The Bitter Battle Over Guns Continues
The Bitter Battle Over Guns Continues

JURIST guest columnist Allen Rostron of the University of Missouri-Kansas City School of Law discusses Vermont’s recent gun law in light of America’s contentious gun politics…

Vermont and Kansas are among the states where new laws relating to firearms will go into effect this summer. Vermont is taking limited steps to increase legal controls on guns, while Kansas is moving in the opposite direction. Reasonable people can certainly disagree about the merits of these new laws and what effects they will have. But the contrast between the two states’ efforts is a reminder of how bitterly divided the nation remains when it comes to regulatory issues surrounding guns. Even modest measures aimed at keeping guns out of the wrong hands meet strong resistance.

Lawmakers in Vermont began the year by proposing legislation that would essentially have made background checks a universal requirement for the purchase of a firearm. Federal laws already require a person to undergo a background check if purchasing a gun from a licensed firearm dealer. If the seller is not a licensed dealer, however, no background check is required by federal law, whether the seller is a close friend or neighbor or a random stranger on the street. About a half dozen states, such as California and New York, have gone beyond the federal minimum and required a background check to be done prior to any transfer of a firearm (usually with limited exceptions, such as for transfers between immediate family members). About a dozen other states have opted for universal background checks for handguns, but not rifles and shotguns.

Making the background check system as comprehensive and effective as possible should be an objective on which virtually everyone could agree. Indeed poll results indicate that over ninety percent of American voters favor universal background checks. After the Newtown school shootings Congress nevertheless declined to expand the federal background check requirements to cover gun shows and internet sales. And in Vermont one of the nation’s most liberal states, the push to expand background checks failed after Governor Peter Shumlin refused to support it and gun rights advocates denounced it as a “first step toward completely criminalizing private transfers.”

Other proposals fared better in Vermont and so several new measures [PDF] will take effect there starting on July 1. Again these are common-sense measures that ought to be uncontroversial. For example the Vermont legislature took steps to make sure that when a court determines that a person with mental health problems must be hospitalized or otherwise committed for treatment, that information is promptly reported to the national background check system. This is not imposing any new sort of restraint, but instead it is merely an effort to ensure proper enforcement of restrictions on gun possession already in place under federal and state law.

The Vermont legislature also called for information to be gathered about the possibility of the state establishing its own version of the New Hampshire Gun Shop Project. A gun dealer in New Hampshire initiated that novel project after he learned that in just one week, three people had purchased guns from his store and used them to commit suicide. He teamed up with health professionals and firearm safety and firearm rights advocates to develop a program that would offer training and posters, fliers and other materials to help gun seller and firing ranges reduce the risk of selling or renting a firearm to a suicidal person. Although the program is not mandatory, about half the gun stores in New Hampshire opted to participate.

Vermont also expanded the list of criminal offenses that will disqualify a person from being entitled to possess a firearm. Federal law already prohibits possession of guns by those with felony records, as well as those convicted of misdemeanor crimes of domestic violence. Vermont chose to expand the prohibition to include those convicted of other offenses that are serious but not necessarily a felony, such as stalking, sexual assault, sexual exploitation of a child, manslaughter, maiming, kidnapping, drug dealing and human trafficking.

Again this seems like it would be a relatively uncontroversial measure. Americans enjoy a right to possess and use firearms, but responsibilities come with rights. Laws should be crafted in ways that maximize the likelihood of guns being used for positive purposes and minimize the risk of them being used for improper purposes. Those who commit serious crimes should pay the price and taking away their legal entitlement to have a gun is a sensible way to both discourage lawbreaking and keep guns out of the hands of those most likely to misuse them.

While Vermont’s newly-enacted measures seem moderate and reasonable, they nevertheless met strong opposition. Gun rights organizations denounced them as “a solution in search of a problem” and claimed the new laws “would do nothing to address violent crime and would only impact responsible, law-abiding gun owners.” Again reasonable minds can disagree about the effectiveness of the measures, but it seems we could all agree that gun violence and crime is a problem worthy of legislative attention. And it is truly baffling why anyone would characterize a law as impacting only law-abiding gun owners when the law specifically targets people convicted of serious crimes like kidnapping and human trafficking.

Meanwhile Kansas is a prime example of a state moving in the opposite direction and relaxing guns regulations that previously existed. Kansas currently allows the carrying of concealed handguns by those who obtain a license to do so. Among other conditions Kansas required license applicants to complete an eight-hour handgun safety and training course. This requirement ensured that license holders had at least some minimum level of understanding of how to safely carry, use and store a weapon, as well as basic knowledge about Kansas laws including the standards for use of deadly force.

Nearly 90,000 Kansans have received concealed carry licenses [PDF] since the state began granting them in 2006. But effective July 1 [PDF], a license will no longer be required, because the Kansas legislature [PDF] and the state’s Governor Sam Brownback have chosen to stop requiring a permit for the carrying of concealed weapons. Rather than requiring any training or screening, the state will basically now allow concealed carry by anyone who is at least 21 years of age and not prohibited from possessing a firearm by any state or federal law. Openly carrying guns also will remain legal in Kansas, with no permit or license required.

Kansas thus joins a small group of states with the so-called “constitutional carry” approach to the issue of carrying guns in public. “Constitutional carry” advocates contend that people should not be required to get government approval to carry a gun in public, whether it is carried openly or concealed. Despite the movement’s name, it seems clear that the “constitutional carry” approach is not mandated by current constitutional law. In its landmark decision in District of Columbia v. Heller, the US Supreme Court noted that the right to keep and bear arms is not absolute, unlimited freedom. The court specifically cited bans on carrying concealed weapons as a type of gun control law that early American judges generally regarded as not being a violation of the right to keep and bear arms. If prohibitions on carrying concealed weapons are consistent with the Second Amendment, then licensing schemes requiring training and a permit to carry a concealed gun surely must be valid as well.

Six years ago, I expressed hope that the Obama administration and the nation as a whole might be able to approach the gun issue in ways that would overcome old divisions and bitter strife and move forward with constructive policy efforts. Those hopes have clearly not been fulfilled. Congress remains stubbornly deadlocked. State legislatures continue to tinker with their gun laws, but even the most reasonable and mild measures draw overwrought opposition. Sadly, it has become difficult to envision an end to this policy stalemate.

Allen Rostron is the William R. Jacques Constitutional Law Scholar and Professor of Law at the University of Missouri—Kansas City School of Law and a former senior staff attorney for the Brady Center to Prevent Gun Violence.

Suggested citation: Allen Rostron, The Bitter Battle Over Guns Continues, JURIST – Academic Commentary, May 11, 2015, http://jurist.org/forum/2015/04/allen-rostron-gun-laws.php.


This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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