Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Alive. Hi. Welcome to the House Judiciary Committee on this last day before crossover, Friday, March 13. And we're going to start with h H606. And we're gonna have Erica go over the latest draft which only changes in one place from yesterday, and that's adding a petition process. But you're here in case there are any questions on the other language. In fact, you can probably just talk about that petition process and we can see if anybody had any lingering questions regarding the new language yesterday. How about that? Sure. Sounds good. Things a little bit. Yep.

[Eric FitzPatrick, Office of Legislative Counsel]: So Eric, it's Patrick with the Office of Legislative Counsel. Here to chat with the committee about the latest proposed amendment to eight six zero six, which is the activating firearms procedures. As the chair said, hopefully, what everyone has in front of them is version 3.1. Is that correct? Yes. Alright. So this version only contains one change that's between three point one and two point one. And so to start with, I'll direct the committee to where that change is. So you can take a look at that, and then ask any other questions you may have after that, but we'll start there. And that is on page seven, lines seven through nine. Now what's going on here? Remember, this is the portion of the bill that this expands the list of prohibited persons. In other words, under state law, the persons who are prohibited from possessing firearms. And it expands them specifically with respect to some, but not all people, who have been committed by a court with respect to a mental illness. So that's the group, the universe of people that we're talking about. Again, that is a subgroup of the folks who are, by virtue of mental illness, prohibited from possessing firearms under federal law. So this is a smaller group than that. But so in that sense, it's a subcute. But nevertheless, if you are a person who would be covered by this language, then you would be prohibiting sorry, prohibit kids from possessing firearms, sometimes indefinitely going forward. That's the first group lines, subdivisions one and two, page six. And the second two groups, page seven and nine, not prohibited permanently, but only for the period of time in which the commitment order, the mental health commitment order to the Department of Mental Health is in effect. So when the order is no longer in effect, then you wouldn't be a prohibited person. So that's the universe that we're talking about. The new language on page seven, line seven through nine, has to do with an existing Vermont statute that was put into place ten years ago or so, what's known known as the petition for relief, a petition for often referred to as a rehabilitation of firearms rights. The federal government has the Congress has one of these in federal law. Many states have them. This was passed concurrently at the same time that the legislature passed the prohibited person's law generally back in 2015, in part because federal firearms assistance money in connection with the National Instant Criminal Background Check was tied to states making sure they had this process in place. So before you could qualify for this federal money, the feds had a provision in federal law that said, well, you gotta have an ability of people who had been at some point in time prohibited from assessing firearms to petition the court and say, for whatever evidential reasons they may present, that they are no longer at risk, their mental illness, they would no longer cause them to be a person who should be prohibited from possessing firearms, and they can and make their case, and the court will make the decision. So that's the process that is proposed to be included. In other words, so you've got this list of folks who would be prohibited from possessing firearms either temporarily or permanently, depending on which category you fall into. And this makes clear that this prohibition doesn't apply if you're a person who has filed this petition for relief with the family division, and they've granted it and said the court, I mean, has granted it and said concluded, held in response to the petition that you should have your firearms rights restored. So it's in some sense, if you didn't have that language there, it might be somewhat ambiguous because you'd have these two statutes on, what if someone had filed the petition and the statute didn't say anything about what impact that would have on this language? Kind of nice to have clarity, I think, one way or the other, just so people know it. Questions

[Rep. Martin LaLonde (Chair)]: on that,

[Rep. Zachary Harvey (Member)]: Zach? Thank you, Chair. Eric, just curious if there is a similar petition in criminal court as there is in court.

[Eric FitzPatrick, Office of Legislative Counsel]: No, it's all It's all things. Yep, exactly. Yep.

[Rep. Zachary Harvey (Member)]: That's my question. Yep, absolutely.

[Rep. Ian Goodnow (Member)]: That's why we're not today. Angela?

[Rep. Angela Arsenault (Member)]: Thanks, Eric. My question is about just want to make sure that I'm following. So subdivision so I'm looking at page seven, lines seven through nine. Page seven, lines seven through nine, yeah. B, subdivision A, big A So that brings us to page six, line nine, carrying a dangerous weapon. Or we're at no, of this Subdivision 5 so rather, we're on 15, Line 15. Correct. 5A, Romanette.

