LCM bans are an evidence-based counter to the epidemic use of large magazines in mass shootings and crimes. Between 1994 and 2004, when federal law restricted the sale and possession of LCMs, both the number of large-scale mass shootings and the number of deaths during such shootings fell dramatically.28 A
2019 Stanford study found that the federal restrictions were “associated with a 25
percent drop in gun massacres” and “a 40 percent drop in fatalities” between 1994
and 2004, compared to the decade before their adoption.29 Another study concluded
that during the federal ban period, “mass shooting fatalities were 70% less likely to
occur.”30 Unfortunately, when the federal restrictions expired in 2004, deadly large- scale shootings spiked once more, and deaths involving LCMs quadrupled.31
With all this evidence that LCM access fuels deadly gun rampages, it is not
surprising that one Boston University researcher identified LCM bans as the
strongest driver of lower mass shooting rates at the state level. Using data from
Stanford University’s Mass Shooting Database, which defines a mass shooting as an
27 Id. at 12 (although Newark, New Jersey “made an enormous reduction in shooting incidents,” the city saw “an increase of 11 percent in our murder rate, because more rounds are being fired in particular incidents”). 28 See Klarevas at 240-243 & n. 40. 29 John Donohue and Theodora Boulouta, That Assault Weapon Ban? It Really Did Work, N.Y. Times, (Sept. 4, 2019), https://www.nytimes.com/2019/09/04/opinion/assault- weapon-ban.html. 30 Charles DiMaggio et al., Changes in US Mass Shooting Deaths Associated with the 1994-2004 Federal Assault Weapons Ban: Analysis of Open-Source Data, 86 Trauma Acute Car Surg. No. 1 11, 14 (2018). 31 Klarevas at 350 n.40.
10 event with three or more casualties, Dr. Michael Siegel found that state laws prohibiting LCMs correlate with a 63% lower rate of mass shootings.32 After
considering “many possible socio-demographic factors,” Dr. Siegel concluded that
whether “a state has a large capacity ammunition magazine ban is the single best predictor of the mass shooting rate in that state.”33
Opponents of magazine capacity regulation often respond to the expert
consensus that LCM bans lower mass shooting deaths by falsely claiming that LCM
regulations only harm law-abiding citizens engaging in self-defense because criminal shooters will ignore magazine restrictions or illegally obtain magazines out of state. In addition to being contradicted by the above evidence, this claim is wrong for two reasons. First, most mass shooters obtain their weapons lawfully. In a report examining active shootings from 2000 to 2013, the FBI concluded that “only very small percentages [of shooters] obtain[ed] a firearm illegally.”34 Lawmakers
therefore can, and should, assume that prohibiting LCM possession will deter
criminal use of LCMs. This type of reasonable assumption underlies virtually all
laws aimed at regulating dangerous products. Accord, e.g., Nat’l Paint & Coatings
Ass’n v. City of Chicago, 45 F.3d 1124, 1128-29 (7th Cir. 1995) (“Legislatures often
32 Sam Petulla, Here is 1 Correlation Between State Gun Laws and Mass Shootings, CNN, (Oct. 5, 2017), https://www.cnn.com/2017/10/05/politics/gun-laws-magazines-las- vegas/index.html. 33 Id. 34 U.S. Dep’t of Justice, Federal Bureau of Investigation, A Study of the Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013 at 7 (June 2018), https://www.fbi.gov/file-repository/pre-attack-behaviors-of-active-shooters-in-us-2000- 2013.pdf/view.
11 enact laws that reduce but cannot eliminate the effects of movements across municipal and state borders.”).
Second, responsible self-defense rarely if ever involves firing anywhere close to 10 rounds. National Rifle Association surveys show that on average, self-defense involves approximately two rounds. See Kolbe v. Hogan, 849 F.3d 114, 127 (4th Cir.
2017) (en banc) (“Studies of ‘armed citizen’ stories collected by the National Rifle
Association, covering 1997-2001 and 2011-2013, found that the average number of
shots fired in self-defense was 2.2 and 2.1, respectively”); Ass’n of New Jersey Rifle
& Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106, 121 n.25 (3d Cir.
2018) (“The record reflects that most homeowners only use two to three rounds of
ammunition in self-defense.”). These statistics confirm that a 10-round magazine is
more than enough for law-abiding, responsible citizens to defend themselves.
All this research, evidence, and testimony confirms what common sense and
real-life experience tell us: When a person intent on killing can keep shooting
without pause, more people will be injured and killed. When that shooter has to
pause to reload, fewer people will be injured and killed. There are numerous,
powerful examples illustrating the importance of this momentary pause to reload:
• When the Parkland shooter (who used 30- and 40-round LCMs) paused to reload, eight students were able to escape down a stairwell and survive the shooting.35
35 Marjory Stoneman Douglas High School Public Safety Commission Report, Fl. Dep’t of Law Enforcement, at 32 (Jan. 2, 2019), available at http://www.fdle.state.fl.us/MSDHS/CommissionReport.pdf; see also id. at 262 (“Eight 30- and 40-round capacity magazines were recovered from the scene.”)
12 • During the mass shooting in Thousand Oaks, California (where the shooter used an LCM), rescuers were able to pull people through windows to safety as the gunman paused to reload.36
• When the Sandy Hook shooter (who used 30-round LCMs) stopped to reload, nine children were able to flee to safety.37
Restricting the sale and possession of LCMs saves lives, without
compromising self-defense. The State’s choice to do so falls well within its power to protect the health and safety of all Vermonters, regardless of the standard of review.
B. Courts have upheld LCM bans as permissible regulations to protect public safety and reduce crime.
With Act 94, Vermont joined eight other states and the District of Columbia,
as well as a number of municipalities, that have banned or restricted access to
LCMs. Multiple federal appellate courts, including the Second Circuit, have upheld
these measures. Worman v. Healey, 922 F.3d 26, 30-31 (1st Cir. 2019); Ass’n of N.J.
Rifle & Pistol Clubs, 910 F.3d at 110; Kolbe, 849 F.3d at 121; Colo. Outfitters Ass’n
v. Hickenlooper, 823 F.3d 537, 541-42 (10th Cir. 2016);38 N.Y. State Rifle & Pistol
Ass’n, Inc. v. Cuomo, 804 F.3d 242, 247-48 (2d Cir. 2015); Friedman v. City of
Highland Park, 784 F.3d 406, 412 (7th Cir. 2015); Fyock v. Sunnyvale, 779 F.3d 991,
36 See Veronica Miracle, Thousand Oaks Mass Shooting Survivor: “I Heard Somebody Yell, ‘He’s Reloading,’” ABC News, (Nov. 8, 2018), https://abc7.com/thousand-oaks-survivor- i-heard-somebody-yell-hes-reloading/4649166/. 37 Final Report, Sandy Hook Advisory Commission, at 12 (Mar. 6, 2015), available at http://www.shac.ct.gov/SHAC_Final_Report_3-6-2015.pdf. 38 In Colorado Outfitters, the district court upheld the statute and the Tenth Circuit dismissed both the appeal and the underlying case for lack of standing.
13 994 (9th Cir. 2015);39 Heller v. District of Columbia (“Heller II”), 670 F.3d 1244,
1247-48 (D.C. Cir. 2011). Although these courts have taken different paths in their
analysis, they reach the same result: the Second Amendment allows governments to
ban or restrict access to LCMs.
For example, the Second Circuit rejected challenges to New York and
Connecticut laws, enacted after the Sandy Hook massacre, that prohibit the sale of
magazines holding more than 10 rounds. N.Y. State Rifle & Pistol Ass’n, 804 F.3d at
247, 249-50. The court “assume[d] for the sake of argument” that LCMs are
“protected by the Second Amendment” such that laws regulating them should be subject to heightened, intermediate scrutiny, but still held that the LCM bans were constitutional. Id. at 257, 260-61. The court observed that New York’s and
Connecticut’s laws did not burden the “core” area of constitutional protection, defined in Heller as lawful self-defense, because citizens can still purchase any number of permitted magazines and retain the ability to use firearms for self- defense. Id. at 260. Moreover, the laws were substantially related to the states’
important interests in ensuring public safety and controlling crime. Id. at 263-64.
In upholding a city ordinance prohibiting the possession of assault weapons
and LCMs, the Seventh Circuit did not apply intermediate scrutiny, but instead
39 In Fyock, the Ninth Circuit affirmed a district court’s denial of a preliminary injunction against a California municipality’s LCM ban. On July 17, 2018, a Ninth Circuit panel, in an unpublished 2-1 decision, held that another district court did not abuse its discretion in granting a preliminary injunction regarding California’s state-wide LCM ban. Duncan v. Becerra, 742 F. App'x 218, 220 (9th Cir. 2018). The district court subsequently ruled in plaintiffs’ favor on summary judgment, and the case has now returned to the Ninth Circuit. See Duncan v. Becerra, No. 17-CV-1017-BEN-JLB, 2019 WL 1510340, at *3 (S.D. Cal. Apr. 4, 2019)..
14 looked to whether the banned weapons were “common at the time of ratification” or had “‘some reasonable relationship to the preservation or efficiency of a well- regulated militia’” and whether citizens “retain adequate means of self-defense.”
Friedman, 784 F.3d at 410 (quoting District of Columbia v. Heller, 554 U.S. 570, 622
(2008)). The Court upheld the ban because (1) neither assault weapons nor LCMs even existed in 1791; (2) “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty;” and (3) the ordinance did not prevent law-abiding citizens from effectively providing for self-defense. Id. at 410-11.
