Friday, 25 October 2013

Transcription

1 FIREARMS LAW 101 A Continuing Legal Education Program of the Vermont Bar Association Friday, 25 October 2013 PRESENTER: Attorney Cindy Hill is an NRA referral attorney for the state of Vermont and author of Brady Denial? You Can Get Your Guns Back (Paladin Press), Creative Lawyering: A Handbook for Practice in the 21st Century (XLibris) and numerous firearms law columns. She has previously presented continuing education seminars on Firearms Law for the VBA and for the annual meeting of the National Rifle Association, and represents gun owners in a full range of legal matters including shooting range noise disputes, Brady Denial appeals, wrongful possession criminal charges, crimes involving firearms use, firearms forfeitures, FFL licensing applications, and fish and game cases. Attorney Hill consults to lawyers across the country regarding their clients firearms licensing and eligibility matters. Attorney Cindy Hil 2013 Firearms Law 101 Page 1

2 Why Firearms Law? And Why Now? Firearms law is presently the cutting edge of Constitutional jurisprudence. With U.S. Supreme Court cases now holding that the Second Amendment protects an individual right of firearms possession (at least for limited purposes and in limited places) and incorporating that right via the Fourteenth Amendment to the states, we are poised on the cusp of a wave of Constitution litigation which will, in time, sort out parameters of individual rights versus Government regulation or perceptions of collective security; realms of state authority versus federal authority; interests of privacy and recordkeeping versus interests of law enforcement; and overarching philosophies of criminal justice, including questions of labeling, trust, and redemption. Firearms law pits many citizen s sense of personal independence and safety against many other citizen s sense of collective peace and security, and goes to the heart of the balance of power between a government and its citizenry. It implicates the role of the United States as a major world arms dealer, especially in small arms. It invokes current global events like Rwanda, Srebrenica, Egypt and Syria. In short, American Firearms Law is presently serving as the platform upon which we are writing the social contract of the present day. An understanding of the law, issues and controversies in this field will help any legal practitioner to better understand the context of other legal fields in his or her practice. And you get to go shooting with your clients, which is always fun. Attorney Cindy Hil 2013 Firearms Law 101 Page 2

3 What We ll Cover: A. U.S. CONSTITUTION: SECOND AMENDMENT p.4 (30 minutes) 1. What it says 2. U.S. Supreme Court cases regarding and interpreting the Second Amendment 3. Commerce Clause firearms cases 4. Major State Case rulings B. VERMONT CONSTITUTION, PREEMPTION and SHOOTING RANGE LAWS p. 17 (30 minutes) 1. What Vermont Constitution says about arms 2. Preemption and municipal regulation 3. Shooting range laws C. GUN CONTROL ACT of 1968 and AMENDMENTS p. 22 (1 hour) 1. Federal Gun Control Laws 2. What is a Firearm? 3. Who is a prohibited person: the nine prohibition categories 4. Forfeitures Questions, then COFFEE BREAK! D. BRADY CHECKS p. 45 (1 hour 45 minutes) 1. How they work 2. What a Brady Denial means to your clients. --Can t possess firearms under federal definition --Constructive Possession ` --Impact on hunting 3. Overturning a Brady Denial --Correcting erroneous records --Vermont expungement and pardons --Out of state convictions --Administrative appeals to NICS --Appeal to federal court --VAF E. MISCELLANY p. 63 (10 minutes) 1. Toy Guns 2. Firearms in Bankruptcy What We Won t Cover Today: If you d like to see a Firearms 201 CLE, let the VBA Know! FFL Licensing Machine Gun regulation Firearms Trusts Fish and Game Laws Self-Defense Concealed Carry State Licensing State and federal firearms crimes Attorney Cindy Hil 2013 Firearms Law 101 Page 3

