A second gun rights organization is bringing a lawsuit against Vermont over firearm restrictions passed by the Legislature and signed into law by the governor earlier this year.
In its filing, Gun Owners of Vermont says the legislation was the result of a “knee-jerk, emotional reaction” that was “hastily slapped together.”
The organization, based in Windham County where the lawsuit is filed, is asking a judge to rule provisions of the law unconstitutional and impose an injunction to prevent them from going into effect.
The filing comes as another gun rights organization and advocates made their latest filing in a lawsuit filed this spring, which the state wants a judge to dismiss.
A ban on high-capacity magazines is set to go into effect Oct. 1.
Both lawsuits seeks to overturn provisions of S.55, a bill that enacted historic restrictions on firearms in a state that previously had been known for its permissive gun laws.
Gun Owners of Vermont, based in Westminster, is challenging three of the law’s provisions that were not taken up in the earlier lawsuit, which focused solely on the establishment of a limit on magazine sizes for firearms.
The new lawsuit
While the vice chair of the Vermont Republican Party is the lead attorney for the magazine ban challenge, which has also received support from the National Rifle Association, the second lawsuit was filed last week with little fanfare.
Gun Owners of Vermont is targeting the bill’s provisions that increase the age to purchase a firearm to 21, expands background checks to private sales, and bans bump stock rapid-firing devices.
“Despite Vermont’s history of protecting civil rights, and despite its record of nonviolent and responsible firearms use, the government has curtailed the people’s fundamental rights with a flurry of hastily slapped together measures passed and signed into law in 2018,” the lawsuit states.
The filing adds, “This legislation is a knee-jerk, emotional reaction that solves no problem.”
S.55 was part of a blitz of gun legislation that came after the governor said in mid-February he was “jolted” by details in the case against an 18-year-old Poultney man in what police said was a foiled school shooting plot in Fair Haven.
Jack Sawyer, now 19, was arrested just days after a school shooting in Parkland, Florida, that left 17 people dead.
Michael Shane, a White River Junction attorney and Vermont Law School graduate representing Gun Owners of Vermont, could not immediately be reached Monday for comment.
He did state in an email, “We hold the freedoms and civil rights of Vermonters very dear as did the founding fathers. Vermont’s commitment to civil rights is evident in the Vermont Constitution. It is that very constitution that will protect Vermonters now from this unprecedented curtailment of liberty.”
The filing names as defendants Col. Matthew Birmingham, the director of the Vermont State Police, and two prosecutors: Tracey Shriver Kelly, Windham County state’s attorney, and TJ Donovan, the state’s attorney general.
Vermont Solicitor General Benjamin Battles of the attorney general’s office said Monday that he had just heard about the Gun Owners of Vermont lawsuit, and had not been served a copy of the filing.
He added that the state “look[s] forward to defending Vermont’s laws before the Windham superior court.”
Gun Owners of Vermont, according to the lawsuit, was founded in 1996 and has roughly 7,000 members, a number it says has shot up since the new bill was passed.
The lawsuit claims all three provisions of S.55 the group is challenging violate Article 16 of the Vermont Constitution, which says that “people have the right to bear arms for the defence of themselves and the state.”
In addition, the lawsuit states says increasing the age to purchase a gun to 21 violates the “common benefits” clause of the Article 7 on the Vermont Constitution, which mandates equal protection under the law
“In this case, the government has singled out a group people under 21 years old and curtailed their fundamental rights,” the lawsuit states. “Furthermore, that curtailment serves no legitimate government purpose.”
The age restriction provision of S.55 does exempt law enforcement and military personnel, as well as those who have taken a hunter safety course.
The magazine challenge
Gun Owners of Vermont is not challenging the magazine limit provision of the legislation.
That’s because that part of the law is already being challenged by sportsmen groups, firearms dealers and others, in Washington County court, as part of a lawsuit filed shortly after the legislation was signed into law in April.
That lawsuit also raises the Article 16 argument in seeking to have that provision declared unconstitutional, and also asks Judge Mary Miles Teachout, who is presiding over the case, to grant an injunction prohibiting the state’s enforcement of the magazine limit.
The new law bans the sale, possession or transfer of long-gun magazines with a capacity greater than 10 rounds and handgun magazines with a capacity greater than 15 rounds.