[Eric FitzPatrick, Office of Legislative Counsel]: Yes. Thank you, Romanette.

[Rep. Angela Arsenault (Member)]: Okay. Well done. So this refers us back to Subdivision A of this Subdivision 5. And so it's everything in there. That's what that point back, is to if there's no specificity of a subdivision or a subdivision.

[Eric FitzPatrick, Office of Legislative Counsel]: It includes everything, yep, exactly.

[Rep. Angela Arsenault (Member)]: Okay, that's great. And then just a curiosity, so we have 5 A, Romanette 1, and then Roman numeral one and two.

[Eric FitzPatrick, Office of Legislative Counsel]: I think

[Rep. Martin LaLonde (Chair)]: Roman numeral. That's what

[Eric FitzPatrick, Office of Legislative Counsel]: I'm Roman going numeral one and two.

[Rep. Angela Arsenault (Member)]: And then we switch back to Okay, I get it. Romanette one, Romanette two and three. Yeah, it's Okay. I just wanted to make sure that made all sense.

[Eric FitzPatrick, Office of Legislative Counsel]: So the idea is that if you have been prohibited from possessing firearms for any one of those reasons, but then afterward, you got your firearms rights restored by a court order, then that prohibition doesn't apply to you. That's the idea.

[Rep. Angela Arsenault (Member)]: And what about We haven't said that there's necessarily a court order to restore rights when you're no longer the subject because of the way that the phrasing in Romanette two and three is the subject of?

[Eric FitzPatrick, Office of Legislative Counsel]: Yes, but you wouldn't need one.

[Rep. Angela Arsenault (Member)]: You don't need one.

[Eric FitzPatrick, Office of Legislative Counsel]: Right, because at that point, the order is no longer effective. It doesn't apply

[Rep. Angela Arsenault (Member)]: anymore. Okay. All right, I'm just going to go with it, because I just wanted to make sure that it actually applies to all of the conditions that we put forward there.

[Eric FitzPatrick, Office of Legislative Counsel]: All right. So Yes. I mean, in a practical reality, it does apply to all of them. But if you imagine that a Germanic two or three situation, say someone is prohibited from possessing firearms while the relief from abuse order is in effect, So practical reality is that person within that six month, one year window really gonna file the petition? It may not happen all that often, but the option is that it's up to the court.

[Rep. Martin LaLonde (Chair)]: O and H can be renewed and removed. Yeah, they can go on. So it covers the unlikely, or the not very often scenario that comes up in

[Eric FitzPatrick, Office of Legislative Counsel]: Hungary. Right. Yep, they would be included.

[Rep. Martin LaLonde (Chair)]: Yep, we did.

[Rep. Angela Arsenault (Member)]: So I have one lingering question. I

[Rep. Martin LaLonde (Chair)]: don't want to interrupt.

[Rep. Angela Arsenault (Member)]: No, you're not. I don't know. I was just going to ask if you have any thoughts on something we heard yesterday about the potential benefit of stating explicitly that in the case of Romanette two and three, the rights are restored when the person is no longer a subject of an order of hospitalization or non hospitalization?

[Eric FitzPatrick, Office of Legislative Counsel]: I think the problem with that would be, if you look, for example, on page six, lines subdivisions two and three, subdivision two, line three and four, and subdivision three problems. Five to seven, is that that's the language that we use in other places where it's subject final release order, and it's the same consequence, and then the order is no longer in effect. So if you were gonna do that, you would certainly wanna do it there because otherwise it would be interpreted to mean something different. Yes. Okay. So my general approach would be that's the way it's worked under these other tubes, so no reason to necessarily add language. Okay. Thank you. Yeah.

[Rep. Ian Goodnow (Member)]: I my only question is so on the new sub the new additional

[Rep. Martin LaLonde (Chair)]: wording for the

[Rep. Ian Goodnow (Member)]: petition for relief. So looking at that 13 BSA 4,825. So subsection A1, the first section, a person who is prohibited from the present firearm by 18 USC nine twenty two(four) may petition the Family Division of Superior Court. So someone needs to be prohibited under that federal statute to file a petition. So is the idea here that everything in 18 USA nine twenty two gs four is also covered in here. So when someone files a petition because they have been revoked from being able to have a firearm under this statute, that it kind of is the same thing as 18 USC USC nine two two, and so they are essentially equivalent. And so they can move under that the petition under that one, and it will apply here?

