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.
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.