Firearm dealers in Vermont have until Oct. 1 to sell magazines already in stock. Also, magazines above the new limits that were possessed before the bill was signed into law are still allowed.
The plaintiffs in the lawsuit include the Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Powderhorn Outdoor Sports, Locust Creek Outfitters and a few individual gun owners.
According to the lawsuit, the magazine limit is “unenforceable” because there is no tracking system in place for magazines. For example, the devices bear no markings that indicate the date of manufacture.
Also, the lawsuit states, firearms dealers will no longer be able to sell the “standard” size magazines to customers in Vermont, resulting in a loss of business from customers they anticipate will travel out of state to buy the devices.
Among the defendants are two also named in the filing by the Gun Owners of Vermont: Birmingham, the state police chief, and Donovan, the attorney general. Other defendants include Chittenden County State’s Attorney Sarah George and Windsor County State’s Attorney David Cahill.
Last month, the attorney general’s office, representing the state, filed a motion asking the judge to toss out the lawsuit.
In its filing, the attorney general’s office argued, “Nothing in the text of Article 16, its history, or Vermont case law suggests that our constitution alone enshrines an inviolable right to shoot more than ten rounds without having to reload.”
Battles, Vermont’s solicitor general, also wrote: “The people of Vermont, through their elected representatives, rightly and reasonably want to reduce the likelihood and harm of a mass shooting here.”
The state also challenged the standing of the parties to even bring the lawsuit, saying that the ban on the sale hadn’t yet gone into effect and the lawsuit was brought on “vague wishes to buy large-capacity magazines at some point in the future.”
Brady Toensing, a lawyer from Charlotte with the Washington, D.C.-based firm DiGenova and Toensing and representing the plaintiffs bringing the lawsuit, filed a response Monday asking the judge to allow the case to proceed.
“Because Vermont’s law flatly bans the possession of these common magazines — by anyone, in any place, and for any purpose — it is categorically unconstitutional,” Toensing wrote.
“That is how constitutional rights work,” he added. “If the legislature passed a ban forbidding all Catholics in the State from practicing their religion, the Court would not ask whether that was a ‘reasonable’ restriction on religious freedom, it would invalidate the ban as unconstitutional per se.”
Later in the filing, Toensing wrote, “surely the promise of Article 16 is that Vermonters may decide for themselves which arms in common use are best suited to self-defense, rather than being confined to arms that the Government — much less a group of anti-gun advocacy organizations — has deemed ‘adequate.’”
Toensing also disputes that the plaintiffs don’t have standing.
For example, he wrote, there is no “speculation involved in forecasting” that for those plaintiffs currently possessing magazines over the limit size those devices will wear out and require replacement after Oct. 1.
“The Associational Plaintiffs also have standing,” Toensing wrote, referring to the gun groups, “both because — like the retailers — they are economically injured by the ban, and — like the individuals — their members are prevented by the ban from replacing their magazines after October 1st.”
In the 65-page filing, Toensing added that “at a minimum” the state should have “experimented with less intrusive measures,” such as restricting public carrying of the larger magazines, imposing more stringent background checks for their purchase, or creating a separate licensing system to buy them.
He then wrote that while the plaintiffs “do not suggest that these or other measures Vermont might have imposed instead are themselves free from constitutional doubt, the very existence of such alternative, less onerous restrictions – untried by Vermont, demonstrates that the State” has “too readily foregone” other options that could “serve its interest just as well.”
Toensing, reached Monday, declined comment on the filing, other than to say, “I am going to let our brief speak for itself.”
Battles, Vermont solicitor general, said Monday that he was still reviewing the filing submitted in the case.
“But,” he added, “we continue to reject the plaintiff’s argument that the Vermont Constitution, unlike the Second Amendment, somehow prevents the Legislature from taking reasonable steps to protect Vermonters from the dangers of gun violence.”
Now that both sides have presented written arguments on whether the case should be allowed to proceed, it’s unclear if a hearing will be set to hear arguments from the two sides, or if the judge will rule based on the briefs alone.
* New lawsuit
Read the story on VTDigger here: Fresh lawsuit filed over gun law as attorney presses on with another.