Arguments Heard in Firearms Case

This is from the Brattleboro Reformer, June 25th,2020

BENNINGTON — It’s now up to the Vermont Supreme Court to decide whether the state’s ban on large-capacity firearm magazines should stand.

The court on Tuesday heard arguments on the issue, prompted by a challenge from a Bennington man charged under the 2018 statute.

Max Misch, 37, is facing misdemeanors charges after police found two 30-round rifle magazines at his home last year. Authorities said he bought the magazines after the ban took effect in October 2018, outlawing magazines containing more than 10 rounds for long guns and more than 15 rounds for handguns.

Misch’s attorneys have asserted that the ban violates people’s right to bear arms for defense under the Vermont Constitution, as well as its prohibition against the passage of laws that benefit only certain people.

The Vermont Attorney General’s Office, on the other hand, has said the state has a duty to pass reasonable regulations that would protect the public from gun violence. It asked the Supreme Court to evaluate whether the magazine ban is reasonable.

During the hearing Tuesday morning, which was streamed live on YouTube, multiple justices asked questions that pointed at how to navigate the path of reasonable limitations. The court previously established that the right to bear arms is not unlimited.

Justice Beth Robinson asked if the ban — which aims to limit the likelihood and harm of a mass shooting — would also limit a person’s capacity to defend himself against multiple attackers.

“The question for purposes of the constitutional analysis is not whether there is some conceivable purpose for a military-style assaultive weapon,” said Bridget Asay, who represented three groups that filed amicus briefs siding with the state: Giffords Law Center to Prevent Gun Violence, Vermont Medical Society and GunSense Vermont.

The question, Asay said, is whether there’s any reasonable basis to believe that banning large-capacity magazines interferes with law-abiding citizens’ ability to engage in responsible self-defense. “There’s no evidence,” she said, adding that large-capacity magazines are the “weapon of choice for mass shootings.”

Defense attorney Rebecca Turner countered that these magazines are actually commonly used, saying Americans as a whole own 100 million magazines over 10 rounds.

When asked by Justice Karen Carroll what arms restrictions she considered lawful, Turner said the right to bear arms in Vermont is limited to devices in common use — and used in rightful self-defense.

She emphasized that people who mean to cause harm on a wide scale can still find large-capacity magazines in states where they remain legal.

And such magazines can still be legally possessed by certain people, such as current and retired police officers, as well as those who bought them before Vermont’s ban took effect.

“Where is the evidence that people intent on committing these horrific mass shootings and killings won’t go out of their way to find these magazines elsewhere?” said Turner, of the Vermont Office of the Defender General. “There is no evidence of that.”

Justice Harold Eaton Jr. seemed to agree with that point, saying: “Isn’t this a piece of legislation that impacts the law-abiding citizen and not someone who’s intent on going out and committing a mass shooting? They’re not gonna be deterred by whether they can lawfully have a 30-round mag, are they?”

Eaton also asked the state how the ban could be enforced without difficulty given there’s no easy way to determine when a person possessed a high-capacity magazine, unless a witness comes forward.

Solicitor General Benjamin Battles acknowledged that enforcing the law among individuals is challenging, but added that it’s easier among retailers. The ban, he said, is a step forward in the state’s goal of reducing the availability of large-capacity magazines.

The justices spent an hour hearing the arguments, double the usual time allotted to a case, an indication the court considered the issue significant and with wide-ranging impact. Some 17 states and the District of Columbia also filed amicus briefs for the state.

Justice William Cohen, who presided over Misch’s case while he was a Bennington Superior Court judge, is one of two justices disqualified from hearing the appeal. A couple of retired judges substituted for them.

While Superior Court judge, Cohen said that if the state Supreme Court finds the magazine ban unconstitutional, the charges against Misch would have to be dismissed.

There is no timeline as to when the court would hand down a ruling. Until then, Misch’s criminal case in Bennington is on hold. He is reportedly the first person to be charged under Vermont’s magazine ban.

Contact Tiffany Tan at or @tiffgtan on Facebook and Twitter.