McClaughry: A constitutional right under attack

By John McClaughry

One day in 1903 a police officer in Rutland accosted Andrew Rosenthal. We don’t know why he was accosted — whether he was in the act of committing a crime or otherwise attracted attention. In any case he was arrested and cited for “carrying a pistol loaded with powder and bullets, concealed on his person” without written permission from the mayor or chief of police, in violation of a city gun control ordinance.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

Rosenthal defended himself by pointing out that “said ordinance is illegal, for that, so far as it prohibits the carrying of a pistol, it is repugnant to and inconsistent with the constitution and the laws of this state.”

In an opinion of two pages the Supreme Court unanimously found that the ordinance is “inconsistent with and repugnant to the Constitution of this state.” The Court thereby summarily disposed of local firearms laws violating constitutional rights — while not passing on existing state laws that made it a crime anywhere in the state for a person to carry a weapon with the intent of harming another person.

This long-existing legal precedent exemplifies what is known as the Dillon Rule, after an Iowa Supreme Court Justice who ruled in 1868 that local municipalities can only enact presumably constitutional ordinances authorized by the state legislature.

This is of sudden interest because a movement is afoot to repeal a 1988 Vermont law called the Sportsmens’ Bill of Rights. That law prohibits local governments from enacting their own gun control ordinances.

The act was enacted because gun control organizations had shown interest in passing various local gun control measures. Spurred on by the Vermont Federation of Sportsmens’ Clubs and Gun Owners of Vermont, the legislature decisively rejected that interest. The bill passed the House 125-8 and the Senate on a voice vote. Democratic Gov. Madeleine Kunin signed it. Democratic Lt. Gov. Howard Dean boasted that “I got it passed.”

Since 1988 Burlington and Montpelier voters have proposed to create their own gun control ordinances. Because of the Dillon Rule, city charter changes have to be approved by the General Assembly. All attempts to bypass the law proscribing local gun control measures have been pigeonholed.

The renewed interest in enacting local gun control measures has shifted from getting city charter exemptions to town by town action, notably in Woodstock. Michael Bloomberg-funded Gun Sense Vermont is launching a campaign to repeal the Sportsmen’s Bill of Rights in the name of local implementation of “meaningful steps to prevent gun violence.” Perhaps by licensing or prohibiting all guns in the town?

The major reason why Gun Sense thinks this is their year is the election of Sen. Phil Baruth (D-Burlington) as Senate president pro tem. Baruth, a novelist and English Professor at UVM, has long been an earnest advocate of gun control measures. He sponsored four such bills in the 2019-20 legislature (that weren’t considered). He has publicly announced that repeal of the Sportsmen’s Rights will be considered in the coming session.

Well, why not repeal the Sportsmen’s Bill of Rights and let every town adopt ordinances defining what kinds of firearms, if any, can be possessed, under what conditions and with what payment of fees, within the town?

Why not send today’s Andrew Rosenthal to the selectboard or police chief to get written permission to exercise his explicit constitutional right to carry a firearm “for defence of themselves and the state”?

Why not arrest and fine hunters passing through during hunting season for failing to obtain a firearm transit permit from each town en route?

Why not send out the town ordinance enforcement team on suspicion that a resident failed to lock her firearm in an approved vault, instead of storing it where she can get it quickly if somebody invades her home?

Basically, it comes down to more than inconveniences. Repeal of the Sportsmens’ Bill of Rights means a town can prevent residents from enjoying whatever rights have been confirmed for them by Chapter 1 Article 16 of the Constitution.

Liberals surely would be aghast if each town could adopt its own rules about freedom of speech and press, or the right to “reproductive autonomy” just added to the Constitution. Turning every town in the state loose to enact its own interpretation of any constitutional right is not a responsible idea. Sen. Baruth needs to apply his legislative talents to some other cause.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Wikimedia Commons/Ratha Grimes and John McClaughry
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18 thoughts on “McClaughry: A constitutional right under attack

  1. Each. and every item on Burlingtons purposed infringement wish list has already been found un constitutional either in Heller/McDonald or more recently in Bruen.
    One could be easily be lead to the thought that the brain trust in Burlington are unaware of these SCOTUS decisions and are opening themselves up to the associated court costs only to in the end loose and put the bill for the loss on it’s taxpayers. “Shall Not Be Infringed means exactly that.

    • Yeah, especially when it comes to reproductive rights in Vermont. Obviously, they do know what the phrase “shall not be infringed” means. They used it for Prop 5. Yet they make out they don’t know what it means when it comes to gun rights. I WILL NOT OBEY I WILL NOT COMPLY

  2. This is their insidious plan to take down the state and our country, by usurping the constitution one town at a time.

    They will do this for you guns, but that’s only the beginning.
    They are doing it on your property rights
    Your police and ambulance
    They’ve done it on your schools
    Healthcare is coming next.