[Eric FitzPatrick, Office of Legislative Counsel]: Yes. Okay. Yeah. Because that that statute, even though it's broader, would include everything here anyway. So I think you would Yeah.

[Rep. Ian Goodnow (Member)]: And it's automatic. So if they're kept from having firearm in this statute, it's going to also mean that they are prohibited from federal statute, and so they'll be eligible to file that petition if the means in which they learn that they are not eligible to have a firearm right now is in this statute.

[Eric FitzPatrick, Office of Legislative Counsel]: Yep. Okay, right. So yes, everybody who would be prohibited by this proposed Vermont legislation is already prohibited by federal law.

[Rep. Ian Goodnow (Member)]: And so we don't need anything in forty eight point five that's explicitly saying that you can petition for your firearm firearm back if you are prohibited under this statute. Right. Because that's already Because it's okay. I just wanted to double check. Yep.

[Eric FitzPatrick, Office of Legislative Counsel]: Thank you. No. I agree. Yep.

[Rep. Martin LaLonde (Chair)]: Any questions about reading the other parts of this work? All right, so we're going to go to John. But before we do, I forgot, and I apologize completely. There had been a motion in the committee yesterday. It actually was with the draft number 2.1.

[Rep. Zachary Harvey (Member)]: I'll take a moment to address the committee. So I really appreciate the conversation I had with the chair last night and the private dialogue that we both had about the bill and I think what could be a really a great path forward for for us, chair, and members of the committee. So at this point, I'll rescind the votes to report the bill adversely for version 2.1. Okay. Great. So now we're

[Rep. Ian Goodnow (Member)]: on 3.1. Apologize.

[Rep. Martin LaLonde (Chair)]: I can do that before. That's quite alright.

[Rep. Zachary Harvey (Member)]: I appreciate the dialogue we had yesterday. Okay, thank you.

[Rep. Martin LaLonde (Chair)]: So we'll turn to John Rose. Thank you for your availability and flexibility this afternoon. There were some questions about constitutionality, I did realize that some of the members in here haven't heard really much about Bruin and how we look at these bills. May have been a little presumptuous thinking that, oh yeah, this looks like we have very good arguments, but that's because I've been dealing with ruin since it came out. If you could give us that background and tell us what you think of this bill as far as if we have strong arguments or not, I appreciate, but obviously introduce yourself first. Thank you, John, for being here.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Thank you, Chair. For those who don't know me, my name is John Rose. I'm the Solicitor General at the Attorney General's Office. And in that role, I'm sort of responsible for overseeing defense of constitutional litigation against the state, including Second Amendment issues, First Amendment issues, challenges to state statutes, are sort of primarily what I do at the state level, and appeals at the Vermont Supreme Court, the Federal Courts of Appeals, the US Supreme Court. So I understand that I was asked over here to speak a little bit about the Second Amendment analysis and give some sort of general thoughts on each six zero six, I believe it is. I've written five zero five in my notes, but I think it's six zero six.

