Vermont’s ‘taking game’ and universal background checks

By John Klar

At times, government rightly employs the power of eminent domain to “take” property — for railroads, roadways, prisons, power plants, etc. But the “takings clause” of the Fifth Amendment to the United States Constitution restrains government from taking the property of citizens without just compensation.

Michael Bielawski/TNR

Gov. Phil Scott, standing on the steps of the Statehouse on April 11, spoke for more than 20 minutes to defend his decision to enact gun control on Vermonters.

In Vermont in the 1970’s, Route 91 cut through swaths of dairyland as it connected northern Vermont with flatland, and farmers who refused to sell were awarded monetary sums determined by courts after due opportunity to be heard. This was the “taking” of private property for public need, with court oversight and approval of the fairness of compensation. (However, in many cases the government only paid for the strip of land on which the highway was constructed, not the fertile back pastures that were severed from grazing use, some of which remain unreachable today except by passing over others’ lands.)

Recent legislation requires that all transfers of firearms between private Vermont citizens be subjected to a “background check” under criminal penalty. The constitutionality of requiring a background check for prior government approval of the exercise of an express constitutional freedom will be challenged. But even if it is ruled that the government is no longer restrained by the Second Amendment (and Vermont Constitution Article 16) from such a screening of citizens, the imposition of a fee raises additional constitutional concerns: especially when the fee (which some have suggested may reach $100) may often exceed the value of the transferred property.

About twenty years ago, I bought my first handgun (a Ruger .22 semi-automatic) in the parking lot of the Barre Auditorium at the annual Barre Gun Show (from my cousin, for $110). I paid no fee. I still own that gun today. Ironically, that same cousin is now shopping for a .22, but he’s looking for a revolver. But if I want to resell my Ruger .22 back to him I can’t even do it in my backyard, and if I charge him $100 that will be absorbed by the transfer fee. If I ever sell this handgun legally, it’s economic value is now unlikely to equal the fee to be charged for its transfer. My property has been taken. No Due Process; no measure of value, or of just compensation; no opportunity to appeal. For a $50 shotgun (I have at least two of those), it would be cheaper to throw it away than to incur the government’s “fee.” More than taken: the government has transformed my assets into liabilities.

I have another cousin who is pleased with this new legislation: he contends that he only requires his 20-gauge shotgun for protection, and sees no reason why anyone else should “need” anything more. But the irony returns: he is a registered medical marijuana patient, and he will never again be able to legally purchase a firearm anywhere in the U.S. (Until last week, he could have bought one from a private citizen in Vermont, but no longer. He had better keep that 20-gauge well-oiled.) The Legislature has taken his right without even imposing a fee. No compensation, no hearing, no appeal. And this denial for marijuana users has already been unsuccessfully challenged in several federal courts and it is settled law: he uses pot and can’t buy a gun ever again.

More rights will be lost as veterans with PTSD, patients treating for depression or anxiety, or other categories of citizens are silently marked for refusal from background check clearance, being treated worse than convicted felons — felons are granted the constitutional guarantees of criminal procedure, including a trial before their peers, prior to the stripping of their rights as citizens.

Vermont took title to land for highways and railroads with court review and fair payment; it took more than the market value of thousands of Vermonters’ guns with zero court review while imposing fees and paying nothing in compensation; it took sickly Vermont pot smokers’ right to ever purchase a gun again, without paying a cent or even enduring the discomfort of providing an explanation.

Imagine if the right to vote were taken from medical marijuana patients (silently, by bureaucratic fiat), and they were informed on election day that they could not enter the polling booth, they had no right to challenge this determination, they could not vote in future elections, and that if they ever tried to vote they would be charged with a felony and arrested. (Now some would say this would be a good law, but the Constitution is supposed to protect marijuana smokers too!). But is the Second Amendment not necessary to shield the voting booth from government intrusion? It appears that in Vermont the voting booth has been used to instead remove the shield, not only of the Second Amendment but of Due Process and protections against unlawful takings – of our property, of our liberties, of our heritage. Vermont’s Legislature is playing a very dangerous game, and it has “taken” things much too far.

Attorney John Klar farms, and writes, from his family land in Brookfield. Reprinted with permission from the Ethan Allen Institute Blog.

Images courtesy of St. Louis Circuit Attorney's Office and Michael Bielawski/TNR
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11 thoughts on “Vermont’s ‘taking game’ and universal background checks

  1. This entire fiasco is insane. After touting the gun laws in my state for years (also the safest in the 48), I now spend my time apologizing for our “rino” governor’s stupidity. How will they know if anyone has guns? Are they going to have cops stationed at ranges? Are they going to stop and search the thousands who come into VT every fall to go hunting? Will they need to carry their invoices for the guns their grandpa bought back in the last century? If I’m having a memory problem, am I going to see a Dr. to see what ails me? Will the Dr. be required to report me for a ‘mental problem’?
    How about the kid in Fair Haven? Sounds to me like the ‘old system’ worked perfectly until it got to court. But our court system called him a “bad boy” and sent him home. Yeah, that should solve the problem. Sounds like the Parkland shooter, except the cops did their job instead of the response of the ‘Coward County’ cops. There doesn’t appear to be any solution that the progressives can come up with. So lets just ban the 2A and the VT article 16. We can then join Califoricate and maybe have their Jerry Brown appear on CNN to congratulate us.