According to the court, the danger LCMs pose outweighs any potential self-defense use: “[A]ssault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings?” Id. at 411. Just recently, the Seventh Circuit reaffirmed
Friedman in another challenge to an assault weapon and LCM ban. See Wilson v.
Cook Cty., No. 18-2686, 2019 WL 4063568, at *1 (7th Cir. Aug. 29, 2019).
In short, LCM restrictions have repeatedly survived heightened scrutiny under various modes of review. Courts recognize that a right to bear arms for self- defense does not preclude restrictions on dangerous, military-style weapons and accessories that facilitate mass shootings. Likewise here, Act 94 passes constitutional muster under any standard of review.
15 C. The Vermont Legislature relied on substantial and compelling evidence to address an unprecedented risk to public safety.
As Governor Phil Scott observed, “tragedies in Florida, Las Vegas, Newtown and elsewhere—as well as the averted plot to shoot up Fair Haven High School—
have demonstrated [that] no state is immune to the risk of extreme violence.” Gov.
Phil Scott, Official Statement on Act 94 (S.55, S.221 & H.422) (Mar. 30, 2018).40 The
facts before the Vermont Legislature overwhelmingly supported Governor Scott’s
observation. The prior month, a young man named Jack Sawyer was arrested and charged in connection with his detailed plan for a mass shooting at Fair Haven
Union High School. Sawyer’s “Journal of an Active Shooter” described his extensive plans for a catastrophic shooting at his former school. Sawyer admitted that he was influenced by the 1999 Columbine massacre and planned to “beat the highest casualty count of all the other school shootings,” in part by using ammunition that
“would cause greater casualties and injuries.”41
Sawyer’s planned shooting was not an isolated incident in Vermont’s recent
past. In August 2005, state police arrested Christopher Greene in Brattleboro,
Vermont, thwarting a potentially devastating attack. Police found handwritten
notes in Greene’s car outlining a planned attack on Greene’s former school in
Connecticut, including diagrams depicting the school from both the side and back
40 See http://governor.vermont.gov/press-release/official-statement-s55-s221-h422. 41 See Charging Document, supra n. 2. This Court subsequently held that Sawyer’s preparations were not sufficient to constitute “attempt” to cause bodily injury with a deadly weapon or attempted murder. State v. Sawyer, 2018 VT 43, ¶ 1, 187 A.3d 377.
16 doors alongside the note “Heads: 3. Shoulders: 3. 2 Teachers. 2 to the legs.”42 His
detailed notes outlined an apparent plot to escape to Brattleboro, cause a traffic-
back up, and shoot drivers in the head on Interstate 91.43 Along with the notes,
police found a receipt for the purchase of the Ruger Mini-14 .223 assault rifle and a loaded magazine for the rifle.44
Unfortunately, not all shootings are averted. In August 2015, Jody Herring
shot and killed three of her family members and then murdered social worker Lara
Sobel outside a state office building in Barre.45 And in August 2006, the Town of
Essex experienced a deadly shooting rampage involving three different crime
scenes, including Essex Elementary School.46
Following the averted mass shooting in Fair Haven, Vermont citizens
mobilized in support of gun safety regulations.47 These demonstrations reflected
42 Memorandum and Exs. in Support of Government’s Mot. for Detention, U.S. v. Greene, Docket No. 2:06-CR-22 (D. Vt. filed April 10, 2006), http://lawcenter.giffords.org/wp- content/uploads/2018/07/US-v.-Greene-ECF-14.pdf; http://lawcenter.giffords.org/us-v- greene-ecf-14-1/; http://lawcenter.giffords.org/us-v-greene-ecf-14-2/. 43 John Holl, New Jersey Man is Accused of Plotting Attack in Vermont, N.Y. Times, (July 15, 2005), https://www.nytimes.com/2005/07/15/nyregion/new-jersey-man-is-accused- of-plotting-attack-in-vermont.html 44 Sentencing Mem. of the U.S. and Mot. for Upward Departure 1-2, U.S. v. Greene, Docket No. 2:06-CR-22 (D. Vt. filed Mar. 12, 2008), http://lawcenter.giffords.org/wp- content/uploads/2018/07/US-v.-Greene-ECF-54.pdf. 45 Abbey Gingras, Herring Pleads Guilty to Four Murder Charges, Burlington Free Press, (July 6, 2017), https://www.burlingtonfreepress.com/story/news/2017/07/06/herring- hearing-homicide-barre-vt/453332001/. 46 Wilson Ring, Christopher Williams Pleads Innocent in Shooting Spree, Rutland Herald, (Aug. 26, 2006), http://www.rutlandherald.com/articles/christopher-williams-pleads- innocent-in-shooting-spree/. 47 See, e.g., J. Walters, Thousands Attend March for Our Lives Rally in Montpelier, Seven Days, (Mar. 24, 2018), https://www.sevendaysvt.com/OffMessage/archives/2018/03/24/walters-thousands-attend- march-for-our-lives-rally-in-montpelier.
17 longstanding and broad support, not a momentary reaction. Indeed, a July 2018 poll asked Vermonters if they “favor or oppose” Vermont’s 2018 gun safety legislation
(including limiting “the size of ammunition magazines”). Forty-five percent responded that they “completely favor,” 22% “generally favor,” while only 13%
“generally oppose” and 12% “completely oppose.”48 These results are consistent
with a 2013 poll by the Castleton Polling Institute, which found that 66% of
respondents favor (with 35% “strongly” in favor) banning LCMs.49
The Fair Haven plot also “jolted” Governor Scott, who candidly reflected,
“This was one of those situations where I feel like I was given a second chance to
help avoid a catastrophic event. And I was determined not to let it slip through my
fingers.”50 Acknowledging how close Vermont had come to suffering the latest school massacre, Governor Scott unveiled an action plan urging the Legislature to pass multiple gun safety measures, including magazine-capacity restrictions.51
The Legislature responded by convening numerous committee hearings and a
public hearing between late February and early March. Citizens and interest
48 VPR — Vermont PBS Poll (July 2018), http://projects.vpr.org/vpr-vermont-pbs-poll- july-2018. 49 Castleton Poll Measures Vermonters’ Support for Gun Control Measures, Complete Poll Results (Feb. 21, 2013), http://www.castleton.edu/academics/undergraduate- programs/political-science/poll-results/castleton-poll-measures-vermonters-support-for-gun- control-measures/. 50 P. Heintz, In Range: The Week That Changed Vermont’s Gun Politics, Seven Days, (Feb. 28, 2018), https://www.sevendaysvt.com/vermont/in-range-the-week-that-changed- vermonts-gun-politics/Content?oid=13165766. 51 Peter Hirschfeld, In Less Than a Week, Scott and Lawmakers Put Gun Control Bills on Fast Track, VPR, (Feb. 22, 2018), http://digital.vpr.net/post/less-week-scott-and- lawmakers-put-gun-control-bills-fast-track#stream/0.
18 groups on all sides of the issues provided testimony and information.52 In the end,
the Executive and Legislative branches, reflecting cross-partisan support, concluded
that Act 94’s gun safety measures, including the LCM provision, were needed to
reduce the urgent risk of high-fatality shootings in Vermont.53
Opponents of Act 94 invoke Vermont’s tradition of hunting and responsible
gun ownership to advance a categorical rule against all firearm regulations. Yet
throughout its history Vermont’s legislature has responded to safety concerns raised
by firearms and their accessories with common-sense laws like Act 94, including by regulating magazine capacity. In the 1920s and 1930s, many states and the federal government responded to growing gun violence by regulating machine guns and semiautomatic firearms54 and by restricting weapons based on ammunition
52 See, e.g., Letter from Addison Cent. Sch. Dist. Bd. to Gov. P. Scott, Speaker M. Johnson, and Pro Tem T. Ashe (Feb. 19, 2018) (“Whereas, Vermont school districts are forced to spend larger and larger portions of their limited budgets on security-related facilities upgrades, security personnel, trainings, and drills to potentially defend our students, staff, and community members against military-style attacks on our students, staff, and school buildings”);Written Testimony of Rebecca Bell, M.D. (on behalf of the Vermont Chapter of the American Academy of Pediatrics & the Vermont Medical Society) (March 14, 2018) (“Firearm injury and death is a public health crisis…I have witnessed first-hand the damage that knives and fists and other blunt objects can inflict. But adding a gun to the picture drastically changes the outcome. An argument between teenagers that would likely have ended in broken bones instead can end fatally if a gun is present.”); Written Testimony of Madison Knoop (March 14, 2018) (“After [the Sandy Hook Massacre] I was terrified to go to school. I even refused to go for a little. And, I’m still terrified.”); Compilations of Constituent Emails regarding S.55 (Entered on March 23, 2018), available at https://legislature.vermont.gov/committee/document/2018/18/Bill/85082#documents- section 53 See Paul Heintz, Taylor Dobbs, and John Walters, In Historic Shift, Vermont’s GOP Governor and Democratic Leaders Embrace Gun-Control Measures, Seven Days (Feb. 22, 2018), https://www.sevendaysvt.com/OffMessage/archives/2018/02/22/in-dramatic-shift- vermonts-democratic-leaders-unite-behind-background-checks. 54 See generally Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 187-93, 203-10 (2011); Robert Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 Law & Cont. Probs. 55, 67-69 (2017).
