Max Misch, a white nationalist from Bennington who’s the first and only person charged with violating the state’s ban on high-capacity ammunition magazines, may change his strategy in trying to get the charges tossed out.
But if he’s offered a plea deal, that could nix another constitutional challenge to the state’s historic gun law enacted in April 2018.
Misch lost an appeal last month to the state Supreme Court, seeking to have the two misdemeanor counts of illegally possessing high-capacity magazines thrown out, contending the charges violated the state’s constitution.
Frederick Bragdon, a public defender representing Misch, told Judge John Valente during a video hearing Monday that he and an appellate attorney may go to federal court, contending the charges violate the U.S. Constitution.
They don’t violate the Vermont Constitution, the Vermont Supreme Court ruled last month. The law limits magazine sizes to 15-round for handguns and 10 for long guns. Misch’s attorneys had relied on Article 16 of the Vermont Constitution, dealing with the right to bear arms.
The high court ruled the limits in the new law was a “reasonable” restriction that helped promote public safety without unduly infringing on a person’s right to use a firearm in self-defense.
Bragdon, speaking after Monday’s hearing, said the federal challenge would be brought under the U.S. Constitution’s Second Amendment.
“The state constitution cannot give you less protection than the federal constitution, as a general rule,” Bragdon said.
The state laws were adopted after the state uncovered an alleged school shooting plot in Fair Haven in early 2018. The laws, enacted in April 2018, exempted larger magazines already owned by people in Vermont and allowed law enforcement officers to use them.
While pondering the federal appeal, Bragdon said he is awaiting a plea offer from the Vermont Attorney General’s Office, which is prosecuting Misch on the magazine charges.
Assistant Attorney General Ultan Doyle said during Monday’s hearing that a plea deal could be extended to Misch within a couple of weeks. Bragdon said if that offer is acceptable, there would be no further appeals.
Valente set another hearing in the case in 30 days to see if the plea deal comes through.
The Vermont Attorney General’s Office brought two charges against Misch in February 2019, alleging he illegally possessed high-capacity magazines despite the new law. He faces up to one year and a $500 fine on each of the misdemeanor counts.
Police stated in a court filing that Misch and his ex-wife went just over the Vermont border to a store in Hinsdale, New Hampshire, on Dec. 1, 2018, and bought the two 30-round magazines.
Police said they later searched Misch’s Bennington apartment, found the two magazines, and charged him. He pleaded not guilty.
Misch had avoided criminal charges one month earlier. Vermont Attorney General TJ Donovan announced in January 2019 that he would not bring charges against Misch, or anyone else, for racial harassment of Kiah Morris. Morris had been the only Black woman in the state Legislature when she decided to resign in the summer of 2018, citing in part the racial harassment.
Donovan did not file charges against Misch, claiming broad First Amendment protections.
The magazine charges against Misch have been working their way through the court for more than two years, and he also faces other misdemeanor charges of violating the conditions on which he had been released while the case against him has been pending. One of those charges alleges he left Bennington; another accuses him of purchasing a firearm. Neither was allowed in his release conditions. Misch has pleaded not guilty to those charges, too, and they remain pending.
In addition, Misch faces two unrelated misdemeanor counts of disorderly conduct, one of them a hate crime. In that case, Misch allegedly hurled racist slurs during an altercation with a Black man on a street in Bennington.
The other disorderly conduct charge stems from an incident in late August 2020; police alleged he caused a public disruption while a Black Lives Matter mural was being painted in downtown Bennington.
Misch has pleaded not guilty to both charges, which the Bennington County State’s Attorney Office is prosecuting. Bragdon said during the hearing Monday that the county prosecutor has offered to settle the two cases with a fine, though the amount has not been made public.