Since 2019, the Vermont Attorney General’s Office has been prosecuting an avowed white nationalist on charges of illegally possessing high-capacity firearm magazines.
But the case doesn’t appear close to a resolution. As it marks its fourth year next month, the court is confronting defendant Max Misch’s latest request to throw out his charges.
The Vermont Superior Court has given prosecutors until April to respond to Misch’s third motion to dismiss, which was filed in July. The extended deadline grants prosecutors’ request to obtain expert testimony before they respond to Misch’s argument that a recent U.S. Supreme Court ruling supports his assertion that the Vermont magazine law is unconstitutional under federal law.
Misch, 39, of Bennington, is facing two misdemeanor charges of possessing large-capacity rifle magazines, which police found in his home amid a state ban. The 2018 law limits magazine sizes to 15 rounds for handguns and 10 rounds for long guns.
In Misch’s latest motion to dismiss, he said the Superior Court in Bennington County should toss his charges because he was exercising a right to self-defense that is protected under the Second Amendment of the U.S. Constitution. The military veteran earlier made the same motion, which the Vermont court denied in 2021.
Misch’s appellate lawyer said a U.S. Supreme Court ruling last June — which overturned a New York gun restriction — now puts the burden on the government to prove that Vermont’s magazine statute “is consistent with this Nation’s historical tradition of firearm regulation.”
The Vermont Attorney General’s Office opposes the dismissal, though it has until April 21 to file a formal response.
In an October filing, prosecutors said the state anticipates arguing that Misch has not shown that his conduct is protected by the Second Amendment. Even if he had, they said, Vermont’s magazine restriction is consistent with the historical tradition of firearm regulation in the U.S.
At a hearing on Monday, prosecutors said they submitted to Misch’s lawyers that day statements from three professors the state has retained as experts. They were identified in court documents as John Donohue, an expert in gun policy at Stanford Law School; Randolph Roth, a professor of history and sociology at Ohio State University; and Robert Spitzer, with the political science department of the State University of New York-Cortland.
Prosecutors earlier said they wanted the professors to primarily address historical topics, which are relevant to the framework set forth in the U.S. Supreme Court ruling cited in Misch’s motion to dismiss.
Defense attorneys had opposed including the expert declarations, arguing in part that they don’t count as admissible evidence in Misch’s case and that existing “original sources of law” suffice. But presiding judge Kerry Ann McDonald-Cady allowed the state experts to provide input — and also allowed the defense team to retain its own experts.
She gave Misch’s side until May 5 to respond to the state’s opposition to the request for dismissal.
The next hearing is set to take place on or after June 1, according to court discussions on Monday.
The court has allowed Misch to remain free from jail on certain conditions while his magazine case is being heard. Each of the two charges is punishable by up to a year in jail.
He is currently serving a two-year probationary sentence after pleading guilty last year to aggravated domestic assault and disorderly conduct as a hate crime under a deal with the Bennington County State’s Attorney’s Office.
Misch has admitted to racially harassing former Bennington state representative Kiah Morris when she was the only Black woman in the state Legislature. She resigned in the summer of 2018, citing racial harassment as a reason.