Bradley: Will not pass muster
On April 28, a judge in the Southern District of Illinois, in the case of Barnet v. Raoul, issued a preliminary injunction against the enforcement of the recently-passed Protect Illinois Communities Act which banned “assault weapons” and standard capacity magazines. At the beginning of that case, the court made the following statement: “… no state may enact a law that denies its citizens rights that the Constitution guarantees them. Even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens.”
Simply put, the Second Amendment — the only Amendment to have the phrase “shall not be infringed” applied to it — guarantees citizens have a right to self-defense.
Across the Heller, McDonald and Bruen decisions, the Supreme Court of the United States has been crystal clear on two things: That the crux of the Second Amendment guarantees the right to self-defense, and that the Second Amendment is no longer a second-class right that is subject to an entirely different body of rules than the other Bill of Rights guarantees.
There can be, or should be, no question that any law that effectively prohibits the ability of an honest and law-abiding citizen to immediately purchase the best means of self-defense is an “infringement” to the right of self-defense. It is illogical to argue otherwise, given the wording of our Constitution.
We can speculate that a waiting period may save lives for those who are intent on immediately killing themselves; that maybe, perhaps, putting time between a purchase and taking possession will give people in crisis the time to reconsider.
On the other hand, we see, every day, violence is targeting completely innocent people. Law-abiding citizens who are under a threat of violence have a right to defend themselves, and to quote Martin Luther King: “A right delayed is a right denied.”
From my research, I have found only one court challenge to a waiting period so far, and that occurred in 2014 in California in the case of Silvester v. Harris. The case was heard in the U.S. District Court of California, which ruled the law was unconstitutional. In making that ruling, the court stated: “Defendant has identified no laws in existence at or near 1791 (founding) or 1868 (14th Amendment ratified) that imposed a waiting period of any duration between time of purchase and the time of possession of a firearm.” It further ruled: “The Court has found that the 10-day waiting periods (of Penal Code § 26815(a) and § 27540(a)) violate the Second Amendment.”
That decision was then appealed by California to the 9th Circuit, who overruled it by using a two-step means-end test and by applying intermediate scrutiny — both of which have been invalidated by Bruen when considering the Second Amendment.
In considering the constitutionality of H.230, it is exceptionally telling that Legislative Counsel remained almost completely mute. Yes, they certainly did advise both Judiciary committees that the Bruen decision was a major one, one that was raising all sorts of legal challenges across the country; yet, they completely withheld any concrete statement of constitutionality.
When the Attorney General’s office gave testimony, they opined that everything was fine. When the Defender General’s office gave testimony, they stated virtually every section of the bill had severe constitutional issues. On the one hand, we have the Attorney General indicating all is kosher. On the other, we have the Defender General’s office saying almost nothing in H.230 will pass constitutional muster. Finally, we have the Legislative Counsel whose guidance appears to be “we just don’t know.”
Three very different legal opinions, with one of them being wrong. Given that, how could this bill proceed as it did, unless the majority of the Legislature was willing to consciously ignore constitutional implications? It’s a gray area; let the courts decide; to heck with the thought something may be unconstitutional?
In creating H.230, you will note one very odd section, Section 8, Severability. Per 1 VSA § 215: “The provisions of any act are severable,” meaning if one provision of a passed bill is found invalid, the other provisions remain in effect. When 1 VSA § 215 is implied with every bill enacted, why was it felt this bill warranted that specific statute reference, the first bill I have ever seen with this section in there? There can only be one explanation: The creators of this bill were clearly not sure it was all constitutional. In fact, we know of some in the majority who believe at least some of it is not constitutional but voted for it anyway.
I fully acknowledge there is the possibility that a waiting period might, maybe, possibly force someone who is intent on killing themselves to reconsider as they wait to take possession of a firearm. The Legislature, however, must acknowledge that, while they are laser-focused on attempting to save the lives of people who are intent on killing themselves, they are, at the same time, putting other citizens in jeopardy by denying them the ability to purchase the means of self-defense in a timely manner.
It’s really that simple. Any vote for H.230 is a vote that ignores constitutional implications, it puts citizens who wish to defend themselves at risk, and it will cost the state (i.e., Vermonters) money to defend laws that will not pass constitutional muster when they are eventually challenged.
It currently appears Vermonters will have to temporarily live under the dictates of the majority in the Legislature, who wish to do nothing less than ignore the constitutional right of self-defense. For those legislators voting for H.230 and everyone else who supports it, sooner or later, they will have to live under the majority of SCOTUS, as simple logic tells us waiting periods will not pass constitutional muster.
Chris Bradley is president/executive director of Vermont Federation of Sportsmen’s Clubs, lobbyist for that organization and for Vermont State Rifle & Pistol Association.
