State v. Max Misch ( 2021 )

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: JUD.Reporter@vermont.gov 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.
2021 VT 10No. 2019-266
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division
Max Misch June Term, 2020
William D. Cohen, J.
Thomas J. Donovan, Jr., Attorney General, Benjamin D. Battles, Solicitor General, and
Ultan Doyle, David Boyd, and Eleanor L.P. Spottswood, Assistant Attorneys General,
Montpelier, for Plaintiff-Appellant.
Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and Carly Orozco,
Law Clerk (On the Brief), Montpelier, for Defendant-Appellee.
David J. Haber, Unaffiliated Private Citizen, Burlington, Amicus Curiae.
Tristram J. Coffin, Jennifer McDonald and William T. Clark of Downs Rachlin Martin, PLLC,
Burlington, Bridget C. Asay and Michael Donofrio of Stris & Maher LLP, Montpelier, J. Adam
Skaggs of Giffords Law Center to Prevent Gun Violence, New York, New York, and Hannah
Shearer of Giffords Law Center to Prevent Gun Violence, San Francisco, California, for Amici
Curiae Giffords Law Center, Vermont Medical Society, and Gun Sense Vermont.
Jonathan T. Rose of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, Karl A.
Racine, Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General,
Caroline S. Van Zile, Deputy Solicitor General, and Sonya L. Lebsack, Assistant Attorney
General, Washington, DC, for Amici Curiae 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.
O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC, Burlington, and Eric Tirschwell,
William J. Taylor, Jr., and Mark Anthony Frassetto of Everytown Law (On the Brief), New York,
New York, for Amicus Curiae Everytown for Gun Safety Support Fund.
Stephen Coteus of Tarrant, Gillies & Richardson, Montpelier, Jonathan E. Lowy and
Kelly Sampson of Brady, Washington, DC, Mark D. Selwyn, Arthur W. Coviello, and
Kevin O’Brien of Wilmerhale LLP, Palo Alto, California, Lauren Fletcher of Wilmerhale LLP,
Boston, Massachusetts, and Jon C. Weingart of Wilmerhale LLP, Washington, DC, for Amici
Curiae Brady and Brady Vermont.
Ethan A Fenn, Law Office of Ethan A. Fenn, PLC, Burlington, Joseph G.S. Greenlee of Firearms
Policy Coalition, Sacramento, California, David B. Kopel of Independence Institute, Denver,
Colorado, and Ilya Shapiro and Trevor Burrus of Cato Institute, Washington, DC, for Amici
Curiae Cato Institute, Firearms Policy Coalition, Firearms Policy Foundation, and Independence
Institute.
Clark Bensen of Polidata LLC, Corinth, and David H. Thompson and Peter A. Patterson of Cooper
& Kirk PLLC, Washington, DC, for Amicus Curiae Robert Kalinowski Jr.
PRESENT: Robinson, Eaton1 and Carroll, JJ., Wesley and Pearson Supr. JJ. (Ret.),
Specially Assigned
¶ 1. PER CURIAM. This case requires us to decide whether Vermont’s ban on large-
capacity magazines (LCMs), 13 V.S.A. § 4021(a), violates the right to bear arms under Chapter I,
Article 16 of the Vermont Constitution.2 We conclude that the magazine ban is a reasonable
regulation of the right of the people to bear arms for self-defense, and therefore affirm the trial
court’s denial of defendant’s motion to dismiss the charges against him for allegedly violating
§ 4021(a).
¶ 2. Defendant was charged under 13 V.S.A. § 4021(a) with two counts of unlawfully
possessing a large-capacity magazine. Section 4021 states, “[a] person shall not manufacture,
1
Justice Eaton was present for oral argument but did not participate in this decision.
2
In a separate appeal from the Vermont Superior Court, Washington Unit, Civil Division,
appellants Vermont Federation of Sportsmen’s Clubs; Vermont State Rifle & Pistol Association,
Inc.; Powderhorn Outdoor Sports Center, Inc.; John Fogarty; and Samuel Frank, challenged the
constitutionality of 13 V.S.A. § 4021. This opinion addresses arguments raised in that appeal to
the extent that they differ from those raised in this case, and we have decided that case in its own
docket today in a published entry order. See Vt. Fed’n of Sportsmen’s Clubs v. Birmingham, 2021
VT 11, __ Vt. __, __ A.3d __ (mem.).
2
possess, transfer, offer for sale, purchase, receive or import into this State a large capacity
ammunition feeding device,” defined as:
a magazine, belt, drum, feed strip, or similar device that has a
capacity of, or that can be readily restored or converted to
accept . . . more than 10 rounds of ammunition for a long gun;
or . . . more than 15 rounds of ammunition for a hand gun.
Id. § 4021(a), (e)(1). Defendant allegedly traveled to a New Hampshire retailer, purchased two
thirty-round magazines for a rifle, and transported them back into Vermont. Defendant moved to
dismiss the charges on the grounds that the statute unconstitutionally impinges on the right to bear
arms in Article 16 and that the grandfather provision of § 4021 violates the Common Benefits
Clause of Chapter I, Article 7 of the Vermont Constitution by treating differently people who
possessed large-capacity magazines before April 11, 2018, and those who acquire large-capacity
magazines after that date. See id. § 4021(c)(1) (stating that prohibition shall not apply to devices
lawfully possessed on or before statute’s effective date).
¶ 3. In June 2019, the trial court denied defendant’s motion to dismiss. The court
described the two most common tests for determining the constitutionality of gun-control statutes
in other jurisdictions: the “reasonableness test” used by the majority of states, and the two-prong
test used by most federal circuit courts. The court concluded that § 4021 satisfies both tests. It
also rejected defendant’s argument under the Common Benefits Clause, reasoning that “[t]he
grandfather provision allowed the Legislature to gradually curtail the availability of large-capacity
magazines while lessening the burden on individuals that already possessed these devi[c]es,” and
that differential treatment based on the time a person acquired magazines “bears a reasonable and
just relation to the governmental purpose of protecting the public from gun violence.”
¶ 4. The trial court subsequently granted the parties’ joint motion for appeal on report
by agreement pursuant to Vermont Rule of Appellate Procedure 5(a)(1), reporting two questions
of law: whether § 4021 violates Chapter I, Article 16, and whether it violates Chapter I, Article 7.
3
We accepted the appeal. The constitutionality of § 4021 is a pure question of law, which we review
without deference to the trial court.3 See In re MVP Health Ins. Co., 2016 VT 111, ¶ 10, 203 Vt.
274, 155 A.3d 1207.
¶ 5. On appeal, the State argues that Article 16 establishes a limited right to bear arms
in self-defense, urges the Court to adopt the “reasonable regulation” standard used by most other
states to evaluate the constitutionality of regulations impacting the right to bear arms, and contends
that regardless of the standard applied, § 4021 does not violate Article 16.4 Defendant argues that
the right to bear arms under Article 16 is “express and without limitation,” that the statute “runs
counter to the express requirements of the Vermont Constitution,” and that we should therefore
presume it to be unconstitutional.
¶ 6. With respect to the Common Benefits Clause, on appeal defendant argues for the
first time that § 4021 violates Article 7 because it exempts large-capacity magazines transferred to
or possessed by government agencies and current and retired law-enforcement officers, thus giving
preferential treatment to government officials over other groups. See 13 V.S.A. § 4021(d)(1)(A),
(B), (D) (creating exceptions to prohibition of LCMs). Defendant does not pursue his argument
that the grandfather exemption violates the Common Benefits Clause. In its reply brief, the State
argues that defendant has waived his appeal as it relates to the grandfather clause, and that he failed
to preserve his new claim relating to government officials.
3
The constitutional issues in this case are based only on Article 16 and the Common
Benefits Clause of the Vermont Constitution. Defendant raises no claim under the Second
Amendment or Equal Protection Clause of the United States Constitution. The Second
Amendment provides: “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.” U.S. Const. amend. II. The
Equal Protection Clause prohibits states from making laws that deny any person “equal protection
of the law.” U.S. Const. amend. XIV. The federal case law referenced in this opinion is cited as
persuasive authority only.
4
Pursuant to Appellate Rule 5(a)(3), the State is treated as the appellant in criminal actions
appealed on report by agreement.
4
¶ 7. We first determine that Article 16 protects a limited right to individual self-defense,
and that the proper standard for Article 16 challenges is a reasonable-regulation test. Under this
test, we will uphold a statute implicating the right to bear arms provided it is a reasonable exercise
of the State’s power to protect the public safety and welfare. Applying this standard, we conclude
that § 4021 satisfies the reasonable-regulation test because the statute has a valid purpose of
reducing the lethality of mass shootings, the Legislature was within its authority in concluding that
the regulation promotes this purpose, and the statute leaves ample means for Vermonters to
exercise their right to bear arms in self-defense.5
5
We do not address defendant’s Common Benefits Clause arguments. Because defendant
did not challenge the constitutionality of the grandfather clause in his brief on appeal, we do not
address it here. See State v. Godfrey, 2010 VT 29, ¶ 27, 187 Vt. 495, 996 A.2d 237 (noting that
challenges raised at trial level but not briefed on appeal are generally waived). While the State
briefed the grandfather-clause issue in its opening brief, it did not challenge the provision. See In
re D.C., 2016 VT 72, ¶ 5 n.1, 202 Vt. 340, 149 A.3d 466 (declining to reach waived issue even
though it was briefed by opposing party).
We also do not address defendant’s challenge to the statute’s exceptions for governmental
agencies and current or retired law enforcement officers because he did not raise the argument
below, and we conclude that it was not within the intended scope of this appeal by agreement and
report under Appellate Rule 5(a). “To properly preserve an issue for appeal a party must present
the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to
rule on it.” Zlotoff Found., Inc. v. Town of South Hero, 2020 VT 25, ¶ 33, __ Vt. __, 231 A.3d
1146 (quotation omitted). In his Common Benefits Clause argument before the trial court,
defendant did not mention the governmental exceptions in 13 V.S.A. § 4021(d)(1) but focused
entirely on the grandfather clause in § 4021(c)(1). It is true that in describing the legal issues for
appeal, the trial court used the general phrasing, “Does 13 V.S.A. § 4021 violate Chapter I, Article
7 of the Vermont Constitution?” But we do not view this general phrasing as a request or
authorization to address any and all Common Benefits Clause arguments, whether or not raised
and addressed by the trial court. Moreover, the record is insufficient and the briefing inadequate
to evaluate this argument. In particular, the record and argument concerning the bases for the
challenged exemption are minimal, and defendant, having raised the argument for the first time in
his appellee brief, has not briefed the question of severability in the event that this Court were to
hold that one or more of the statute’s exemptions run afoul of the Common Benefits Clause.
5
I. Legal Framework Under Article 16
¶ 8. Article 16 declares that “the people have a right to bear arms for the defence of
themselves and the State.”6 Vt. Const. ch. I, art. 16. We have never defined the scope of the right
to bear arms, nor have we set forth a standard to determine whether a law infringes upon that right.
These are our first two tasks.
¶ 9. When establishing a constitutional test, our goal is “to discover and protect the core
value that gave life to” a constitutional provision, and “to give meaning to the text in light of
contemporary experience.” State v. Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991). In doing
so, we begin with the text of the provision, understood in its historical context, and we consider
our own case law, the construction of similar provisions in other state constitutions, and empirical
evidence if relevant. See Baker v. State, 170 Vt. 194, 206, 744 A.2d 864, 873 (1999) (identifying
factors Court typically relies on in construing Vermont Constitution); see also State v. Jewett, 146
Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985) (identifying text of constitutional provision, history
surrounding its adoption, decisions from other states interpreting similar constitutional provisions,
and economic and sociological materials as tools for interpreting provisions in the Vermont
Constitution). With this guidance in mind, we consider the scope of the right to bear arms
embodied in Article 16, and the proper test for evaluating the constitutionality of laws that
potentially impinge on that right.
A. Scope of Right to Bear Arms
¶ 10. We conclude that Article 16 protects a right to bear arms in individual self-defense,
subject to reasonable regulation. The constitutional text, considered in the historical context
surrounding its enactment, is inconclusive as to the full scope and purpose of the right. To the
6
The quoted language here reflects the spelling of “defense” at the time the Constitution
was drafted; however, we use the modern spelling, “defense,” throughout the remainder of the
opinion for consistency, except when quoting language from another state’s constitution.
