McClaughry: Supreme Court has already ruled against local gun control ordinances

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.

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 (

Categories: Commentary

9 replies »

  1. 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.

  2. Actually, the liberals would be just fine if each town could adopt its own rules about freedom of speech and of press. They’d love nothing more.

    As for the guns, and the ability to defend oneself from the increasing elements of crime, encouraged by liberal lunacy, I have to come back to the concept of anarcho-tyranny. The criminal who invaded your home will be set free because he’s oppressed, and you, my friend, will be harshly punished because your gun was actually accessible when he invaded, and not in a safe with a gun lock and separately stored ammunition. You gave the poor fellow PTSD! Prison for you! As with many such things, some people know exactly what they are doing and most people who support them are merely useful idiots, easily led by emotional appeal. Baruth falls into the latter, I suspect.

  3. Thank you Mr. McClaughry. I wish I could say I could not see this coming but, as long as our Legislature is made up of a majority of “Johnny come lately”, liberal educated, urban refugees, what should we expect ? It sucks to see the state where my ancestors were born, lived, and died desecrated by these political invaders. That this issue was put to bed as recently as 1988, and that Vermont is, and has been for many years, among the three safest states in the country is more of a barrier, an impediment to be disregarded as a statistical anomaly by the anti second amendment crowd. Phil Baruth, and his ilk are charlatans. The remedies which they propose will not deter criminals, they will only regulate honest law abiding citizens, and at what point do citizens become serfs, or plebes ? Damn I miss Evan Hughes. R.I.P.

  4. As we all should know well enough by now, the “left” simply ignores any rulings, subpoenas, and-or anything that goes against their agenda, usually without consequence. They even go so far as to change the name of something to fit their narrative, An mRNA shot, which is in reality a genetic modification injection, is now a “vaccine”, even though it has nothing in common with what the word “vaccine” was widely believed to mean and how it was used just a few short years ago.

    Pretty soon they’ll be telling us a dog is really a cat, and sadly, 75% will probably go along with it.


  5. This is no surprise since the media has been reporting “another gun incident” quite a bit this year, mostly in Chittenden County. It seems a lot of Vermont problem originate from Chittenden County and that county wants to force the fixes and dump the blame on the rest of us. More people die in Chicago in a weekend due to gun violence than does people in Vermont for an entire year and we all know that the Chicago gangs obey all gun laws….right? And if people haven’t noticed or people have and choose to ignore the facts, a lot of this violence is coming from those who come here from elsewhere. I know, I know, we all have to suffer.
    I will continue to carry my firearm, illegally if I must, as I refuse to be a victim.

  6. I relayed the term “false flag event” to a WCAX news reporter re: another gun-related incident. She was unfamiliar with the term. Until people like her wisen up to the fact that our government is run by psychopaths, we’re simply barking up the wrong tree.

  7. The truth, honesty, virtue, and the lessons of history only matter to the progressive left socialists when it fits their pathetic narrative. The ends justify the means. This nightmare ends when the “silent” majority finally says NO and has the resolve to display that they mean it.

  8. Among the first actions of totalitarian control is to prohibit and confiscate firearms.