For the second time in less than six months, Vermont’s highest court heard a challenge of the constitutionality of a state law banning high-capacity ammunition magazines.
In June, in a criminal case, attorneys for white nationalist Max Misch argued the law should be thrown out on constitutional grounds. Prosecutors countered that lawmakers have the authority to pass laws that address public safety.
On Tuesday, the Vermont Supreme Court heard arguments in a civil action brought by gun rights supporters against the authorities who enforce the law. Those arguments closely mirrored those in the earlier case.
The high court is now expected to issue written decisions in both cases, though it’s not clear which case will be decided first, or if both cases will be decided at the same time.
“It is the same question in both cases,” Vermont Solicitor General Benjamin Battles of the state Attorney General’s Office said Tuesday. He argued both cases in support of the law.
“It’s up to the court,” Battles said, “how they want to address whether they issue both decisions on the same day.”
Vermont has a reputation for having the most permissive gun laws in the country.
Both cases before the high court focus on gun control measures approved by the Democratic-led Legislature and signed into law by Republican Gov. Phil Scott more than two years ago. Those measures came in response to an alleged school shooting plot thwarted by police in Fair Haven in early 2018.
The issue in each case is the state law limiting magazine sizes to 15 rounds for handguns and 10 rounds for long guns. The law exempted larger magazines already owned by people in Vermont, and law enforcement officers can also use them.
If the law rules in favor of Misch, a Bennington resident, the two misdemeanor charges filed against him last year for allegedly violating the law would be thrown out. Misch is the only person ever charged under the law.
For the gun rights supporters bringing the civil action heard Tuesday, a ruling in their favor would do away with the high-capacity magazine ban.
If supporters of the new law prevail, the prosecution against Misch will proceed and the limits on the size of magazines will remain in force.
Both cases contend the cap on the size of a firearm magazine violates Article 16 of the Vermont Constitution, which says, in part, that “people have the right to bear arms for the defence of themselves and the state.”
The plaintiffs in the case heard Tuesday include the Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Powderhorn Outdoor Sports, and gun sellers and buyers.
Among the defendants are state police Col. Matthew Birmingham, Attorney General TJ Donovan, Chittenden County State’s Attorney Sarah George and Orange County State’s Attorney William Porter.
Dueling views of the constitutional issue
During Tuesday’s hearing, held through videoconferencing, attorneys presented competing views of the constitutionality of the new law, and justices interrupted and asked questions.
“You must be very careful about how you restrain that right,” argued attorney James Valente, representing the gun rights backers. “Here, the state proposes to restrain that right with a blanket prohibition. They’ve gone beyond things like licensing.
“And in doing so, they’ve gone to a legal status where items that are owned by a great many thousands of Vermonters, that are owned by millions nationally, have been rendered completely illegal, regardless of whether they’re held by law-abiding citizens for the purpose of self-defense,” Valente said.
Justice Karen Carroll then jumped in.
“How could the law be structured to only apply to people we may think might engage in a mass shooting and leave their possession open to just law-abiding citizens?” Carroll asked Valente. “How would the Legislature do that?
Valente responded that the law, rather than affecting all Vermonters, could be “tailored to pathologies that we do know have some positive relationship” to mass shootings.
“In addition,” he said, “the regulation could be more narrowly tailored based on devices that are more clearly designed for large-scale offensive use, like hundred-round drums. Or, they could tailor the regulations to limit, for example, the place where you can carry these types of magazines so that they’re not near schools or large gatherings, or the ability of a person to carry multiple guns simultaneously.”
Justice Beth Robinson then questioned how the high court should weigh the varying statistics and studies submitted by the different sides in the argument.
Both parties agreed to have the court decide the constitutionality of the magazine size limit without having a trial, and the high court agreed to hear it.
“Is this a question that we really need to develop the record through a trial and findings of fact?” Robinson asked. “Or, are we to independently assess the evidence ourselves?”
Valente replied that any “evidentiary” hearing at the lower court level would still not take into account whether the law is overly broad. “There still has to be some tailoring,” he said.
Public safety is an issue
Battles, of the state’s Attorney General’s Office, argued as he did in June that the measure doesn’t prevent someone from using a firearm in self-defense. Instead, he said, it sets a “reasonable” limit on the permissible magazine size, with the goal of increasing public safety by reducing the likelihood of mass shootings.
“The constitutional text, historical sources, case law from this court and around the country, as well as policy considerations, all support interpreting Article 16 in a way that permits reasonable regulation like the magazine law,” Battles said. “We believe deference to the Legislature requires that law be upheld at this time.”
Battles said the magazine limit would require “reloading pauses” that would help reduce the lethality of a mass shooting.
“If, God forbid, an event like this were to occur,” he said, the fatality and “damage of such an event will be lessened because of the decreased availability of these devices.”
Three of the court’s five justices recused themselves from hearing the case. One of them is Justice William Cohen, who was appointed to the high court after he presided over Misch’s criminal case in Bennington County Superior criminal court. As the trial judge, Cohen rejected a bid by Misch’s attorneys to throw out the case on constitutional grounds, leading to the appeal.
Chief Justice Paul Reiber and Justice Harold Eaton also recused themselves, but did not explain why. Reiber had also recused himself from the Misch appeal, while Eaton did not.
Joining Justices Carroll and Robinson in hearing the case Tuesday were retired trial court judges John Wesley, David Howard and Dennis Pearson.
Tuesday’s hearing ended with Robinson offering no clue which way the court may be leaning.
“Thank you so much for your arguments,” Robinson told the attorneys. “We appreciate it and we’ll take a good look at it.”