4 Federal sentencing firearms guidelines Use of national guard for firearms enforcement A. U.S. CONSTITUTION: SECOND AMENDMENT (30 minutes) 1. What it says 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. 2. U.S. Supreme Court cases regarding and interpreting the Second Amendment Dred Scott v. Sandford (1857) - The Court ruled that Dred Scott did not enjoy the protection of the Bill of Rights because of his racial background. The ruling implies that all free men do have the right to bear arms by indicating what would happen if Scott was indeed afforded full protection: "It would give to persons of the negro race,... the right to enter every other State whenever they pleased,... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." United States v. Cruikshank, 92 U.S. 542 (1875) - A post-civil War case relating to the Ku Klux Klan depriving freed slaves rights such as freedom of assembly and to bear arms. The court ruled the application of the First and Second Amendments "was not intended to limit the powers of the State governments in respect to their own citizens" and "has no other effect than to restrict the powers of the national government.," Ruled the federal government could not file charges against citizens in federal court regarding violations of other citizens' constitutional rights this is a state police power matter. Dred Scott and Cruikshank remind us of the fundamentally racist roots of gun control in the United States an element which also underpins the political-philosophical arguments regarding firearms ownership everywhere in the world: people frequently try to disarm groups of people who are deemed other or less than the privileged groups. For a superb exploration of this issue, please read this Georgetown University Law Review article by two attorneys I greatly admire, Robert J. Cottrol and Raymond Diamond: This article by Clayton Cramer is also informative on this point: Attorney Cindy Hil 2013 Firearms Law 101 Page 4

5 Presser v. Illinois, 116 U.S. 252 (1886) - The Court ruled long before Heller that the Second Amendment protects a right of individuals, not militias. The Second Amendment related to an individual right to bear arms for the good of the United States, as armed citizens could serve as members of a militia upon being called up by the Government in time of collective need. It declared that although individuals have the right to keep and bear arms, a state law prohibiting common citizens from forming personal military organizations, and drilling or parading, is Constitutional because prohibiting such personal military formations and parades does not limit a personal right to keep and bear arms: "We think it clear that there are no sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms." The Court also noted that the Second Amendment only restrained the federal government from regulating gun ownership, not the individual states: "The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States." United States v. Miller, 307 U.S. 174 (1939) Miller a criminal prosecution regarding possession of a short shotgun --was what lawyers refer to in technical parlance as a crappy case. The defendants, out of resources, demurred at the trial level on the Constitutional issue, then didn t show up for or participate in the Supreme Court argument. What resulted was a U.S. Supreme Court decision that is a muddy mess and has haunted Second Amendment jurisprudence ever since. The Court stated in part: "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment Attorney Cindy Hil 2013 Firearms Law 101 Page 5

6 guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."' Lewis v. United States, 445 U.S. 55 (1980) - Ruling that the Congress may prohibit felons from possessing firearms: "This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm...these legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 307 U. S. 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia')" United States v. Verdugo-Urquidez 494 U.S. 259 (1990) - A case dealing with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to in the Constitution: "[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law... abridging... the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Attorney Cindy Hil 2013 Firearms Law 101 Page 6

7 District of Columbia v. Heller, 554 U.S. 570 (2008) - The Court ruled the Second Amendment to reference an individual right, holding: "The Second Amendment guarantees an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." McDonald v. Chicago (2010) - The Court ruled that the Second Amendment was incorporated against state and local governments, through the Due Process Clause of the Fourteenth Amendment. In the decision, the Court said: In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. [3] *********************** A Fundamental Right: Supreme Court s Chicago Ruling Takes a Frank Look at Core American Values Cindy Hill, Esq. What listening to a fiery and uplifting sermon can do for the heart and soul of the pious, reading a pointed and insightful court decision do for a lawyer. Such is the case with the decision of the U.S. Supreme Court in McDonald v. City of Chicago, Docket , decided on June 28, This 214-page decision with its numerous concurring and dissenting opinions may seem a daunting read, but it is well worth the effort, not just for its ultimate point that states as well as the federal government must respect the individual right to bear firearms in the home for self-protection but for its well-crafted extended discussion of the core Constitutional precepts that form the heart of classic American values. The irony is that while private firearms ownership has presently been associated culturally with the more conservative or at least right-leaning side of the political spectrum, most of the core Constitutional precepts that are used here by the U.S. Supreme Court to support the right to that private firearms ownership are what many gun owners might consider liberal, or perhaps even libertarian. In the Heller decision, which declared that private firearms ownership is an individual right upon which the federal government should not unduly intrude, the U.S. Supreme Court focused at length Attorney Cindy Hil 2013 Firearms Law 101 Page 7