6
extent that Article 16 established a right to bear arms for the purpose of serving in a state militia,
that aspect of the Article 16 right has no contemporary application. Considering the text alone, in
light of its likely meaning at the time the Vermont Constitution was enacted, it is unclear whether
Article 16 protected an individual’s right to possess guns for self-defense outside of the context of
actual or potential state militia service. Nevertheless, our case law has assumed that Article 16
protects such an individual right subject to reasonable regulation, and courts in most states and the
United States Supreme Court have all construed similar provisions to establish a limited right to
possess guns for individual self-defense. This right has never been understood as unlimited, as
evidenced by case law as well as regulations of firearms throughout Vermont history. Given these
considerations, we conclude that recognizing that Article 16 includes a limited right to bear arms
in individual self-defense is the best way to “give meaning to the text in light of contemporary
experience.” Kirchoff, 156 Vt. at 6, 587 A.2d at 992. However, both our case law and the
historical roots of Article 16 support an interpretation that allows for gun regulation in the interest
of public safety.
1. Text
¶ 11. The full text of Article 16 provides:
That the people have a right to bear arms for the defense 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.
Vt. Const. ch. I, art. 16.
¶ 12. “We approach interpretation of the [Vermont] Constitution differently than we do
the interpretation of statutes.” State v. Hance, 2006 VT 97, ¶ 10, 180 Vt. 357, 910 A.2d 874. We
have often relied on historical context to “illuminate the meaning” of a constitutional provision.
Id.; see also Daye v. State, 171 Vt. 475, 484, 769 A.2d 630, 638 (2000) (“Plaintiffs are well
served . . . in seeking guidance from the historical and ideological forces surrounding the framing
7
of the constitutional provision at issue.”). Historical context is “[o]ne of our most useful tools to
determine the meaning of a constitutional provision,” because the plain meaning of the right to
bear arms as commonly understood today does not necessarily align with its plain meaning when
it was written in 1777.7 Chittenden Town Sch. Dist. v. Dep’t of Educ., 169 Vt. 310, 327-28, 738
A.2d 539, 552 (1999) (noting that in trying to discern what language in constitution means, “we
are trying to make the best sense we can of an historical event—someone, or a social group with
particular responsibilities, speaking or writing in a particular way on a particular occasion”
(quotation omitted)); cf. Turner v. Shumlin, 2017 VT 2, ¶ 25, 204 Vt. 78, 163 A.3d 1173 (per
curiam) (“Notably, in this case we are not construing an ancient constitutional provision that would
give us pause in applying the plain meaning of the provision’s language without considering its
historical context.”). In determining that the language of Article 16 alone does not establish the
contours of and limits to the right to bear arms, we consider the historical context generally, the
contemporaneous meaning of the term “bear arms,” and the reference in Article 16 to the right of
“the people” to bear arms for the “defense of themselves and the State.”
a. Historical Context
¶ 13. The historical context here is significant. Although the historical record contains
scant evidence of public debate concerning the right of individuals to keep or carry weapons for
nonmilitia purposes, the status and control of state militias and the desirability of a standing
national army were hotly debated throughout the states during the era when Vermont’s founders
adopted the first Vermont Constitution. K. Ehrman & D. Henigan, The Second Amendment in the
Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 14-34 (1989)
(describing widespread debate concerning protection of state militias in state constitutions, the
United States Constitution, and the federal Bill of Rights). The Virginia Declaration of Rights,
7
The right to bear arms appeared in the 1777 Constitution at Article XV; the language of
Article 16 of the 1793 Constitution—the current constitution—is essentially identical.
8
which was the oldest and most influential declaration of rights, stated that “a well-regulated
Militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence
of a free State.” Id. at 16-17 (quoting Va. Declaration of Rights of 1776, art. 13). It did not
reference a specific right to “bear arms.” Id. The Pennsylvania Constitution was influenced by
the Virginia Constitution, and was the first to affirmatively declare a right to “bear arms” tied to
“defense of themselves” in the context of a comparable provision. Id. (quoting Pa. Declaration of
Rights of 1776, arts. VIII & XIII). Most of the remaining state constitutions drew from one or
both of these constitutions; only four of the state constitutions adopted prior to the federal
constitution included a right to “bear arms,” and only two, including Vermont’s, included a
reference to “defense for themselves.” Id. at 17. The Vermont Declaration of Rights incorporates
the language from the Pennsylvania Constitution verbatim. Id. n.91; see also Chittenden Town
Sch. Dist., 169 Vt. at 334, 738 A.2d at 556 (noting that much of Vermont’s original constitutional
language came from Pennsylvania’s constitution).
¶ 14. Ehrman and Henigan summarized the historical record concerning these provisions
as follows:
[I]n none of the conventions, writings, or debates preceding the
second amendment was there any discussion of a right to have
weapons for hunting, target shooting, self-defense, or any other non-
militia purpose. No such discussion appears in the Constitutional
Convention records, the Anti-Federalist writings, Virginia's
ratifying debates, state constitutions or declarations of the 1770s, or
Congressional debates on the Bill of Rights.
Ehrman, supra, at 33. Instead, the debate underlying these various provisions, including the
Second Amendment to the United States Constitution, arose from a “fear of standing armies in the
hands of a powerful central government” that had “instilled in Americans a belief that a militia
was the proper form of defense.” Id. The goal animating these various provisions was to protect
the ability of states to maintain effective state-regulated militias. Id. As Justice Stevens has
explained, with reference to the Second Amendment to the United States Constitution,
9
The history of the adoption of the Amendment thus describes an
overriding concern about the potential threat to state sovereignty
that a federal standing army would pose, and a desire to protect the
States’ militias as the means by which to guard against that danger.
But state militias could not effectively check the prospect of a
federal standing army so long as Congress retained the power to
disarm them, and so a guarantee against such disarmament was
needed.
District of Columbia v. Heller, 554 U.S. 570, 661 (2008) (Stevens, J., dissenting). In this context,
we consider the text of Article 16 more closely. In particular, we consider the meaning of the right
to “bear arms for the defense of . . . the State,” and the significance of the right of “the people” to
bear arms “for the defense of themselves.”8 Vt. Const. ch. I, art. 16.
b. “Bear Arms for the defense of . . . the State”
¶ 15. The phrase “bear arms for the defense of . . . the State” by itself most likely meant,
in the eighteenth century, to bear arms for the purpose of serving in a state militia. To the extent
8
We are mindful that the United States Supreme Court has interpreted the language of
Article 16 of the Vermont Constitution to establish a right to individual self-defense that is
independent of militia service. Heller, 554 U.S. at 584-85, 585 n.8. In Heller, the Supreme Court
held that the Second Amendment of the United States Constitution protects the right to carry
firearms for individual self-defense. Id. at 601. In doing so, the Court rejected the petitioners’ and
dissenting justices’ arguments that the term “bear arms” in the Second Amendment connotes
primarily service in a militia, holding instead that “bear arms” means literally to carry a firearm.
Id. at 584. In support of its interpretation of “bear arms,” the Court pointed to the Vermont
Constitution. It reasoned that because Article 16 includes the phrase “for the defense of
themselves,” Vermont had “clearly adopted individual rights unconnected to militia service.” Id.
at 601; see also id. at 585 & n.8 (citing Article 16, among other state constitutional provisions, as
one of the “most prominent examples” of the use of “bear arms” in the 18th and early 19th
centuries).
We note that in interpreting our own Constitution, we are not bound by the Supreme
Court’s interpretation of the Second Amendment or its understanding of our Constitution. “We
are a sovereign state,” and in applying the Vermont Constitution, “this Court is entitled to take
issue with any constitutional decision of the United States Supreme Court, regardless of whether
our constitution provides the same or a different text.” State v. Morris, 165 Vt. 111, 127, 680 A.2d
90, 101 (1996). The Vermont Constitution is “not a mere reflection of the federal charter,” but
“an independent authority, and Vermont’s fundamental law.” State v. Badger, 141 Vt. 430, 448-
49, 450 A.2d 336, 347 (1982). And it is our responsibility alone to interpret the Vermont
Constitution. Chittenden Town Sch. Dist., 169 Vt. at 319, 738 A.2d at 546; see also Michigan v.
Long, 463 U.S. 1032, 1041 (1983) (“It is fundamental that state courts be left free and unfettered
by us in interpreting their state constitutions.” (quotation omitted)).
10
the right to bear arms is borne of and shaped by the purpose of ensuring a ready force to serve in
the state militia, it does not apply in the modern context.
i. “Bear Arms”
¶ 16. Our understanding of the meaning of the constitutional right to “bear arms” in 2021
is necessarily informed by an understanding of the meaning of that term when Vermont’s founders
established the constitutional right, as reflected in general linguistic usage in the founding era as
well as the specific terminology in the Vermont Constitution.
¶ 17. In recent years, Brigham Young University has released two databases—the
Corpus of Founding Era American English, which contains over 120,000 texts, including legal
writings, books, pamphlets, letters, and other documents dated between 1760 and 1799, and the
Corpus of Early Modern English, which contains over 40,000 texts, including those published in
England as well as the United States. D. Baron, Corpus Evidence Illuminates the Meaning of Bear
Arms, 46 Hastings Const. L.Q. 509, 510 (2019); BYU Law & Corpus Linguistics, Corpus of Early
Modern English (BYU-COEME) (last visited Jan. 8, 2021),
https://lawncl.byu.edu/byucoeme/concordances; BYU Law & Corpus Linguistics, Corpus of
Founding Era American English (COFEA) (last visited Jan. 8, 2021),
https://lawcorpus.byu.edu/cofea/concordances/search. Analyzing these 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.” D. Miller, Owning Heller, 30 U. Fla. J.L. & Pub. Pol’y 153, 160-61 (2020) (emphasis
omitted) (collecting studies); see also J. Jones, Comment: The “Weaponization” of Corpus
Linguistics: Testing Heller’s Linguistic Claims, 34 BYU J. Pub. L. 135, 161 (2020) (finding that
“bear arms was used more often [though not overwhelmingly more often] in the ‘figurative’
specialized sense than the ‘literal’ carrying sense”); Baron, supra, at 511-12 (analyzing
approximately 900 occurrences of the phrase “bear arms” before and during the founding era and
11
finding only seven that were either ambiguous or carried no military connotation); J. Blackman &
J. Phillips, Corpus Linguistics and the Second Amendment, H.L. Rev. Blog (Aug. 7, 2018), https://
blog.harvardlawreview.org/corpus-linguistics-and-the-second-amendment/ [https://perma.cc/
4SEV-GQAZ] (analyzing sample of fifty sources and finding “overwhelming majority” were in
military context). While there was some contemporary use of the term “bear arms” in a literal or
individualistic sense, corpus data has revealed that “bear arms” most often meant to serve in a
military capacity. See also Heller, 554 U.S. at 646-47 (Stevens, J., dissenting) (citing 18th-century
dictionary definitions of “bear arms”).9 Coupled with “for the defense of . . . the State,” and in
light of the history set forth above, the phrase relates to a right to bear arms as a necessary condition
to service in a State militia.
¶ 18. This understanding is consistent with the context and use of “bear arms” and
“bearing arms” in the Vermont Constitution. The phrase “bear arms” in the first clause of Article
16 refers at least in part to the “defense of . . . the State,” and the latter two clauses of Article 16
clearly relate to the roles and power of the standing army and military. In this context, it makes
sense to read “bear arms” as being connected to militia service. And Chapter I, Article 9, the other
constitutional provision containing the phrase “bearing arms,” uses the term to refer to the duty to
bear arms in militia service. Article 9 contains a conscientious-objector clause: no person “who is
conscientiously scrupulous of bearing arms” can “be justly compelled thereto.” Vt. Const. ch. I,
art. 9. Use of the phrase “bearing arms” in Article 9 to mean military service reinforces an
inference that in Article 16 the phrase “bear arms” means to carry weapons in a military context.
See State v. Lohr, 2020 VT 41, ¶ 7, __ Vt. __, 236 A.3d 1277 (noting that canons of statutory
construction apply “more cautiously” when interpreting the Constitution, but relying on canon that
9
We note that some of the more recent evidence of the public meaning of “bear arms”
during the late eighteenth century that informs our analysis was not available to the United States
Supreme Court when it decided Heller in 2008.
12
“we examine ‘the whole and every part’ of a [constitutional] provision, together with others
governing the same subject matter, as parts of a system” (quotation omitted)); cf. Mosby v. Devine,
851 A.2d 1031, 1041-42 (R.I. 2004) (reasoning that reference to “bearing arms” in conscientious-
objector provision “relates exclusively to military service,” and concluding that “bear arms” in
Rhode Island Constitution “relates to military service and the common defense”).