    And this all leads to the social credit scoring, where they will digitally control you, it’s house arrest on steroids. Say the wrong thing,,,,your phone and alexa are listening. Suddenly your credit score drops and you can’t go on that family vacation. Of course this will be in the name of climate justice, but for some reason some will be more justified in using carbon than that normal serf vermonter.

    Oh…say something they don’t like, suddenly your bank account is frozen. Suddenly your contracts are cancelled. And how is it when I type the computer is filling in the next words? Oh….they aren’t watching?

    Say you love everybody, even your most vial enemies…and you too could lose 1.5 billion dollars, ask Ye…….meanwhile our government secretly took in Nazi scientists……

    There is truth and love in the world…it all leads to one place.

  3. Iraq under Saddam Hussein allowed households to legally own an AK-47, which a lot of households did.

    Then, when we liberated them from him and abolished the army and the police, the householders used their new-found freedom and liberty en masse to kill other householders who did not share their religion.

    Anybody want to place odds on that happening here within the next forty years? Discounting of course that the vestibule has been entered: mass shootings.

    • That is a classic example of why democracies and theocracies fail.

      It is what separates a republic from the trash. It is what separates those who know truth and love from those who worship man made idols, money and power. This path is very wide and many, many billions have sadly gone down this path. The other path offers Love, Joy and Peace…..results seldom vary, unlike stock picks.

  4. Thank you John for the valuable history lesson. These recent proposals to repeal the 1988 statutory prohibition on local firearm restrictions are in response to problems that are largely restricted to Burlington and mostly resulting from disputes between “New Americans”, originally from Somalia. It is truly astounding that people who grew up in the horrid desperation of a refugee camp, were rescued and brought halfway around the world, offered every form of public assistance available and given the opportunity to prosper in a first world paradise choose to affiliate themselves with violent gangsta culture and bring mayhem to the midst of their taxpaying benefactors. Some have chosen to continue with the petty tribal and clan animosities that brought about the civil wars in their homelands, resulting in their migration here. Phil Baruth and his anti-Article 16/Second Amendment colleagues are cheaply and opportunistically using these incidents to justify what they have always promoted…a general crackdown on Vermonters’ firearm freedoms. Obviously, not all of these Burlington incidents have involved guns and the problem is one of violence, not gun violence per se. If public officials really wanted to deter and reduce violence, from the dawn of history that has been accomplished by having a credible system of sanctions for those who prey upon others, what we call the criminal justice system. That system has been diminished over the last few years, supposedly to honor the memory of George Floyd, a petty criminal who disobeyed lawful orders by police while being detained. The resulting mayhem has manifested itself in increased violence, widespread retail theft and larcenies all over the US. It is shameful and disturbing that elected officials would want to attempt to restore order by restricting the Constitutional Rights of the law-abiding when all that is required is to put back in place the largely credible and functional system that was in place in the “Pre-George Floyd era”. It doesn’t help that the voters of Chittenden County reaffirmed the dangerous policies of our Soros-supported State’s Attorney, and the majority of voters statewide put in place a veto-proof majority of anti-freedom legislators. What violence results in the streets of Burlington and the potential loss of freedoms of Vermonters have been apparently approved by a majority of voters in Vermont and we have ourselves to blame.

  5. To all you hunters out there that didn’t bother to vote in the last election. Don’t worry they are not coming after your hunting rifle not until after they’ve reclassified it a “Sniper Rifle”. See how this works?

    “Under no circumstances should arms and ammunition be surrendered; any attempt to disarm the people must be stopped, by force if necessary”. – President Ronald Reagan

  6. I will not obey or comply with any unconstitutional law passed by a rogue federal or state government.
    The 2nd Amendment does not grant us the right to keep and bear arms. The 2ndAmendment denies the government the authority to infringe upon our right to keep and bear arms. The law is clear on this matter.

    Unconstitutional Official Acts
    16 Am Jur 2d, Sec 177 late 2d, Sec 256:
    The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The US. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
    The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it..… A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it. The Supreme Court’s decision is as follows; “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it in legal contemplation, as inoperative as though it has never been passed”. Norton vs Shelby County 1886 – 118 US 425 p.442.

    Alexander Hamilton explains unconstitutional law in Federalist No.76; “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid”.

  7. We’ve all had enough of these people just stop paying your taxes, licenses and fees. They’ll go away eventually when they run out of money.

