Some Q & A Regarding the Gun Bill

Yesterday, House Judiciary passed out of committee a bill that would restrict gun ownership rights of violent felons and those who are a danger to themselves and others. Check out my April 11 blog post for more details on the bill. The following provides some answers to questions and concerns that I have been receiving from folks regarding the bill.

Q: Will this bill force people to decide whether they want to seek help or treatment and risk losing their right to have a firearm or not get help and keep their rights?

A: No. Seeking voluntary treatment does not lead to submission of a person’s name to the Registry. It is only by way of a court adjudication finding that someone is in need of treatment and is committed to the custody of the Department of Mental Health that a person’s name is submitted to the National Instant Criminal Background Check System (“NICS”). Through such an adjudication, a court may issue an order of hospitalization or order of non-hospitalization. Both such orders require a finding, by clear and convincing evidence, that an individual is a danger to himself, herself, or others.

Q: Will this bill make it almost impossible to have one’s rights restored once someone has been deemed no longer a threat to himself, herself, or others?

A: After an individual is no longer in the custody of the Department of Mental Health (in other words, is no longer subject to an order of hospitalization or order of non-hospitalization), the reason why that individual was put onto the NICS in the first place has been removed. Nevertheless, there remains a risk of relapse of such a person, particularly within one to two years after custody has ended. There are different ways to balance the procedure for regaining one’s rights and the risk of relapse.

The bill passed by the Senate addressed the balance by imposing an 18-month waiting period between the date on which a person is no longer in the custody of the Department of Mental Health and the filing of a petition for relief from disability (to get one’s rights to gun ownership back). The individual would have to show by a preponderance of the evidence that he or she is no longer in need of treatment and that it would not be against the public interest if relief were granted.

House Judiciary amended this provision. It eliminated the 18-month waiting period before a petition can be filed. Instead, the petition can be filed as soon as a person is no longer subject to an order of hospitalization or non-hospitalization. But, the State’s Attorney or Attorney General has six months in which to file an objection to the petition. This, in effect, will provide at least a six-month waiting period. If there is any question about whether granting the petition would increase the risk to the public interest, the State’s Attorney or Attorney General would likely file an opposition. It would thereafter take months for the petition to be resolved in Court. The bottom line is that, practically speaking, there will be sufficient time after release from custody to ensure that an individual has not relapsed and become a danger to himself, herself, or others.

Q: Isn’t this bill redundant with federal law and thus unnecessary? Isn’t this a solution looking for a problem?

A: Vermont is the only state that has not passed such a law. Forty-nine other states did not think having such a law would be redundant or a solution looking for a problem.

In addition, relying simply on the federal law requires reliance on federal law enforcement and prosecutors. Enacting this bill would reduce this reliance, placing additional law enforcement and prosecutorial authority with the State. Moreover, protection of persons and property within Vermont is not necessarily a federal function. Rather, that is a core function of the state. Accordingly, passing this law to assist Vermont law enforcement is, in one view, a state’s rights issue. This should be a pleasing result for federalism fans.

Under current law, when a Vermont law enforcement officer encounters a felon in possession, he or she will either formally or informally refer the matter to the ATF or U.S. Attorneys Office. The federal authorities act on only a small portion of these referrals because their limited resources are focused on interstate cases (e.g. drug gangs). Vermont officials often decide not to refer cases because they know federal officials will not pursue certain cases. Furthermore, they often decline to refer the felon in possession offense because it could lead to the disruptive situation of an underlining crime being prosecuted in state court while the federal felon in possession crime is prosecuted in federal court. The bottom line is that many instances of violent felons in possession of firearms are not prosecuted.

In short, it is reasonable to give state law enforcement and prosecutors the tool to keep guns out of criminal’s hands.