High-capacity magazine ban goes before Vermont Supreme Court

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  • wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    This is a challenge under the Vermont State Constitution. Its a little unfortunate because there was a civil case that is still pending that would have been better suited to challenge the law. But that's life.


    https://www.vnews.com/state-supreme...1Vf5Yn9oTAURoENIhI_9daO2-jVODQoaMepCx0XNuomOg


    A white nationalist’s challenge of the constitutionality of a state law banning high-capacity magazines is now in the hands of the Vermont Supreme Court.

    The five-member court heard competing arguments Tuesday over the constitutionality of the provision enacted as part of a package of historic restrictions on firearms. The hearing lasted approximately an hour.



    It’s the first case reaching the state’s highest court over the measures approved by the Democratically controlled Legislature and signed into law by Republican Gov. Phil Scott more than two years ago in response to a thwarted school shooting in Fair Haven in early 2018.


    Historically, the state had a reputation for having permissive gun laws.

    At issue Tuesday was a provision of the law setting limits for magazine sizes at 15 rounds for handguns and 10 rounds for long guns.

    While the criminal case leading to the constitutional challenge was brought by prosecutors against Max Misch, an admitted white supremacist from Bennington, his name was barely mentioned during the arguments that took place via video before the Vermont Supreme Court.

    Instead, the attorneys battled over whether the charges against him for allegedly illegally possessing high-capacity magazines withstood constitutional muster, with justices frequently jumping in with pointed questions aimed at one side and the other over rights and guns.

    “If the right is subject to reasonable limitation, do you agree that there is a point at which a restriction could become unreasonable?” Justice Harold Eaton asked Vermont Solicitor General Benjamin Battles of the state’s Attorney General’s Office.

    “We are far away from that point in this case,” replied Battles, a prosecutor in the case.



    “The law here,” he added, “is a narrow, considered means to target a national problem that was a threat in Vermont, and that people and Vermont legislators were rightly concerned about, which was the threat of mass shootings.”

    The gun legislation came after the governor said in mid-February 2018 he was “jolted” by details in the case against an 18-year-old Poultney man in what police said was a foiled school shooting plot in Fair Haven.

    Jack Sawyer was arrested by Vermont police just days after a school shooting in Parkland, Fla., that left 17 people dead. He was sent in 2019 to an out-of-state treatment facility.

    At the hearing Tuesday, Justice Karen Carroll asked Misch’s lawyer, Rebecca Turner, supervising attorney of the Vermont Defender General’s appellate division, what other actions the Legislature could have taken to help reduce the lethality of shootings.

    “The Legislature was concerned about mass shootings,” Carroll said. “What was the alternative to banning high-capacity magazines where the record clearly indicates those are often used, most always used, in mass shootings?”

    Turner replied by questioning whether the law regarding high-capacity magazines achieves that objective of preventing or reducing mass shootings.



    She said a person bent on carrying out such an attack could travel to other states, including bordering New Hampshire to obtain the devices.

    She also pointed to the provision of the law that “grandfathered” those already owned by people in Vermont as well allowed law enforcement to possess them.

    “Possession of these magazines remains lawful for those who are grandfathered in,” Turner said.

    “It seems an inherent concession,” she added, “that’s contrary to their objective goals, that it’s OK for some to possess these magazines, including law enforcement and retired law enforcement, but not others.”

    Battles, of the state’s Attorney General’s office, argued the measure didn’t prevent someone from using a firearm in self-defense, but just set a reasonable limit on the permissible magazine size.

    Turner, representing Misch, contended, in large part, that the cap on a firearm’s magazine size violates Article 16 of the Vermont Constitution. That amendment says that “people have the right to bear arms for the defence of themselves and the state.”

    Eaton, during the hearing Tuesday, pressed Battles over the “reasonableness” of the restriction.

    “Once you acknowledge that there is a place at which a regulation can become unreasonable, then the issue is where’s the line,” he said. “My question to you is, you said. ‘Well, we’re a long ways away from the line in this case.’ Well, where is the line?”



    “I’ve seen in the materials the number of 2.2 is the average number of rounds that are necessary in self-defense,” Eaton said. “Would it be your position that any magazine restrictions down to 2.2 would be reasonable.”

    “It’s much closer when you get down there,” Battles responded. “Certainly if there were a three-round magazine limit there would be a much stronger self-defense argument.”