19 capacity.55 In 1923, Vermont joined these states by banning hunters from using “a
machine gun of any kind or description, or an automatic rifle of military type with a magazine capacity of over six cartridges.” 1923 Vt. Acts and Resolves 130 (emphasis added). The bill’s initial language did not contain this final clause, which was added on the Senate’s recommendation. See JOURNAL OF THE SENATE OF THE STATE OF
VERMONT, 202-03 (1923). By adding this clause, the Legislature ensured that the
law would specifically regulate the magazine capacity of military-style automatic rifles. This law remains in effect in a slightly amended form at 10 V.S.A. § 4704.
Other Vermont laws illustrate the Legislature’s history of responding to new firearm dangers and constituent concerns over emerging public safety risks. On
March 23, 1912, the Bennington Evening Banner ran a Vermonter’s impassioned demand that the Legislature take up a ban on gun silencers, which the author called “an article which even the nations of the earth should combine against.”56
Later that year, the Legislature enacted a ban on gun silencers. 1912 Vt. Acts and
Resolves No. 237 (this law remains in effect in amended form at 13 V.S.A. § 4010).
Similarly, the Vermont Legislature has regulated the sale and possession of
firearms by minors since as 1896 See 1896 Vt. Acts & Resolves No. 111; see also
1904 Vt. Acts & Resolves No. 152, § 1. And this is another area in which the
Legislature has responded to public demand for further restrictions. On March 16,
1911, the Bennington Evening Banner argued for renewed legislation after the
55 See Spitzer, supra, at 68. 56 The Bennington evening banner (Bennington, Vt.), 23 March 1912. Chronicling America: Historic American Newspapers. Lib. of Congress, available at https://chroniclingamerica.loc.gov/lccn/sn95066012/1912-03-23/ed-1/seq-4/.
20 shooting death of a fourteen-year old boy in Barre, Vermont, “the sixth fatality of the kind in this state during the past few months.”57 Responding to this outcry over what the public recognized as a growing risk, in 1912, the Vermont Legislature adopted more comprehensive restrictions on juveniles’ unsupervised possession of firearms. 1912 Vt. Acts & Resolves No. 229. These restrictions remain in effect in a slightly amended form at 13 V.S.A. §§ 4007-4008.
Act 94’s LCM ban is grounded in this tradition—another example of
Vermont’s political branches exercising their considered judgment to protect public health and safety. The Governor and legislators from across the political spectrum came together, assessed the evidence, and concluded that LCMs posed an unacceptable risk to the people of Vermont. These leaders did not reach this decision lightly. Rather, fulfilling their roles as the “trustees and servants” of the people’s power, Vt. Const. ch. I, art. VI, they acted together to avert, in the
Governor’s words, a “catastrophic event.” They responded to a danger that
Vermonters clearly articulated, and that recent events both outside and within
Vermont amplified. The Legislature’s decision to ban LCMs is sound under any
standard of Second Amendment review, and, as explained below, is fully consistent
with the Vermont Constitution.
57 The Bennington evening banner (Bennington, Vt.), 16 March 1911. Chronicling America: Historic American Newspapers. Lib. of Congress, available at http://chroniclingamerica.loc.gov/lccn/sn95066012/1911-03-16/ed-1/seq-2/.
21 II. The Vermont Constitution permits reasonable restrictions on dangerous weapons to protect public safety.
Defendant’s constitutional challenges are meritless. The Vermont
Constitution does not codify an unlimited right to possess and transfer weapons or accessories of every kind and purpose. Rather, Article 16 acknowledges that
Vermonters have a “right to bear arms for the defence of themselves and the State.”
Vt. Const. ch. I, art. 16 (emphasis added). To the extent Article 16 protects an individual right to bear arms, that right is limited and defined as part of a right of self-defense. LCMs are offensive weapons for mass killing that do not warrant any protection under Article 16. Even if the Court affords some constitutional protection to the possession and sale of LCMs, the Court’s review must reflect deference to the
Legislature’s determination that LCMs threaten public safety.
A. The rights protected by Article 16 do not extend to military- style weapons that are not reasonably needed or useful for self- defense.
In addressing Defendant’s constitutional challenge, the Court must first address whether Article 16 protects an individual’s right to purchase or possess military-style weaponry that is unnecessary for self-defense. Persuasive federal precedents suggest that the right to bear arms does not include such military-grade firearms and accessories. The U.S. Supreme Court recognized in Heller that the
Second Amendment does not encompass an unlimited right to own every type of weapon. Heller expressly observed that “weapons that are most useful in military service—M-16 rifles and the like—may be banned” without violating the Second
Amendment. Heller, 554 U.S. at 627.
22 Following Heller, the en banc Fourth Circuit rejected a Second Amendment challenge to Maryland’s Firearm Safety Act of 2013, which banned certain assault weapons and LCMs. In Kolbe v. Hogan, 849 F.3d 114, 137 (4th Cir. 2017), the
Fourth Circuit concluded that LCMs share the same “capability for lethality” as weapons intended for the battlefield, and that a large ammunition supply “enable[s] a shooter to hit multiple human targets very rapidly.” Id. at 137 (quotation omitted). Based on its determination that these devices “are particularly designed and most suitable for military and law enforcement applications,” as well as a lack of evidence that state residents needed to fire more than ten rounds for self- protection, the Fourth Circuit held that LCMs “are not constitutionally protected.”
Id. (quotation omitted).
As Kolbe confirms, responsible, law-abiding citizens do not require LCMs for self-defense. To the contrary, LCMs are unnecessary for and unsuited to everyday self-defense. As an experienced law enforcement officer explained, the “typical self-
defense scenario in a home does not require more ammunition than is available in a
standard 6-shot revolver or 6-10 round semiautomatic pistol.”58 The average
number of shots fired in self-defense is two. See supra page 12. Excessive firepower can endanger others nearby, because “in most self-defense scenarios, the tendency
is for defenders to keep firing until all bullets have been expended.”59 Id. When
58 See Brian J. Siebel, Brady Ctr. to Prevent Gun Violence, Assault Weapons: Mass Produced Mayhem, 16 (2008), available at http://www.american- manifesto.com/wordpress/wp-content/uploads/2008/10/mass-produced-mayhem.pdf (quoting Police Fear a Future of Armored Enemies, USA Today, Mar. 3, 1997, at 02A). 59 Id.
23 civilians with inadequate training fire weapons with large-capacity magazines, they tend to fire more rounds than necessary and “pose a heightened risk of hitting innocent bystanders.” Id.
Nothing in Vermont’s history or current circumstances suggests any valid need to use LCMs for self-defense. Vermont has the second lowest rate of violent crime and the lowest homicide rate in the country.60 Amici are not aware of any
law-abiding Vermonter who, while acting in self-defense during a home invasion or
assault, had to fire more rounds than are contained in the magazines permitted
under 13 V.S.A. § 4021. LCMs are a relatively recent innovation and accordingly
played no role in Vermont’s longstanding traditions of hunting or self-defense.
Before the 1980s, the only handgun most American gun owners possessed was a
revolver, which typically held six rounds.61 Only in the 1980s did the gun industry
begin aggressively producing and promoting pistols that could be equipped with
larger magazines, mimicking new U.S. military weapons.62 In the 1980s and 1990s,
as Americans recognized the danger posed by widespread access to LCMs, more
jurisdictions restricted their possession (see supra n.3), including the federal
60 Federal Bureau of Investigations, Crime in the United States 2016, Table 3, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/cius-2016; Center for Disease Control and Prevention, Homicide Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/homicide_mortality/homicide.htm 61 Violence Policy Center, Backgrounder on Pistol and Ammunition Magazines Used in Attack on Representative Gabrielle Giffords and Others 1 (Jan. 2011), http://www.vpc.org/fact_sht/AZbackgrounder.pdf. 62 Id.; Alain Stephens, The Gun Industry is Betting on Bigger High-Capacity Magazines, Trace (Jun. 12, 2019), https://www.thetrace.org/2019/06/gun-industry-high-capacity- magazine-size/.
24 government, which banned LCMs beginning in 1994 until the law was allowed to lapse in 2004. See supra page 10.
Even if military-style rifles and LCMs have become more popular since the
federal ban expired in 2004, that newfound popularity does not mean that LCMs
are reasonably necessary for Vermonters to protect themselves and their homes.
Weapons equipped with LCMs are sometimes used for recreational competitions
and target shooting, but Article 16 does not protect recreation; it protects self-
defense. There is no evidence that LCMs are well suited to or necessary for self-
defense. Evidence to the contrary abounds.
B. Consistent with text, history, and precedent, the Court should construe Article 16 in a manner that respects the Legislature’s traditional authority to regulate public safety.
As explained above, Act 94 reflects a considered and deliberate legislative
judgment that restrictions on LCMs are necessary to protect public safety.
Defendant may not use this challenge to draw the Court into a re-trial of the debate
resolved by the political branches. “Subject to constitutional limitations,” the
Legislature “is authorized to pass measures for the general welfare of the people of
the state in the exercise of the police power, and is itself the judge of the necessity
or expediency of the means adopted.” Ex parte Guerra, 94 Vt. 1, 110 A. 224, 227
(1920); see also State v. Curley-Egan, 2006 VT 95, ¶ 11, 180 Vt. 305, 910 A.2d 200.
The Court’s settled interpretation of Article 16 recognizes that the rights it
protects are not unlimited and must co-exist with reasonable public safety
regulations. In State v. Duranleau, the Court upheld a statute requiring that rifles
and shotguns carried in vehicles be unloaded. 128 Vt. 206, 210, 260 A.2d 383, 386
25 (1969). Although the statute “admittedly somewhat conditions the unrestrained carrying and operation of firearms,” its purpose was assumed to be “reasonable” and
the prohibition did not cause “such an infringement on the constitutional right to
bear arms as to make the statute invalid.” Id. The Court explained that “the
language of” Article 16 “does not suggest that the right to bear arms is unlimited
and undefinable.” Id.
