New Gun Owners of Vermont president targets ‘Charleston loophole’ in committee hearing

Michael Bielawski/TNR

FIRST AT BAT: Gun Owners of Vermont’s new president, Eric Davis, got his first chance to speak before a committee on Thursday. He told House Judiciary members that the “Charleston loophole” is not an issue that leads to gun crimes.

MONTPELIER — New Gun Owners of Vermont president Eric Davis gave his first testimony Thursday at the Statehouse, and in it he told members of the House Judiciary Committee that forcing Vermonters to wait for lengthy background checks punishes law-abiding citizens.

The language of H.610, an act relating to firearms and domestic violence, states that the bill seeks to “eliminate the ‘default proceed’ process created in Federal firearms background check law by prohibiting the transfer of a firearm unless the National Instant Criminal Background Check System has affirmatively determined that the transferee is not prohibited from possessing firearms.”

The “default proceed” means if a background check isn’t completed in three business days for a firearms purchase, the buyer gets to take the gun home at least until the check is completed. Davis said these checks are usually completed instantly, but in some cases they can take months, or never get done.

The bill cites the “Charleston loophole,” a reference to when Dylann Roof, the mass murderer convicted in the 2015 Charleston, S.C., church shooting, was allowed to purchase the .45-caliber handgun he used to kill nine black churchgoers after the FBI didn’t complete a background check within three business days.

Davis told the committee that to make Vermonters wait for each background check because of the unique Dylann Roof case would be to place an irrational burden on their constitutional rights.

“The term ‘Charleston loophole,’ which identifies this obscure corner of the law, is a misnomer created by gun control advocates for what might be best described as a microscopic pinhole in an otherwise broad and heavy canvas of the law, and it is disingenuous at best,” Davis said.

The mass shooting in Charleston is the only case on record in which this alleged loophole resulted in a subsequent shooting. Davis further noted that had the background check been completed within the three days, Roof’s record at that point would still have allowed him to get the gun.

“After many hours of searching for a statistic on how many crimes are committed annually with firearms that slip through this alleged loophole, we found clear documentation of exactly one, the Charleston shooting itself for which this is named,” he said.

“Now this is not to suggest that no crimes have otherwise been committed with obtained through the default proceed, but we recognize that the problem is so very minuscule that there is no observable data if in fact the problem even exists.”

On a separate aspect of H.610, relief from abuse orders, Judge Brian Grearson, chief superior court judge for Vermont, told committee members that asking courts to remove weapons from people who have a relief from abuse order issued against them put the courts and police in an uncomfortable position.

“You are asking the court to make a decision based on a lack of evidence as opposed to saying to an individual, ‘this is your case, you decide what you want, and if there is evidence of firearms being involved in the incident or a history of owning firearms or whatever the concern was, express it,'” he said.

Grearson also explained how inquiring about guns to an already agitated defendant could put the plaintiff at further risk.

“This forces me to ask questions that the plaintiff may not want me to ask,” he said.

Grearson emphasized the problems with having courts enforce gun confiscation without proper due process. He made similar comments to the same committee about two weeks ago.

Grearson added that while he cannot speak for the police, he suspects they could have concerns as well, because when a warrant is issued, the burden of defending that warrant largely falls on the police and their ability to cite evidence that justifies the warrant.

When Grearson last spoke with the committee, Shawn Burke, chief of police for the South Burlington Police Department, told the committee that police should be privy to all the evidence that led to the issuance of a warrant to confiscate a gun. Burke also told the committee that any kind of confiscation — especially guns from a home — is a high-risk operation for law enforcement.

Michael Bielawski is a reporter for True North. Send him news tips at bielawski82@yahoo.com and follow him on Twitter @TrueNorthMikeB.

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11 thoughts on “New Gun Owners of Vermont president targets ‘Charleston loophole’ in committee hearing

  1. “This forces me to ask questions that the plaintiff may not want me to ask,” he said.

    “Grearson emphasized the problems with having courts enforce gun confiscation without proper due process. He made similar comments to the same committee about two weeks ago.”

    “Grearson added that while he cannot speak for the police, he suspects they could have concerns as well, because when a warrant is issued, the burden of defending that warrant largely falls on the police and their ability to cite evidence that justifies the warrant.”

    The un Constitutionality as judge Grearson questions is with all Red Flag laws are a abomination to the Constitution of at many amendments.

    Many Constitutional protections are turned upside down or violated by these laws. The most obvious are, of course:

    — the Second Amendment: “T]he right of the people to keep and bear arms shall not be infringed.”

    — the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched , and the persons or things to be seized.”

    — the Fifth Amendment: “Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use , without just compensation.”

    — the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due processes of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Your accuser has no obligation to prove your guilt. The order to deprive you of your Constitutional rights is given using completely unsubstantiated, arbitrary terms. You then have to stand before your government to prove your innocence.

    These laws also have a chilling effect on the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . or the right of the people to peaceably assemble.” What you say on social media (e.g., “I support the Second Amendment”) or which organizations you belong to (e.g., National Rifle Association, Second Amendment Foundation) in San Francisco can label you a terrorist and subject you to being red flagged and have your property confiscated. What crime did you commit? The exercise of Constitutionally protected rights.

