Reasonable Restrictions on Firearm Ownership

This past week, House Judiciary spent its time off the floor taking testimony and discussing potential tweaks to S.141, An Act Relating to Possession of Firearms. When the Senate considered this bill earlier in the session, it was one of the most controversial pieces of legislation that the General Assembly had before it. The controversy primarily involved inclusion of a provision requiring universal background checks. The Senate passed out a version of the bill that excluded this provision. Nevertheless, House Judiciary has still heard from a lot of people who are opposed to the bill, which restricts ownership of firearms by violent felons and those who are a danger to themselves or others.

This Slope Isn’t Slippery

One of the arguments that I have heard against the bill is that it simply starts Vermont down a slippery slope toward further curtailment of Second Amendment rights. I don’t buy that argument.

One problem with slippery slope arguments is that they avoid the merits of the issue itself, and focus instead on imagined consequences. In other words, they change the subject. To most, the merits of keeping violent felons from having guns is obvious. But to many, the merits of universal background checks are not so obvious. Each idea should be judged on its own merits, and, indeed each has been. The Senate passed out its gun bill excluding the provision requiring background checks because of its questionable merits.

I’ll give you another example besides gun-related legislation. I have heard the argument that allowing marriage between same-sex couples will only lead to allowing marriages between people and their goats. Well, no. The issue was whether two consenting adults have equal rights to get married. It has nothing to do with goats. Support for reform A does not require support for reform B. Someone who believes that the government shouldn’t discriminate against gay men or women by refusing same-sex marriage, does not have to believe that the right to marry should be extended to a man and his goat.

Similarly, one can be in favor of keeping guns out of the hands of violent felons and those who are a danger to themselves or others, while also believing that background checks impermissibly impinge on the Second Amendment protection for the right to own guns.

I will grant that slippery-slope positions are not self-evidently wrong. If the state restricts gun ownership by violent felons and those who are a danger to themselves or others, maybe legislators will be more willing to consider other restrictions on gun ownership. But the opposite could easily be true. After going through the arduous and controversial process to restrict gun ownership by violent felons and those who are a danger to themselves or others, the legislature will be more reluctant to go through that again any time soon to impose other restrictions on gun ownership or will believe it has reacted appropriately to the problem and does not need to impose further restrictions.

Section-by-section Summary of S.141

Section 1: This section establishes a Vermont criminal offense for possession of a firearm by a person who has been convicted of a violent crime. All 49 other states and the federal government currently find this conduct to be criminal. A violation would be punishable as a two-year misdemeanor.

A violent crime is defined to include the following offenses: (1) those involving a subset of “listed crimes,” which is a legislatively-created list of major offenses; (2) sexual exploitation of children; or (3) selling, dispensing, or trafficking significant amounts of illegal drugs where the amount is so great that the penalty is a 10-year felony. A violent crime also generally includes an offense in another jurisdiction comparable to one on this list if the penalty would prohibit a person from possessing a firearm under federal law. “Firearm” is defined the same way as in the federal law, which excludes antique firearms and muzzle loaders.

Section 2: This section makes it more likely that someone who has relinquished firearms due to a restraining order and failed to pay a storage fee will be notified that the firearms are to be sold. Last year in Act 191 (the Fee Bill), the General Assembly created a procedure for a person who is required to relinquish his or her firearms pursuant to a relief from abuse order to store them with a law enforcement agency, an approved federally licensed firearms dealer, or another person. If the applicable storage fee is not paid then the weapon may be sold after a reasonable effort is made to notify the owner of the sale. Act 191 defined “reasonable effort” to mean providing notice of the sale by first class mail, certified restricted delivery. Section 2 of S.141 amends that definition and provides that reasonable notice means notice as provided for in the Vermont Rules of Civil Procedure. This means that notice must be provided through personal service, and only if that proves impossible can notice be provided by mail or by publication.

Section 3: This section requires the Departments of Public Safety and of Mental Health to report on progress in establishing a Vermont version of the New Hampshire Gun Shop Project, an initiative in New Hampshire to reduce the number of firearms-related suicide deaths by helping gun shop owners avoid providing firearms to suicidal persons.

Sections 4, 5, and 6: These sections deal with reporting the names of some people prohibited by federal law from possessing firearms for mental health reasons to the National Instant Criminal Background Check System (known as NICS). S.141 requires Vermont to join the 38 states that currently do some version of this type of reporting.

Section 4 relates to criminal proceedings and requires that a report be made if a defendant is found not responsible for a crime by reason of insanity or incompetent to stand trial due to a mental illness and is committed to the Department of Mental Health after a determination by the Criminal Division of the Superior Court that the person is a danger to himself or herself or others. Section 6 relates to civil commitment proceedings and requires that a report be made if a defendant is subject to a hospitalization order or non-hospitalization order after the Family Division of the Superior Court determines that the person is a danger to himself or herself or others. The reports to the NICS are confidential and only include information sufficient to identify the person, the reason for the report, and a statement that it is made in accordance with federal law. The person who is the subject of the report is also provided with a copy, which must inform the person that he or she is thereafter prohibited from possessing a firearm. Section 5 is a technical provision that permits these reports to be made without violating state confidentiality laws.

Section 7: Section 7 establishes a process through which a person who has been prohibited from possessing a firearm for mental health reasons can petition the Court to have his or her name taken off the NICS database if he or she is no longer a danger to himself or herself or others. The Court considers the circumstances regarding the petitioner’s case, including his or her mental health and criminal record, character evidence, and statements from known victims.

Section 8: Since the bill is prospective and only applies to court findings of dangerousness made after the effective date, Section 8 provides a mechanism to report the names of those who have been previously found dangerous by a court and for that reason are currently in the custody of the Department of Mental Health when the bill is enacted. Section 8 requires that by October 1, 2015, the Department must report the names of those persons to the Court Administrator, who then reports them to NICS in the same manner as will be done for other proceedings going forward.

Section 9: This section provides that the violent criminals in possession, fee for storage, and New Hampshire Gun Shop Project provisions are effective July 1, 2015, while the provisions related to mental health reporting are effective October 1, 2015.

The Committee will likely be voting on the bill early this coming week.

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