8 on the history of American legal and cultural involvement with firearms ownership. That discussion included a pointed acknowledgement of some of the racially-motivated underpinnings of gun control laws in America, but the emphasis of the decision as a whole was on legal territory wellfamiliar to most gun owners: The castle doctrine that says everyone should be able to secure their home against criminal intruders, and the will of the founding fathers to ensure that an armed populace counterbalances the potential tyranny of government. The key question in Heller was whether the right to bear arms enshrined in the Second Amendment to the United States Constitution did indeed protect an individual right, or whether it only protected the right of home guards or citizen militias to engage in militarized protection of the state. The Supreme Court decided squarely in favor of the former a decision which passed without question or substantive revision in the Chicago decision. At issue in Chicago was rather the question of whether that right was among those nearly all the rights in the first ten Amendments to the U.S. Constitution which are also enforceable against State government regulation, and not just federal government regulation. (At issue were firearms prohibitions enacted by the City of Chicago and another nearby community; municipal ordinances are treated for legal review purposes as State regulation because municipalities are creatures of the state, created and authorized by state law and having only those powers allotted to them by State law and State-issued municipal charters.) The Supreme Court here evaluated the question of incorporation of the Second Amendment right into those rights protected against state incursion through the Fourteenth Amendment by applying the yardstick set out in a series of prior Supreme Court decisions which addressed protections of criminal due process and protections against racial discrimination and inequality: Is the right of an individual to bear personal firearms a right fundamental to the Nation s scheme of ordered liberty, and is it deeply rooted in this Nation s history and tradition. In legal shorthand, does the Second Amendment secure a fundamental right? In answering that question in the affirmative, the Supreme Court placed the right to bear arms squarely and deliberately amidst a bevy of rights that illustrate core American Constitutional values. Two of these that the Court dwelt on are racial equality, and a criminal due process protection called the Exclusionary Rule. The Court expounded at length on the systematic efforts of various State and private political organizations to disarm, and then physically hurt or kill, African-American citizens in the post Civil War era, and then squarely and plainly states that part of the purpose behind the Civil Rights Act was to ensure the security of black Americans right to keep and bear firearms. The Court cites both Democrat and Republic platforms and speeches of the late 1800 s in support of individual firearms ownership as a means of protecting life and personal liberty. The Court points out that this need is not a mere historical fact, but relevant in our present society: In the municipalities at issue in this lawsuit, as in many other locations in the United States, the majority of victims of violent crime are black, and government entities are not providing them with the personal protection which could be best provided by their own possession of a firearm. Striving for equal protection of the laws for all citizens regardless of race or other superficial divisions is, the Supreme Court reminds us, a core Attorney Cindy Hil 2013 Firearms Law 101 Page 8

9 American value, protected by the Constitution, and that includes the right of all citizens to self protection. The Court dispelled Chicago s argument that the Second Amendment is different than other civil or Constitutional rights because guns are things that can be used to cause harm. The Court notes that many of our rights may result in harmful or even violent situations. They point to the exclusionary rule a point of criminal due process which holds that evidence illegally obtained is inadmissible to demonstrate that a violent criminal may well be turned loose if his or her Constitutional rights against unlawful search and seizure are not protected. For those who might tend to think that a law-abiding citizen ought to be able to have a gun, but that criminals are not deserving of rights, the U.S. Supreme Court s argument provides a sharp slap-back: Those criminal due process rights are fundamental rights that protect individuals against the excesses and oppression of government and individuals just like your firearms rights. One of the oddest and most interesting arguments made by the City of Chicago was that a right can t be considered a fundamental right unless it is recognized by all temperate and civilized governments, from a deep and universal sense of their justice. Chicago s brief went on to argue that since England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and other civilized nations ban private firearms, or at least handgun, ownership, that American courts can not consider the Second Amendment to impart a fundamental right. Ptooey, said the Supreme Court. This is America. Many of those countries also don t recognize trial by jury, or free speech (it s illegal to criticize the British Queen, for example), and many of them establish official state religions. Do you really want them to serve as the yardstick for determining American Constitutional rights? (This point of argument also calls to mind those flaming diatribes floating around the internet advocating for applying the dire laws of other countries regarding treatment of individuals who cross the border without proper documentation Do you really think we should be applying the laws of Iran, or Turkey, or Cambodia, to individuals within the United States? Be careful what you wish for.) There is a reason we fought the Revolution and, as the bumper sticker says, that reason ain t duck hunting: It s the Constitution. Gun owners celebrating their victory in the Chicago case should not ignore the broader importance of the decision that it is a powerful victory for all American civil and Constitutional rights. If you are going to argue that criminal due process rights or equal protection under the laws should be curtailed for certain people or situations, then you better be prepared to surrender an equal proportion of your firearms rights as well. The moral of the Constitutional law sermon that is the Chicago decision: Support the civil liberties, rights, and equal protections of the law for all Americans, because standing together even with those you might have personal disagreement with is the ultimate core American value. Amen to that. *end* ********************* Attorney Cindy Hil 2013 Firearms Law 101 Page 9

