Crime and Justice

High court justices press attorneys over high-capacity magazine ban

Max Misch
Max Misch before a court appearance in August 2019. Photo by Mike Dougherty/VTDigger

A white nationalist’s challenge of the constitutionality of a state law banning high-capacity magazines is now in the hands of the Vermont Supreme Court.

The five-member court heard competing arguments Tuesday over the constitutionality of the provision enacted as part of a package of historic restrictions on firearms. The hearing lasted approximately an hour.

It’s the first case reaching the state’s highest court over the measures approved by the Democratically controlled Legislature and signed into law by Republican Gov. Phil Scott more than two years ago in response to a thwarted school shooting in Fair Haven in early 2018.

Historically, the state had a reputation for having permissive gun laws.

At issue Tuesday was a provision of the law setting limits for magazine sizes at 15 rounds for handguns and 10 rounds for long guns. 

While the criminal case leading to the constitutional challenge was brought by prosecutors against Max Misch, an admitted white supremacist from Bennington, his name was barely mentioned during the arguments that took place via video before the Vermont Supreme Court.

Instead, the attorneys battled over whether the charges against him for allegedly illegally possessing high-capacity magazines withstood constitutional muster, with justices frequently jumping in with pointed questions aimed at one side and the other over rights and guns. 

“If the right is subject to reasonable limitation, do you agree that there is a point at which a restriction could become unreasonable,” Justice Harold Eaton asked Vermont Solicitor General Benjamin Battles of the state’s attorney general’s office. 

“We are far away from that point in this case,” Battles, a prosecutor in the case, replied. 

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“The law here,” he added, “is a narrow, considered means to target a national problem that was a threat in Vermont, and that people and Vermont legislators were rightly concerned about, which was the threat of mass shootings.”

The gun legislation came after the governor said in mid-February 2018 he was “jolted” by details in the case against an 18-year-old Poultney man in what police said was a foiled school shooting plot in Fair Haven.

Jack Sawyer was arrested by Vermont police just days after a school shooting in Parkland, Florida, that left 17 people dead. He was sent in 2019 to an out-of-state treatment facility.

At the hearing Tuesday, Justice Karen Carroll asked Misch’s lawyer, Rebecca Turner, supervising attorney of the Vermont Defender General’s appellate division, what other actions the Legislature could have taken to help reduce the lethality of shootings. 

“The Legislature was concerned about mass shootings,” Carroll said. “What was the alternative to banning high-capacity magazines where the record clearly indicates those are often used, most always used, in mass shootings?”

Karen Russell Carroll
Justice Karen Russell Carroll Photo by Mark Johnson/VTDigger

Turner replied by questioning whether the law regarding high-capacity magazines achieves that objective of preventing or reducing mass shootings. 

She said a person bent on carrying out such an attack could travel to other states, including bordering New Hampshire to obtain the devices. She also pointed to the provision of the law that “grandfathered” those already owned by people in Vermont as well allowed law enforcement to possess them. 

“Possession of these magazines remains lawful for those who are grandfathered in,” Turner said. 

“It seems an inherent concession,” she added, “that’s contrary to their objective goals, that it’s OK for some to possess these magazines, including law enforcement and retired law enforcement, but not others.” 

Battles, of the state’s Attorney General’s office, argued the measure didn’t prevent someone from using a firearm in self-defense, but just set a reasonable limit on the permissible magazine size.

Turner, representing Misch, contended, in large part, 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.”

Eaton, during the hearing Tuesday, pressed Battles over the “reasonableness” of the restriction. 

“Once you acknowledge that there is a place at which a regulation can become unreasonable, then the issue is where’s the line,” he said. “My question to you is, you said. ‘Well, we’re a long ways away from the line in this case.’ Well, where is the line?”

The justice continued on. 

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“I’ve seen in the materials the number of 2.2 is the average number of rounds that are necessary in self-defense,” Eaton said. “Would it be your position that any magazine restrictions down to 2.2 would be reasonable.” 

“It’s much closer when you get down there,” Battles responded. “Certainly if there were a three-round magazine limit there would be a much stronger self-defense argument.” 

Justice Harold Eaton Jr. Courtesy photo

Attorney Bridget Asay, representing the Vermont Medical Society, and gun control advocacy groups, including the Giffords Law Center to Prevent Gun Violence and Gunsense Vermont, also argued Tuesday before the high court in support of the constitutionality of the provision. 

The organizations had earlier filed amicus, or “friend of the court,” briefs in the case backing the attorney general’s position. 

Justice Robinson later questioned Turner about the right to bear arms in self-defense. “Is this self-defense from an assailant, self-defense from an oppressive government, or both,” Robinson asked.

“Absolutely both,” Tuner replied, “It’s not one or the other, it’s both.”

Misch avoided charges stemming from an earlier investigation from the Attorney General’s Office. In that case, Misch admitted to racially harassing former state Rep. Kiah Morris, who had been the only Black woman in the state Legislature. Morris decided not to seek reelection in 2018, citing, in part, the racial harassment.  

Rebecca Turner, supervising attorney for the Vermont Defender General’s appellate division, argues via video during a hearing Tuesday over the constitutionality of a large capacity magazine ban.

Attorney General TJ Donovan, claiming broad First Amendment protections, announced more than a year ago he couldn’t charge Misch or others in the online harassment of Morris. 

But the attorney general did later charge Misch in February 2019 with illegally possessing high-capacity magazines under the new law. Each of the two misdemeanor charges against Misch carry a possible maximum penalty of one year in jail and a $500 fine. 

According to court records, police state that Misch and his ex-wife went to a store Dec. 1 in Hinsdale, New Hampshire, just over the Vermont border. That’s where, according to an affidavit filed in support of the charges, the two 30-round magazines were purchased. 

During a later search of Misch’s Bennington apartment, police said they found the two magazines, and charged him. Misch has pleaded not guilty to the charges against him. 

Misch’s attorneys challenged the constitutionality of the law at the trial court level, with Judge William Cohen refusing to throw out the case, leading to the hearing Tuesday before the state’s highest court.

Cohen, who was presiding over the case while it was pending in Bennington County Superior criminal court, has since been appointed to the Vermont Supreme Court. He has recused himself from the case.

Chief Justice Paul Reiber also recused himself from the case, but did not provide an explanation as to why. 

Joining Justices Robinson, Eaton and Carroll in hearing the case were retired judges John Wesley and Dennis Pearson.

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.

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Alan J. Keays

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