How should Vermont's right to bear arms be interpreted?

"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."
- Article 16 of the Vermont Constitution, 1793

In a 2021 ruling, Vermont's Supreme Court upheld Vermont's ban on large capacity magazines. The court wasn't convinced by the historical and linguistic evidence that "a right to possess weapons for individual self-defense" is protected under Vermont's Constitution but also said that it couldn't be ruled out. They concluded gun control which passes the reasonable-regulation balancing test is constitutional and that it was reasonable for Vermont's legislature to pass laws to reduce the number of mass shooting victims.

Some excerpts from the ruling:

"Analyzing these [linguistic] databases, occasionally alongside the Google Books database, several studies have reviewed hundreds of instances of 'bear arms' and have found that the phrase was 'overwhelmingly used in a collective or military sense.' .....

"Especially in light of the considerations set forth above, the import of the 'defense of themselves' language is equivocal....

"Considering the Declaration of Rights in the Vermont Constitution as a whole, the description of the right to bear arms in Article 16 as belonging to 'the people' places it in the category of rights generally associated with and exercised by the body politic as contrasted with rights conferred on and exercised by an individual....

"As a consequence, we cannot conclude with confidence based on the text alone, understood in its historical context, that Article 16 necessarily embodies a right to possess weapons for individual self-defense.....

"Although the text of Article 16 does not unequivocally establish such a right, our conclusion as to the likely historical meaning of Article 16 does not preclude a right to possess firearms for individual self-defense....

"The right to bear arms as commonly understood today has little to do with the right to bear arms as understood by the framers. We must bridge the gap between those worlds, and we 27 do so with the solemn understanding that this debate has had, and will continue to have, life-or-death consequences....

"We conclude that Article 16 protects a right to possess firearms for self-defense....

"Under the reasonable-regulation balancing test we now adopt, the right to bear arms in self-defense may be 'regulated but not prohibited.'.....

"And we conclude that the Legislature acted within its constitutional authority in determining that the limitation on large-capacity magazines furthers this goal. There is ample support in the public arena for the proposition that the use of large-capacity magazines is correlated with higher numbers of deaths and injuries in mass shootings."
https://www.vermontjudiciary.org/sites/default/files/documents/op19-266_1.pdf

 

rogue jurists suck. and the USSC will deal with this in the near future.

btw the constitutional interpretation is never properly done by whining about crime

 

@Galileo -have you ever told us what you think the second amendment protects?
have you ever told us what magazine limits would violate the second amendment or in this case Vermont's constitution

btw the balancing nonsense no longer works, and under Heller and Bruen, the magazine ban can be struck down no matter what the vermont constitution says or is perverted by Democrat judges

 

The right to be armed as part of a well-regulated militia.

It depends on if magazine limits interfered with the functioning of a well-regulated militia.

 

If find this ruling by the Vermont Supreme Court very interesting. Article 16 was written during the same time period as the Second Amendment. It seems the court struggled to reconcile the collective language of "the people" and "bear arms" with "for the defence of themselves":

"Analyzing these [linguistic] databases, occasionally alongside the Google Books database, several studies have reviewed hundreds of instances of 'bear arms' and have found that the phrase was 'overwhelmingly used in a collective or military sense.' "

"Considering the Declaration of Rights in the Vermont Constitution as a whole, the description of the right to bear arms in Article 16 as belonging to 'the people' places it in the category of rights generally associated with and exercised by the body politic as contrasted with rights conferred on and exercised by an individual."

I've wondered about that. At the time it was written how was "bear arms for the defence of themselves" understood? Was the intent to protect the right of white men to tote around a five feet long flintlock musket (capable of firing three rounds per minute at most)? Or did it have a more collective meaning such as the militia banding together to protect their communities against outlaws and Indians?

 

you understand that is a complete non-answer and runs contrary to every supreme court case that has examined this issue. Does that mean people have an individual right to keep a military grade rifle in their homes at all time?

any restriction on military style weapons interferes with this

 

doesn't matter-with the incorporation of the second, the federal second amendment can and should be used to strike down that idiotic law. You do know there were weapons available at the time that could fire much faster.

the fact is, you want to pretend that your desires to ban private firearms is not treasonous and unconstitutional. It is

 

related thread: Why Vermont is Blue (posted in Political Science section, Dec 19, 2019)

Explaining how Vermont tipped "progressive" politically over just three decades, between 1950 and 1980.

 

Meanwhile Vermont the "blue" state has one of the highest gun ownership per capita and voted for Republican Gov. Phil Scott 4 X.

 

Check your timeline. The high-capacity magazine ban was passed in 2018 (8 years after McDonald). It was ruled constitutional in 2021.

 

BRUEN. Who ruled it constitutional? and if a 20 round ban is constitutional-why don't you tell me at what number of rounds it becomes UNCONSTITUTIONAL

 

The Vermont Supreme Court.