10 3. Commerce Clause United States v. Lopez, 514 U.S. 549 (1995) - In the first Supreme Court case since the New Deal to set limits on the Congress's power under the Commerce Clause, the Court declared the Gun- Free School Zones Act of 1990 unconstitutional. United States v. Rybar (3d Cir. 1996) - The United States Court of Appeals for the Third Circuit ruled Congress did have the power to regulate possession of homemade machine guns under the Commerce Clause, later contradicted by the Ninth Circuit, but ultimately reaffirmed by the Supreme Court. The Third Circuit made this decision 2-1, with future Supreme Court Justice Samuel Alito in dissent. United States v. Stewart (348 F.3d 1132 (2003) and 451 F.3d 1071 (2006) - In 2003, the United States Court of Appeals for the Ninth Circuit struck down Stewart's conviction on a charge of possession of an unregistered machinegun (18 U.S.C. 922(o)) on Commerce Clause grounds. Following the Supreme Court's decision in Gonzales v. Raich, the Court ordered Stewart remanded to the Ninth Circuit for further consideration in light of the decision in Raich. The Ninth Circuit then upheld Stewart's conviction, concluding "We therefore hold that Congress had a rational basis for concluding that in the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns." ****************** The Commerce Clause: Will Firearms Freedom Acts Buck the Federal Tide? Cindy Ellen Hill, Esq. On October 1, 2009, a law went into effect in Montana declaring that all firearms manufactured within the state and used only within the state are not considered to be in interstate commerce, and thus are not subject to federal registration or regulation. A similar statute has also recently been passed in Tennessee, and a Firearms Freedom Act website, declares that such laws are sweeping the nation. Will Firearms Freedom Act advocates accomplish their goal of direct confrontation with the proclaimed tyranny of the Commerce Clause of the United States Constitution? Or will their lofty goals flutter and fade away, like a flag left too long under the inevitable, unstoppable rays of the sun? The Commerce Clause Unveiled The Commerce Clause is an enumerated power a concrete, listed authority granted to Congress in the body of the Constitution. It is found at Article One Section 8 Clause 3 of the United States Attorney Cindy Hil 2013 Firearms Law 101 Page 10

11 Constitution, and states, [The Congress shall have the power] to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. The Commerce Clause in put into full effect by the Necessary and Proper Clause, which is found at Article One Section 8 Clause 18, which avers that Congress is authorized to adopt all laws necessary and proper to carry out the exercise of their enumerated powers. The Commerce Clause was originally intended as a mini-nafta, precluding states from blocking their borders against the products being sold by another state, or from imposing undue tariffs and taxes of goods from other states. In this guise, the Commerce Clause was used as a tool of federalism, facilitating the development of the nation from insular, territorial entities to one thriving, prosperous world power. In the ante-bellum era, the ploughshare of the Commerce Clause turned to a sword swung by captains of industry. Courts declared repeatedly that they could not touch the worker abuses, the dangerous conditions, or the environmental devastation of factories and mines because manufacturing and mining were local affairs, not interstate matters even when the raw materials of manufactory were brought in from other states, and the products left the factory gates for sale at some distant venue. Then the pendulum swung, and suddenly the Commerce Clause was everywhere. The Supreme Court declared that the Commerce Clause could apply to anything that merely affected interstate commerce, directly or indirectly, and left it to the limits of Congress s collective imagination to determine what that might be. The Commerce Clause became a key anti-discrimination tool in the Civil Rights Movement, allowing Congress to declare that no entity engaged in business anywhere in the U.S. could discriminate based on race or religion. If the tires on your company truck, or the toilet paper in your office bathroom stall came from out of state, then you were subject to federal regulation under the authority of the Commerce Clause. This brilliant and effective tool for routing shameful discrimination from resistant corners of the country was also a double-edged sword, which increasingly turned and twisted to slice at small businesses, farmers, and others outside the main stream of American Main Street. Courts went so far as to declare that a person could not grow wheat for their own consumption, since wheat was a regulated commodity, and an individual who grew their own was effecting interstate commerce because it meant they weren t buying their bread or flour from someone else. The pendulum swung back again in 1995, in a firearms case. The U.S. Supreme Court ruled in United States v. Lopez, 514 US 549, that Congress had gone too far in banning firearms from school zones on the basis that firearms near schools might lead to violence, and violence leads to decline in property values and community quality of life, and that leads to decline in neighborhood investment and loss of sales, and thus effects interstate commerce. The Court ruled that Congress had to rein itself in, and that the Commerce Clause only authorized regulation of the channels of interstate commerce, the instrumentalities, people or goods in interstate commerce, and activities that substantially affect interstate commerce, holding, To Attorney Cindy Hil 2013 Firearms Law 101 Page 11

