Updated at 5:41 p.m.
The Vermont Supreme Court has upheld the constitutionality of a state law banning high-capacity magazines, rejecting a white nationalist’s challenge to a key provision of the state’s first major gun-control law.
“We conclude that the magazine ban is a reasonable regulation of the right of the people to bear arms for self-defense,” the court concluded in a ruling issued Friday.
It is the first case to be decided by the state’s highest court over the measure passed by lawmakers and signed into law by Gov. Phil Scott in April 2018, two months after an alleged school shooting plot was uncovered in Fair Haven.
The central issue in the case was the constitutionality of a provision setting limits for magazine sizes at 15 rounds for handguns and 10 rounds for long guns.
In February 2019, Max Misch, a Bennington white nationalist, became the first person charged with violating the law. Authorities accused him of illegally possessing two 30-round magazines purchased in New Hampshire and subsequently brought back to Vermont.Â
Misch, through his attorney, moved to dismiss the two misdemeanor charges, claiming such limits were a violation of Article 16 of the Vermont Constitution, which states that “people have a right to bear arms for the defence of themselves and the state.”
Judge William Cohen, who had presided over the case in Bennington County, rejected Misch’s bid to throw the case out, leading to the appeal to the Vermont Supreme Court. The high court affirmed Cohen’s ruling on Friday.
‘The prosecution resumes’
Attorney General TJ Donovan, whose office brought the case against Misch, called the ruling “a win for common-sense gun policies.” He pointed to the court’s finding that, while the state constitution protects the right to bear arms for individual self-defense, it is subject to “reasonable” regulation.
“The court noted that large-capacity magazines are rarely, if ever, used in self-defense,” Donovan said.
As a result of the ruling, the attorney general added, the criminal case against Misch can move forward. “The prosecution resumes,” Donovan said.
Each of the two misdemeanor charges against Misch carries a possible maximum penalty of one year in jail and a $500 fine.Â
Reached Friday by email, Misch took issue with an earlier version of this story, stating in part, “You again omitted the fact that I’m an Iraq War veteran.”
Defender General Matthew Valerio, whose office represents Misch, said Friday that “the case is long from over at this point.” Now that the constitutional challenge has been resolved, it returns to the Bennington County Superior criminal court for trial.
Scott, speaking at an unrelated press conference on Friday, said he had not been aware of the ruling until asked about it by a reporter. “That doesn’t surprise me,” he said when informed that it has been issued. “We thought it was constitutional from the start.”
‘Everything’s on the table’
The governor’s support for the measure in 2018 marked a turning point in his own views on gun rights — and for the state, which until then had among the most permissive gun laws in the country.
Scott proposed a slate of new gun-control measures soon after an 18-year-old Poultney man was accused that February of plotting a shooting at Fair Haven Union High School. Jack Sawyer was arrested by Vermont police just days after a school shooting in Parkland, Fla., that left 17 people dead. He was sent in 2019 to an out-of-state treatment facility.
At the time, the governor said he had been “jolted” by details of the case. Asked days later what gun-control measures he might support, Scott said, “Everything’s on the table.”Â
That April, the Democratic-dominated Legislature and Republican governor enacted S.55, which expanded criminal background checks to private sales, raised the legal age to buy firearms to 21 and banned bump stocks and high-capacity magazines. As Scott signed the bill into law on the steps of the Statehouse, gun-rights activists in blaze orange jeered him and accused him of being a “traitor.”
Friday’s ruling included a footnote stating that the reasoning for the court’s decision in the Misch case also applied to a similar question over the constitutionality of the magazine provision raised in a separate civil action that had been pending on appeal before the high court.
In that civil case, argued before the state Supreme Court in November, gun rights supporters sued authorities charged with enforcing the magazine limit. The plaintiffs in that case included the Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Powderhorn Outdoor Sports, and gun sellers and buyers.
Among the defendants were Donovan, Vermont State Police Col. Matthew Birmingham, Chittenden County State’s Attorney Sarah George and Orange County State’s Attorney William Porter.
The court, in a one-paragraph order also issued Friday, stated that the magazine-limit provision of the law is constitutional. That order “effectively” ends the civil case,” Solicitor General Benjamin Battles, who works for Donovan, said Friday.
Chris Bradley, president of the Vermont Federation of Sportsmen’s Clubs, didn’t go so far as to say that the case was over. He said that his organization would be reviewing the matter with its legal counsel.
“I’m not going to speculate beyond that,” Bradley said.
‘Reasonable regulation’
During oral arguments in the Misch case before the Supreme Court last June, Battles argued the magazine ban is constitutional.
He told the justices that the measure set reasonable limits to address public safety. He pointed out that the legislation came in response to mass shootings around the country and called the magazine limits a “reasonable” regulation.
Rebecca Turner, supervising attorney for the Vermont Defender General’s appellate division, represented Misch during the oral arguments. She countered that a person seeking to carry out such an attack could travel to other states, including nearby New Hampshire, to obtain the devices.Â
In addition, she said, a provision of law “grandfathered” magazines already owned by people in Vermont and allowed law enforcement to possess them, too.
Turner on Friday referred comment on the decision to Valerio.
The 51-page ruling discusses the history of Article 16 as well as its contemporary meaning.
“We conclude that Article 16 protects a right to bear arms in individual self-defense, subject to reasonable regulation,” the decision stated. “The constitutional text, considered in the historical context surrounding its enactment, is inconclusive as to the full scope and purpose of the right.”
The ruling added, “To the extent that Article 16 established a right to bear arms for the purpose of serving in a state militia, that aspect of the Article 16 right has no contemporary application.”
The decision stated that the justices determined that Article 16 “protects a limited right to individual self-defense” and is subject to a reasonable-regulation test.
“Under this test, we will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the State’s power to protect the public safety and welfare,” the court found.
“Applying this standard,” the justices wrote, “we conclude that (the law) satisfies the reasonable-regulation test because the statute has a valid purpose of reducing the lethality of mass shootings, the Legislature was within its authority in concluding that the regulation promotes this purpose, and the statute leaves ample means for Vermonters to exercise their right to bear arms in self-defense.”
‘Per Curiam’
Cohen, who presided over the Misch case at trial and was subsequently appointed to the Supreme Court, recused himself from hearing and deciding the appeal. Chief Justice Paul Reiber also recused himself though no public reason was given.
Justices Beth Robinson, Karen Carroll and Harold Eaton heard the case, joined by retired judges John Wesley and Dennis Pearson. A note in the decision stated that, while Eaton took part in the oral arguments, he did not participate in the decision. No reason was cited for why he didn’t.
The remaining four members of the court who heard the case signed onto Friday’s ruling.
Eaton also recused himself in November from hearing the separate civil action brought by the gun rights groups.
Friday’s decision in the Misch case stated it was issued “Per Curiam,” meaning that it was issued by the court as a whole and not attributed to a particular member. Asked why the court would do that, Valerio replied, “It usually prevents one particular judge from being attacked on the decision, getting the political fallout.”
The decision, Valerio added, does hold “precedential value” going forward.
“But it doesn’t speak to all issues of gun ownership and safety and how far the state can go,” he said. “It’s really only talking about this particular statute under the Vermont constitution.”