Bradley: Legislature’s lawyers wouldn’t sign off on constitutionality of H.230, gun control bill

by Chris Bradley

On April 28, a judge in the Southern District of Illinois, in the case of Barnett v. Raoul, issued a preliminary injunction against the enforcement of the recently-passed Protect Illinois Communities Act (PICA) which banned “assault weapons” and standard capacity magazines.

At the beginning of that case, the court made the following statement:  “…no state may enact a law that denies its citizens rights that the Constitution guarantees them.  Even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens”.

Simply put, the Second Amendment – the ONLY Amendment to have the phrase “shall not be infringed” applied to it – guarantees that citizens have a right to self-defense.

Chris Bradley

Across the Heller, McDonald and Bruen decisions, the Supreme Court of the United States (SCOTUS) has been crystal clear on two things:  That the crux of the Second Amendment guarantees the right to self-defense, and that the Second Amendment is no longer a second-class right that is subject to an entirely different body of rules than the other Bill of Rights guarantees.

There can be, or should be, no question that a law that effectively prohibits the ability of an honest and law-abiding citizen to immediately purchase the best means of self-defense is an “infringement” to the right of self-defense.

We can speculate that a waiting period may save lives for those who are intent on immediately killing themselves; that maybe, perhaps, putting time between a purchase and taking possession will give people in crisis the time to reconsider.

On the other hand, we see, every day, violence that is targeting completely innocent people. Law-abiding citizens who are under threat have a right to defend themselves, and to quote Martin Luther King: “A right delayed is a right denied”.

From my research, to date there has only been one court challenge to a Waiting Period, and that occurred in 2014 in California in the case of Silvester v Harris.  The case was heard in the US District Court of California, which ruled that the law was unconstitutional.  In making that ruling, the court stated:  “Defendant has identified no laws in existence at or near 1791 (founding) or 1868 (14th Amendment ratified) that imposed a waiting period of any duration between time of purchase and the time of possession of a firearm.”  It further ruled: “The Court has found that the 10-day waiting periods (of Penal Code § 26815(a) and § 27540(a)) violate the Second Amendment.

That decision was then appealed by California to the 9th Circuit, who then overruled it by using a two-step means-end test and intermediate scrutiny – both of which have been invalidated by Bruen when considering the Second Amendment.

In considering the constitutionality of H.230, it is exceptionally telling that Legislative Counsel remained almost completely mute.  Yes:  They certainly did advise both Judiciary committees, rather strenuously I might add, that the Bruen decision was a major one that was raising all sorts of legal challenges across the country, yet they completely withheld any concrete statement of constitutionality.

When Attorney General Charity Clark gave her testimony everything was fine, nothing to see here, and while she acknowledged that there was some unsettledness in the courts regarding Heller and Bruen, she openly stated that the Legislature should not be deterred in their focus while these Second Amendment issues were resolved in various Courts and eventually SCOTUS.  

When the Defender General’s office gave testimony, they stated that virtually every section of the bill had severe constitutional issues.

One the one hand we have the Attorney General indicating that all is kosher.  On the other we have the Defender General’s Office saying that almost nothing in H.230 would pass constitutional muster.  Finally we have Legislative Counsel in the middle whose guidance appears to be “we just don’t know”.

Given those three differing opinions, and BECAUSE Legislative Counsel took the stance they did, it seems logical to assume that they recognized the “gray areas” which the Attorney General refused to see, because they specifically withheld giving it a green light.

I fully acknowledge that there is the possibility that a waiting period, might, maybe, possibly force someone who is intent on killing themselves to reconsider as they wait to take possession of a firearm.

The legislature however must acknowledge that while they are laser-focused on attempting to save the lives of people who are intent on killing themselves, they are, at the same time, contravening the highest court in these United States by putting citizens in jeopardy by denying them the ability to purchase the means of self-defense in a timely manner. 

Any vote for H.230 is a vote that ignores the constitution, it puts citizens who wish to defend themselves at risk, and it will cost the state (I.E. Vermonters) money to defend laws that will not pass constitutional muster.

There is however another majority, and that is in the composition of SCOTUS.

If we as citizens have to temporarily live by the dictates of a mis-guided majority who wish to do nothing less than ignore constitutional rights, then one way or another, that same legislature will eventually have to honor the majority of SCOTUS.

The author is a Northfield resident and president of the Vermont Federation of Sportsmen’s Clubs.