12 uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. The freedoms-loving public rejoiced, but Congress hardly batted an eyelash, as it had other tools in its toolbox mainly money. The era of federal-supremacy-by-check remains in full force, with Congress and federal agencies tying the grant of federal money for school, roads, bridges, law enforcement, libraries, construction, and so on, to state and local compliance with Congressionallydesired schemes and programs. Meanwhile, the federal government continues to maintain its authority to regulate most manufacture and sale of alcohol, tobacco, firearms, and explosives under old-fashioned Commerce Clause principles: very, very few of these items are manufactured entirely of in-state materials for exclusive in-state use. Which brings us to the question of the utility of a statute which declares those rare items to be out of Commerce Clause jurisdiction. Build Your Own: What s the Commerce Clause Got to Do With It? According to no less a source than the BATF itself, it is perfectly legal for a person to make their own firearm. That is: if you are a person otherwise lawful to possess firearms; and you are not building a machine gun or destructive device, or are not attempting to circumvent restrictions on the importation of certain militarized weapons by putting them together yourself out of component parts; and it s intended for your own personal use, not for sale or distribution; then go right ahead, no one s gonna stop you, or require that you get a manufacturer s license, or register the firearm, or pay a manufacturer s tax, or anything like that. Oh, but check your state laws, particularly their definition of zip guns, because in most states it s okay to manufacture a real gun, just don t attach a nail to a car antennae by a rubber band, not that cars have antennaes that work for such things any more, so no one under 25 reading this has any idea what I m talking about. And if you buy a frame or receiver instead of machining one yourself, you will have to go through a Brady check or whatever permitting laws are in effect in your jurisdiction to buy that. So, at present, any person in Montana, or anywhere else, lawfully entitled to possess firearms, can go ahead and make themselves one, and Congress doesn t have any authority over it, even without the Firearms Freedom Act just like you can brew your own beer in your basement without a brewers license or roll your own cigarettes, just as long as you re not doing so on a commercial basis. So what does the Firearms Freedom statute actually do? Attorney Cindy Hil 2013 Firearms Law 101 Page 12

13 The point of impact for the Firearms Freedom Act is small but potentially powerful: it expands the present sphere of lack of Congressional power over firearms built for personal use, to firearms made in the state for sale within the state. It effectively declares, full circle, that the Commerce Clause does not apply to manufactory, which is a local activity, unless or until the product of that manufactory crosses state lines. This raises an interesting question for anyone looking to manufacture and sell guns in Montana. The statute says that such firearms must be stamped, Made in Montana. But as a manufacturer, how am I going to ensure that the guns I make and sell remain in the state? I d want at a minimum to require the purchasers to present proof of Montana residency, and perhaps sign an affidavit that they know and understand this firearm is never to leave the state exactly the kind of papers-please transaction that advocates of such a statute are trying to avoid. But once one of those guns crosses state lines by sale to a tourist and come on, who among us will not be lining up at the state borders to buy a gun stamped Made in Montana? How cool is that? Can I collect all 50 states? down comes the Commerce Clause, wham. In short, it s an enormous risk for a commercial manufacturer to undertake. Yet, for the Firearms Freedom Act to have any practical effect on the present state of the law, that risk will have to be taken by someone willing to commercially manufacture and sell a Montana firearm, then undergo being charged with the federal crime of illegal firearms manufacturing, and raise the state statute in their defense. Firearms advocates and state s-rights enthusiasts will be watching carefully to see if the appropriate brave soul comes forward, willing to front legal fees and risk federal jail time in exchange for striking a blow back against the aging dragon of the Commerce Clause. Then we ll watch to see whether Congress withholds federal funding for any state with a Firearms Freedom Act and whether the states with such laws give them up and pony up, or cave in to the power of the federal exchequer. The Net Impact: A Web of Local Economy If Firearms Freedom Acts withstand legal challenge, they may well allow small, local manufacturers of firearms to thrive. This is a good thing and, ironically, it s an interesting parallel to the otherwise-seen-as-liberal localvore movements which advocate for strengthening local sources of food, clothing, wood products, and other goods. For example, across the nation, localvore groups are advocating remarkably similar legislation to allow local butchering and sale of meat without being subject to onerous or cost-prohibitive federal inspection. When these movements intersect, economic stability and food security may well come to mean local venison or turkey gained at the business end of a locally-manufactured fine-quality firearm. The Firearms Freedom Acts may not dismantle the federal government and emasculate the Commerce Clause but they may well be a viable, effective piece of a broader cultural movement away from mass consumerism and towards local economies and self-sufficiency. And that would Attorney Cindy Hil 2013 Firearms Law 101 Page 13

