A coalition of 17 states and the District of Columbia as well as two national gun control organizations are joining the Vermont Attorney General’s Office in calling on the state’s highest court to uphold a high-capacity magazine ban.
The filings come in the state’s case against Max Misch, a self-described white supremacist from Bennington, who is the first and only person charged with violating a new law that went into effect Oct. 1, 2018, banning high-capacity magazines.
Misch was charged in February by Attorney General TJ Donovan with illegally possessing two 30-round magazines in violation of the law.
Misch is the man who has admitted to racially harassing former state Rep. Kiah Morris, who had been the only African-American woman in the state Legislature. Donovan, citing First Amendment protections, said in January he couldn’t charge Misch or others in the online harassment of Morris.
The firearms law sets limits for magazine sizes of 15 rounds for handguns and 10 rounds for long guns. The measure also contained a “grandfather” clause that exempts from the law magazines purchased before the provision went into effect.
Misch, through his attorneys, challenged the constitutionality of the magazine ban, with Judge William Cohen allowing the charges to stand. Both the Attorney General’s Office and Misch’s lawyers sought to appeal that ruling to the Vermont Supreme Court.
The Vermont Attorney General’s Office, which is prosecuting Misch on two misdemeanor gun magazine charges, submitted its written arguments to the high court Monday.
There have also been amicus, or “friend of the court,” briefs filed in support of the attorney general’s position, including one signed by the attorneys general of 17 states, plus the District of Columbia.
The attorneys general who signed the filings include those from California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia and Washington state.
“Together,” that brief stated, “the Amici States seek to protect their governmental prerogative to enact and implement sensible legislation that promotes public safety and reduces the incidence and lethality of gun violence, including mass shootings that have become all too prevalent.”
The filing added, “They join this brief not to endorse Vermont’s particular limitations on large-capacity ammunition magazines or to suggest that they would be optimal for all States, but to emphasize that the challenged law represents a policy choice that Vermont is constitutionally free to adopt.”
Attorneys for Misch have argued that the cap on a firearm’s magazine size violates Article 16 of the Vermont Constitution. That amendment says that “people have the right to bear arms for the defence of themselves and the state.”
Also, his lawyers stated that the new law violates Article 7’s Common Benefits Clause by keeping him from obtaining new high-capacity magazine while allowing other Vermonters to keep those they owned before the measure went into effect.
Vermont Solicitor General Ben Battles, who argued the case in the trial court for the Attorney General’s Office, said Tuesday that the state’s arguments in the brief submitted Monday to the high court are similar to those made at the lower court level.
He said the brief submitted to the Vermont Supreme Court expands on that earlier filing, containing more historical context as well as additional case law citations.
The Attorney General’s Office disputed that new law was unconstitutional, contending that it didn’t prevent someone from using a firearm in self-defense, and just set limits on the permissible magazine size.
And, according to the filing, the Constitution gives the Legislature the authority to pass legislation.
“Vermont has also long regulated firearms in the interest of public safety,” the filing stated. “Since the 1800s, Vermont has barred doing many things while in possession of a deadly weapon, including dueling, attending duels, robbery with intent to kill or maim if resisted, and assault with intent to steal or rob.”
State law also regulates the pointing of firearms at others, as well as the manufacture, sale, and possession of silencers, according to the state’s brief.
“And,” the filing stated, “Vermont’s 1863 gunpowder storage law, which among other things, required more than one pound of powder be securely stored in a metal canister, undoubtedly placed a greater burden on the ability to rapidly prepare and fire multiple rounds of ammunition than the need to switch from one ten-round magazine to another.”
The Vermont Medical Society, and the gun control advocacy groups Giffords Law Center to Prevent Gun Violence and Everytown for Gun Safety, an organization supported by former New York City Mayor Michael Bloomberg, also filed amicus briefs in support of the attorney general’s position.
“The Legislature acted well within its authority to address these threats and protect Vermonters by adopting a reasonable restriction on [large-capacity magazines],” the joint brief from the Vermont Medical Society and Giffords Law Center stated.
“That restriction,” the filing added, “does not interfere with responsible self-defense by law-abiding citizens—the right that Article 16 guarantees.”
Vermont Defender General Matthew Valerio, whose office is representing Misch, declined Tuesday to comment on the filing by the Vermont Attorney General’s Office. His office has three weeks to file its written brief to the high court.
No date has yet been set for oral arguments before the five justices of the state’s highest court.
Valerio did say it’s not unusual to see amicus briefs filed by groups in cases involving “hot button” issues such as firearms.
Asked what effect he expected such filings to make in the ultimate outcome of the case, Valerio replied, “I don’t know that it makes a lot of difference.”
He said that he was “not inviting” amicus briefs from parties who support the defense position, but added, “We may have some, I don’t know … But as of right now, I don’t have a list, so to speak.”
Vermont State Police say in court records that Misch and his ex-wife went to a store in Hinsdale, New Hampshire, just over the Vermont border, and purchased two 30-round magazines there on Dec. 1. That was after the new law went into effect.
Police said when they later searched Misch’s apartment in Bennington they found and seized the magazines, leading to the two criminal charges against him.
Each charge carries a possible maximum penalty of one year in jail and a $500 fine.
Misch has pleaded not guilty to the charges.
The same magazine limit provision of the law at the center of the Misch case is also being contested in a state civil court lawsuit. The lawsuit, brought by gun rights supporters, remains pending in Washington County Superior civil court.
Judge Mary Miles Teachout, who is presiding in that case, rejected a bid by the parties in that litigation to have the constitutional issue at the heart of the case referred to the Vermont Supreme Court and decided along with the Misch case.
“The result of certifying the requested question would be that the Supreme Court would be asked to decide a major issue under the Vermont Constitution with no factual basis as it relates to the interests of the parties in this case,” Teachout wrote in her ruling.
The Bennington case, she added, has its own “separate factual context, which is different than the pending civil case.
“In this case,” Teachout wrote, “the facts are not yet sufficiently developed for purposes of analyzing a constitutional issue, and certifying a simple conceptual question would be to deprive the Supreme Court of a factual basis on which to base a decision in this case.”