[Eric FitzPatrick, Office of Legislative Counsel]: Six zero six.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Yes, thank you. So let me just start with a little background. I don't want to bore everyone with a law professor talk, but I do understand that there's been a lot of changes in the law in the Second Amendment area over the last fifteen years or so. It was in 2008 that the US Supreme Court first recognized an individual Second Amendment right. And since then, there have only been three major Supreme Court decisions that have sort of flushed out that right. So there's quite a bit of uncertainty about how that analysis works still at this point. The most significant out of the cases that's come out so far is the Bruin test. That's New York State Pistol and Rifle Association versus Bruin. That was decided in 2022. So we've only really had a clear test since 2022. And that test, you know, it's not like the test that we use for a number of other constitutional rights, so it's still sort of being fleshed out a little bit more in the courts. So a lot of the issues work their way through the lower courts. There are decisions on those, and we start to get a consensus as to what's allowed and what's not allowed. So the basics of the Bruin test are it's a two part test. The first is we look at a piece of legislation and we decide, you know, is the conduct that this legislation is attempting to cover, is that something that's protected by the plain text of the second amendment as informed by the second amendment's history. So that means, you know, the the the second amendment has to do with the people having a right to bear arms. And so we need to look at whether something covers the people, and that's usually pretty easy. And whether there's a right to bear arms, or whether whether what you're trying to regulate falls within the right to bear arms. So that's one area where there's still some ambiguity, and the lower courts are playing with this a little bit. The way that the second circuit has framed this, and this is the circuit that we reside in in Vermont, is it is said that the constitution protects the possession of arms that are typically possessed and in common use by law abiding citizens for lawful purposes, principally individual self defense, and that are not dangerous or unusual. And that dangerous or unusual is something that goes back to the Supreme Court's language as far back as 2008, and Heller has always said that that that we're allowed to regulate firearms that are dangerous or unusual. Sorry, was there a question? Didn't thought I

[Rep. Zachary Harvey (Member)]: heard Yeah. I wasn't clear in my throat, but it was a perfect opportunity to ask a question. John, I appreciate you coming in. I'm curious, and I appreciate the additional perspective just on constitutionality in the second amendment more broadly, but very specific to this piece of legislation looking at section three. I'm curious if you have any thoughts specifically on this bill that you could share with the community.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Sure, section three has to do with the disqualification of somebody who's under certain types of mental health orders. And I think that, again, we're still sort of seeing how cases like this are playing out in courts across the country, so it's hard to give a definitive answer. But I do think that the most recent Supreme Court decision in US versus Rahimi would give the state very strong arguments that this is constitutional. I think what Rahimi said was, as long as you have a court order finding a credible that the person presents a credible threat in some way, that generally they're gonna find that the that the that the legislation is is constitutional because of our history in the country of preventing dangerous people from holding guns. So again, sorry, go ahead.

[Rep. Zachary Harvey (Member)]: Go ahead, John. You finished your thought.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Yeah, I was just gonna say again, that's sort of playing out, you know, that covers a lot of territory and it's a pretty broad holding. But we think the court was fairly clear about that if you, you know, if there's a finding of dangerousness and that would be included in a mental health order here, you know, there would be, it would be fine to do that, to implement that sort of regulation.

[Rep. Zachary Harvey (Member)]: And that's a danger to the public or a danger to themselves? Yeah,

[John Rose, Solicitor General (Vermont Attorney General's Office)]: dangerous person, whether to themselves or to the public.

[Rep. Martin LaLonde (Chair)]: Okay. Thank you.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: And so that sort of thank you for that question that jumped over a couple of steps for me in the analysis, but that that gets to the point. Think that's so US v Rahimi was the Supreme Court saying that it's okay to disarm people temporarily who are under court or court anti stalking, or domestic violence orders. And so as long as there's some finding by a court that this person is dangerous to themselves or others, then that's a fine, you know, justification to temporarily disarm someone. Section five of the of the bill has to do with machine gun ban, essentially. Section four. That's okay. Oh, sorry. Section four.

[Eric FitzPatrick, Office of Legislative Counsel]: I think Yeah.

[Rep. Martin LaLonde (Chair)]: Ian, before you proceed, I'll get Ian has a

[Rep. Ian Goodnow (Member)]: Do you mind just finishing the Bruins test? I think you did the first part,

[Eric FitzPatrick, Office of Legislative Counsel]: and I just want to do the second part.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Yeah. Yeah. So the first the first prong is is is this conduct or this thing that we're regulating covered by the second amendment. And for that, we just look at the text of the amendment as informed by history. So that means what would the founders have thought the text of this amendment meant or what would the would the ratifiers of the fourteenth amendment in 1868 have thought that this test meant? And then the second part of the Bruin test is if a right is implicates the Second Amendment right, then it's the government's burden to show that the regulation is consistent with our tradition of firearms, historical tradition of firearms regulation in the country. And so, you know, that's the part where we have to get into, you know, did they regulate, did they do some sort of regulation that's analogous to the regulation that we're trying to implement? Did they do that at the founding, or they did they do that when the fourteenth amendment was passed? And that second part is because the fourteenth amendment is what applies the second amendment to the states.