"First, we are not bound by the Supreme Court’s decision in Heller in interpreting the Vermont Constitution. See Badger, 141 Vt. at 448-49, 450 A.2d at 347; supra, ¶¶ 13-14 & n.8. Second, and more importantly, our test does not turn on the popularity of a weapon. Assuming that large-capacity magazines are, as one amicus curiae argues, 'common to the point of ubiquity,' the number of magazines in circulation is not itself a reason to strike down this law. The proper test is whether the restriction is a reasonable exercise of police power. As long as the statute leaves available to Vermonters reasonable means to exercise the right to bear arms in self-defense, we will not question the Legislature’s reasonable policy judgments based on the prevalence of a weapon alone."
https://www.vermontjudiciary.org/sites/default/files/documents/op19-266_1.pdf

 

that's a non answer and I love it when local yokels thumb their subordinate thumbs at the Supremes.

and that standard no LONGER COUNTS with incorporation

are you going to answer my question?

 

-1 round. This Vermont Supreme Court ruling which upheld their high capacity magazine ban was in 2021 (more than a decade after McDonald).

 

that's why we oppose any such restrictions, because hard core gun banners such as you want to eliminate victims being able to defend themselves against felons. and your mindset is what the USSC needs to see every time one of these idiotic restrictions are brought before them

 

Ah.
You -choose- to be wrong.

 

And, when the USSC rules these bans unconstitutional, the VTSC ruling won't matter.

 

"the people have a right to bear arms for the defence of themselves" is really the only part that matters. Here's why:

The govt is never going to try to prevent people from bearing arms in defense of the govt, so that part might as well be fluff.

FedGov sure as hell isn't going to disband the Army to accomodate Vermont's State Constitution, so that part doesnt matter either. I spose Vermont could secede over it ...but its not going to.

That all just leaves the first part- which I can't imagine being interpreted as anything other than an individual right to bear arms for self defense.

 

No no NO!!!
You only have the right to shoot someone while you are part of the well-regulated militia!!!!!!

 

I am part of 'the militia' as its defined in US Code. And given that no politician is likely to try to enforce exclusion of women, the elderly or the disabled, you probably are effectively part of 'the militia' as well.

...but don't shoot anyone unless they're trying to kill you.

As far as 'well-regulated' goes, 'the militia' as defined in US Code is subject to the same litany of laws and regulations that everyone else is. Seems to me we are well enough regulated. Though I wouldn't turn my nose up to any effort to better train and prepare the militia to respond to emergencies, both natural and manmade, so long as those efforts werent made in the interest of excluding certain people from participating or bearing arms.

 

From what I've read "a right to bear arms for the defence of themselves" meant something like a right of people to voluntarily associate and form their own private militias. This was important since the government could not always be depended on to organize a well-regulated militia to provide protection. This was especially true in places such as Pennsylvania where Quakers had a lot of influence in politics. Quakers were pacifists and thus were morally opposed to militias. Pennsylvania's constitution also recognizes a right of the people to bear arms in "defence of themselves". One historian illustrates how this is not equivalent to protecting a right to use a gun in self-defense:

"In 1799, Dr. James Reynolds stood trial for assault with intent to murder after he had tried to fend off a Federalist mob, angry about his opposition to the Alien and Sedition Acts, by brandishing a pistol. What is illustrative about this case is that neither the prosecution nor the defense considered Reynolds’s possession or use of his gun to be a matter of constitutional law. If the individual right to bear arms was protected under the 1790 Pennsylvania Constitution, then why didn’t his lawyer justify his client’s actions under article 6 or section 21? It is also important to note that Reynolds was never considered to have borne arms, since that term never appears in the trial transcripts. His lawyer argued that 'there did exist a conspiracy to assassinate Dr. Reynolds' and that since there was 'no law in Pennsylvania to prevent it; every man has a right to carry arms who apprehends himself to be in danger.' That right came not from the state constitution but from the law of nature and the law of reason which allowed deadly force 'if necessary to [one's] own safety'. The prosecution disagreed, taking its cue from Blackstone and arguing, 'The laws says, if a man attack you by a sword, you have no right to kill him, till you have made every attempt to escape.' In the end, the jury sided with the defense and acquitted Reynolds. The case clearly demonstrates that using a gun in self-defense was legally different from 'bearing arms in defense of themselves and the state.' "
https://journals.psu.edu/pmhb/article/download/59337/59064/59795

 

so what. I realize that if you want to ban guns you have to pretend that the second amendment allows it

clue-it does not

 

His lawyers didn't make the claim of constitutional right to bear arms because in 1799 there was no question as to who could have guns or use them in self defense- everyone knew. The question was whether or not it was actually self defense or whether it was murder.

If you want, I'll find you an 'historian' who claims the holocaust didn't happen or bigfoot is real.

That case only demonstrates that in 1799 people were more concerned with actual crimes rather than whether people can have guns.

 

So you have a 36 round magazine that's standard capacity beginning that it's not a high capacity magazine that's okay?

 

Whoever told you this lied - and you let them.