Duranleau’s interpretation of Article 16 fits comfortably with the Court’s
approach to other constitutional provisions. The Court has frequently recognized
that constitutional rights, even when phrased in more absolute language than
Article 16, are subject to reasonable regulations. Indeed, well over 150 years ago,
the Court placed a historical gloss on Article 11’s proclamation that “the people
have a right to hold themselves, their houses, papers, and possessions, free from
search or seizure.” In Lincoln v. Smith, 27 Vt. 328, 346 (1855), the Court looked to
the U.S. Constitution and historical context in construing Article 11 “to secure only
against unreasonable searches and seizures.” (Emphasis added.) More recently, the
Court reaffirmed Lincoln, holding that “Article Eleven does not mandate an
absolute prohibition against searches and seizures undertaken without a proper
warrant.” State v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988) (word
‘unreasonable’ is “as implicit in Article Eleven as it is express in the Fourth
Amendment”); see also State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991 (1991)
(same).
26 The Court has taken a similarly measured approach to its interpretation of
Article 7’s Common Benefits Clause. The Clause provides “[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.”
Vt. Const. ch. I, art. 7. The Court has never held, however, that the Clause prohibits
all legislative classifications. Instead, the Court looks to the purpose and the nature
of the classification in assessing whether the challenged law bears “a reasonable
and just relation to the governmental purpose.” Baker v. State, 170 Vt. 194, 214, 744
A.2d 864, 879 (1999); see also Badgley v. Walton, 2010 VT 68, ¶ 23, 188 Vt. 367, 378,
10 A.3d 469, 477. The interpretation adopted in Baker eschews “rigid categories” in
favor of a “balancing approach,” and includes a significant degree of deference to the
“legislative prerogative to define and advance governmental ends.” Baker, 170 Vt. at
203, 206, 744 A.2d at 871, 873; Badgley, 2010 VT 68, ¶ 21 (“We accord deference to
legislation having any reasonable relation to a legitimate public purpose.”
(quotation omitted)).
As yet another example, the Court squarely refused to construe the
constitutional right to a jury trial in absolute terms. Article 12 provides that “when
any issue in fact, proper for the cognizance of a jury is joined in a court of law, the
parties have a right to trial by jury, which ought to be held sacred.” Vt. Const. ch. I,
art. 12. But in 1990, facing severe budget shortfalls, the court administrator placed
a temporary moratorium on civil jury trials. See Vermont Supreme Court Admin.
27 Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 394, 579 A.2d 1036, 1037
(1990). When litigants challenged the moratorium as violating Article 12, the Court
rejected that position, holding that its “precedents do not support the absolutist
view of the jury trial right that the petitioners espouse.” Id. at 399, 579 A.2d at
1040. Looking to history and precedent, the Court reasoned that “actions that may
delay or condition the jury trial right do not by themselves infringe on that right”
and declined to adopt a “per se” rule. Id. at 401, 579 A.2d at 1041.63
In short, no relevant or analogous precedent supports interpreting Article 16
as a rigid per se rule precluding reasonable regulation to protect public safety. This
Court has consistently recognized the government’s latitude to implement reasonable regulations in the face of more absolute constitutional provisions than
Article 16, which expressly qualifies the right in terms of Vermonters’ “defence of
themselves and the State.” Without question, Vermonters treasure the individual
freedoms and egalitarian traditions protected in their state constitution. See Baker,
170 Vt. at 211, 744 A.2d at 876-77 (“The Vermont Constitution would ensure that
the law uniformly afforded every Vermonter its benefit, protection, and security so
that social and political preeminence would reflect differences of capacity,
disposition, and virtue, rather than governmental favor and privilege.”). The state
63 The Court has also recognized the need to balance protection of individual rights with other interests in its decisions that permit damages remedies in some circumstances but place substantial limits on the availability of money damages. See Zullo v. State, 2019 VT 1, ¶ 52, 205 A.3d 466, 490 (holding that restrictions on damages for Article 11 violations are necessary to avoid “potential flood of litigation for every alleged constitutional violation and the potential chilling effect on citizens serving on local boards” and noting that law enforcement should not be inhibited from “taking some effective and constitutionally permissible actions in pursuit of public safety”).
28 charter is the “primary safeguard of the rights and liberties of all Vermonters.” Id. at 202, 744 A.2d at 870. But Article 16—adopted when the most common firearm
was a single-shot musket— cannot reasonably be construed to prevent measured,
evidence-based regulations aimed at military-style devices that facilitate mass shootings.
Indeed, for most of this nation’s history, nearly every state has applied a
“reasonable regulation” test when reviewing constitutional challenges to gun laws.
This test gives states leeway to adopt reasonable, public safety-driven firearm regulations with their inherent police powers. See Adam Winkler, The Reasonable
Right to Bear Arms, 17 Stan. L. & Pol’y Rev. 593, 595, 598 (2006) (as of 2006, 42 states applied a reasonableness test). Since Heller, a number of state courts—across every region of the country—have re-affirmed the reasonable regulation test in cases involving a state’s right to bear arms. See, e.g., State v. Jorgenson, 312 P. 3d
960, 963-64 (Wash. 2013); Hertz v. Bennett, 751 S.E.2d 90, 96 (Ga. 2013); State v.
Christian, 307 P.3d 429, 437-38 (Or. 2013); People v. Schwartz, No. 291313, 2010
WL 4137453, at *4 (Mich. Ct. App. Oct. 21, 2010); State v. Flowers, 808 N.W.2d 743,
2011 WL 6156961, at *1, *3-4 (Wis. Ct. App. Dec. 13, 2011); State v. Fernandez, 808
S.E.2d 362, 366 (N.C. Ct. App. 2017). As discussed above, no Vermont precedent supports imposing a more stringent and inflexible interpretation of the Article 16
right to bear arms, and nothing in Heller directs use of such a standard either.64
64 Heller did not announce a standard for deciding Second Amendment challenges other than to say that the rational basis test should not be used. 554 U.S. at 628 n.27. The “reasonable regulation” test differs from the rational basis test. See, e.g. State v. Cole, 665 N.W.2d 328, 338 (Wis. 2003) (“we find the correct test to be whether or not the restriction. .
29 Other state courts have correctly recognized that “the state and federal rights to bear arms have different contours and mandate separate interpretation,” including because guns are a matter of “[p]articular state interest and concern.” Jorgenson,
312 P. 3d at 963, 963. This reasoning lends additional support to a reading of
Article 16 that assures Vermont’s Legislature the reasonable latitude to regulate.
C. The Court should construe Article 16 in a manner that affords deference to reasonable legislative judgments
This Court’s precedent confirms that the judicial branch should defer to the
Legislature’s informed judgments about the need to regulate dangerous weapons,
ammunition, and accessories. This Court has consistently acknowledged that the
Legislature plays a critical policymaking role even in areas subject to constitutional
limitations. As the Court recently observed, the Constitution delineates “the
framework of government,” while leaving the “working details” for “legislative
definition.” Turner v. Shumlin, 2017 VT 2, ¶ 24, 163 A.3d 1173, 1183. The Court’s
landmark decision in Zullo, which authorized actions against the State for certain
constitutional torts, also expressly acknowledged that the Legislature may “limit”
and “confine” such remedies, so long as the remedy afforded is meaningful. Zullo v.
State, 2019 VT 1, ¶ 28, 205 A.3d 466. In Baker v. State, the Court likewise allowed
the Legislature “to craft an appropriate means of addressing [its] constitutional
mandate” under the Common Benefits Clause. 170 Vt. at 225, 744 A.2d at 886. And
.is a reasonable exercise of the State’s inherent police powers. Such a test should not be mistaken for the rational basis test.”); see also Bleiler v. Chief, Dover Police Dep’t, 927 A.2d 1216, 1223 (N.H. 2007).
30 the same was true in Brigham v. State, where the Court held that inequality in
education financing violated the state constitution but recognized the Legislature’s
“prerogative[] to define a system consistent with constitutional requirements.” 166
Vt. 246, 249, 692 A.2d 384, 386 (1997). Brigham directed that the “specific means of
discharging this broadly defined duty” to make educational opportunity available on
substantially equal terms “is properly left to [the Legislature’s] discretion.” Id. at
268, 692 A.2d at 398.
The Court has also declined to turn constitutional challenges into
opportunities to scrutinize legislative policy judgments. The Court cautioned in
Badgley that its function “is not to substitute [the Court’s] view of the appropriate
balance for that of the Legislature.” 2010 VT 68, ¶ 24. The judiciary’s role is not to
“judge whether the policy decision made by the Legislature was wise,” but rather to
assess whether the “decision to exclude a portion of the community from the
common protection of the law was reasonable and just in light of its purpose.” Id.
The Court should approach its review of Act 94 with a similar degree of
deference to legislative policy judgments. Expert evidence, the experience of prior
mass shootings, and common sense support the Legislature’s determination that
banning LCMs will deter their use and thereby promote public health and safety.
See supra page 11 & note 52. This Court should not re-weigh the Legislature’s
analysis of that evidence and assessment of public safety needs. Nor should the
Court import into Article 16 the “rigid, multi-tiered analysis” of federal
31 constitutional law that it has elsewhere rejected as tool for interpreting the state constitution. Baker, 170 Vt. at 212, 744 A.2d at 878.
