Vermont prosecutors have formally opposed Max Misch’s latest request to have his gun magazine charges tossed, saying the controlling state law doesn’t violate the Second Amendment and is consistent with U.S. historical tradition of firearm regulation.
Misch, 40, of Bennington, is considered the first person to be prosecuted under a 2018 Vermont law that prohibits the possession of large-capacity firearm magazines. He was charged in Bennington Superior Court with twin misdemeanor offenses in 2019, after police found at his home a couple of large-capacity rifle magazines he allegedly bought in another state.
State law limits magazine sizes to 10 rounds for long guns and 15 rounds for handguns.
Misch, an avowed white nationalist and military veteran, pleaded not guilty. He has twice tried to get his case thrown out by challenging the legitimacy of the state magazine ban. He asserted that it violates the Vermont Constitution, as well as the Second Amendment of the U.S. Constitution, but failed to sway the state judiciary.
His latest motion to dismiss — filed in Superior Court in July 2022 — again cites the Second Amendment right to keep and bear arms in light of a U.S. Supreme Court decision in June 2022. The landmark case, New York State Rifle & Pistol Association v. Bruen, expanded people’s ability to publicly carry firearms and established a new framework for evaluating Second Amendment challenges.
Under the Bruen precedent, the government must justify a firearm regulation by proving it is consistent with the nation’s historical tradition of firearm regulation. Previously, lower courts had almost universally applied balancing tests that weighed the government’s public safety interests in regulating firearms against an individual’s Second Amendment rights.
The Vermont Attorney General’s Office, in its July 31 response to Misch’s dismissal request, said his motion fails both the textual and historical scrutiny under Bruen.
Prosecutors said Misch has not established that the Second Amendment’s plain text encompasses large-capacity magazines. The devices are firearm accessories, not arms, according to the 43-page filing submitted by Solicitor General Eleanor Spottswood, Deputy Solicitor General David Boyd and Assistant Attorney General Franklin Paulino.
They said the “general linguistic usage” of the term “arms” did not include large-capacity magazines — whether in the late-1700s, when the Second Amendment was ratified, or around the mid-1800s, when the 14th Amendment was adopted. (The latter enabled the Second Amendment to apply to the states.)
Quoting case law, the prosecutors wrote that large-capacity magazines are like gun silencers: “You can’t hurt anybody with (one) unless you hit them over the head with it.”
The Second Amendment, according to one of their arguments, does not protect these magazines because they aren’t commonly used for self-defense. The research team of John Donohue, a state expert in gun policy from Stanford Law School, said it has never uncovered a defensive use anywhere in the U.S. of more than 15 rounds from a handgun or 10 rounds from a long gun.
Another state expert, Randolph Roth, a professor of history and sociology at Ohio State University, said that makes sense because large-capacity magazines were “designed for offensive military applications rather than individual self-defense.”
But should Misch prove that the Second Amendment encompasses large-capacity magazines, the prosecutors said, the state can show that the 2018 ban is consistent with the U.S. history of firearm regulation.
Misch, in his motion to dismiss, had said laws regulating repeating firearms or restricting magazine capacity have been rare, limited in scope and postdate the passage of the Second and 14 Amendments. He’d said no state law has gone as far as Vermont’s current regulatory statute.
Prosecutors said Vermont enacted the 2018 firearm law in response to a national wave of mass killings, perpetrated by lone shooters armed with rapid-fire automatic or semiautomatic weapons. The magazine restriction was adopted “to reduce the number of people who would be killed or injured in a mass shooting in Vermont,” they said, just as other legislative bodies have historically responded to increased criminal use of new technologies that endanger public safety.
Prosecutors said the ban is analogous to a host of historical regulations designed to prevent mass casualties. They discussed multiple examples over 15 pages, including regulations on gunpowder from the 1600s to the early 1900s, pistols in the 1700s and 1800s, and long-bladed knives from the early 1800s to the early 1900s.
In the 1920s and 1930s, the prosecutors said, dozens of states regulated machine guns — around the same time they restricted magazines based on the number of rounds that could be fired without reloading.
Robert Spitzer, a state expert from the State University of New York-Cortland’s political science department, said the magazine restrictions placed a relatively light burden on an individual’s right to self-defense because they don’t restrict the number of guns or magazines a person can own.
Misch’s attorneys, from the Vermont Office of the Defender General, have until Sept. 15 to respond to the state’s filing. The parties are then expected to appear for a hearing in Bennington Superior criminal court on Sept. 25.
State prosecutors issued their response a year after Misch’s motion was filed. They initially asked for additional time to gather testimony from experts, and more recently asked to further extend the deadline because of a staffing shortage at the attorney general’s office.
Misch is currently serving two years of probation for a felony assault and a misdemeanor hate crime. He was sentenced last August after pleading guilty under an agreement with the Bennington County State’s Attorney’s Office.
In addition, Misch admitted 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.