¶ 19. On this view, the right to bear arms, while an individual right, was an individual
right in service of a collective responsibility. Members of the militia generally provided their own
weapons, and in Vermont, they were required to do so. P. Gillies, The Militia Governed by the
Civil Power, 44-SPG Vt. B.J. 14, 15 (2018); see also Commonwealth v. Davis, 343 N.E.2d 847,
849 (Mass. 1976) (“Militiamen customarily furnished their own equipment and indeed might be
under legal obligation to do so.”). A law restricting possession of arms used in militia service
“might then have interfered with the effectiveness of the militia and thus offended” the
constitutional right to bear arms. Davis, 343 N.E.2d at 849. Based on the language of the
Constitution and its historical context, the right to “bear arms for the defense of . . . the State” in
Article 16 was most likely a right to bear arms for the purpose of service in the state militia.
ii. Modern Status of the State “Militia”
¶ 20. To the extent that a right to “bear arms” is tied to the purpose of preserving a state
militia force, there is no modern predicate to application of the right. During the framers’ era,
while the militia was made up of civilians, not professionals, it was an organized body, functioning
both as part of the government and as an independent force to protect the community. See Ehrman,
supra, at 24 (stating that for purposes of Second Amendment, “even though the militias were
composed of a large body of male citizens, the militias were seen as state units”). The militia was,
as two scholars described, “a trained, organized, and armed collection of qualified males, save
those of conscientious scruple and others exempted from service by their states, called together
from their normal pursuits to respond to occasional and particular threats, internal or external, to
13
community peace.” H. Uviller & W. Merkel, The Second Amendment in Context: The Case of
the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403, 598 (2000). Because militias were state-
regulated, they also served as a state-based check on overreaching federal power. See Ehrman,
supra, at 34-35 (noting that Second Amendment, among other things, ensured that federal
government would not become overly oppressive and ensured states that they would have authority
in federalist scheme); see also M. Driessen, Private Organizations and the Militia Status: They
Don’t Make Militias Like They Used To, 1998 B.Y.U. L. Rev. 1, 7-14 (1998) (identifying salient
characteristics of eighteenth-century citizen militia: membership was state-established and
defined; it was composed of lay citizens rather than professional soldiers; operations were state-
supported; the militia was independent of federal government; and militia forces were dedicated
to public rather than private benefit).
¶ 21. The Vermont militia, which was regulated by statute and in which every eligible
and nonexempt man was enrolled, was first and foremost a domestic defense force. See Vt. Const.
of 1777, ch. II, § 5 (stating that “[t]he freemen of this Commonwealth, and their sons, shall be
trained and armed for its defense”), https://sos.vermont.gov/vsara/learn/constitution/1777-
constitution/ [https://perma.cc/B937-GMQ2]. “The essential duty of the militia was to be ready to
respond, to be called out on a Colonel’s orders, ‘upon any alarm, invasion, or notice of the
appearance of an enemy, either by water or land.’ ” Gillies, supra, at 15.10
¶ 22. A state militia no longer exists. By 1840, the Vermont militia’s “glory days were
over,” and in 1941, “when a revised chapter on the National Guard was enacted . . . the practice of
requiring universal manhood military service finally ended for good in Vermont.” Gillies, supra,
at 16. The core function of the militia is now entrusted to the National Guard, which serves dual
10
Historian Gillies has noted that the militia performed other duties as well. For example,
in 1778, ten Vermont militia members were “ordered to march and tread snow from Charlestown,
New Hampshire to Wilmington, Vermont, to pack the ground for the sleighs that would follow.”
Gillies, supra, at 15.
14
functions as “the militia of the states and a permanent reserve component of the U.S. Army.”
Uviller, supra, at 538. Although the National Guard is the closest living descendant of the colonial-
era militias, it is a distant cousin at best because the federal government controls its weapons and
supplies. See Driessen, supra, at 15-17. Moreover, because the government now supplies weapons
to members of the National Guard, regulations on firearms do not threaten the effectiveness of the
militia. See Davis, 343 N.E.2d at 849. Although modern private armed groups—including, but
not limited to, militant white supremacist organizations—may claim the title of a “militia” in name,
in practice there is no modern equivalent to the universal, state-regulated militia known to the
framers. See Driessen, supra, at 21-22 (distinguishing modern, private “neo-militias,” from
colonial militias on basis that colonial militias “operated legitimately with the imprimatur of the
government sponsoring them”); see also C. Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365,
1380-82 (1993) (describing rise of private white-supremacist “militia” groups during
Reconstruction and stating that the Ku Klux Klan “continues to expressly invoke the militia
tradition”).
¶ 23. To the extent that the right to bear arms is tied to the purpose of supporting service
in the state militia, this aspect of Article 16 has little meaning in today’s world.11 As one scholar
noted about the Second Amendment, “[i]n the year 2000, the militia world contemplated by the
Second Amendment no longer exists, and no plausible analogy to that nexus can be reconstructed.”
Uviller, supra, at 547. In short, the institution of the state militia, with which the right to “bear
arms” was associated, is not only distinct from individual self-defense, but has no modern
manifestation. For these reasons, the right to “bear arms for the defense . . . of the State” is
essentially obsolete. The predicate no longer exists in any meaningful way. But Article 16 goes
11
See People v. Brown, 235 N.W. 245, 246 (Mich. 1931) (noting that state militia was
“practically extinct and has been superseded by the National Guard,” and therefore “the historical
test would render the [Michigan] constitutional provision lifeless”).
15
further by expressly stating that “the people” have a right to “bear arms for the defense of
themselves and the State.” The textual and historical question is what this additional phrase adds
to the meaning of the provision.
c. “For Defense of Themselves”
¶ 24. The inclusion of language indicating that the “people” have a right to bear arms
“for the defense of themselves and the State” introduces the possibility that the founders intended
to establish a broader right to “bear arms” in individual self-defense, unmoored from potential
militia service. Especially in light of the considerations set forth above, the import of the “defense
of themselves” language is equivocal. But the language of Article 16 is not inconsistent with the
conclusion that the right to bear arms extends beyond potential militia service to individual self-
defense.
¶ 25. By its plain terms, the language of Article 16 describes a right of “the people” to
bear arms for the purpose of defending not only the State, but also “themselves.” This is the
strongest evidence that Article 16 was intended to establish a right to bear arms for individual self-
defense in addition to defense of the community. In fact, as noted above, citing this language from
the 1777 Vermont Constitution, and the essentially identical provision of the 1776 Pennsylvania
Constitution, the United States Supreme Court asserted that these constitutions “clearly adopted
individual rights unconnected to militia service.” Heller, 554 U.S. at 601.
¶ 26. Although the reference to “defense of themselves” lends support to the view that
Article 16 establishes a right to bear arms to protect individual interests, the meaning of the text in
historical context is equivocal. The association of the right with “the people,” rather than persons,
distinguishes it from many, though not all, rights enumerated in the Vermont Constitution that
protect individual liberty or action disconnected from the body politic. The Constitution
recognizes that all “persons” are born equally free and independent, and have inherent, unalienable
rights, ch. I, art. 1; requires compensation when any “person’s” property is taken for public use,
16
id. at art. 2; recognizes freedom of religion for all “persons,” id. at art. 3; indicates that every
“person” ought to have a remedy at law for injuries or wrongs, id. at art. 4; provides a host of
protections to a “person” in prosecutions for criminal offenses, id. at art. 10; provides that no
“person” not employed in the army or actual militia service may be subject to martial law, id. at
art. 17; and states that no “person” shall be liable to be transported out of state for trial for an
offense committed in Vermont, id. at art. 21.
¶ 27. In contrast, the Vermont Constitution generally refers to “the people” when
recognizing rights associated with the body politic, to be exercised collectively. For example, the
rights of governing and regulating the internal police is assigned to “the people,” id. at art. 5;
government is accountable to “the people,” id. at art. 6; free debate and deliberation in the
Legislature is essential to the rights of “the people,” id. at art. 14; adherence to “justice,
moderation, temperance, industry, and frugality” are necessary to preserve the blessings of liberty,
and “the people” in directing their legislators and magistrates ought to pay particular attention to
these principles, id. at art. 18; and “the people” have a right to assemble and petition the
Legislature, id. at art. 20. But see id. at art. 13 (describing right of “the people” to freedom of
speech as a basis for freedom of the press).
¶ 28. Some Articles include both terms, depending on whether the specific context
implicates an individual or collective right or action. See, e.g., id. at art. 7 (referring to security of
“the people” as an end of government, and prohibiting laws for particular emolument or advantage
of “any single person, family, or set of persons”); id. at art. 9 (providing that no “person’s” property
can be taken without consent, protecting rights of any “person” who is conscientiously opposed to
bearing arms, and stating that “the people” are not bound by any law they have not assented to for
their common good); id. at art. 11 (recognizing the right of “the people” to be free from search or
seizure and providing that warrants to seize “any person or persons” without oath and sufficient
foundation ought not be granted).
17
¶ 29. 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. See Lohr, 2020 VT 41, ¶ 7 (noting that we
consider related provisions in the Constitution as parts of a system); cf. Heller, 554 U.S. at 644-45(Stevens, J., dissenting) (noting that the words “the people” were generally, though not
exclusively, used in the United States Bill of Rights to describe individual rights exercised
collectively). For these reasons, the reference to “defense of themselves and the State” in
describing the purpose of the right to bear arms is equally compatible with an understanding,
reinforced by the historical context described above, that “the people” and “themselves” describe
an individual right to bear arms for the purpose of defending the collective body politic, rather than
individual persons. Cf. Mich. Const. art. I, § 6 (“Every person has a right to keep and bear arms
for the defense of himself and the state.” (emphasis added)); Tex. Const. art. 1, § 23 (“Every
citizen shall have the right to keep and bear arms in the lawful defense of himself or the State . . . .”
(emphasis added)). 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.
¶ 30. 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. Cf. Heller, 554 U.S. at 599 (“It is . . . entirely sensible that
the Second Amendment’s prefatory clause announces the purpose for which the right was codified:
to prevent elimination of the militia. The prefatory clause does not suggest that preserving the
militia was the only reason Americans valued the ancient right.”). Thus, although the right to bear
arms reflected in Article 16 was likely tied to service in the militia, especially given the reference
18
to defense of “themselves,” the Article 16 right may also encompass individual gun ownership for
the purpose of private self-defense.
¶ 31. In sum, the text of Article 16, as written in the eighteenth century, was likely
designed to protect the right of the people to bear arms for the purpose of constituting and serving
in the state militia—a purpose that renders the right essentially obsolete in modern times.
However, this interpretation does not foreclose the possibility that the provision can and should be
understood to protect the right of individuals to own firearms for individual self-defense,
independent of service in a state militia. To help further elucidate the meaning of the constitutional
provision, we turn to our case law interpreting Article 16.
2. Vermont Case Law
¶ 32. In this Court’s history, we have relied on Article 16 only twice: in State v.
Rosenthal, 75 Vt. 295, 297, 55 A. 610, 610 (1903) and State v. Duranleau, 128 Vt. 206, 210, 260
A.2d 383, 386 (1969), superseded by rule on other grounds, V.R.A.P. 5(b), as recognized in State
v. Carpenter, 138 Vt. 140, 145, 412 A.2d 285, 289 (1980).12 Neither case includes a detailed
analysis of Article 16. However, both cases offer important insight into how we have historically
understood that right: first, we have assumed that Article 16 protects an individual right to bear
arms outside of the context of actual or potential militia service, and second, we have assumed that
the right is subject to regulation by the Legislature.
¶ 33. Rosenthal, decided in 1903, is our earliest case directly referencing Article 16. In
that case, we cited Article 16 in support of our holding that the Rutland city council had exceeded
its authority in making an ordinance that no person may carry a pistol without written permission
of the mayor or chief of police. 75 Vt. at 299, 55 A. at 610. The ordinance prohibited carrying
12
Other cases have referenced the “right[] of self-defense” as an affirmative defense to a
criminal charge. State v. Buckley, 2016 VT 59, ¶ 13, 202 Vt. 371, 149 A.3d 928; see also State v.
Wood, 53 Vt. 560, 561 (1881) (quoting charge to jury relating to self-defense). This common-law
“right” to self-defense is distinct from the constitutional right to bear arms.
