An attorney representing Max Misch, a white supremacist from Bennington, has filed a motion arguing that a Vermont law limiting the size of high-capacity magazines violates the United States Constitution.
The law, which Gov. Phil Scott signed in 2018, limits magazine sizes to 15 rounds for handguns and 10 for long guns. Misch was charged with two misdemeanors in February 2019 for illegally possessing two 30-round magazines, which he purchased in New Hampshire, according to a police filing.
A lower court rejected Misch’s request that the judge throw out the case, which argued the law violated the Vermont Constitution. He appealed, and the state Supreme Court ruled against him in February, concluding “the magazine ban is a reasonable regulation of the right of the people to bear arms for self-defense.”
A new motion, filed Oct. 29 in Bennington County Superior criminal court, argued that “because the statute, on its face and as applied here, violates the United States Constitution, the charges should be dismissed.”
Rebecca Turner, supervising attorney with the Office of the Defender General who filed the motion on Misch’s behalf, referenced other cases including District of Columbia v. Heller, a landmark U.S. Supreme Court case from 2008 in which the court ruled that the District of Columbia’s handgun ban violated the Second Amendment.
In that case, the Supreme Court “clarified that the Second Amendment protects the right to possess weapons that are ‘typically possessed by law-abiding citizens for lawful purposes,’” Turner wrote.
Though Vermont law calls the banned magazines “large capacity ammunition feeding devices,” the motion said the devices “are typically possessed by law-abiding people in the United States, both historically and in the present day.”
Scott supported the 2018 law after Jack Sawyer, an 18-year-old man from Poultney, was accused of planning a mass shooting at Fair Haven Union High School. Sawyer had expressed support for a shooter who killed 17 people in Parkland, Florida, days earlier.
The legislation expanded background checks, raised the legal age to purchase firearms to 21, and banned bump stocks and high-capacity magazines.
“Though the State has argued that the statute defeats constitutional concerns because it can point to a compelling interest in reducing the likelihood and harm of a mass shooting in Vermont, the State cannot impose a total ban of protected conduct under the United States Constitution just because such conduct might lead to harm,” the motion said.
Misch has multiple charges pending against him. Two women have accused him of strangling them during instances that took place in 2016 and 2020.
Last year, he was charged with a hate crime after using racist slurs during an altercation with a Black man. He also faces a disorderly conduct charge after causing a public disruption during a Black Lives Matter mural painting event.
Misch has been repeatedly released on conditions following his charges, and he faces separate charges for repeatedly violating them.
Vermont Attorney General TJ Donovan investigated Misch’s harassment of Kiah Morris, a former state representative from Bennington who is Black, but announced in January of 2019 that he would not press charges against him.
Parties discussed the pending charges before Judge Cortland Corsones, who is handling Misch’s cases, on Monday during a status hearing. Assistant Attorney General Ultan Doyle said the state is expected to file a response to Misch’s motion to dismiss the magazine charges by Friday.