The Legislature acted to address the dual dangers posed by mass shootings: the threat from shooters armed with military-style weapons; and the secondary harm imposed on communities, schools, and families.65 Today’s children have only
known a world where active shooter drills, pat-downs, locked public buildings,
imaging devices, metal detectors, and bag searches are routine. Community gathering places—schools, churches, festivals, shopping centers, clubs— appear regularly on the news as sites of mass shootings. Public events require security cordons, surveillance, and a phalanx of police officers. The risk of mass shootings changes the nature of our public spaces and makes everyone less free.
The Legislature acted well within its authority to address these threats and
protect Vermonters by adopting a reasonable restriction on LCMs. That restriction
does not interfere with responsible self-defense by law-abiding citizens—the right that Article 16 guarantees. The Legislature drew on abundant evidence that LCMs increase fatalities and injuries in mass shootings and other crimes. Consistent with
Vermont precedent, the Court should defer to the Legislature’s policy judgment that
Act 94’s ban on LCMs reasonably and properly protects public health and safety.
65 See, e.g., Nicole Gaudiano, Parkland and Santa Fe Schools Disclose Devastating After- Effects of Shootings, Politico (Oct. 10, 2019), https://www.politico.com/news/2019/10/10/parkland-santa-fe-school-shootings-effects- students-043687 (following the mass shooting at Marjory Stoneman Douglas High School, administrators reported a substantial increase in student “anxiety, depression, cutting/self- injurious behavior, school avoidance, suicidal ideation, illegal substance usage, etc.”; across the district “the toll of the shootings spread” to other schools as well).
32 CONCLUSION
This Court should affirm the decision below.
Respectfully submitted, October 14, 2019 ~~ William T. Clark, Esq. Tristram J. Coffin, Esq. Jennifer McDonald, Esq. Downs Rachlin Martin, PLLC P.O. Box 190 Burlington, VT 05402-190
~- Michael Donofrio, Esq. Stris & Maher LLP 28 Elm Street, 2nd Floor Montpelier, VT 05602 [email protected] [email protected] 802.858.4285
J. Adams Skaggs, Esq. Giffords Law Center to Prevent Gun Violence 223 West 38th St. #90 New York, NY 10018 (917) 680-3473
Hannah Shearer, Esq. Giffords Law Center to Prevent Gun Violence 268 Bush St. #555 San Francisco, CA 94104 (415) 433-2062
Counsel for Amicus Curiae Giffords Law Center to Prevent Gun Violence
33 CERTIFICATE OF COMPLIANCE
I, Bridget C. Asay, Esq. certify that this brief complies with the word-count limit provided by V.R.A.P. 32(a)(7)(A). According to the word count of the Microsoft Word software used to prepare this brief, the text of this brief contains 8959 words.
34
______
IN THE SUPREME COURT OF THE STATE OF VERMONT Supreme Court Docket Number: 2019-266
______
State of Vermont v. Max B. Misch
______
Appeal From Vermont Superior Court - Criminal Division Docket No. 173-2-19 Bncr ______
BRIEF OF AMICUS CURIAE DAVID J. HABER
IN SUPPORT OF APPELLANT THE STATE OF VERMONT
______David Haber Unaffiliated Private Citizen 70 S. Winooski Ave. #209 Burlington, VT 05401 [email protected] 802-777-7580
1
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………………... 2
TABLE OF AUTHORITIES………………………………………………………….. 3
STATEMENT OF INTEREST……………………………………………………….. 5
INTRODUCTION……………………………………………………………………... 7
SUMMARY OF ARGUMENTS……………………………………………………… 9
ARGUMENTS………………………………………………………………………… 12
1. The individualist theory used to explain the meaning of the terms “defence of themselves” and “bear arms” has little basis in fact……………………………………………………………………… 12
2.Proponents of this view present no evidence to support it…………....12
3. There is a lack of primary documentation describing the events surrounding Vermont’s first constitutional convention…………………………………………………14
4. An alternative, civic rights theory is more faithful to the evidence that does exist…………………………………………. 14-15
5. The model chosen to interpret Article 16 determines the underlying constitutional basis for a decision in the case before the court……………………………………………….. 15-16
6. The court should use the civic rights model and declare Article 16 irrelevant to laws restricting the private ownership of firearms………………………………………...16-17
7. The Pennsylvania Constitution of 1776 served as the model for the 1777 Vermont Constitution…………………………..17-18
2 8. 18th century examples of the use of the term “defence of themselves” from Pennsylvania influenced Article 13 of the 1776 Pennsylvania Declaration of Rights, which Vermont copied as Article 15 in 1777, and became Article 16 as Vermont amended its constitution……………………………………16-20
9. Examples of similar use in 18th century New York and New England……………………………………………………………….20-22
10. Examples of similar use in 18th century Vermont………………………22-24
11. Linguistic analysis of 18th century use of the term “bear arms” indicates that it was used predominantly in a military context ………………………………………………………...24-26
12. Article 16 must be viewed holistically, within the context of other constitutional provisions and founding documents………………………………………………………. 28
CONCLUSION……………………………………………………………………. 30
ADDENDUM A……………………………………………………………………. 33
3 TABLE OF AUTHORITIES
CASES
District of Columbia v. Heller, 554 U.S. 570(2008)...... 2, 11
Shields v. Rosenthal, 75 Vt. 295 (1903)...... 1
State v. Duranleau, 128 Vt. 206, 260 A.2d 383 (1969)...... 1 State of Vermont v. Max B. Misch, No. 173-2-19 Bncr/Criminal...... 1
STATUTES
13 V.S.A. § 4021………………………………………………………………………. passim
CONSTITUTIONAL PROVISIONS
Pa. Declaration of Rights art. XIII (1776)...... passim
U.S. Constitution, Amend.II…………………………………………………………... passim
Vt, Const. Art 1, § 15 (1777)...... 1
Vt, Const. Art 1, § 15 (1777)...... 1
Vt. Const. Ch. I, Art., 16……………………………………………………………….. passim
Vt. Const. Ch. I, Preamble……………………………………………………………...15
Vt. Const. Ch. I, Art., 4…………………………………………………………………. 15
Vt. Const. Ch. I, Art., 6…..……………………………………………………………....15
4
Vt. Const. Ch. I, Art., 9…..………………………………………………………………… 15
OTHER AUTHORITIES
The Federalist Papers
James Madison’s Notes on the Debates in the Federal Convention
5
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus Curiae is private citizen David Haber. I am not affiliated with any organization that supports or opposes the regulation of firearms, and I am not a lawyer.
My interest in presenting this brief comes from over forty years of research into the political and ideological origins of the Second Amendment and America’s gun culture. I received a Masters Degree in American history from Queens College in New York City in 1968. The subject of my Master’s thesis was The Progressive Movement and the
Selective Service Act of 1917. In 1972 I was awarded a teaching fellowship at
Washington University in St. Louis. I received another Master’s degree in American history, and continued on to pursue a doctorate, majoring in colonial American history with a not-so-minor in English political thought from 1600 to 1800. My dissertation topic was Republican Ideology and the Origins of the Second Amendment. I received a research grant from Washington University to study abroad at the British Museum in
London, and another grant from the Newberry Library in Chicago.
I did not complete my dissertation and remain A.B.D. From 1979 to 2013 I had a number of jobs---community organizer, cabinetmaker, general manager/ foreman of a furniture factory in Northfield, Vt., computer tech, and finally systems engineer in the IT department at Fletcher Allen Health Care. In between work hours I continued researching my dissertation topic, and after I retired in 2013, I began working on it full time.
6 My interest in this case is twofold---a head and heart thing. I have an academic interest in the Second Amendment and gun culture. I am bothered by the misuse of history to prop up damaging public policies. I believe I have a unique historical analysis to offer the court that may inform the legal arguments you are about to consider. And, I am a citizen concerned about public safety. As I stated in my motion to file, I am the voice of one non gun-owner among many whose defense of our right to safety and security needs to be heard.
7 INTRODUCTION
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. Second Amendment to the U.S. Constitution
That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. Ch.1, Article 16 of the Vermont Constitution
There are three contemporary schools of thought about the meaning of the second amendment, and by extension Article 16 of the Vermont Constitution. The so-called individualist or ‘standard’ model, emphasizes the second part of the amendment---”the right of the people to keep and bear arms, shall not be infringed”.
The adherents of this group present a wide range of views on how much infringement should be allowed. The more radical members say none, the more liberal say some.
Those who support an institutional explanation, the so-called ‘collectivists’, focus on the first part of the second amendment---”A well-regulated militia, being necessary to the security of a free state.” They maintain that any restrictions on individual gun ownership are constitutional because only the ownership of firearms in a militia is covered by the Second Amendment. Until overtaken by the standard model in the late
20th and early 21st century, the ‘collectivist’ model prevailed as the generally accepted interpretation of the meaning of the Second Amendment.
8 The third, and smallest group, supports a civic rights model of interpretation. This group acknowledges both the existence of an individual right to bear arms but links it to service in the militia as a civic practice; an individual right exercised collectively, like the right to vote, the right of assembly, or the right to a jury trial. Proponents of this view consider the Second Amendment obsolete because the well-regulated militia is no longer necessary to a free state. This has important implications for challenges to legislation that under the standard model would violate constitutional protections, but under a civic rights model would be irrelevant.
One of the leading advocates of the civic duty theory has written that “the Second
Amendment, with its express purpose dry, is silent on the question of free access to arms. The Constitution neither guarantees personal access for all purposes (it never did), nor does it restrict possession of arms to those destined for use for the common security.”1
In the following pages I will argue that there is more evidence to support a civic rights interpretation of Article 16 of the Vermont Constitution than the currently accepted individualist model. That, in fact, there is virtually no historical evidence to support the latter, while there is compelling documentary, historical, linguistic and contextual evidence to support the former. Because of this there can be no constitutional prohibition against 13 V.S.A. § 4021.