    Since these proceedings fall under civil rather than criminal law, your Sixth Amendment protections are bypassed. These include “the right to a public and speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

    The Seventh Amendment states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court in the United States, than according to the rules of common law.” However, the civil proceeding against the individual by the state is regarding property worth far more than that $20 civil threshold. Why do firearm confiscations not permit trial by jury? A judge holds your rights in his sole hands.

    The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Is not having your property seized without trial or due process cruel and unusual? Is it not essentially an excessive fine to have to pay an attorney $10,000-20,000 to get your property back even though you committed no crime?

    These laws turn “innocent until proven guilty” on its head. They allow unreasonable search and seizure, and void due process. They deny trial by jury and punish innocent persons before they are found guilty of a crime. The punishment (confiscation of property) happens without any criminal conviction or an adjudication of mental incompetence. The ex parte nature of the original hearing only presents one side of the argument. Is there a police investigation to confirm the claims of the person asking for the order prior to accepting the petition? Many red flag laws hold the complainant harmless from civil damages even when the claims are false. In some states the rules of evidence are waived.

    These laws bypass important existing processes. They take away the firearms but do not address any other potential self-destructive or criminal behavior of the person subject to the Red Flag/ERPO.

    However the totalitarians in Montpelier would further the reach of their un Constitutional mandates and further infringe on Vermonters natural rights, without thought or care.

  2. I’ve noticed whenever the gun-grabbers like Baruth and Lalonde write another bill to confiscate our 2A rights, they insert an emotional phrase like “domestic violence” in it. When did all the domestic violence cases perpetrated with guns happen in Vermont that I am not aware of? Just another attempt to get the unthinking on board with a bill to steal our Constitutional rights, because who isn’t against domestic violence, right? Doesn’t matter that it’s not happening with guns. No lie is too big for the gun grabbers.

  3. Interesting. No one has mentioned that the plan to remove the 3-day waiting period means, with no cutoff date and no incentive to make a decision on the request, the purchase request can sit unanswered forever. That is a bureaucrat’s dream. No need to make a decision, no need to answer. Just let it lie there. No affirmative answer, no purchase! That is a gun-banner’s dream also.

  4. What gun owners in Vermont don’t seem to understand is that Liberals don’t care about
    you or your Constitution be it the US or VT Constitution especially those under a position
    within Golden Dome …………………

    If you want and believe in the Constitution and your rights as written by our founding
    fathers, then you need to VOTE these fools out of office !!!

    They’ll piss away your rights in a heartbeat for an agenda, just look at the condition that
    our state is in since Progressive Democrats have been in control !!

    Wake up people, they don’t care.

  5. it is a waste of time to go up to go to any hearing and try to explain to a bunch of Communists that they are passing unconstitutional laws. They don’t care. Over 20,000 people showed up at the Virginia capitol to fight for 2A rights. Do you think they listened ? No they still went pushed their gun control agenda the next legislative session. Until organizations like Gun Owners of Vermont keep playing by the rules of the Marquess of Queensberry they will keep losing. It is time to use the dirty tactics of the left.

    Never argue with an idiot. They will drag you down to their level and beat you with experience every time.

  6. All of the ( legal appearing ) laws designed to abridge the 2nd amendment have one thing in common. They are all based on presumption. The presumption that the ownership and use of a firearm will lead to crimes being committed and people shot. Basing laws upon that kind of reasoning sets a precedent that could, by logical extension, nullify all of our civil rights. In other words, the law ceases to be a response to crimes that Are committed but rather, becomes structured upon the concept of a crime that May be committed at some arbitrary time in the future. How then does it not become justifiable to pass any kind of repressive law which is counter to our Bill of Rights under the guise of doing what’s best for the good of society?

  7. All these nonsense laws written by the gun grabbers does nothing but put law abiding citizens in danger by interfering with their Constitutional rights to protect themselves. They are attempting to distract their obvious inability to contain the criminal element and are hoping to fool Vermont citizens into believing they are actually doing something worthwhile.

    • “hey are attempting to distract their obvious inability to contain the criminal element ”

      Actually Dennis they are freeing the criminal element by forgiving
      past criminal acts, detoothing existing laws opening the jail cell
      doors and lowering the penalty’s for criminal activity. Topping it off they now want to disarm the coppers… It’s all about punishing the law abiding now…

  8. In this country, a person is constitutionally innocent of any crime until proven guilty by a court of law. The existing standard 3-day period, while still provides for 3 days pause, for the most part supposes that at the end of that 3 days, if the authorities cannot find a crime, the person is presumed innocent until the government can prove guilt. It is the government’s burden of proof.

    This bill, with its indefinite wait period, effectively states that a person is thought to be guilty until that person can prove his or her innocence. H.610 mandates that innocence becomes the person’s burden of proof.

    Based on this fact, I believe H.610 is, at its core level, unconstitutional.

  9. While Eric is correct on this assault on the 2nd there’s plenty more stupid laws created by
    gun grabbers that’s should never have reached written law. The biggest is
    GUN FREE ZONES, this idiocy alone has killed more people then any other law or rouge gun..
    The second amendment is very clear “SHALL NOT BE INFRINGED ”

    which needs no other explaining…

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