19
pistols, concealed weapons, and several other specific types of weapons. We first stated that
because the city charter did not expressly grant the council power to make such an ordinance, the
council could do so only under the charter’s general clause, under which an ordinance must not be
“repugnant to the Constitution or laws of this state.” Id. We then cited the right to bear arms under
Article 16, as well as several state statutes that prohibited carrying firearms at school or with the
intent of injuring another person. We concluded that the ordinance was repugnant to the
Constitution and statutes because it prohibited behavior that was otherwise permitted under
Vermont law, and appeared to allow permits for behavior that was otherwise prohibited under
Vermont law:
[U]nless a special permission is granted . . . a person is prohibited
from carrying such weapons in circumstances where the same is
lawful by the Constitution and the general laws of the state; and
there is nothing in the ordinance to prevent the granting of such
permission, notwithstanding it be in circumstances to constitute a
crime under the general laws. The result is that Ordinance No. 10,
so far as it relates to the carrying of a pistol, is inconsistent with and
repugnant to the Constitution and the laws of the state, and it is
therefore to that extent, void. Whether this renders the whole
ordinance illegal, or whether it contains any other invalid
provisions, are questions not now before the court.
Id. at 299, 55 A. at 611.
¶ 34. This decision gives us little guidance in interpreting Article 16. Importantly, our
reasoning did not rest on the premise that any ordinance or law restricting the use of guns is
unconstitutional, or even that the ordinance at issue was unconstitutional. It relied only on the
premise that, absent express authorization from the Legislature, a municipality does not have the
authority to restrict the right to bear arms under the “general clause” of the city charter in a manner
that is inconsistent with state statute or the Vermont Constitution. Id. at 297, 55 A. at 610. Nor
does a municipality have the authority to permit the use of firearms where that use is otherwise
prohibited by the Legislature. We looked to the Constitution and state statutes as a backdrop
against which to determine whether the city council had exceeded its authority. Put simply,
20
Rosenthal was not a constitutional case, even though it relied on the constitution to describe the
current state of the law and why the ordinance conflicted with existing law.
¶ 35. However, the decision does reflect the general assumption that the Vermont
Constitution protects the individual right to carry firearms outside of the militia context. By citing
Article 16 in support of our conclusion that carrying firearms is generally permitted under Vermont
law, and stating that an ordinance restricting the individual use of firearms is “repugnant to the
Constitution,” we suggested that the right to bear arms applied without regard to a connection to
state militia service. There is nothing in Rosenthal that suggested the right to bear arms was linked
to the militia in any way.
¶ 36. We also assumed that the right to bear arms may be validly restricted by the
Legislature. We acknowledged several statutes regulating the use of guns, now codified in Title
13: § 4003 (carrying dangerous weapon with intent to injure another), § 4004 (possessing firearm
or dangerous or deadly weapon while on school property), and § 4011 (aiming gun at another).
See Rosenthal, 75 Vt. at 297-98, 55 A. at 610. And we confirmed the enforceability of these
regulations by holding that the municipality could not enact an ordinance that contravened them.
While we did not squarely decide the scope of the Article 16 right or the Legislature’s power to
regulate gun use, we strongly implied that the individual right to bear arms is protected by the
Constitution and can be limited by legislative acts.
¶ 37. The only case in which we have squarely addressed whether a statute is
constitutional under Article 16 is Duranleau, 128 Vt. at 210, 260 A.2d at 386. In that case, we
rejected a defendant’s argument that 10 V.S.A. § 4705(b), which prohibits carrying a loaded rifle
or shotgun in a vehicle on a public highway without a permit, violates Article 16. Our analysis
was as follows:
The statute does not literally prohibit the ‘bearing’ of any arms, but
only requires that, when rifles and shotguns are carried in
mechanically propelled vehicles on public highways, that they be
21
unloaded. This restriction, even though it relates only to rifles and
shotguns, admittedly somewhat conditions the unrestrained carrying
and operation of firearms. But the language of the constitutional
provision does not suggest that the right to bear arms is unlimited
and undefinable. To require that two particular kinds of weapons,
at certain specific places and under limited circumstances, be carried
unloaded rather than loaded, is not such an infringement on the
constitutional right to bear arms as to make the statute invalid. This
conclusion is conditioned upon the presumption that the statutory
purpose is reasonable, as it must be assumed to be, and on the
necessary circumstance that in this case no facts that demonstrate an
unconstitutional operation of the statute are before us.
Duranleau, 128 Vt. at 210, 260 A.2d at 386 (citation omitted).
¶ 38. Like our reasoning in Rosenthal, our reasoning in Duranleau reflects the
understanding that Article 16 applies to the individual “carrying and operation of firearms,” but is
subject to regulation. Id. Again, nothing in Duranleau suggests that the right to bear arms is
limited to bearing arms in service of a militia—rather, our decision implies that the right belongs
to all individuals without regard to potential militia service. And we explicitly held that “the
language of the constitutional provision does not suggest that the right to bear arms is unlimited
and undefinable.” Id. (emphasis added). We made clear that, at least where a regulation only
“somewhat conditions” the carrying and operation of firearms, Article 16 does not render firearms
regulations invalid. Id. Duranleau also stands for the proposition that restrictions on the right to
bear arms, like most statutes, are presumed to be reasonable and valid. See id.; see also State v.
Noll, 2018 VT 106, ¶ 21, 208 Vt. 474, 199 A.3d 1054 (“We afford statutes a presumption of
constitutionality.”).
3. Case Law from Sister States
¶ 39. Case law from our sister states, while not binding on us as we interpret the Vermont
Constitution, supports the conclusion that the scope of the right to bear arms in Article 16 includes
an individual right to possess arms for the purpose of self-defense. Courts in most states with
constitutional provisions relating to a right to “bear arms,” whether they have constitutional
22
provisions very similar to Article 16 or substantially different, have concluded that their
constitutions protect an individual right to bear arms for self-defense.
¶ 40. Courts in states with constitutional provisions substantially identical to Vermont’s
in referencing a right of “the people” to bear arms for “the defense of themselves and the State”
have consistently construed these provisions to protect an individual right to bear arms for self-
defense. Considering the scope of its constitutional provision declaring that “[t]he people shall
have the right to bear arms for the defence of themselves, and the State,” the Oregon Supreme
Court reviewed the historical genesis of this language and concluded that the constitutional
provision includes, among other things, an individual’s right to bear arms “for defense of person
and property.” State v. Kessler, 614 P.2d 94, 97-98, 100 (Or. 1980). On the last point, the court
explained, “Although the right to bear arms for self protection does not appear to have been an
important development in England, the justification for a right to bear arms in defense of person
and home probably reflects the exigencies of the rural American experience.” Id. at 98.
¶ 41. Similarly, prior to its revision in 1968, the Florida Constitution provided, “The right
of the people to bear arms in defence of themselves and the lawful authority of the State, shall not
be infringed, but the Legislature may prescribe the manner in which they may be borne.” Fla.
Const. of 1885, Declaration of Rights, § 20.13 Construing this language, the Florida Supreme
Court wrote, “Doubtless the guarantee was intended to secure to the people the right to carry
weapons for their protection while the proviso was designed to protect the people also—from the
bearing of weapons by the unskilled, the irresponsible, and the lawless.” Davis v. State, 146 So.2d
892, 893-94 (Fla. 1962); see also Schubert v. DeBard, 398 N.E.2d 1339, 1341 (Ind. Ct. App. 1980)
(noting that framers’ debate over provision in the Indiana Constitution underscores their intent that
13
The current version reads: “The right of the people to keep and bear arms in defense of
themselves and of the lawful authority of the state shall not be infringed, except that the manner
of bearing arms may be regulated by law.” Fla. Const. art. I, § 8(a).
23
the provision serve two purposes, including providing citizenry the right to bear arms for self-
defense); Lehman v. Pa. State Police, 839 A.2d 265, 273 (Pa. 2003) (implicitly recognizing right
to bear arms for purposes unrelated to service in militia, and noting that “[t]he right to bear arms,
although a constitutional right, is not unlimited and may be restricted in the exercise of the police
power for the good order of society and protection of the citizens” (citation omitted)); Carfield v.
State, 649 P.2d 865, 871 (Wyo. 1982) (rejecting defendant’s challenge to statute prohibiting felons
from possessing firearms on basis that defendant was not contending that his possession was for
the purpose of defending the state or himself).
¶ 42. Moreover, courts in some states with constitutional provisions relating to the right
to bear arms that do not include any reference to defense of “themselves,” have concluded that
their constitutions protect a right to bear arms for individual self-defense. See, e.g., State v. Bolin,
662 S.E.2d 38, 39 (S.C. 2008) (implicitly concluding that provision that “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” protects a right to possess guns outside of the context of military or militia
service); see also Heller, 554 U.S. 570 (rejecting view that Second Amendment embodies a right
limited to militia service and concluding that local ordinance restricting handgun possession in the
home violates Second Amendment).14
¶ 43. Collectively, these decisions reflect a widespread, though not universal,
contemporary understanding that bearing arms for self-defense, albeit subject to restrictions, is
14
Many state constitutions more explicitly describe a right to bear arms in a way that
leaves no question that the right extends to individual self-defense. See, e.g., Colo. Const. art. II,
§ 13 (“The right of no person to keep and bear arms in defense of his home, person and property,
or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing
herein contained shall be construed to justify the practice of carrying concealed weapons.”); Conn.
Const. art. I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state.”);
N.H. Const. part 1, art. 2-a (“All persons have the right to keep and bear arms in defense of
themselves, their families, their property and the state.”).
24
among the individual rights separately protected by many state constitutions, including those with
language similar to Vermont’s.15
4. Historical Regulation of Guns and Militia in Vermont
¶ 44. Our conclusion that the right to bear arms for individual self-defense is subject to
limitations and regulation is consistent with Vermont’s history of public-safety regulations of both
the militia and individual gun ownership. Article 16 itself admonishes that “the military should
be kept under strict subordination to and governed by the civil power.” Vt. Const. ch. I., art. 16.
And the Vermont Constitution specifically states, “The inhabitants of this State shall be trained
and armed for its defense, under such regulations, restrictions, and exceptions, as Congress,
agreeably to the Constitution of the United States, and the Legislature of this State, shall direct.”
Id. ch. II, § 59. The militia was not an extralegal entity, and service in the Vermont militia—
including firearm specifications and mandatory training—was regulated by state statute beginning
in 1778 and by federal statute in 1792. See Gillies, supra, at 15. The Legislature frequently revised
the militia statute. Id. at 16. Some of these regulations were in place to protect the public from
militia members: in an overhaul of the statute in 1793, in response to concerns that citizens had
been injured on or around training days, the Legislature enacted restrictions on firing guns during
those periods. Id. Consistent with its purpose, and based on the express terms of the Vermont
Constitution itself, the right to bear arms for the defense of the State—that part of Article 16 as to
which there is no real dispute—was from the beginning clearly subject to regulation and restriction
by the Legislature. If so, then it follows that the concurrent Article 16 “right to bear arms for the
defense of themselves”—which we here explicitly recognize as establishing a right to possess and
15
The ubiquity of this view is reflected in the State’s own defense of the statute in this
case. The State has not questioned that Chapter 1, Article 16, establishes a right to bear arms for
the purpose of defending self and home. The argument that Vermont’s Constitution does not
protect the right to bear arms for individual defense but instead is “an individual right exercised
collectively, through military action, for the common good” was advanced by an amicus curiae in
a “friend-of-the-court brief.”
25
use firearms for individual self-defense—is likewise subject to reasonable regulation by the
Legislature.
¶ 45. Accordingly, in addition to those militia-related enactments and the regulations
discussed in Duranleau and Rosenthal, Vermont has had, and continues to have, numerous
firearms-related restrictions. See e.g., 13 V.S.A. § 4004 (prohibiting possession of firearms within
a school building or school bus, or on school grounds); id. § 4010 (prohibiting manufacture or
importation of gun suppressors); id. § 4011 (prohibiting pointing gun at another “except in self-
defense or in the lawful discharge of official duty”); 10 V.S.A. § 4704 (prohibiting use and
possession of machine guns and gun suppressors and limiting magazine capacity of autoloading
rifles while engaged in hunting), id. § 4705 (prohibiting possession of loaded rifles or shotguns in
mechanically-powered vehicles), id. § 4710 (prohibiting discharge of firearm within designated
safety zones). Some regulations, including the ban on gun suppressors and the restrictions
discussed in Rosenthal, have been in place for over a century. See, e.g., 13 V.S.A. § 4004
(originally enacted as 1892, No. 85, § 2); id. § 4010 (originally enacted as 1912, No. 237); id.