  2. Hi all true Vermonters just a thought. Ironically the unjust taking of land for highways literally paved the roads to bring in flat land politicians. The common sense of our native Vermonters has unfortunately been overwhelmed by wealthy out of staters. These out of staters have bought there property to live in Vermont and now want to change our ways. I won’t go down the road of the excessive wealth that resides in Stowe and other ski towns (mainly owned by out of staters paid for by tax payers Eb5). The rich have made there playgrounds in our backyards. Two weeks a year they are here and leave us for the other 50 weeks to abide by there laws. The 2nd amendment was put in our constitution to protect it’s people against government over reaches such as these. disarming in any form would be an insult to our ancestors and what they died making. Where do you draw the line?

  3. Ironically the unjust taking of land for highways literally paved the roads to bring in flat land politicians. The common sense of our native Vermonters has unfortunately been overwhelmed by wealthy out of staters. These out of staters have bought there property to live in Vermont and now want to change our ways. I won’t go down the road of the excessive wealth that resides in Stowe and other ski towns (mainly owned by out of staters paid for by tax payers Eb5). The rich have made there playgrounds in our backyards. Two weeks a year they are here and leave us for the other 50 weeks to abide by there laws. The 2nd amendment was put in our constitution to protect it’s people against government over reaches such as these. disarming in any form would be an insult to our ancestors and what they died making. Where do you draw the line?

    • Had a conversation with a rep.from a Ski Town area,that was a supposed consecrative on S.55

      When I included this in one of my various replies to that representative.

      Text of Section 56: Vermont Constitution. Each and every legislator voting for this bill or similar bills violates their oath to defend and not harm the constitutional rights of Vermonters under the pains and penalties of perjury!

      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 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.

      That any and all proposals to restrict, ban or regulate Firearm Ownership is “UNCONSTITUTIONAL”, and therefore any further action on their part will be deemed as direct threat to the Constitution of the United States of America, and their actions are deemed “Subversive” and they will be held accountable and charged Under US Code Title 18.

      One, GOVERNMENT never has any RIGHTS as against the people. Remember, WE THE PEOPLE comprise government, and governmtnt can only govern with the consent of THE PEOPLE.

      Governments have no “rights”. Only people have Rights. Governments have limited powers and authorities. Disarming the general population is not among those powers and authorities. Read the Constitution. Disarming anyone or banning any firearm is simply not in the Constitution. I am surprised that you are unaware of this.

      The US Constitution plainly declares that the right of THE PEOPLE to keep and bear arms shall not be restricted, limited, narrowed, denied, removed, or in any other way infringed. By any one, any government entity, or anything else. It charges the Federal government with preserving that right against all threats. And every state that has joiend the union agreed to those terms, and thus         are out of line in their illegal attempt to impose this new infringement on a portion of the population. NONE many infringe.

      The reply was by what you wrote me the state/government could never enact any law/regulation regarding firearms,my reply was “now you understand what the Constitutions,state and federal say,now it’s your duty to honor them,the reply was “We Will Have To Agree To Disagree” ,classic,Leftist cop out from supposed conservatives.

  4. You do know your “cousin” is by Federal law a “prohibited person” for having the Medical Marijuana card and even his 20ga he currently owns is illegal for him to possess? Another lole of property at the Federal level when you chose medication and lose a right without compensation.

  5. Another law that is not enforceable and is ineffective as it will only pertain to guns purchased after Oct. 1 2018 when the law takes effect if at all. For guns sold prior to that date all you have to do is to make a receipt dated prior to the law taking effect. Also since the gun store holds all the paper work and the customer holds a receipt the state government doesn’t even know you own the gun unless they are creating a data base of guns sold. Even more so if the gun is bought in another state, lets say NH. The real danger of this law is that you know the socialist’s will not be happy with only one bite of the apple.

    • Probably a good idea to have a ‘receipt’, although the law didn’t require any record for a private sale. Even with the ‘new’ law, one could always claim they drove to another state that still allows private sales. Nobody can enforce this.

      • The jobs and offices with inspectors to supervisors will still be created.I can’t believe how “Soviet” like we have become!

  6. Along with the violation of the 5 th. in the taking of a legal,ATF approved accessory ,The Bump Stock,is also a taking.
    The State governor and legislature banned them by a set date with No,Zero compensation,S.55 is Un Constitutional from many stand points.

  7. Superb essay on the evils of ‘fixing’ a constitutional freedom. Some powerful examples.

    Use of these arguements could be crafted into Letters to the editor of our daily papers, preferably by Mr Klar.

    But his examples show the idiocy of this parsing of Vt’s Constitutional Right to keep and bear arms.

    I add, Imagine the idiocy of the anti-gunners that the Vt Constitution only allows the muzzle loaders available for the Vermont Malitia.

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