By John Klar
At times, government rightly employs the power of eminent domain to “take” property — for railroads, roadways, prisons, power plants, etc. But the “takings clause” of the Fifth Amendment to the United States Constitution restrains government from taking the property of citizens without just compensation.
In Vermont in the 1970’s, Route 91 cut through swaths of dairyland as it connected northern Vermont with flatland, and farmers who refused to sell were awarded monetary sums determined by courts after due opportunity to be heard. This was the “taking” of private property for public need, with court oversight and approval of the fairness of compensation. (However, in many cases the government only paid for the strip of land on which the highway was constructed, not the fertile back pastures that were severed from grazing use, some of which remain unreachable today except by passing over others’ lands.)
Recent legislation requires that all transfers of firearms between private Vermont citizens be subjected to a “background check” under criminal penalty. The constitutionality of requiring a background check for prior government approval of the exercise of an express constitutional freedom will be challenged. But even if it is ruled that the government is no longer restrained by the Second Amendment (and Vermont Constitution Article 16) from such a screening of citizens, the imposition of a fee raises additional constitutional concerns: especially when the fee (which some have suggested may reach $100) may often exceed the value of the transferred property.
About twenty years ago, I bought my first handgun (a Ruger .22 semi-automatic) in the parking lot of the Barre Auditorium at the annual Barre Gun Show (from my cousin, for $110). I paid no fee. I still own that gun today. Ironically, that same cousin is now shopping for a .22, but he’s looking for a revolver. But if I want to resell my Ruger .22 back to him I can’t even do it in my backyard, and if I charge him $100 that will be absorbed by the transfer fee. If I ever sell this handgun legally, it’s economic value is now unlikely to equal the fee to be charged for its transfer. My property has been taken. No Due Process; no measure of value, or of just compensation; no opportunity to appeal. For a $50 shotgun (I have at least two of those), it would be cheaper to throw it away than to incur the government’s “fee.” More than taken: the government has transformed my assets into liabilities.
I have another cousin who is pleased with this new legislation: he contends that he only requires his 20-gauge shotgun for protection, and sees no reason why anyone else should “need” anything more. But the irony returns: he is a registered medical marijuana patient, and he will never again be able to legally purchase a firearm anywhere in the U.S. (Until last week, he could have bought one from a private citizen in Vermont, but no longer. He had better keep that 20-gauge well-oiled.) The Legislature has taken his right without even imposing a fee. No compensation, no hearing, no appeal. And this denial for marijuana users has already been unsuccessfully challenged in several federal courts and it is settled law: he uses pot and can’t buy a gun ever again.
More rights will be lost as veterans with PTSD, patients treating for depression or anxiety, or other categories of citizens are silently marked for refusal from background check clearance, being treated worse than convicted felons — felons are granted the constitutional guarantees of criminal procedure, including a trial before their peers, prior to the stripping of their rights as citizens.
Vermont took title to land for highways and railroads with court review and fair payment; it took more than the market value of thousands of Vermonters’ guns with zero court review while imposing fees and paying nothing in compensation; it took sickly Vermont pot smokers’ right to ever purchase a gun again, without paying a cent or even enduring the discomfort of providing an explanation.
Imagine if the right to vote were taken from medical marijuana patients (silently, by bureaucratic fiat), and they were informed on election day that they could not enter the polling booth, they had no right to challenge this determination, they could not vote in future elections, and that if they ever tried to vote they would be charged with a felony and arrested. (Now some would say this would be a good law, but the Constitution is supposed to protect marijuana smokers too!). But is the Second Amendment not necessary to shield the voting booth from government intrusion? It appears that in Vermont the voting booth has been used to instead remove the shield, not only of the Second Amendment but of Due Process and protections against unlawful takings – of our property, of our liberties, of our heritage. Vermont’s Legislature is playing a very dangerous game, and it has “taken” things much too far.
Attorney John Klar farms, and writes, from his family land in Brookfield. Reprinted with permission from the Ethan Allen Institute Blog.