    The cycle of a Democrat:
    -Create a problem.
    -Blame it on someone else
    -Say you have the solution to the problem.
    -Ensure that solution either lines your pocket, takes the rights away from others, or grows the government so you can get your friends involved.
    -Force the solution onto others
    -Rinse and Repeat

  8. Unfortunately, reasoned logic does not apply to many issues the super-majority socialist legislature may wish to ‘fix’ in 2023-2024. Emotion rules, not logic- be it gun”control”, crime and justice or the “climate crisis”. mr. baruth is for some reason, inexplicably driven to attack issues using emotion to drive opinion and fabricate need for legislation. While you and I see firearms legislation as repugnant and inconsistent with the US and Vermont Constitutions, mr. baruth and many others to serve this biennium see constitutional law as a obstacle to be overcome to suit their agenda of establishing a textbook example of totalitarianism.
    There is no “gun problem” in Vermont, the problem is with the criminal justice system and those elected to enforce existing law choosing (illegally) not to.
    In a similar way, past and future legislators seek to eliminate many of the rights assured (not granted) by Vermont’s and the US Constitution. These documents make the USA what it is, a Constitutional Republic and have proven to us ant the world that such government is not only possible, but exceptional results come from this style of government.
    baruth’s seeming choice of totalitarianism has also been proven- as a failure.
    The Vermont Constitution, in Chapter II Article 16 Requires Representatives and Senators, specifically affirm or swear an oath:
    You do solemnly swear (or affirm) that as a member of this Assembly, you will not propose, or assent to, any bill, vote or resolution, which shall appear to you injurious to the people, nor do nor consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State; but will, in all things, conduct yourself as a faithful, honest Representative and guardian of the people, according to the best of your judgment and ability. (In case of an oath) So help you God. (Or in case of an affirmation) Under the pains and penalties of perjury.
    Additionally all other Officers of the State must pledge or affirm:
    § 56. [OATHS OF ALLEGIANCE AND OFFICE]
    Every officer, whether judicial, executive, or military, in authority under this State, before entering upon the execution of office, shall take and subscribe the following oath or affirmation of allegiance to this State, (unless the officer shall produce evidence that the officer has before taken the same) and also the following oath or affirmation of office, except military officers, and such as shall be exempted by the Legislature.

    The Oath or Affirmation of Allegiance

    You __________ do solemnly swear (or affirm) that you will be true and faithful to the State of Vermont, and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof . (If an oath) So help you God . (If an affirmation) Under the pains and penalties of perjury .

    The Oath or Affirmation of Office

    You __________ do solemnly swear (or affirm) that you will faithfully execute the office of __________ for the __________ of __________ and will therein do equal right and justice to all persons, to the best of your judgment and ability, according to law . (If an oath) So help you God . (If an affirmation) Under the pains and penalties of perjury .

    The Vermont Constitution is the ruling document. All law and government follows from this constitution. It seems that we as Vermont citizens must demand that these oaths and affirmations be followed-and those that choose otherwise be removed from their respective offices. We need to demand accountability from our “public servants”, no longer can we tolerate the opposite.

    • Frank, I totally agree with you however there is no mechanism or penalty in place that punishes politicians that violate bot the US or Vermont constitutions.

      • The LAST legal hope and refuge for freedom and penalizing rotten politicians is the voting process. If we can assume that it is valid (I’m not sure about that now with mail-in ballots floating around) then the majority of voters have chosen to abdicate that responsibility by electing leftist, anti-Constitution people to represent us in Montpelier and DC.

        • No, the last legal hope and refuge is the Constitution. It gives us the right to take back our Constitutional Republic by force if necessary. When the federal government usurps our Constitution, it is the meaning of what a “domestic enemy is”.

          “Under no circumstances should arms and ammunition be surrendered; any attempt to disarm the people must be stopped, by force if necessary”. – President Ronald Reagan

          “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their ‘constitutional’ right of amending it or their ‘revolutionary’ right to dismember or overthrow it.” – Abraham Lincoln

  9. Just a reminder to the professor, people do not lose their VT or US constitutional rights at each town border. I can see the lawyers mouths watering now thinking about all the towns they can sue. This law if passed will not be obeyed and is unenforceable. I really do not believe that the police will fall in line for this trash. I would remind all of those hunters and sportsmen who own firearms that this is the result of who you’re voting for or not voting at all.

    • “Defiance, not obedience is the American’s answer to overbearing authority”. – Any Rand

  10. In the interest of protecting the public safety, the “meaningful steps to prevent gun violence” ought forcefully to be applied to the tried and convicted criminal element – precisely those who will pay no heed whatsoever to the laws. Mandatory sentencing for violation, however, would protect the public – e.g., use a gun in a crime – mandatory ten year sentence. Fire it? Double the sentence. The increase in violent crime parallels the Progressive instant release of perpetrators who, in the public interest, ought to be confined indefinitely. They have displayed their propensity for violence.

    • Francisco, you are absolutely correct in your statement, “…forcefully to be applied to the tried and convicted criminal element.” Therein lies the true problem when it comes to the criminal use of firearms. There are enough laws on the books right now to deal with any and all uses of firearms in a criminal manner. But those laws have no “teeth”. Federal prosecutors are lax in their attention and action to enforce them. Instead, perpetrators are either let go without punishment or given a slap on the wrist and turned loose only to repeat their offenses. All one has to do is look at the statistics from places like Chicago to understand the dilemma. Mandatory prison sentences mean nothing unless there are convictions. Further, the lawmakers involved in attempting to deny our Constitutional right to self defense both at the state and federal levels need to be called into account for their violations of oath of office and
      be held accountable.

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