§ 4011 (originally enacted as 1872, No. 30, §§ 1, 2, 5). Vermont’s 1863 gunpowder storage law,
which required more than one pound of powder be securely stored in a metal canister, placed a
burden on the ability to rapidly prepare and fire multiple rounds of ammunition that is analogous
to the magazine limit here. 1863 G.S. 119, § 28. Relative to many other states, Vermont’s
historical regulation of firearms has been less extensive, but the historical record reflects that even
in Vermont, the use of firearms has long been understood to be subject to regulation by the State.
5. Summary Concerning Scope of Article 16 Right to Bear Arms
¶ 46. Much changed in the almost two hundred years between Vermont’s adoption of its
Constitution in 1777 and our decision in Duranleau in 1969. And much has changed between 1969
and today. 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
26
do so with the solemn understanding that this debate has had, and will continue to have, life-or-
death consequences.
¶ 47. We conclude that Article 16 protects a right to possess firearms for self-defense.16
As understood in modern times, this right is tied to the defense of self, family, and home, and is
not tied to prospective military use in the context of a state militia. Its scope is accordingly limited.
Cf. Kolbe v. Hogan, 849 F.3d 114, 135-36 (4th Cir. 2017) (en banc) (concluding that weapons that
are most useful in military service, as opposed to individual self-defense, fall outside ambit of
Second Amendment (citing Heller, 554 U.S. at 627)); N.Y. State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 253 (2d Cir. 2015) (“[T]he Second Amendment protects only those
weapons ‘in common use’ by citizens for lawful purposes like self-defense.” (quotations omitted)).
Moreover, that right is subject to regulation by statute, under the test discussed below in Part I.B.
¶ 48. Although not grounded exclusively in the text of Article 16, this interpretation is
the best available way to harmonize and honor the core principles of security and self-protection
implicit in the right, the individual right to carry guns as implicitly recognized in our case law, and
modern persuasive analysis from sister states. See Kirchoff, 156 Vt. at 6, 587 A.2d at 992 (“We
do not construe constitutional provisions of this sort the way we do statutes, whose drafters can be
expected to indicate with some comprehensiveness and exactitude the conduct they wish to forbid
or control and to change those prescriptions when they become obsolete.” (quotation omitted)).
These considerations, as well as the historical regulation of the right in Vermont, also support our
conclusion that the right to bear arms is subject to reasonable regulation pursuant to the State’s
police power. Whereas we have previously relied on stated or unstated assumptions that the
individual right to bear arms in self-defense exists but is not unlimited, we now expressly hold as
16
Because the regulation at issue here restricts magazines to be used in firearms, we do
not address the broader question of whether the right to bear arms in Article 16 encompasses
weaponry other than firearms. See, e.g., Kessler, 614 P.2d at 95 (considering constitutionality of
law prohibiting possession of “billy” club).
27
much. And while defendant argues that we should presume a restriction on the right to bear arms
is unconstitutional, our case law supports the opposite presumption: we presume the
reasonableness and constitutionality of an act of the Legislature, including those that restrict the
right to bear arms. See Duranleau, 128 Vt. at 210, 260 A.2d at 386; see also Noll, 2018 VT 106,
¶ 21.
¶ 49. The disconnect between the founders’ era and our own is one of the central
challenges of constitutional interpretation. As we stated in Baker:
Out of the shifting and complicated kaleidoscope of events, social
forces, and ideas that culminated in the Vermont Constitution of
1777, our task is to distill the essence, the motivating ideal of the
framers. The challenge is to remain faithful to that historical ideal,
while addressing contemporary issues that the framers undoubtedly
could never have imagined.
170 Vt. at 207, 744 A.2d at 874. The framers were preoccupied with the need for domestic defense
and the dangers of standing armies; their reality in that respect has little in common with our own.
And modern weapons, after two centuries of technological development, are now more lethal and
more efficient than the “arms” available to the framers. Given the stark reality of gun violence,
subject to the limitations of the Constitution, the Legislature acts within its authority in exercising
its inherent power to impose “such reasonable regulations and restraints as are essential to the
preservation of the health, safety and welfare of the community.” State v. Curley-Egan, 2006 VT
95, ¶ 9, 180 Vt. 305, 910 A.2d 200 (quotation omitted). The next question is: what is the standard
for determining whether a regulation impinges on the Article 16 right to bear arms?
B. Standard for Evaluating Constitutionality of Restrictions
¶ 50. In determining the standard for evaluating Article 16 challenges, we first describe
the two-part test used by a majority of federal courts and the reasonable-regulation test adopted by
a majority of states. We then conclude that the state reasonable-regulation approach is most
28
consistent with our case law, our interpretation of Article 16, the nature of the right to bear arms,
and our constitutional doctrine as a whole.
1. Approaches in Other Jurisdictions
¶ 51. The vast majority of jurisdictions apply one of two general tests in right-to-bear-
arms cases. Following Heller, 554 U.S. 570, federal courts adopted a two-step test in which they
first determine whether a statute burdens Second Amendment rights, then apply either intermediate
or strict scrutiny depending on the severity of the burden. The majority of state courts apply the
reasonable-regulation test, which is more deferential to the Legislature’s judgment and the police
power of the state, though a small minority of states apply higher levels of scrutiny.
¶ 52. The Supreme Court in Heller did not specify what standard should apply to
challenges under the Second Amendment. That case involved a District of Columbia law that
banned handgun possession in the home and required any firearm in the home to be disassembled
or bound by a trigger lock at all times. Id. at 628. The Court struck down the law, reasoning that
the handgun ban “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly
chosen by American society” for self-defense, and that the requirement that firearms be kept
inoperable in the home made it “impossible for citizens to use them for the core lawful purpose of
self-defense.” Id. at 628, 630. The Court declined to specify the standard that applied to Second
Amendment protections, holding instead that “[u]nder any of the [heightened] standards of
scrutiny that we have applied to enumerated constitutional rights, banning from the home the most
preferred firearm in the nation to keep and use for protection of one’s home and family, would fail
constitutional muster.”17 Id. at 628-29 (quotations, footnote, and citation omitted).
17
The Court acknowledged that “this law, like almost all laws, would pass rational-basis
scrutiny,” but stated, “Obviously, [rational-basis scrutiny] could not be used to evaluate the extent
to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the
guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.” Heller,
554 U.S. at 628 n.27.
29
¶ 53. Following Heller, the majority of federal circuit courts have developed a two-step
framework for addressing Second Amendment claims. This approach, as the Second Circuit has
described, requires courts to first “consider whether the restriction burdens conduct protected by
the Second Amendment,” and if it does, “determine and apply the appropriate level of scrutiny,”
generally intermediate or strict scrutiny. N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 254 & n.49
(collecting cases).18
¶ 54. In deciding under the first prong whether a law burdens conduct protected by the
Second Amendment, courts have concluded that some “presumptively lawful regulatory
measures” may regulate the use or sale of firearms, but do not affect conduct protected by the
Second Amendment. United States v. Focia, 869 F.3d 1269, 1285-86 (11th Cir. 2017) (quoting
Heller, 554 U.S. at 626-27); see also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010)
(“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory
measures as prohibitions on the possession of firearms by felons and the mentally ill, laws
forbidding the carrying of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of arms.” (quotations
omitted)). Courts have noted that Second Amendment protections do not apply to “ ‘dangerous
and unusual weapons’ ” that are not common for lawful purposes, Heller v. District of Columbia
(Heller II), 670 F.3d 1244, 1260 (D.C. Cir. 2011) (quoting Heller, 554 U.S. at 627), such as “M-
16 rifles” and “weapons that are most useful in military service,” Kolbe, 849 F.3d at 135-36
(quoting Heller, 554 U.S. at 627). And the Second Circuit has held that “heightened scrutiny is
18
The application of the two-prong test is not universal. For instance, the Seventh Circuit
eschewed the levels-of-scrutiny analysis, noting that levels of scrutiny “do not resolve any concrete
dispute,” and focused instead on “whether a regulation bans weapons that were common at the
time of ratification or those that have some reasonable relationship to the preservation or efficiency
of a well regulated militia, and whether law-abiding citizens retain adequate means of self-
defense.” Friedman v. City of Highland Park, 784 F.3d 406, 410 (7th Cir. 2015) (quotation and
citation omitted). The Eighth Circuit has acknowledged the two-prong test but has not adopted it.
See United States v. Hughley, 691 F. App’x 278, 279 n.3 (8th Cir. 2017) (per curiam).
30
appropriate only as to those regulations that substantially burden the Second Amendment.” United
States v. Decastro, 682 F.3d 160, 164 (2d Cir. 2012) (emphasis added).
¶ 55. In deciding what level of scrutiny to apply under the second prong of the test, courts
typically consider how severely the law restricts the “core” Second Amendment right to self-
defense. See, e.g., N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 258 (noting level of scrutiny
depends on “(1) ‘how close the law comes to the core of the Second Amendment right’ and (2)
‘the severity of the law’s burden on the right’ ” (quoting Ezell v. City of Chicago, 651 F.3d 684,
703 (7th Cir. 2011))). Within this framework, several courts have suggested that a form of
“intermediate scrutiny” is generally more appropriate for gun regulations than strict scrutiny
because it “appropriately places the burden on the government to justify its restrictions, while also
giving governments considerable flexibility to regulate gun safety.” Bonidy v. U.S. Postal Serv.,
790 F.3d 1121, 1126 (10th Cir. 2015); see also Stimmel v. Sessions, 879 F.3d 198, 206 (6th Cir.
2018) (stating that “intermediate scrutiny is preferable in evaluating challenges to [firearms-
regulation statute] and similar provisions” (quotation omitted)).
¶ 56. In contrast to federal doctrine, state case law has largely coalesced around a
“reasonable regulation” or “reasonable exercise” approach. Of the forty-three states with right-to-
bear-arms provisions protecting an individual right, over half have expressly adopted some form
of the reasonable-regulation test, and several others have implicitly adopted a similar test. B. Black
& K. Kapp, State Constitutional Law as a Basis for Federal Constitutional Interpretation: The
Lessons of the Second Amendment, 46 N.M. L. Rev. 240, 251-52 & n.57-58 (2016); see also
Benjamin v. Bailey, 662 A.2d 1226, 1233 (Conn. 1995) (“State courts that have addressed the
question under their respective constitutions overwhelmingly have recognized that the right [to
bear arms] is not infringed by reasonable regulation by the state in the exercise of its police power
to protect the health, safety and morals of the citizenry.” (collecting cases) (footnote omitted)). A
small minority of state courts have applied higher levels of scrutiny under their state constitutions.
31
See, e.g., Doe v. Wilmington Hous. Auth., 88 A.3d 654, 666-67 (Del. 2014) (applying intermediate
scrutiny); State v. Eberhardt, 145 So.3d 377, 381 (La. 2014) (applying strict scrutiny).19 And at
least one state with constitutional language “substantially identical” to the Second Amendment
treats the state constitutional right to bear arms as “co-extensive” with the Second Amendment.
DiGiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 368-69 (Va. 2011).
¶ 57. Under the reasonable-regulation test, courts “analyze[] whether the statute at issue
is a ‘reasonable’ limitation upon the right to bear arms.” Bleiler v. Chief, Dover Police Dep’t, 927
A.2d 1216, 1223 (N.H. 2007) (considering whether Legislature had “a reasonable purpose” and
“use[d] a reasonable means to achieve [that] purpose”). Although the language used to describe
this test is not identical from state to state, courts generally agree that the inquiry centers on
whether the statute is a reasonable exercise of the police power. See, e.g., Benjamin, 662 A.2d at
1233-34; Rocky Mountain Gun Owners v. Polis, 2020 CO 66, ¶ 61; Hilly v. City of Portland, 582
A.2d 1213, 1215 (Me. 1990); Mosby, 851 A.2d at 1044. This approach is distinct from rational-
basis review because it “demands not just a conceivable legitimate purpose but an actual one.”
Rocky Mountain Gun Owners, 2020 CO 66, ¶ 56; see also Bleiler, 927 A.2d at 1223(distinguishing rational-basis test from reasonableness test, which “focuses on the balance of the
interests at stake” (quotation omitted)); State v. Cole, 2003 WI 112, ¶ 27, 264 Wis. 2d 520, 665
N.W.2d 328 (same).