1 Uviller, H.R., and Merkel, W.G., The Militia and the Right to Arms Or, How the Second Amendment Fell Silent, (2002) p. 154
9 SUMMARY OF ARGUMENTS
1. 13 V.S.A. § 4021 is constitutional because Article 16 of the Vermont Constitution
does not protect an individual right to own firearms for personal self-defense and
therefore there is no constitutional prohibition to the statute in question.
a. Vermont court cases, including the one before the Court now have relied
on an unsupported, historically inaccurate description of the 18th century
meaning of the terms “defence of themselves” and “to bear arms.”
b. A civic rights theory of the meaning of the terms “defence of themselves”
and “to bear arms” is more consistent with the language, political ideas and
security needs of the people who authored Vermont’s Constitution and
created the State. It describes “the right to bear arms” as an individual right
exercised collectively, through military action, for the common good. It
defines “defence of themselves” as referring to group defense, not
individual self-defense.
2. The use of the term “defence of themselves” was ubiquitous in the second half of
the 18th century and it almost always referred to an institution or a group of
individuals, not the individuals acting separately.
a. Article 16 is an exact copy of Pennsylvania’s Declaration of Rights in that
state’s Constitution of 1776. There is clear evidence that “defence of
10 themselves” is applied to group military action and not individual
self-defense
b. The same application of the term “defence of themselves” to refer to group
actions can be found in Eastern New York and Western Pennsylvania at
the time of the New York Land Riots (1750s and 1760s) and in the run-up
to the American Revolution
c. Although the documentary evidence is sparse, 18th century Vermonters
were clearly influenced by Pennsylvania’s experience and the land rioters
in Eastern New York and Western Massachusetts who migrated in large
numbers to the New Hampshire Grants in the 1760s and 1770s.
3. Linguistic analysis of the term “bear arms” indicates that it was used to refer to
the military, not private, non-military, use of arms in 18th century America.
4. The meaning of the “right to bear arms” clause of Article 16 of the Vermont
Constitution is easily misinterpreted if it is read independently from the next two
clauses of the Article and from the other pertinent provisions of the Vermont
Constitution and other founding documents.
11 5. A provision of the Constitution originally included to protect the people’s liberties
and property, and to ensure their safety and security should not now be used to
put those principles in jeopardy.
12 ARGUMENTS
Unlike the second amendment to the U. S. Constitution there is no disagreement or debate about the meaning of Chapter 1, Article 16 of the Vermont Constitution
(Chapter 1, Article 15 of the 1777 Constitution). Both Mr. Bragdon, the defendant’s attorney, and the State’s attorney, Assistant Attorney General Battles, agree that
Article 16 protects an individual’s right to self-defense. Mr. Bragdon writes in his motion to dismiss the charges against Mr. Misch that Article 16 “is easy to understand and crystalline: the people have a right to bear arms for their defense and for the defense of the state. This is an individual right not a collective right.”2 And Mr. Battles in his reply to the defendant’s motion to dismiss writes that the language of Article 16
“suggests the right exists for two purposes: self-defense (‘defense of themselves”) and militia service (“defense...of the State.”)3
Judge Cohen’s decision in the lower court to deny Mr. Misch’s motion to dismiss also noted that Article 16 protected an individual right to bear arms for his or her personal security. As did Justice Watson in State v. Rosenthal and Justice Barney in State v. Duranleau. Unfortunately, and with all due respect to the judge and the other justices, this individualist theory of the right to bear arms has little, if any, basis in fact. Swept up in the decades long debate over the Second Amendment to the U.S. Constitution and
2 State of Vermont vs. Max B. Misch, No. 173-2-19 Bncr/Criminal, Motion to Dismiss, p. 5 3 State of Vermont vs. Max B. Misch, No. 173-2-19 Bncr/Criminal, Motion to Deny, p. 8
13 nourished in a culture of radical individualism and social atomization unlike anything
18th century Vermonters would have understood, Article 16, like the Second
Amendment itself, has had its history and meaning distorted by a coterie of conservative politicians, think-tank pundits, NRA propagandists, artful historians,
Federalist Society judges, lawyers and legal scholars. Justice Antonin Scalia, one of the founders of the Federalist Society, gave this theory constitutional sanction in his
2008 decision in District of Columbia v. Heller. Scalia wrote that in Article 13 of the Pennsylvania Declaration of Rights of
1776---the older twin of Vermont’s Article 16---the terms “defense of themselves” meant individual self-defense, and “to bear arms” meant individual, non-military arms bearing. He used this example as part of his “proof” that the Second Amendment to the
U.S. Constitution protected an individual’s right to bear arms for self-defense unconnected to military service.
How, you might ask, do the proponents of this individualist interpretation of Article
16 defend their belief that “defence of themselves” refers to an individual right of unrestricted access to arms of any type, for any lawful purpose, especially self protection? They don’t. They assume this is true; an article of faith accepted without question. They only disagree over the extent of allowable restrictions---none or some.
That this mistaken interpretation of the right to bear arms clause in the Vermont constitution became ubiquitous is unfortunate but not surprising given that there is no documentation of the events before, during or after Vermont’s first constitutional
14 convention in July, 1777. Nothing like Madison’s Notes of Debates in the Federal Convention, the Federalist Papers or Antifederalist criticism of the U.S. Constitution exists for the Vermont Constitution. There are no newspaper accounts of the convention’s deliberations, or journals written by delegates to the convention; no memoirs, letters or volumes of papers authored by Vermonters. Justice John Dooley, in his decision in Shields v. Gerhart, summed up this state of affairs by lamenting that “Unfortunately, no record exists of any discussion or debate over the adoption of the
Vermont Constitution.”4
But what if the words of Article 16 could be explained in a manner more compatible with the experiences and traditions of 18th century Vermonters; more faithful to the evidence that does exist---as sparse and circumstantial as it may be---rather than the individualist model so widely accepted today? Could an understanding of 18th century intentions affect our 21st century assumptions about the meaning of the right to bear arms?
Such a theory does exist. The civic rights interpretation, usually applied to the
Second Amendment, but applicable to Article 16 as well, describes the “right to bear arms” as an individual right exercised collectively in the militia for the common good.
At its core, the civic rights theory, as applied to Vermont’s Constitution, argues that
Vermont’s founders believed in a strong relationship between the responsibilities of citizenship and the right to bear arms in defense of themselves and their state; arms-
4 Ibid, p. 9
15 bearing as an expression of civic virtue. The Green Mountain Boys embodied this notion of civic arms-bearing. These militiamen created the State of Vermont and formed it into a unified political society.
Furthermore the civic rights theory requires us to examine Article 16 in its 18th century context, examining the political events that motivated the authors of both the
Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777, looking holistically at Article 16, not just a single phrase ripped out of context.
Which theory of the people’s right to bear arms should the Court use in the case of The State of Vermont v. Max Misch---the one that denies a connection between citizenship and bearing arms and sees guns only as a means of repelling assailants or fighting the government? Or the one that sees the right to bear arms as the proper means of defense of the community and as one of the civic practices that define citizenship in a republic?
This is not a trivial matter nor an academic exercise. If the Court continues to accept the individualist interpretation it has two options. It can rule that 13 V.S.A §
4021 is unconstitutional because it violates Mr. Misch’s constitutional right to bear arms to defend himself. Or it can rule that the benefits of 13 V.S.A § 4021 to the community’s safety far outweigh the insignificant burden to Mr. Misch’s constitutional right to bear arms and the statute is therefore constitutional. In either case, an incorrect reading of
Article 16 will continue to limit the community’s ability to feel safe.
16 Nationally, Article 16 will still be used as evidence against any gun control legislation. Locally, given the increasing public support for stricter gun control laws, and the liberal/progressive political bent of Vermont’s voters, we can expect to see more gun control laws passed in the state: red-flag laws, licensing of guns, mandatory buy-backs, the banning of assault-type weapons, expanded background checks, waiting periods, closing the gun show loophole, and licenses for concealed carry.
Should the state electorate become more conservative in the future, expect to see laws reversing any of the above laws that have gone into effect, and more extreme laws such as one allowing teachers to carry guns in schools. There is a good chance that many of these will be challenged in court and make their way to your courtroom. Year after year this Court will be asked to decide whether the individual’s right to bear arms for self-defense outweighs the public’s right to safety.
But should the Court declare that 13 V.S.A § 4021 is not a constitutional matter because Article 16 is not about private gun ownership for personal self-defense but a legitimization of the right to bear arms as the Green Mountain Boys understood it, then the issue can be put to rest. Article 16 becomes irrelevant to the defendant’s current appeal. The law limiting magazine size could not violate the defendant’s right to own a firearm for personal, individual self-defense since no such right would exist. Article 16 would join the other obsolete, unused and irrelevant provisions of the Constitution, e.g., the prohibition of standing armies and Chapter II § 59, the militia clause. Legislation expanding or restricting gun ownership would then be decided democratically, by the
17 people’s elected representatives in the legislature. If gun rights advocates wanted constitutional sanction for unrestricted, uninfringed, individual gun ownership, they could elect enough legislators supportive of their views to pass a new constitutional amendment that unequivocally grants them this right.
Overturning the traditional interpretation of Article 16 and accepting the civic rights model would be a very radical decision for sure. But Vermont is famous for radical constitutional action, from the first state to outlaw slavery, to the first state
Supreme Court to affirm civil unions, leading the way towards same-sex marriage.