14 truly be a patriotic revolution. ***************** 4. Major State Court Decisions Bliss v. Commonwealth (1822, KY) addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799):"That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned." This was interpreted to include the right to carry a concealed sword in a cane. The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The Bliss ruling was overturned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. Aymette v. State, 21Tenn. 154, 156 (1840), Aymette is about bowie knives and civilized warfare. The Tennessee Supreme Court construed the guarantee in Tennessee s 1834 Constitution that the free white men of this State, have a right to keep and bear arms for their common defence. Explaining that the provision was adopted with the same goals as the Federal Constitution s Second Amendment, the court wrote: The words bear arms have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. 1. The act of , ch. 137, sec. 2, which prohibits any person from wearing any bowie knife, or Arkansas tooth-pick under his clothes or concealed about his person does not conflict with the 26th section of the first article of the bill of rights, securing to the free white citizens the right to keep and bear arms for their common defense. 2. The arms, the right to keep and bear which is secured by the constitution, are such as are usually employed in civilized warfare, and constitute the ordinary military equipment; the legislature have the power to prohibit the keeping or wearing weapons dangerous to the peace Attorney Cindy Hil 2013 Firearms Law 101 Page 14

15 and safety of the citizens, and which are not usual in civilized warfare. (Apparently they don t consider bowie knives part of civilized warfare. ) 3. The right to keep and bear arms for the common defense is a great political right. It respects the citizens on the one hand, and the rulers on the other; and although this right must be inviolably preserved, it does not follow that the legislature is prohibited from passing laws regulating the manner in which these arms may be employed. Nunn v. Georgia (Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)). The Georgia Supreme Court ruled that a state law ban on handguns was an unconstitutional violation of the Second Amendment This was the first gun control measure to be overturned on second amendment grounds.the Supreme Court in its ruling in Heller v. District of Columbia said "Nunn" Perfectly captured the in which the operative clause of the Second amendment furthered the purpose announced in the prefatory clause. The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta! In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization Attorney Cindy Hil 2013 Firearms Law 101 Page 15

16 provided for by law, is also apparent from the second amendment to the federal Constitution, which says: '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.'" In 2013, the Illinois Supreme Court in People v. Aguilar held that a total ban on carrying firearms outside the home violated the Second Amendment and was unconstitutional. Applying Heller, McDonald, and Moore v. Madigan (a Seventh Circuit decision), the Illinois Supreme Court overturned the conviction of Aguilar, stating that the right to self-defense was at the core of the Second Amendment. Illinois v. Aguilar: Attorney Cindy Hil 2013 Firearms Law 101 Page 16

17 B. VERMONT CONSTITUTION, PREEMPTION and SHOOTING RANGE LAWS (30 minutes) 1. What the Vermont Constitution says about arms Constitution of 1777 Section 1 Article IX. 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 the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good. Article XV. That the people have a right to bear arms for the defence of the 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. Section 5 The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence, under such regulations, restrictions and exceptions, as the General Assembly shall, by law, direct; reserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed. Constitution of 1786 Section 1 Article X. 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 [the] that protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, [or that of his legal representatives] or that of the Representative Body of the Freemen; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have in like manner, assented to for their common good. And previous to any law being made to raise a tax, the purpose for which it is to be raised, ought to appear evident to the Legislature to be of more service to community than the money would be, if not collected. Attorney Cindy Hil 2013 Firearms Law 101 Page 17