Categories: Commentary

24 replies »

    • Have you ever fought the state before? Lawyers are expensive and theirs are “free” (technically you are paying for them) and have an endless number of hours to work on defending the legislators. They will bury your lawyer in paperwork causing you to spend 10’s of thousands before any judge hears anything. Then you have judges that are appointed by friends of the legislators so getting one to be impartial is impossible so good luck getting a fair trial. If you were to get a fair trial you have to prove that the issue isn’t covered under qualified immunity, which isn’t impossible but more difficult than it should be, then you could have a trial on it.

      In short, who has that kind of money and time other than the legislators who are lining their (and their friends) pockets with your money.

      • Actually, states are being sued all the time related to unconstitutional laws. Vermont needs to get the attention of the NRA, Gun Owners of America, The 2nd Amendment foundation and more. We have no one here to start the ball rolling apparently. There was a suit by The Sportsman’s Federation or other group but the VT Supreme court ruled against the case related two magazine capacity bought in NH. But that was before the Bruen case decision last June. A new case would go all the way to the supreme court as they have already ruled these VT laws to be unconstitutional. There must be an American somewhere in Vermont to get this going. We could start a fund to get it done. Or we can just lay down and let the overlords take the only reason to live away from us, which is FREEDOM! They always use the courts, it’s our turn and on this, they can’t win it’s already settled.

      • Brian –

        Yes, we have fought the state before, and lost. That however was pre-Bruen.

        Watch and see my friend, Heller/Bruen is the gift that will keep on giving.

        You may well be surprised at the money available to challenge an unconstitutional law, ESPECIALLY when the prospect of winning is so great, AND reasonable attorney’s fess can be compensated.

        I would donate to such a cause…

  1. Gun lobbyist Chris Bradley is relentless in fighting any attempt to reduce, not eliminate, gun violence.

    Given the recent mass killing in Texas with an AR-15, which began with a neighbor complaining of indiscriminate firing outside his home, I wonder if there is any less enthusiasm among VDC commentators regarding the glorification of this weapon of war.

    • Weapon of war? Glorification?

      The AR-15 didn’t do it, the man did. He could have done the same thing with a small pistol, so where does it end? If today in your mind it’s the big scary gun that the Tell-a-vision says is more dangerous than the rest, what happens when you find out that there are 20+ million AR-15’s and yet account for much less than 3% of all shootings? Are you going to focus on the next gun the Tell-a-vision says is scary?

      “If we take the time to look at the raw data provided by the FBI, we find that all rifles, not just “assault-style rifles,” constitute on average 340 homicides per year from 2007 through 2017 (see Figure 1.). When we adjust these numbers to take under-reporting into account, that number rises to an average of 439 per year.

      Figure 2 compares rifle homicides to homicides with other non-firearm weapons. Believe it or not, between 2007 and 2017, nearly 1,700 people were murdered with a knife or sharp object per year. That’s almost four times the number of people murdered by an assailant with any sort of rifle.”

      Do you want to take away steak knives too?

      The person did it and is a result of a mentally unstable individual.

      If you really cared about human life you would turn your focus on the medical community who kills at least 250,000 people per year by medical errors, destroyed our economy by relabling the flu, provides pills that cause this sort of mental instability and gets people hooked on drugs that never solve their problem but certainly does line their pocket.

    • You mean the illegal immigrant who’d been deported five times and who had no business being in the US, to say nothing of illegally possessing an AR-15, which, by the way, no military actually uses?

    • Nice try John. You left out the part that the shooter was an illegal alien deported four other times of who some he shot were illegal aliens. He should have never been in this country. But I know in your warped communist progressive mind no human is illegal. You stop gun violence by bringing back the death penalty for cold blooded murderers. And by the way please explain to me how he got the “weapon of war”. Did he walk into a gun store and pass the background check with the drivers licence some liberal state gave him.

    • We Republicans are still waiting for ONE progressive lawmaker to look at the facts around gun-violence and present actual “common sense” solutions. In every single case of recent gun violence (take Burlington for example) we know EXACTLY who is committing the acts and how they obtained the firearm- yet not a peep in the form of legislation. Sarah George even let one out THREE DAYS before he stole another one and blew someone’s brains out.
      Here’s a clue- “they” (you know who I mean) steal guns from VEHICLES and in home burglaries. They don’t buy them legally from Parros. Just your citation of “AR-15” makes us roll our eyes…. You clearly don’t understand there are NUMEROUS model rifles out there that function the EXACT same way. My granddaddies Ruger has a wooden walnut stock, but I promise you it can do anything a scary black one can.
      Ok- say we ban the “AR 15” 10 years as an experiment. I promise you there will be zero change in gun deaths.
      This is why we will never take you seriously.