Deciding that Article 16 does not sanction an individual right to bear arms, but does provide constitutional authority for a right to bear arms exercised as a civic duty, would be as bold a move as either of those measures.
Read the arguments to follow and consider the possibilities.
Argument #1: It Came From Pennsylvania
A. Pennsylvania
It is common knowledge that the text of Article 16 is a verbatim copy of Article 13 of the Pennsylvania Declaration of Rights in the Pennsylvania Constitution of 1776.
And, as noted by Mr. Battles, if a constitutional provision is an exact copy of a provision in another jurisdiction, and no record exists of the debates or discussions of Vermont’s adoption of that provision, then that article can “be analyzed in part by looking to the
18 historical record from” the other jurisdictions.” So, we’re off to 18th century
Pennsylvania “to gain insight into the Article’s [Article 16] scope.”5
The right to bear arms provision of the Pennsylvania Declaration of Rights that
Vermont copied came at the tail-end of a decades-long dispute between settlers on
Pennsylvania’s western frontiers and the Quaker dominated Assembly in Philadelphia.
In their attempt to persuade the pacifist Assembly to create a state militia, or at least provide them with arms and ammunition to use against the frontier Indians they had provoked by encroaching on their land, the backcountry Whigs of western
Pennsylvania, expressed in no uncertain terms their belief that “defence of themselves” meant that men had to join together in some form of military association---a state sponsored or extra-legal militia---in order to defend themselves as a community; that
“defence of themselves” meant the community acting as one military unit to defend all of their lives, liberties and property. There is not a hint in all of their pamphlets, petitions, and newspaper accounts, of a concern for personal, individual safety as expressed by modern-day supporters of an individual right to bear arms.
The literature coming out of the Pennsylvania backcountry is filled with references to the need for communal defence. And, like the Green Mountain Boys two decades later, they formed quasi-legal, voluntary military associations, in lieu of support from the state. A few examples:
5 State of Vermont vs. Max B. Misch, No. 173-2-19 Bncr/Criminal, Motion to Deny, p. 9
19 As early as 1747, Benjamin Franklin formed the first voluntary military association in Pennsylvania so that the people of the province could “undertake their own defence.”
6 In 1754, during the French and Indian War, a group of Lancaster County settlers petitioned the Governor for protection against their adversaries, asking for the
Governor to “put Us in a Condition that We may be able to defend Ourselves”, promising to “join with all that We can do for the Safety of the Province.”7. In 1755 the
New York Mercury reported that “the people on the west side of the Susquahanna are gathering together to defend themselves.”8 Again in 1754, another writer argued that it was “high Time to look Around us, and unite as with one Voice to elect such Men as are able to defend themselves and Country from so violent an Enemy.9 Finally, in 1776 the Philadelphia Committee of Observation declared, “in a State of Political Society and
Government all Men are obligated to unite in defending themselves.”10
When these backcountry radicals, now joined by sympathetic eastern
Pennsylvania elites who supported the Continental Congress, took control of the provincial government in 1776, they “played a major role in the Constitutional convention by drafting the Declaration of Rights.”11 And they incorporated their belief in a citizenship defined by the people’s ability and willingness to defend their communities with arms, in Article 13 of that declaration: “That the people have a right to bear arms
6 Kozuskanich, Nathan, “Defending Themselves: The Original Understanding of the Right to Bear Arms,” Rutgers Law Journal, Summer, 2007 p.3, n35. 7 Ibid, n39 8 Ibid, n30 9 Ibid, n32 10 Ibid, p.9, n99 11 Ibid, p. 9
20 for the defence of themselves and the state….” In other words, “They wrote the damned bill.”12
As one historian of the period has noted, “ Contemporary readers would not have been confused by the language of the Pennsylvania Constitution of 1776 or in its provisions for the common defense. The colonial experience had convinced many that men needed to unite together to defend themselves. In articulating these ideas, colonial essayists employed a language that focused on collective and not individual defense.”13 They would not have mistaken it for a statement about personal self-defense.
And they didn’t. A direct line can be drawn from the sentiment of communal defense expressed in the Pennsylvania Declaration of Rights, through the mid-century land wars in New York, where poor farmers fought the quasi-feudal land policies of the
New York grandees, through the events preceding Lexington and Concord, right up to the New Hampshire Grants and the Green Mountain Boys, the Vermont Constitution and the creation of the State of Vermont.
B. New England
Similar uses of the collective meaning of self-defense in the 18th century can be found in New York and Massachusetts. In 1757, during the French and Indian War, the
Boston Globe warned its readers that divided republics remained vulnerable to attack. The newspaper called for unified colonial military action to defeat the French. “It is
12 Bernie 13 Ibid, p.11
21 madness ever to imagine, that a People however numerous or however naturally valiant, will ever be able to defend themselves, unless their Numbers and Force can be united and directed by proper Discipline.”14 The author then quotes Algernon Sydney, a seventeenth century radical Whig political theorist: “No Numbers of Men, tho’ naturally valiant are able to defend themselves , unless they be well armed, disciplined and conducted.”15 Also in 1757 the New York Mercury reported that a group of people in Patunsec, New York “assembled together in three or four Houses to defend themselves against the barbarous enemies.”16
Calls for collective defense became more urgent as the conflict with England edged closer to war. In 1773 the Boston Committee of Correspondence linked self-defense with collective defense. One member of the Committee said that “the Law of Nature with respect to communities, is the same as that it is with respect to individuals, it gives the collective body a right to preserve themselves….” He reminded his colleagues that “the power to defend themselves [was] the surest pledge of their safety…. Men enter into [civil] society for no other end than to defend themselves.”17
In 1775 the Boston Evening Post published a letter from a Country Gentleman that warned of the dangers of standing armies and reminded his readers that the militia was America’s alternative to that nefarious institution: ”...the Colonies do not need or desire protection from these standing armies; but are able and willing to defend
14 Ibid, p. 11, n127 15 Ibid, n126 16 Ibid, n130 17 Ibid, n134
22 themselves….”18 thereby linking the militia and self-defense and presenting it as an alternative to a standing army. These very sentiments are echoed in Article 16. In the same year, New York’s delegates to the continental Congress recommended that New
Yorkers “defend themselves and their property, and repel force by force.”19
C. Vermont
The influence of the Pennsylvania Declaration of Rights on Vermont is obvious.
The Vermont Constitution is, for the most part, its twin. Vermont’s right to bear arms provision is an exact copy of Pennsylvania’s. And for Vermonters there would be no mistaking the language of that provision for anything but a statement of the need for every man to contribute to the common defense and that “defence of themselves” meant that all male citizens of the new state would participate in that defense as a civic duty. Thomas Young, one of the authors of the Declaration of Rights mentored Ethan
Allen, gave Vermont its name and urged Allen and his followers to adopt the
Pennsylvania Constitution as their own.
Ethan Allen had the same expanded notion of self-preservation as the backcountry Pennsylvania Whigs. The law of self-preservation, as he called it, was more than individual survival, it included the family and other members of the community. In 1772 Allen wrote that “Self-preservation makes it necessary that the
18 Ibid, p.12, n136 19 Ibid, n137
23 said Inhabitants hold together, and defend themselves against this execrable Cunning of New York, or find themselves reduced to poverty and be by terms inslav’d.”20
In their first act of resistance Allen and his supporters formed the extra-legal militia known as the Green Mountain Boys just as the anti-Quaker Pennsylvanians had formed voluntary military associations for their defense. This military organization would hold the inhabitants together, and be the vehicle for the “defence of themselves”.
The settlers living in the New Hampshire Grants in the 1770s lived in a close approximation to a Lockean state of nature. Settlers with New York land titles fought settlers with land grants from New Hampshire, often for the same piece of land, with no effective civil authority to enforce either claim. No sustainable legal system or government structure existed; no police force, no army. Violence filled the void.
The ‘Yorkers’ had the New York militia, and in the early 1770s, the future
Vermonters had the Green Mountain Boys, with Ethan Allen as their leader. They were less concerned with individual means of self-defense than protecting the lives and properties of the members of their settlements. They did not organize the Green
Mountain Boys to protect themselves from the kinds of one-on-one crime and personal assaults that people fear today. They created a military force composed of a group of like-minded citizens with shared interests and, in many cases, familial ties, to protect their land titles, families and neighbors from what they perceived as the illegal and unjust attempts by New York’s wealthy manor lords to steal their property. For the
20 Connecticut Courant, 31 March 1772
24 Green Mountain Boys and many others, “defense of themselves” had a group meaning. It implied a political society that valued its members’ participation in the common defense. As Ethan Allen wrote, “To live in a state of anarchy, has been found to be inconsistent with the wisdom and practice of mankind in all ages and nations....
Indeed, the state and condition of men urgeth, nay, necessitates them to adopt some form of government for their mutual protection and defence.”21(italics mine) This vision became codified in Article 16, “the people have a right to bear arms for the defence of themselves and the State.”
Argument #2: Bearing Arms22
In his decision in District of Columbia v. Heller, Scalia used an analysis of “written documents of the founding period that we have found” to come to the conclusion that the term “bear arms” referred to carrying a weapon for a particular purpose, not necessarily for military service. Justice Stevens, in his dissent used “dozens of contemporary texts” for his conclusion that the term was used most often to indicate
21 Shapiro, Darline, “Ethan Allen: Philosopher-Theologian to a Generation of American Revolutionaries,” William and Mary Quarterly, Vol. 21, No. 2 (Apr., 1964) p.244, n26 22 All of the linguistic research information in this section comes from these 3 articles: https://blog.harvardlawreview.org/corpus-linguistics-and-the-second-amendment/
http://faculty.las.illinois.edu/debaron/essays/guns.pdf
https://www.dropbox.com/s/no1yhe60rwxywdb/Goldfarb,%20A%20(mostly%20corpus-based)%20reexamination%20of%20Heller%20and%20t
he%20Second%20Amendment.pdf?dl=0
25 bearing of arms in the militia. Both Scalia and Stevens used very small sample sizes, so their results should be considered inconclusive.