[Rep. Zachary Harvey (Member)]: Thanks. Thank you.

[Rep. Martin LaLonde (Chair)]: Sorry. So

[John Rose, Solicitor General (Vermont Attorney General's Office)]: that that's the Bruin test. I think there's still a lot of you know, a lot of the ambiguity has to do with is a particular regulation fall under part one of the Bruin test, or is it part two of the Bruin test? Does the analysis of unusual and dangerous weapons, is that a part one issue, or is that a part two issue? You know, to the extent that we have to look at history to determine whether that, you know, whether those sort of limitations apply. I think of particular relevance to section four of your bill is statements going back as far as Heller in 2008 where the Supreme Court has said the Second Amendment doesn't allow you to own whatever gun you want for whatever reason. And what it said was, for example, you know, there's a long history in this country of regulating dangerous and unusual weapons, and it used as an example of a dangerous and unusual weapon, a machine gun. And so I think it's long been thought that machine guns can be constitutionally banned under the Second Amendment. And I'm not even aware of Second Amendment cases dealing with machine gun regulation. I think most of those cases have to do with assault weapons bans at this point. So I think we feel very comfortable defending a case challenging a machine gun ban like what's in section four of the bill here.

[Rep. Martin LaLonde (Chair)]: Thanks,

[Rep. Zachary Harvey (Member)]: Chair. And John, I guess going back to section three just briefly, are you aware of any historical precedent of relinquishing rights without orders of hospitalization?

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Without an order of hospitalization?

[Eric FitzPatrick, Office of Legislative Counsel]: Right.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Yeah, I haven't done a deep dive on this case yet, but I think probably the laws in Rahimi would probably count as historical antecedents or analogs here. And those were the ancient surety laws and the laws prohibiting going about in public armed and dangerous. So I think one of the things that Rahimi said, you don't need a dead ringer. It doesn't have to be an exact duplicate of the current regulation because circumstances change. We're not going to be faced with the same problems. But if you look at the how and why that, you know, that the founders tried to regulate something, and if the how and why is sort of relevantly similar to the how and why we're trying to regulate something now, that that's enough to satisfy the Bruin test. And so the issue of a court finding or the requirement of a court order, it was there was a court order in Rahimi, but I don't think the court said it was requiring a court order. It just said that as long as there's been some finding of, you know, a credible finding of dangerousness, and it was limiting its actual holding pretty narrowly to that case. So we think that there's, you know, a very good argument that based on Rahimi, something like this would would pass constitutional muster.

[Rep. Zachary Harvey (Member)]: Okay. And I guess just as a as a follow-up to that, and and I understand that you're you're speaking in the affirmative for the the legislation from from your office. But one of the things and I'm very grateful that you're here because that that was one of the things that came up yesterday, and I'm and I wanted to publicly thank the chair too to taking additional testimony and bringing you in, Joan. But we really haven't heard the contrarian viewpoint from a constitutional perspective. I mean, the Defender General was here and he said Section three flew in the face of constitutionality. And I'm curious if you were to put on a different path in speaking to opposition to the bill, what are the considerations that you would present to us to think about?

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Yeah, thank you. I mean, I should clarify, I'm not from the attorney general's policy shop. You know, there are other people, Todd, who's in the room there I see is sort of policy end of things. I'm not here to speak in favor of the bill or against the bill. You know, I defend constitutional cases. And my job for the attorney general is to assess laws for their constitutionality. So, you know, I don't my best reading of the law that's out there right now is that section three would set we'd have a strong argument that section three is constitutional under Rahimi.

[Rep. Zachary Harvey (Member)]: Well, I guess what would opponents say about section three? That's what that's what I'm just trying to get articulated here for us to at least consider.