18 Article XVIII. That the people have a right to bear arms for the defence of the 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. Section XIX The [freemen] inhabitants of this commonwealth shall be trained and armed for its defence, under such regulations, restrictions, and exceptions, as the General Assembly shall, by law, direct. [reserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed] The several companies of militia shall, as often as vacancies happen, elect their captains and other inferior officers; and the captains and subalterns shall nominate and recommend the field officers of their respective regiments, who shall appoint their staff officers. Constitution of 1793 Section 1 Article 9 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, but no part of [a man's] any person's property can be justly taken from him or applied to public uses, without his own consent, or that of the Representative Body of the freemen, nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law but such as they have in like manner assented to, for their common good: and previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected. Section 1 Article 16 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. Section 22 The inhabitants of this State shall be trained and armed for its defence, under such regulations, restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the Legislature of this State, [as the General Assembly shall, by law,] shall direct. The several companies of Militia shall, as often as vacancies happen, elect their Captain and other Officers, and the Captain and Subalterns shall nominate and recommend the field officers of their respective regiments, who shall appoint their staff Officers. Section 40 The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not enclosed; and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be hereafter made and provided by the General Assembly. Attorney Cindy Hil 2013 Firearms Law 101 Page 18

19 Constitution of 1793 as amended through present Section 1 Article 9. [Citizens' rights and duties in the state; bearing arms; taxation] 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 the member's proportion towards the expence of that protection, and yield personal service, when necessary, or an equivalent thereto, but no part of any person's property can be justly taken, or applied to public uses, without the person's own consent, or that of the Representative Body, nor can any person who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if such person will pay such equivalent; nor are the people bound by any law but such as they have in like manner assented to, for their common good: and previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected. Article 16. [Right to bear arms; standing armies; military power subordinate to civil] That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in 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. General Provisions 67. [HUNTING; FOWLING AND FISHING] The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly. 2. Preemption statute and municipal regulation Title 24 Section 2291 (8) To regulate or prohibit the use or discharge, but not possession of, firearms within the municipality or specified portions thereof, provided that an ordinance adopted under this subdivision Attorney Cindy Hil 2013 Firearms Law 101 Page 19

20 shall be consistent with section 2295 of this title and shall not prohibit, reduce, or limit discharge at any existing sport shooting range, as that term is defined in 10 V.S.A Authority of municipal and county governments to regulate firearms, ammunition, hunting, fishing and trapping Except as otherwise provided by law, no town, city or incorporated village, by ordinance, resolution or other enactment, shall directly regulate hunting, fishing and trapping or the possession, ownership, transportation, transfer, sale, purchase, carrying, licensing or registration of traps, firearms, ammunition or components of firearms or ammunition. This section shall not limit the powers conferred upon a town, city or incorporated village under section 2291(8) of this title. The provisions of this section shall supersede any inconsistent provisions of a municipal charter. (Added 1987, No. 178 (Adj. Sess.), eff. May 9, 1988.) --As of this writing, the City of Burlington is holding hearings on sweeping firearms regulations, and intends to request that the Vermont Legislature amend their charter to allow this regulation. They have passed prior gun bans that did not make it to the Legislature; Montpelier passed something similar that the Legislature did not pick up. Prior ordinances in Barre and Rutland were successfully challenged by citizens. 3. Shooting Range Regulation in Vermont 10 VSA Sport shooting ranges; municipal and state authority (a) "Sport shooting range" or "range" means an area designed and operated for the use of archery, rifles, shotguns, pistols, skeet, trap, black powder, or any other similar sport shooting. (b) The owner or operator of a sport shooting range, and a person lawfully using the range, who is in substantial compliance with any noise use condition of any issued municipal or state land use permit otherwise required by law shall not be subject to any civil liability for damages or any injunctive relief resulting from noise or noise pollution, notwithstanding any provision of law to the contrary. (c) If no municipal or state land use permit is otherwise required by law, then the owner or operator of the range and any person lawfully using the range shall not be subject to any civil liability for damages or any injunctive relief relating to noise or noise pollution. (d) Nothing in this section shall prohibit or limit the authority of a municipality or the state to enforce any condition of a lawfully issued and otherwise required permit. Attorney Cindy Hil 2013 Firearms Law 101 Page 20