    • John –
      Yes or No: Do you believe that honest and law-abiding citizens have a right to self-defense?

      Honest and law-abiding citizens are not the cause of “gun violence”, and if we want to take steps to curb that: Than we need to get serious with prosecution and put people who are acting out away, instead of allowing plea bargaining to lesser charges, or releasing without bail.

      THAT WILL REDUCE GUN VIOLENCE, DRASTICALLY. Unfortunately, for the majority in power – people like yourself perhaps – don’t like incarceration, you don’t like bail, and you don’t want to hold criminals accountable.

      If I am not mistaken, I just outlined a workable strategy to reduce gun violence which belies your opening statement about me, and I have put that forward before.

      If you honestly think that we can reduce gun violence by stepping on the rights of those who obey the law, then start the movement to repeal the Second Amendment, and good luck with that.

      • Chris, Has anyone in your organization approach the NRA related to bringing a lawsuit in Vermont? We have at least 3 gun laws that are unconstitutional. Or maybe Gun Owner’s of America? We need to put a stop to these un-American, freedom stealing legislators. They know their laws won’t pass constitutional muster and we need to put an end to this. No one is King of Vermont and these people are out of control.

      • Chris, never argue with an idiot they will beat you with experience and drag you down to their level every time.

    • John, not all of us are as uninformed as you. The so-called neighbor who was shooting indiscriminately was a 5 time deported illegal alien with an illegal AR15. He also has ties to Mexican underground organized crime according to Texas law enforcement.

      Why is it that liberals such as yourself always leave out the details to your gun stories? Your pick for president that is flooding this country with criminals, drug dealers, human traffickers and the diseased by not securing the southern or northern borders.

      We have a constitution in this country with a bill of rights not given by the government, they are natural rights. We also have a Vermont constitution that also affords Vermonters their natural rights. Lying and censorship of facts by the left is deceptive and manipulation of the truth. If you don’t like this country, leave it. If you wish to comment on the tragedies in a nation of 320 million people, how about telling the truth.

      Law abiding citizens who own guns are not the problem and never have been. It’s the mentally ill and the criminals in this country that the left protects. Savages should be in prison. Your feelings have no affect on my rights. A nation with no good people having firearms would be over run by criminals who don’t give a sheet about your laws.

      • Awesome!!!! BTW, pretty sure “John” sounds like he’s a Middlebury or UVM student on here to gain some suck-up extra credit from a leftist assistant professor by demonstrating how proficient he is at leftist blabbering points.

    • You mean the four times deported, illegal immigrant, felon who couldn’t own any gun legally? Do you really think he was concerned about laws?