19
The constitutions of the two states that apply strict scrutiny to limitations on the
constitutional right to bear arms—Louisiana and Missouri—expressly require strict scrutiny of
firearms regulations. La. Const. art. I, § 11; Mo. Const. art. I, § 23. Even in these states, courts
have recognized that “the fundamental right at issue is one where some degree of regulation is
likely to be necessary to protect the public safety.” Eberhardt, 145 So.3d at 381; see also State v.
Merritt, 467 S.W.3d 808, 814 (Mo. 2015) (en banc) (“It is clear that laws regulating the right to
bear arms are not ‘presumptively invalid.’ ”).
32
2. Applicable Standard Under Article 16
¶ 58. We conclude that the state reasonable-regulation test is the most appropriate
standard for Article 16 challenges because it is consistent with our approach in Duranleau, the text
and motivating ideals of Article 16, the nature of the right to bear arms, and our previous rejection
of rigid “level-of-scrutiny” tests. Under the reasonable-regulation test, the government may
regulate firearms under its police power as long as its exercise of that power is reasonable.
Regulation is not reasonable if it effectively abrogates Article 16. We elaborate on these
considerations below.
a. Rationale for Adopting Reasonable-Regulation Test
¶ 59. The reasonable-regulation test is the best approach to evaluating restrictions on the
right to bear arms under Article 16 for several reasons. First, our approach in Duranleau aligns
with the reasonable-regulation approach. We noted that we presumed the regulation was
reasonable, which the defendant did not appear to contest in that case. 128 Vt. at 210, 260 A.2d
at 386. And we held that the regulation “admittedly somewhat condition[ed] the unrestrained
carrying and operation of firearms,” but that it was “not such an infringement on the constitutional
right to bear arms as to make the statute invalid.” Id. We concluded that there were “no facts”
demonstrating “an unconstitutional operation of the statute.” This approach is similar to the
reasonable-regulation test as described by the New Hampshire Supreme Court in Bleiler: “This
test analyzes whether the statute at issue is a ‘reasonable’ limitation upon the right to bear arms.
Such a test . . . ‘focuses on the balance of the interests at stake.’ ” 927 A.2d at 1223 (quoting Cole,
2003 WI 112, ¶ 27). Duranleau makes clear that a regulation could not permissibly amount to the
destruction of the right to bear arms but does not suggest that the State bears the burden of proving
that the regulation meets a heightened standard of scrutiny.
¶ 60. Second, the reasonable-regulation approach best promotes the constellation of
ideals underlying Article 16. It ensures the right to bear arms for self-defense, while recognizing
33
that the right to bear arms has historically been subject to reasonable restrictions in the discretion
of the Legislature. See supra, ¶ 44-45.
¶ 61. Third, the right to bear arms is distinct from other individual rights in the degree to
which its exercise is associated with serious risks of harm to self and others. As other states have
recognized, “[g]un control legislation . . . is not inherently suspicious” because there is a
“compelling state interest in protecting the public from the hazards involved with guns.” Bleiler,
927 A.2d at 1222-23 (quotation omitted); see also Cole, 2003 WI 112, ¶ 43 (“Many other states
have noted the important safety interests protected by gun control laws”). For that reason, the
reasonable-regulation test is “relatively deferential and generally distinct from the type of review
that challenges under other constitutional rights receive.” Cole, 2003 WI 112, ¶ 23 (quotation
omitted). As the Tenth Circuit stated,
[t]he risk inherent in firearms and other weapons distinguishes the
Second Amendment right from other fundamental rights that have
been held to be evaluated under a strict scrutiny test, such as the
right to marry and the right to be free from viewpoint discrimination,
which can be exercised without creating a direct risk to others.
Bonidy, 790 F.3d at 1126.
¶ 62. Finally, while we have often relied on federal case law for guidance in interpreting
the Vermont Constitution, we have rejected the “rigid categories utilized by the federal courts
under the Fourteenth Amendment,” and similarly reject them here. Baker, 170 Vt. at 206, 744
A.2d at 873. In applying the Common Benefits Clause we have adopted “ ‘a relatively uniform
standard, reflective of the inclusionary principle at the Common Benefits Clause’s core.’ ”
Badgley v. Walton, 2010 VT 68, ¶ 21, 188 Vt. 367, 10 A.3d 469 (alteration omitted) (quoting
Baker, 170 Vt. at 212, 744 A.2d at 878). We likewise reject a tiered approach to evaluating
regulations implicating the right to bear arms under Article 16 and adopt a uniform standard for
Article 16 cases that reflects the balance of interests at the heart of the right to bear arms.
34
b. The Contours of the Test Under Article 16
¶ 63. Under the reasonable-regulation balancing test we now adopt, the right to bear arms
in self-defense may be “regulated but not prohibited.” Rocky Mountain Gun Owners, 2020 CO
66, ¶ 60.20 This means that the government may regulate firearms as long as any enactment is a
reasonable exercise of police power and there is a reasonable fit between the purpose and means
of regulation. See id. ¶ 55. Regulation of firearms is not reasonable if it renders Article 16 a
nullity. See id. ¶ 56. In applying this test to restrictions on specific firearms, ammunition, or
accessories, courts may consider, among other factors, “characteristics of the particular weapon
restricted,” the “typical use of the proscribed weapon,” and the “number and nature of the weapons
subjected to the ban [compared] with the number and nature of the weapons that remain available
for the vindication of the right.” Benjamin, 662 A.2d at 1234.21
¶ 64. The reasonable-regulation test requires the statute to be a reasonable exercise of the
police power. The police power in this context “signifies the governmental power of conserving
and safeguarding the public safety, health, and welfare.” State v. Quattropani, 99 Vt. 360, 363,
133 A. 352, 353 (1926). It derives from the “inherent” power of government to balance the
possession and enjoyment of individual rights with “such reasonable regulations and restraints as
20
We reject defendant’s assertion that any statutory regulation of the Article 16 right must
at the outset be presumed to be invalid or unreasonable. Even those states that hold the right to
bear arms is a “fundamental right,” and therefore any statutory regulation must pass a higher level
of “intermediate scrutiny,” recognize that such laws “are not ‘presumptively invalid.’” See supra,
note 18; see also, e.g., Badgley, 2010 VT 68, ¶¶ 20, 38 (explaining that in considering a statutory
“challenge under the Vermont Constitution . . . .[w]e start by emphasizing that statutes are
presumed to be constitutional . . . presumed to be reasonable . . . the proponent of a constitutional
challenge has a very weighty burden to overcome,” and “we must accord deference to the policy
choices made by the Legislature”).
21
We do not address in this decision the factors to be considered in determining whether
other kinds of provisions potentially impacting the right to bear arms—such as limitations on
where individuals can possess firearms, regulations concerning the sale or transfer of firearms,
requirements relating to securing or carrying firearms, or limitations concerning who may possess
firearms—might constitute unreasonable exercises of the police power or effectively nullify the
right to bear arms in defense of home, person, or property.
35
are essential to the preservation of the health, safety and welfare of the community.” Curley-Egan,
2006 VT 95, ¶¶ 9-10 (quotations omitted). “Reasonableness in the exercise of the State’s police
power requires that the purpose of the enactment be in the interest of the public welfare and that
the methods utilized bear a rational relationship to the intended goals.” Hilly, 582 A.2d at 1215(quotation omitted). In assessing reasonableness, therefore, courts should consider the importance
of the state’s goals, the reasonableness of the connection between the goals and the means chosen,
and the degree to which the regulation burdens the exercise of the right to bear arms for self-
defense. See Sowma v. Parker, 112 Vt. 241, 249-50, 22 A.2d 513, 517 (1941) (“The test used to
determine the constitutionality of the means employed by the Legislature is to inquire whether the
restrictions it (police power) imposes on rights secured to individuals by the Bill of Rights are
unreasonable and not whether it imposes any restrictions on such rights.” (quotation omitted)).
¶ 65. The test will not tolerate a statute that effectively abrogates Article 16. See Rocky
Mountain Gun Owners, 2020 CO 66, ¶ 56 (emphasizing that statute may not “have either a purpose
or effect of rendering the right to bear arms in self-defense a nullity”); see also Benjamin, 662
A.2d at 1234 (“The police power cannot . . . be invoked in such a manner that it amounts to the
destruction of the right to bear arms.” (quotation omitted)).
¶ 66. This test is not the same as rational-basis review under the U.S. Constitution.22
Article 16 “stands as an independent, substantive limitation on otherwise rational government
action.” Rocky Mountain Gun Owners, 2020 CO 66, ¶ 61. The reasonable-regulation test
“requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare.”
22
In fact, in the equal protection context, at least in the context of classifications subject
to “rational basis” review under the Equal Protection Clause of the United States Constitution, we
have held that the Vermont Constitution may require more rigorous review than the United States
Constitution. See Baker, 170 Vt. at 203, 744 A.2d at 871 (describing analysis under Common
Benefits Clause as “broadly deferential to the legislative prerogative to define and advance
governmental ends, while vigorously ensuring that the means chosen bear a just and reasonable
relation to the governmental objective”).
36
Id. It “focuses on the balance of the interests at stake, rather than merely on whether any
conceivable rationale exists under which the legislature may have concluded the law could
promote the public welfare.” Bleiler, 927 A.2d at 1223 (quotation omitted). Although our inquiry
looks to an actual balance of interests, rather than merely a conceivable one, it does not override
our general deference to the Legislature on matters within its authority. The question for courts is
not whether we would strike the same balance as the Legislature, but is whether the Legislature’s
choices are anchored to a real, as opposed to hypothetical, foundation. And even regulations that
would otherwise satisfy that standard may still be unconstitutional if ultimately they render the
right at stake a nullity.
II. Application to 13 V.S.A. § 4021
¶ 67. Applying the reasonable-regulation test to the large-capacity magazine ban, 13
V.S.A. § 4021, we conclude that the statute does not violate the right to bear arms under Article
16. For the purpose of this analysis, we assume without deciding that at least some of the firearms
to which such magazines may attach, and at least some of the magazines themselves, are within
the general scope of Article 16’s protections, subject to reasonable regulation. Cf. N.Y. State Rifle
& Pistol Ass’n, 804 F.3d at 257 (assuming without deciding that law banned weapons protected
by the Second Amendment where statutes would nonetheless pass constitutional muster).
Accordingly, we first consider the purpose of the statute—to reduce the potential harm of mass
shootings—and the connection between the regulation imposed and that goal. We next consider
the burden on the right to bear arms. We conclude that § 4021 is a reasonable exercise of the
State’s police power in service of the statute’s purpose. and poses a minimal burden on the right
to bear arms.
A. Purpose and Connection
¶ 68. Section 4021 states, “A person shall not manufacture, possess, transfer, offer for
sale, purchase, or receive or import into this State a large capacity ammunition feeding device.”
37
13 V.S.A. § 4021(a). A large-capacity ammunition feeding device is defined, with some
exceptions, as “a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that
can be readily restored or converted to accept: (A) more than 10 rounds of ammunition for a long
gun; or (B) more than 15 rounds of ammunition for a hand gun.” Id. § 4021(e)(1). The statute
provides for imprisonment of up to one year and a fine of up to $500 for those who violate the
statute. Id. § 4021(b). It does not apply to possession of large-capacity magazines purchased prior
to April 11, 2018, id. § 4021(c)(1), or to large-capacity magazines transferred to or possessed by
governmental agencies or law enforcement, id. § 4021(d)(1), in addition to several other
exceptions.
¶ 69. The Legislature enacted § 4021 in April 2018, in the wake of a threatened mass
shooting in Fair Haven, Vermont. See 2017, No. 94 (Adj. Sess.), §§ 8, 11. On February 14,
2018—the same day a mass shooter killed seventeen people in a high school in Parkland,
Florida23—the Fair Haven Police Department received a report about a possible threat to Fair
Haven Union High School. See State v. Sawyer, 2018 VT 43, ¶ 5, 207 Vt. 636, 187 A.3d 377(mem.) (reviewing hold-without-bail order), https://www.vermontjudiciary.org/sites/default/
files/documents/eo18-105.bail_.pdf [https://perma.cc/88RA-ZNLU]. The suspect, an eighteen-
year-old who had attended the school, reportedly told police that he had planned to commit a mass
shooting at the school, that “he wanted to exceed the body count from the Virginia Tech shooting
and that he had chosen his ammunition accordingly.”24 Id. ¶ 7. In response to this scare, after
23
E. Chuck, A. Johnson & C. Siemaszko, 17 Killed in Mass Shooting at High School in
Parkland, Florida, NBC News (updated Feb. 15, 2018, 10:20 AM),
https://www.nbcnews.com/news/us-news/police-respond-shooting-parkland-florida-high-school-
n848101 [https://perma.cc/576C-NVEC].