In 2018 Brigham Young University published a new database called the Corpus of Founding Era American English which contained information from almost 100,000 texts and over 140 million words from 1760 to 1799. It includes letters, newspapers, sermons, books and other material. Two scholars ran an analysis on this database and found that “the overwhelming majority of instances of ‘bear arms’ was in the military context.”The use of the term in a non-military context were “less common”
Another scholar, Professor Dennis Baron, ran an analysis on this information, as well as the Corpus of Early Modern English which contains over 1.3 billion words form over 40,000 texts from 1475-1800. Baron “found about 1,500 separate occurrences of
“bear arms’ in the 17th and 18th centuries, and only a handful didn’t refer to war, soldiering or organized, armed action.” He concluded that “[t]hese databases confirm that the natural meaning of ‘bear arms’ in the framers’ was military.”
Two other professors used Google Books to search for the use of the term ‘bear arms’ from 1760-1795. “They found that in 67.4% of the sample size, ‘bear arms’ was used in its collective sense, whereas in 18.2% of the sample, the phrase was used in an individual sense.”
My non-professional search of the first four volumes of The Records of the Council of Safety and the Governor and Council of Vermont, which covers 1777 to the
26 early 1800s shows that the term was hardly used at all, three times, in fact, twice in relation to military matters and once in the copy of the Vermont Constitution.
Clearly 18th century Americans understood the term “to bear arms” primarily in a military context, and given their proclivity to use the phrase “defence of themselves” in a collective sense, the opening phrase of Article 16 takes on a different meaning than the one put forward by proponents of an individualist right to bear arms for personal self-defense. Even today, gun owners and ardent defenders of gun rights rarely use the term ‘to bear arms’ to refer to non-military uses of their weapons. Many, for example, support permissive concealed carry laws, not concealed “bearing” laws.
Argument #3: Context
The first part of Article 16---”That the people have a right to bear arms for the defence of themselves and the State” should not be considered in isolation. As is often the case with supporters of an individualist interpretation of the right to bear arms, context is often ignored, inconvenient quotes are omitted and troublesome phrases are snipped off. In the lobby of the headquarters of the National Rifle Association in
Fairfax, Virginia, for example, a wall has a copy of the Second Amendment engraved on it in large, perfect script. But it is only the second half of the Second Amendment.
The first part, i.e., “A well regulated militia, being necessary to the security of a free
State….” is not mentioned.
To perform this kind of tomfoolery with Article 16 does a disservice to Vermont’s founding fathers and to all Vermonters today. The entire text had a special significance
27 at the time, and to ignore the second and third phrases because they are notions strange to our eyes, prevents a thorough understanding of what motivated the authors to replicate the words of the Pennsylvania Constitution. The full text is “That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the 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.” In its entirety it is a classic example of 18th century radical Whig anti-standing army, pro militia sentiment.
Today most Americans celebrate America’s professional, standing army. To the
American revolutionaries of the 18th century it was their bete noire, the destroyer of republics.23 The only proper system of defense for a republic was a militia composed of free, citizen-soldiers, fighting for their country, not for monetary reward. This prohibition of standing armies reinforces the assertion of the preceding phrase’s implied meaning that collective security could best be found in the militia. The right to bear arms was necessary for men to perform their civic duty of service in the militia. This is why the militia was considered necessary to a free state.
Even with a militia of citizen soldiers, the power of the sword was the power that would rule, so the last clause of Article 16 ensures that the military power would always be subordinate to civil authority. The threat to liberty from a “veteran army” Jefferson
23 The best explanation of the impact of 18th and 17th and 18th opposition Whig ‘country’ ideology in general and anti-standing army sentiment can be found in Bailyn, Bernard, The Ideological Origins of the American Revolution, (1967); Wood, Gordon, The Creation of the American Republic, (1969); and Pocock, J.G.A., The Machiavellian Moment (1975)
28 wrote in 1774, was making “the civil subordinate to the military, instead of subjecting the military to civil power.”24
Article 16 had connections to other provisions of the Constitution, all reinforcing the notion of collective military duty. The preamble begins with the bold claim that “All government ought to be instituted and supported, for the security and protection of the community.....” ; Article 4 declares “That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same,” a sentiment noted earlier in Vermont’s Declaration of Independence; Article 6 states “That the government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community….” And Article 9 says “That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore, is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto….” And, in the same Article that no “man who is conscientiously scrupulous of bearing arms, be compelled thereto, if he will pay such equivalent.” The last statement is both an example of the term bearing arms used to connote military service and an affirmation that all members of society had a civic responsibility to contribute to its protection and security.
And finally Section 5 of the Plan or Frame of Government requires all the freemen of Vermont “and their sons” to be “trained and armed for its defence” in a
24 Quoted in Bailyn, p.61
29 militia that retained the democratic tradition of the Green Mountain Boys in “choosing their colonels of the militia.”
The selective reading of Article 16 as just a right to bear arms for individual self-defense clearly makes a shambles of the overall collective spirit that is woven into the constitution, and it divorces the community context from its intent. It ignores
Vermont’s history and the experience of Vermont’s early settlers; a history and experience symbolized by the spirit---if not the actions---of those “fierce Republicans”25 the Green Mountain Boys. Finally, it removes gun ownership from the very reason for the inclusion of the “right to bear arms” clause in the Vermont Constitution.
Conclusion
The individualist interpretation of the terms “defence of themselves” and “the right to bear arms” that now dominates the debate over gun control is a twentieth century construct. Over the past 225 years, unbridled, possessive individualism has replaced
18th century notions of civic virtue and the interconnectedness of individual rights and collective responsibilities.26 In parallel fashion, the right to bear arms has lost its original, collective purpose and given way to an individualist one. What we are left with are 21st century notions of stand-your-ground self-defense and unrestricted gun ownership masquerading in the language of 18th century collective defense. A
25 Quoted in Bellesiles, Michael, “Revolutionary Outlaws: Ethan Allen and the Struggle for Independence on the Early American Frontier, (1993) 26 For a description of this process see,C.B McPherson, The Political Theory of Possessive Individualism (Oxford, 1962); and William Appelman Williams, The Contours of American History (1961)
30 constitutional provision designed to provide security, order and community safety, is now being used to produce its antithesis.
In the conclusion of his motion to dismiss the charges against his client Mr.
Bragdon states that “the constitutional issue supporting this motion is far greater than
Mr. Misch.” Mr. Misch’s views and past actions, he writes should be “subservient to the greater issues in this Motion.” The constitutional issues raised “would be important regardless of the person asserting” them. And this is because “the constitution of our state protects all Vermont’s citizens, even those who may be viewed as outliers in their political and social views.”27
But this would not be the case if the “state of nature” that Mr. Bragdon praises as the foundation of Vermont’s freedom still existed. The men who founded the State of
Vermont were repulsed by living in a society in which men lived free of the “ ‘will of other men’ including government” and “without leave or depending on the will of any other man”28; or as Locke described it, where each man served as judge, jury and executioner. As they explained in Vermont’s Declaration of Independence, the inhabitants of the Grants “are, at present without law or government, and may be truly said to be in a state of nature.” For this reason they have the right “to form a government best suited to secure their property, well being and happiness.”29 They wanted more government, not less.
27 State of Vermont vs. Max B. Misch, No. 173-2-19 Bncr/Criminal, Motion to Dismiss, p. 28 28 Ibid 29 Vermont Declaration of Independence, March 17, 1777, in Conant and Stone, The Geography, History, Constitution and Civil Government of Vermont, 6th ed., 1`915 pp.192-193
31 With the introduction of the Constitution, Vermont left the state of nature and entered into a political society governed by laws and consensual government. They agreed that in return for security and safety, they would allow the unrestricted rights they had in a state of nature to be limited to the needs of the community and to serve the common good.
Allowing unrestricted access to firearms moves us away from the safety of political society and closer to the anarchy of a state of nature. It does nothing to increase the people’s sense of safety; it only increases our fears. Whose rights are violated when people are afraid to send their kids to school, attend a concert or movie, or shop, or go to church, or sit in a college lecture hall; when fear becomes one of the few things that unites us? How does this compare to asking our gun-owning friends, not to give up the weapons they hold so dearly for self-protection, but to bear the inconvenience of having to make one extra reload?30
30 See Addendum A
32 ADDENDUM A
Long Guns
THEN came, Oscar, the time of the guns. And there was no land for a man, no land for a country, Unless guns sprang up And spoke their language. The how of running the world was all in guns.
The law of a God keeping sea and land apart, The law of a child sucking milk, The law of stars held together, They slept and worked in the heads of men Making twenty mile guns, sixty mile guns, Speaking their language Of no land for a man, no land for a country Unless... guns... unless... guns.
There was a child wanted the moon shot off the sky, asking a long gun to get the moon, to conquer the insults of the moon, to conquer something, anything, to put it over and win the day,
To show them the running of the world was all in guns. There was a child wanted the moon shot off the sky. They dreamed... in the time of the guns... of guns. Carl Sandburg, 1920
33
34