  2. Of course, they won’t sign off on the constitutionality of the bill because all gun control it is UNCONSTITUTIONAL.

    The 2nd Amendment was created by the founding fathers to give “We The People” the means to protect the Constitution and the Bill of Rights from those who would take them from us. You can’t take away someone’s right to free speech, freedom of assembly or freedom of religion without first taking away their ability to resist. THE 2nd AMENDMENT DOES NOT GRANT US THE RIGHT TO KEEP AND BEAR ARMS. THE 2nd AMENDMENT TELLS THE GOVERNMENT IT CANNOT INFRINGE ON OUR RIGHT TO KEEP AND BEAR ARMS – PERIOD! THEREFORE, ALL GUN CONTROL UNDER THE CONSTITUTION IS ILLEGAL! Government does not give us our rights. Our rights are not given to us by the Constitution. Our rights are given to us by God and are inherent to us as human beings and by the Laws of Nature. These rights that we are born with are affirmed to us by the Constitution and the Bill of Rights, the first ten amendments of the Constitution and specify what the government can and cannot do to us as citizens of the United States. Government’s only power is the power which is enumerated to it by the Constitution. The federal government, a state, county or town can not pass a law contrary to the Constitution. Article 6 the Supremacy Clause makes the Constitution the supreme law of the land. Under our Constitution the government is not delegated the authority to legislate, enforce, or adjudicate laws pertaining to the exercise of our rights under the Constitution. The government is not delegated the authority by our Constitution to require the government’s permission to exercise any right affirmed to us under the Constitution. The government is not delegated the authority by our Constitution to compel us to waive our guaranteed 4th Amendment right to be secure from unwarranted interrogation, search, or seizure in the absence of probable cause of criminal conduct. Or compel us to waive our guaranteed 5th Amendment right to due process as a precondition to being allowed (or denied) the exercise of our right to keep and bear arms. This violation of our 4th and 5th Amendment rights happens every time that we are interrogated under penalty of perjury without probable cause that a crime has been committed when we fill out B.A.T.F.E form 4473 to purchase a firearm. The government is not delegated the authority by our Constitution to compel us to waive our 10th Amendment right to a federal government exercising only those powers delegated to it by the United States Constitution, and State governments are prohibited the exercise of any power prohibited to the States by the United States Constitution.
    The government is not delegated the authority under the 14th Amendment to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Government is not delegated by our Constitution the authority to license firearm dealers or operate or fund the most powerful anti-rights government agency on the planet called the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Since no Amendment in the Bill of Rights has been repealed thru Article V or by a National Convention of States, the only legal way to change the Constitution, all existing gun control laws presently violate five Amendments of the Bill of Rights and goes against the settled law of two Supreme Court decisions, Heller vs the District of Columbia 2008 and McDonald vs Chicago 2010. Both decisions affirm that the people’s right to keep and bear arms is an individual right and that citizens are allowed firearms in common use, those small arms or those that operate like them and are issued to our National Guard which comprises of citizen soldiers. In the Second Militia Act of 1792 Congress specified the arms militia members were to have. It was incumbent on militia members to report to training and duty with their own arms and ammo. So one of the primary purposes of the 2nd Amendment was to ensure that the militia would not be disarmed by taking away guns from the people who constituted the militia.

    The purpose of compelled background checks as a precondition to allowing or denying the transfer of a firearm is to deceive firearm owners and prospective owners into unknowingly waiving their rights guaranteed by the 2nd, 4th, 5th, 10th and 14th Amendments so they will have no rights left to claim when the government decides to register and confiscate our firearms. We have a right to keep and bear arms, not a privilege to keep and bear arms. Our rights are beyond the reach of the government and no citizen has to ask government permission to exercise a right. Government has no authority delegated to it by the Constitution to deceive its citizens into waiving their rights or acquiescing to the loss of their rights by subterfuge, scam, fraud, or force. DO NOT VOLUNTARILY GIVE UP YOUR RIGHTS!

    Supreme Court Decision – Norton v Shelby County 1886

    6 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 it’s 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.

    “All laws which are repugnant to the Constitution are null and void”.
    Marbury vs Madison, 5 US (2 Cranch) 137, 174, 176, (1803)

    Thomas Jefferson: “Whensoever the general government assumes undelegated powers, it’s acts are authoritative, void and of no force”.
    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”.

  3. The definition of the word “Infringe”: “act so as to limit or undermine (something); encroach on”. Pretty simple. Personally, I’ve never been able to see where there is any ambiguity, or room for “interpretation” in the word. This is just another example of activism in government trying to justify the old throwing feces at a wall, and see what sticks. One of the many problems with this approach is that it leaves the pitcher with feces covered hands, and I’m only speaking for my self here, but, I don’t want to shake hands with anybody who prescribes to this method of legislating.

  4. Mr. Chris Bradley thank you for your on going fight and hard work day in and day out Mr 👍🇺🇸🗽🇺🇸
    To you liberal Dem Swamp Rats 🐀 🐀 stop wasting taxpayers money and playing Games with law-abiding citizens and get to Root of the Real problem that is the mental Health problem period!!
    Enforce the laws we already have and STOP making more that don’t WORK !!
    The Vermonter from the Right side with Common sense period!!

  5. Is Phil Baruth really that concerned about attempted suicides, or is this just another thinly disguised attempt to ban all firearms?

  6. Phil Baruth is the most overtly anti-2nd Amendment …….. under the Golden Dome, and that’s going some when comparing him to the likes of Becca White, Mark MacDonald, Dick McCormack, Martin Lalonde, Chris Bray, Jill Krowinski, etc. etc. How about a brain teaser ? One of this “rogues’ gallery” was evidently born accross the river in Lebanon N.H. and very proud that he or she is a “lifelong Vermonter”. Anyway, guess who this person is, and what the rest have in common.

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