24
See N. Higgins DeSmet, Fair Haven Shooting Threat: ‘By the Grace of God’ Vermont
Avoided Disaster, Burlington Free Press (updated Feb. 23, 2018 3:51 PM),
https://www.burlingtonfreepress.com/story/news/2018/02/16/teen-arrested-fair-haven-school-
shooting-threat/344409002/ [https://perma.cc/XJ6F-5U2D].
38
extensive debate and testimony, the Legislature passed, and the Governor signed, several gun-
control measures as part of Act 94, including the statute at issue here. See 2017, No. 94 (Adj.
Sess.).
¶ 70. Act 94 followed an unusual course through the Legislature. As introduced in 2017,
prior to the Fair Haven mass-shooting scare, the bill proposed only “to expand Vermont’s
territorial jurisdiction over prohibited regulated drug sales.” S.55, 2017-2018 Gen. Assem., Adj.
Sess. (Vt. 2018) [hereinafter S.55] (bill as introduced), https://legislature.vermont.gov/Documents/
2018/Docs/BILLS/S-0055/S-0055%20As%20Introduced.pdf [https://perma.cc/2L2M-4V9D]. In
February and March of 2018, the Senate expanded the bill and retitled it: “An act relating to the
disposition of unlawful and abandoned firearms.” S.55 (as passed by Senate), https://
legislature.vermont.gov/Documents/2018/Docs/BILLS/S-0055/S-0055%20As%20passed%20by
%20the%20Senate%20Official.pdf [https://perma.cc/RX7P-GZFK]. At that stage, the bill
included measures addressing the disposition of unlawful firearms, establishing regulations on the
transfer of firearms, and prohibiting the sale of firearms to persons under twenty-one years of age.
Id. In the aftermath of the Fair Haven scare, and after extensive testimony in the House Judiciary
Committee, the House proposed amendments to add a number of additional restrictions related to
firearms, including a prohibition of large-capacity magazines. See S.55 (as proposed by House),
https://legislature.vermont.gov/Documents/2018/WorkGroups/Senate%20Judiciary/Bills/S.55/
S.55~Erik%20Fitzpatrick~House%20Proposal%20of%20Amendment~3-30-2018.pdf [https://
perma.cc/XD9B-GQ2N]. After further hearings in the Senate Judiciary Committee, the Senate
concurred in the House amendments. S. Jour. 650, 2017-2018 Gen. Assem., Adj. Sess. (Vt. Mar.
30, 2018). With the Governor’s signature, the large-capacity magazine ban codified in § 4021 was
enacted into law, effective immediately. See S. Jour. 699, 2017-2018 Gen. Assem., Adj. Sess. (Vt.
Apr. 12, 2018).
39
¶ 71. Although Act 94 did not contain legislative findings or a statement of purpose, we
understand from reviewing the legislative record that the purpose of § 4021 is to reduce the number
of people who would be killed or injured in a mass shooting in Vermont. There is no question that
reducing the potential for injury and death in the event of a mass shooting is a proper Legislative
purpose within the police power. The Legislature’s aim was to prevent catastrophic harm to the
people of Vermont—one of its core functions as our lawmaking body. See United States v.
Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police
power . . . than the suppression of violent crime and vindication of its victims.”); Kolbe, 849 F.3d
at 150 (Wilkinson, J., concurring) (“Providing for the safety of citizens within their borders has
long been state government’s most basic task.”).
¶ 72. 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. In a report detailing shooting
incidents where large-capacity magazines were used, the Violence Policy Center25 stated, “Large
capacity ammunition magazines are the common thread running through most mass shootings in
the United States.” Violence Policy Center, Large Capacity Ammunition Magazines, 1 (Feb. 13,
2020), https://www.vpc.org/fact_sht/VPCshootinglist.pdf [https://perma.cc/6PTM-PXR8].26
25
The Violence Policy Center is a national 501(c)(3) that conducts research and education
on firearms violence. Violence Policy Center, https://vpc.org/ [https://perma.cc/LX2B-XR5J]
(last visited Jan. 11, 2021).
26
It is clear that not all mass shootings involve high-capacity magazines, and it is unknown
in some cases precisely what type of magazines were used. For instance, an initial Public Safety
Commission report of the Parkland shooting reported that “[e]ight 30- and 40-round capacity
magazines were recovered from the scene,” Marjory Stoneman Douglas High School Public Safety
Commission, Initial Report 262 (Jan. 2, 2019), http://www.fdle.state.fl.us/MSDHS/
CommissionReport.pdf [https://perma.cc/L6PN-7UCV], but at least one court has credited
evidence that the shooter used only ten-round magazines, see Duncan v. Becerra, 366 F. Supp. 3d
40There is extensive evidence that “the use of LCMs in mass shootings increases the number of
victims shot and the fatality rate of struck victims.” Rocky Mountain Gun Owners, 2020 CO 66,
¶ 64. “The more rounds a shooter can fire consecutively, the more gunshot wounds they can inflict
during an attack.” Giffords Law Center, Large Capacity Magazines, https://lawcenter.giffords.org/
gun-laws/policy-areas/hardware-ammunition/large-capacity-magazines/ [https://perma.cc/6CJH-
KJSE]. One study by an advocacy organization found that of the sixty-eight mass shootings
between 2009 and 2018 where magazine size was known, those that involved the use of large-
capacity magazines led to five times the number of people shot per mass shooting compared to
mass shootings that did not involve the use of large-capacity magazines. Everytown for Gun
Safety, Mass Shootings in America (Nov. 21, 2019), https://maps.everytownresearch.org/
massshootingsreports/mass-shootings-in-america-2009-2019/#foot_note_anchor_15
[https://perma.cc/FAZ5-ZD98]. Specifically, large-capacity magazines led to over twice the
number of deaths and over fourteen times the number of injuries. See id. (comparing average of
10 deaths and 17.2 people injured in mass shootings involving high-capacity magazines, and
average of 4.6 deaths and 1.2 people injured in mass shootings involving smaller magazines).
¶ 73. The research on this subject is not limited to advocacy organizations publishing
nonpeer-reviewed analyses. A scholar at George Mason University reviewed data from multiple
sources concerning impact of large-capacity magazine firearms in mass shootings and found that
high-capacity semiautomatic weapons are used in between 20% and 58% of all firearm mass
murders, and in a particularly high share of public mass shootings. C. Koper, Assessing the
Potential to Reduce Deaths and Injuries from Mass Shootings Through Restrictions on Automatic
Weapons and Other High-Capacity Semiautomatic Firearms, 19 Criminology & Pub. Pol’y 147,
1131, 1161 (S.D. Cal. 2019). We will not engage in fact finding as to the specifics of any given
mass shooting; the Legislature had clear evidence from the available data that large-capacity
magazines are associated with many of the deadliest shootings in the United States.
41
147 (2020). Koper reported that average fatalities are 38% to 85% higher, and total victims killed
or wounded are two to three times higher when LCMs are used. Id. at 152.
¶ 74. Substantial available data supports the conclusion that bans on large-capacity
magazines may be effective in reducing the fatalities and injuries in the event of a mass shooting.
Large-capacity magazine bans “reduce[] the number of shots that can be fired from one gun,
making numerous injuries less likely.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney General
N.J., 910 F.3d 106, 119 (3d Cir. 2018). Some studies have suggested that the 1994-2004 federal
ban on assault weapons and high-capacity magazines reduced the number of mass-shooting deaths.
See J. Lowy, Comments on Assault Weapons, The Right to Arms, and the Right to Live, 43 Harv.
J.L. & Pub. Pol’y 375, 382-83 (2020) (citing studies). In the Koper study described above, Koper
reviewed comparisons of mass shootings with and without LCM firearms and concluded that LCM
restrictions could potentially reduce total fatalities by 11% to 15%, and total injuries by 24% to
26% across all firearm mass-murder incidents. Koper, supra, at 153. Focusing particularly on
public mass shootings, he cautiously projected that total deaths and injuries could potentially
decline in these cases by somewhere between one-third and one-half. Id. at 153-54. Koper
concluded that restrictions on assault weapons and LCMs “are not a complete solution for the
problem of mass shootings or public mass shootings more specifically”; nevertheless, “they are
modest policy measures that can likely help to reduce the incidence and severity of mass shootings
over time.” Id. at 163.
¶ 75. Similarly, a group of scholars at Johns Hopkins University analyzed data from the
FBI and other publicly available databases to calculate state-level annual incidence of fatal mass
shootings from 1984-2017. See D. Webster et al., Evidence Concerning the Regulation of
Firearms Design, Sale, and Carrying on of Fatal Mass Shootings in the United States, 19
Criminology & Pub. Pol’y 171 (2020). After performing a statistical analysis of the association
between fatal mass shootings and these gun laws, they concluded that bans of large-capacity
42
magazines were one of two policies associated with reductions in the incidence of fatal mass
shootings. Id. at 187; see also L. Klarevas et al., The Effect of Large-Capacity Magazine Bans on
High-Fatality Mass Shootings, 1990-2017, 109 Am. J. Pub. Health 1754, 1758-60 (2019)
(analyzing 69 high-fatality mass shootings from 1990 to 2017, finding that incidence of high-
fatality mass shootings was more than double and annual number of deaths more than three times
higher when comparing non-LCM ban states to LCM ban states, with similar results in multivariate
analyses, and ultimately concluding that LCM bans appear to reduce both incidence of, and
number of people killed in, high-fatality mass shootings).
¶ 76. Reports from actual mass shooting events suggest that a ban on large-capacity
magazines could create opportunities for victims to flee or intervene in the event of a mass
shooting. See Ass’n of N.J. Rifle & Pistol Clubs, Inc., 910 F.3d at 119 (stating that ban “will
present opportunities for victims to flee and bystanders to intervene”); Rocky Mountain Gun
Owners, 2020 CO 66, ¶ 64 (“[T]he pause created by the need to reload or replace a magazine
creates an opportunity for potential victims to take life-saving measures.”). For instance, at least
one court has noted that at the 2012 Sandy Hook Elementary School shooting in Newtown,
Connecticut, “[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; see also
People Threw Barstools Through Window to Escape Thousand Oaks, California, Bar During
Shooting, USA Today (Nov. 8, 2018), https://www.usatoday.com/story/news/nation-now/
2018/11/08/thousand-oaks-bar-shooting-people-broke-windows-stools-escape/1928031002/
[https://perma.cc/2VKH-ZHAU] (reporting that as gunman reloaded, bystanders threw barstools
through window and “shuffle[d] as many people out as possible”). And bystanders have stopped
mass shootings by intervening when the shooter pauses to reload. See Ass’n of N.J. Rifle & Pistol
Clubs, 910 F.3d at 113; see also M. Stevens, Man Who Wrested Rifle from Waffle House Gunman
Raises $227,000 for Victims, N.Y. Times (May 7, 2018), https://www.nytimes.com/2018/05/07/
43
us/waffle-house-hero-victims.html [https://perma.cc/3BW2-E6JK]. “[L]imiting a shooter to a ten-
round magazine could mean the difference between life and death for many people.” Kolbe, 849
F.3d at 128 (quotation omitted).
¶ 77. Other courts have recognized the potential public-safety impacts of large-capacity
magazine bans. See, e.g., Worman v. Healey, 922 F.3d 26, 40 (1st Cir. 2019) (“[T]he
Massachusetts legislature’s conclusion that the Commonwealth’s legitimate interests are best
served by proscribing semiautomatic assault weapons and LCMs rests on substantial (although not
incontrovertible) evidence regarding the inordinate dangers associated with the proscribed
weapons”); N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 263-64 (“[L]arge capacity magazines
result in more shots fired, persons wounded, and wounds per victim than do other gun attacks.”
(quotation omitted)); Friedman v. City of Highland Park, 784 F.3d 406, 411 (7th Cir. 2015) (“A
ban on assault weapons and large-capacity magazines might not prevent shootings in Highland
Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.”);
Heller II, 670 F.3d at 1264 (stating that “evidence demonstrates that large-capacity magazines tend
to pose a danger to innocent people and particularly to police officers” who may take advantage
of shooter’s pause to reload).