[John Rose, Solicitor General (Vermont Attorney General's Office)]: Sure. I guess they might make an argument that section or that Rahimi was fairly cabined. And so there was a dissent in Rahimi from Justice Thomas. And he said that, you know, really, the standard should be before you take someone's guns away or, you know, implicate someone's fire Second Amendment rights, you should have a higher standard of proof. But I don't know that I think that was a narrow dissent. Only one of the justices agreed with that. So I don't know that that'd be a very particularly strong position under the laws that currently exist.

[Rep. Martin LaLonde (Chair)]: Thank you. Any other questions?

[Eric FitzPatrick, Office of Legislative Counsel]: Oh, here. The only thing I would add, Eric, it's Patrick with the Office of Legislative Counsel. Maybe this is something John was gonna get to anyway. But there's that op quoted passage from Justice Scalia in the D. C. Versus Howard decision that was reiterated in Bruin that nothing in these decisions should be construed to cast any doubt on longstanding prohibitions against possession of firearms by the mentally ill. And I believe felons think felons Fell into the mentally ill, I think was the language that was used. So that in addition to the dangerous that Jonathan's point out, I think you've got that as a basis. And I think there is some historical support for statutes that go back a long way, historically, that regulate the possession of firearms by people who, during their own eras, were characterized as meant to be ill, however that was done. It's just, I've analyzed a bunch of these statutes over the years as well in my role. It's just something that's come up pretty consistently. As I said, the notion that I think Matt noted the other day that this is all about facial constitutionality, right? That there is always the possibility that an individual could make an as applied challenge that, for example, they were involuntarily committed very briefly and came out and had their mental health restored. Might that go too far in that sort of situation to prohibit that person from a lifetime prohibition. Now, that's interesting about this statute. The lifetime prohibition only applies if people also got the crime conviction, as opposed to the person who's not under the order anymore. In any event, they can make that claim possible that there might be an as applied challenge, but that doesn't, in my view, affect the statute on its face. Something that conceivably a defendant in a particular case could make a claim, but different situation than how you look at the statute as written. Thank you. Any

[Rep. Martin LaLonde (Chair)]: other questions for John, or did you have anything else that you wanted to relay to us, John?

[John Rose, Solicitor General (Vermont Attorney General's Office)]: No, that was all. I think Eric makes a good point. There was some language in the original Heller decision, I believe, from Justice Scalia that did, you know, listed sort of people undergoing mental difficulties as one category of people that can be, constitutionally disarmed, at least temporarily, while they're under those disabilities. And so and I think that Rahimi case relied pretty strongly on that language as well in reaching its holding.

[Rep. Ian Goodnow (Member)]: Okay, great. Any other questions?

[Rep. Martin LaLonde (Chair)]: All right. So are we ready to, I would be ready to take, so we can get this out and have sort of discussion if necessary. Take a motion.

[Rep. Ian Goodnow (Member)]: Now let me get my motion to write. Sorry. I wanna make sure

[Rep. Martin LaLonde (Chair)]: I get these right. Bear with me. Give a second. I'll bring that up. Oh, guys. Should I get this up already? Are you gonna vote?

[Rep. Angela Arsenault (Member)]: Sure. Let's see.

[Rep. Martin LaLonde (Chair)]: Okay, so I will first have, it'll be a straw poll first, but with the motion that bear with me that we approve amendment draft number 3.1 to H606. I'll take that motion. Per second. Second. Well that's right. So this is just No, even on a boat, based on the rules. Not that I'm an expert on rules.

[Eric FitzPatrick, Office of Legislative Counsel]: Eric can probably correct me.

[Rep. Martin LaLonde (Chair)]: No, okay. You don't need seconds, Robert's rules, you do. I think it's going to become practice. No, absolutely. You're on the side of caution. So coach, are you with us so we could see you instead? Just barely three seconds ago. Coach, you're muted if you're talking to us. We just lost somebody. That was

[Eric FitzPatrick, Office of Legislative Counsel]: John Rose dropping.

[Rep. Martin LaLonde (Chair)]: Oh, that was John. I'm Could you take a brief brief second? He

[Rep. Angela Arsenault (Member)]: was just on.

[Rep. Martin LaLonde (Chair)]: I know he was on his side, just on. We're gonna recess for minute.

[Eric FitzPatrick, Office of Legislative Counsel]: I was gonna