¶ 78. In addition to its potential impacts in the event of a mass shooting, § 4021 has the
effect of creating a greater sense of security among the public. While this effect and purpose alone
may not be sufficient to survive scrutiny under Article 16, it nevertheless is meaningful to the
wellbeing of people of Vermont, particularly children. Mass shootings are “highly salient” events
and cause significant stress for both adults and teenagers.27 Friedman, 784 F.3d at 412. The
27
The American Psychological Association reported that 75% of those between the ages
of 15 and 21 and 62% of adults overall felt stressed by mass shooting events. Am. Psychological
Ass’n, Stress in America: Generation Z (Oct. 2018)
https://www.apa.org/news/press/releases/stress/2018/stress-gen-z.pdf [https://perma.cc/S76N-
7699]. Similarly, according to the Pew Research Center, 57% teens in the United States reported
44
legislative record includes a number of communications from Vermonters describing the impact
of the potential for mass shootings on children and teenagers in Vermont. As the Seventh Circuit
recognized, “If a ban on . . . large-capacity magazines reduces the perceived risk from a mass
shooting, and makes the public feel safer as a result, that’s a substantial benefit.” Id.
¶ 79. We do not recount the above evidence because this Court necessarily concurs with
the Legislature’s assessment that the limit on large-capacity magazines will in fact substantially
reduce the risks and harms of mass shootings, or to signify that we credit the above accounts,
studies, and arguments, and discount the thoughtful analyses and arguments of those opposed to
the legislation. Rather, we recite the above to explain our conclusion that the Legislature had
ample information, facts, and data, either actually in-hand or available in the public arena, to
support its conclusion that the limit on large-capacity magazines will have an appreciable impact
in reducing the injuries and fatalities in the event of mass-shooting events. In the face of this
support and in the absence of a showing that § 4021 imposes a disproportionate burden on the
Article 16 right, which we discuss next in Part B, the Legislature’s policy determination that the
LCM limit at issue is a reasonable regulation is within its constitutional authority, and we will not
set it aside.
¶ 80. When it enacted § 4021, the Legislature did not formally make any legislative
findings, and we cannot determine what facts and information in the record it found most
persuasive. Legislative findings can be helpful, but are not required. We can and do evaluate the
constitutionality of legislation under the Vermont Constitution in the absence of an express
that they were “very worried” or “somewhat worried” about the possibility of a shooting at their
school, and the same was true for 63% of parents. N. Graf, A Majority of U.S. Teens Fear a
Shooting Could Happen at Their School, and Most Parents Share Their Concern, Pew Research
Center (Apr. 18, 2018), https://www.pewresearch.org/fact-tank/2018/04/18/a-majority-of-u-s-
teens-fear-a-shooting-could-happen-at-their-school-and-most-parents-share-their-concern/
[https://perma.cc/477R-L7T2]. Concern was greater among Black and Hispanic teens and parents
as well as lower-income parents. Id.
45
statutory statement of the legislative basis or intent. See, e.g., Baker, 170 Vt. at 198-201, 216-18,
221-23, 744 A.2d at 881-82, 883-85 (purpose of Vermont “marriage laws” determined from text
itself, historical context, and “common understanding” reflected by statutes read as a whole, and
not from express statements of the Legislature at time of enactment); see also Badgley, 2010 VT
68, ¶¶ 23, 40 (holding “governmental purpose” of statute imposing mandatory retirement of State
public-safety employees at age 55 was “proffered” by State and identified during litigation, and
not derived from any express legislative statement because there was “no evidence of the
legislative record”). And we cannot glean from the record what factors the Legislature relied on
because ultimately the legislators act collectively through a binary vote (“yea” or “nay”);
individual legislators may have assessed the information before them differently. That is a
defining feature of representative democracy: we trust our elected representatives to reflect the
“common understanding” of the community, and to use their best judgment to make decisions on
our behalf, without requiring them to describe the specific weighing of factors that underlay their
votes.
¶ 81. For these reasons, we reject any suggestion that the facts and information available
to or relied upon by the Legislature, or by us in reviewing the statute’s constitutionality, must be
“evidence,” of a sort that would be admissible in a court proceeding under the Vermont Rules of
Evidence, that necessarily proves what it purports to establish. Although we will not uphold a law
restricting the right to bear arms on the basis of hypothetical rationales for which there is no basis,
or which are overwhelmingly refuted by contrary evidence,28 Vermont courts will not second-
guess the Legislature’s weighing of the facts and information supporting its enactments when its
28
Again, we use the term “evidence” here in its broadest sense to denote information,
facts, and data actually presented to the Legislature or available to it from the public sphere, as
well as testimony (whether or not under oath) and statements to the Legislature (or individual
legislators or legislative committees), all of which is available to us for consideration.
46
legislation is supported by adequate evidence in light of the constitutional rights potentially
implicated by its legislation.
B. Burden on Right to Bear Arms
¶ 82. The available evidence supports the Legislature’s conclusion that a large-capacity
magazine ban does not significantly impair the right to bear arms for self-defense. Section 4021
does not prevent Vermonters from buying or using the gun of their choice—it restricts only the
capacity to shoot more than ten or fifteen rounds at a time, and thus places minimal restriction on
their ability to bear arms in self-defense. Additionally, in contrast to their ubiquity among mass
shootings, large-capacity magazines appear to be rarely used for self-defense purposes. Therefore,
the large-capacity magazine ban does not render Article 16 a nullity. Our conclusion on this point
is in line with the recent decision by the Colorado Supreme Court and almost all federal circuits to
have considered a large-capacity magazine ban.
¶ 83. Section 4021 restricts only magazine capacity. It does not purport to restrict the
use of firearms that accept large-capacity magazines. The Legislature has chosen not to restrict
individuals’ choice of firearms for self-defense or other purposes, but instead has sought to curb
the potential of those weapons to inflict large-scale harm. It has done this by “set[ting] a limit on
the number of rounds that can be fired before a shooter needs to reload.” Rocky Mountain Gun
Owners, 2020 CO 66, ¶ 64; see also Worman, 922 F.3d at 37 (noting that large-capacity magazine
ban proscribed only “magazines of a particular capacity”). A prohibition of this sort “does not
effectively disarm individuals or substantially affect their ability to defend themselves.” Ass’n of
N.J. Rifle & Pistol Clubs, Inc., 910 F.3d at 118. It limits access to “one tool—magazines that hold
over ten rounds.” Id. at 122.
¶ 84. And it appears from the available data that the tool—the large-capacity magazine—
is almost never used for self-defense. The average number of shots fired in self-defense between
1997 and 2001, and 2011 to 2013, has been estimated to be 2.2 or fewer. Kolbe, 849 F.3d at 127
47
(relying on “[s]tudies of ‘armed citizen’ stories collected by the National Rifle Association”); see
also Worman, 922 F.3d at 37 (noting lack of evidence of any self-defense episode where ten or
more shots were fired); N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 260 (noting that large-capacity
magazine ban does not “substantially affect [individuals’] ability to defend themselves” (quotation
omitted)). Amicus curiae Cato Institute points to two incidents in which women in Georgia and
Michigan successfully used firearms to fend off home invaders, but the news reports Cato relies
on reflect that the women shot six and four times, respectively, undermining any suggestion that
in these instances the women’s self-defense relied on the capacity to shoot more than fifteen rounds
from their respective handguns. See H. Fournier, Woman Fires at Home Burglars: “I Let Loose
on Them,” Detroit News (June 9, 2015), https://www.detroitnews.com/story/news/local/detroit-
city/2015/06/09/woman-hospital-gunfight-home-invaders/28727561/ [https://perma.cc/SZF9-
QEMY]; R. Phillips, Gun Rights Groups Say Georgia Home Invasion Proves Their Point, CNN
(Jan. 11, 2013), https://www.cnn.com/2013/01/10/us/home-invasion-gun-rights/index.html
[https://perma.cc/9F5R-PZTX]. While a large-capacity magazine could conceivably be used for
self-defense purposes, and no doubt has on some occasion somewhere, neither defendant, nor Cato
nor any other amicus, has provided an example of such an occurrence despite analysis of defensive
shootings over more than two decades.29 To the extent the ban on large-capacity magazines
infringes on the right to bear arms at all, the burden is not disproportionate, and the restriction does
not render Article 16 a nullity.
29
Again, we do not decide here whether the estimate of “2.2 shots” for self-defense is in
fact correct, but simply acknowledge that it is a significant, relevant, and widely accepted data
point that supports the Legislature’s conclusion that the LCM prohibition does not unreasonably
nullify Vermonters’ right to self-defense. Even if that specific statistic is genuinely contested, it
is still true that no one has come forward with even anecdotal examples of any LCM being
necessary for individual self-defense.
48
¶ 85. This conclusion is consistent with the Colorado Supreme Court’s recent decision in
Rocky Mountain Gun Owners, 2020 CO 66. That case concerned a ban on magazines of fifteen
rounds or more. Id. ¶ 6. Evaluating the constitutionality of the ban under the Colorado
Constitution, the court concluded that “the evidence overwhelmingly demonstrated the
reasonableness” of the ban on large-capacity magazines, and it rejected plaintiffs’ argument that
the ban applied to the “overwhelming majority of magazines” and therefore rendered the right to
bear arms a nullity.30 Id. ¶¶ 64-65.
¶ 86. All but one federal circuit court to have considered a large-capacity magazine ban
have also upheld such bans, often alongside bans on assault rifles. The Fourth Circuit determined
that large-capacity magazines are not protected by the Second Amendment, and therefore upheld
the regulation at the first step of the federal two-step test. Kolbe, 849 F.3d at 133. The First,
Second, Third, and D.C. Circuits all assumed without deciding that large-capacity magazines were
protected by the Second Amendment, concluded that intermediate scrutiny applied to the
restrictions, and upheld the statutes applying that standard. See Worman, 922 F.3d at 36, 39; Ass’n
of N.J. Rifle & Pistol Clubs, 910 F.3d at 117, 122; N.Y. State Rifle & Pistol Ass’n, 804 F.3d at
257, 264; Heller II, 670 F.3d at 1261. The Seventh Circuit applied a slightly different test to reach
the same conclusion. Friedman, 784 F.3d at 410-12; see also Wilson v. Cook County, 937 F.3d
1028, 1034 (7th Cir. 2019) (declining to revisit Friedman and summarizing its holding that
“because the Highland Park Ordinance did not strike at the heart of the Second Amendment, and
because the residents of Highland Park were not left without a means of self-defense, the
Constitution did not foreclose Cook County’s efforts to preserve public safety”).
¶ 87. The Ninth Circuit is the only federal circuit to strike down a large-capacity
magazine ban under the Second Amendment. Duncan v. Becerra, 970 F.3d 1133, 1140 (9th Cir.
30
The plaintiffs’ latter argument rested on their interpretation of the specific Colorado
statute at issue. Id. ¶ 65.
49
2020). Duncan involved a challenge to California’s large-capacity magazine ban, which applied
to magazines of ten rounds or more. Id. The court noted that magazines of more than ten rounds
are common and come standard with many firearms, making them similar to the handguns at issue
in Heller, 554 U.S. at 629; that the law was broad in that it “operates as a blanket ban on all types
of LCMs everywhere in California for almost everyone”; and that the law no longer contained a
grandfather clause. Id. at 1142, 1167. For those reasons, the court determined that the statute
placed a substantial burden on the core of the Second Amendment right, and it evaluated the statute
under a strict-scrutiny standard. Id. at 1164-65. The court concluded that although the
governmental interest in reducing the harm of gun violence was compelling, the law was not
narrowly tailored to achieve that interest. Id. It added that in its view, the statute would fail even
intermediate scrutiny. Id. at 1167-68.
¶ 88. Defendant and amici urge us to adopt similar reasoning here. They argue that there
has been “common possession of repeat arms” in this state since the Constitution was enacted, that
magazines of more than ten or fifteen rounds are as common now as the handguns at issue in
Heller, and therefore that banning them for self-defense purposes is categorically unconstitutional.
We decline to adopt this reasoning for two reasons. 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.
50
¶ 89. For all of these reasons, we find no constitutional infirmity in § 4021 on the grounds
defendant advances, and affirm the trial court’s denial of defendant’s motion to dismiss.
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice
Karen R. Carroll, Associate Justice
John P. Wesley, Superior Judge (Ret.),
Specially Assigned
Dennis R. Pearson, Superior Judge (Ret.),
Specially Assigned
51