    Attorney Bridget Asay, representing the Vermont Medical Society, and gun control advocacy groups, including the Giffords Law Center to Prevent Gun Violence and Gunsense Vermont, also argued Tuesday before the high court in support of the constitutionality of the provision.

    The organizations had earlier filed amicus, or “friend of the court,” briefs in the case backing the attorney general’s position.

    Justice Robinson later questioned Turner about the right to bear arms in self-defense. “Is this self-defense from an assailant, self-defense from an oppressive government, or both,” Robinson asked.

    “Absolutely both,” Tuner replied, “It’s not one or the other, it’s both.”

    Misch avoided charges stemming from an earlier investigation from the Attorney General’s Office. In that case, Misch admitted to racially harassing former state Rep. Kiah Morris, who had been the only Black woman in the state Legislature. Morris decided not to seek reelection in 2018, citing, in part, the racial harassment.

    Rebecca Turner, supervising attorney for the Vermont Defender General’s appellate division, argues via video during a hearing Tuesday over the constitutionality of a large capacity magazine ban.

    Attorney General TJ Donovan, claiming broad First Amendment protections, announced more than a year ago he couldn’t charge Misch or others in the online harassment of Morris.

    But the attorney general did later charge Misch in February 2019 with illegally possessing high-capacity magazines under the new law. Each of the two misdemeanor charges against Misch carry a possible maximum penalty of one year in jail and a $500 fine.

    According to court records, police state that Misch and his ex-wife went to a store Dec. 1 in Hinsdale, New Hampshire, just over the Vermont border. That’s where, according to an affidavit filed in support of the charges, the two 30-round magazines were purchased.

    During a later search of Misch’s Bennington apartment, police said they found the two magazines, and charged him. Misch has pleaded not guilty to the charges against him.

    Misch’s attorneys challenged the constitutionality of the law at the trial court level, with Judge William Cohen refusing to throw out the case, leading to the hearing Tuesday before the state’s highest court.

    Cohen, who was presiding over the case while it was pending in Bennington County Superior criminal court, has since been appointed to the Vermont Supreme Court. He has recused himself from the case.

    Chief Justice Paul Reiber also recused himself from the case, but did not provide an explanation as to why.

    Joining Justices Robinson, Eaton and Carroll in hearing the case were retired judges John Wesley and Dennis Pearson.

    The same magazine limit provision of the law at the center of the Misch case is also being contested in a state civil court lawsuit. The lawsuit, brought by gun rights supporters, remains pending in Washington County Superior civil court.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    I see the same outcome as CO, with a bunch of hand waving and platitudes to get to the result of the ban being valid. Too bad St Louis's salmon polo and AR15 home defense attire had not hit the news wire before argument.
     

    jpk1md

    Ultimate Member
    Jan 13, 2007
    11,313
    I see the same outcome as CO, with a bunch of hand waving and platitudes to get to the result of the ban being valid. Too bad St Louis's salmon polo and AR15 home defense attire had not hit the news wire before argument.

    Did they render a decision yet?

    Cuz if they havent then current events will certainly impact the decision if not officially.....subconciously
     

    Occam

    Not Even ONE Indictment
    MDS Supporter
    Feb 24, 2018
    20,230
    Montgomery County
    Ripe for SCOTUS. Asserting 2A obsolescence is like asserting 1A obsolescence. Must be challenged.

    BTW, I find it particularly ironic that the law in question, limiting rifles to 10 rounds, was passed as a reaction to the Parkland murders. Why? BECAUSE THE PARKLAND MURDERER USED 10 ROUND MAGS BECAUSE THEY WERE EASIER TO HIDE.

    Jeebus, these people.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    Saving the ruling since it's not on a .gov site
     

    Attachments

    • vermont-supreme-court-high-capacity-magazine-ruling.pdf
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    TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,151
    Sun City West, AZ
    I don't understand the fascination with banning magazine size.

    Just something to hook into, I guess.

    The "Camel's nose under the tent" concept. Once you get that far it becomes easier to rationalize asking for more. A little bit at a time...if the antis went for the whole ball of wax they would hit too much of a wall...incrementalism has gotten them more over time.
     

    Topher

    Ultimate Member
    MDS Supporter
    Sep 8, 2008
    4,817
    Fredneck
    My research has shown that in a mass shooting the assailant is wearing shoes.
    The fact he is wearing shoes makes him more mobile and increases his lethality.
    I hear by move we regulate shoes to better protect the children.
     

    fred55

    Senior
    Aug 24, 2016
    1,772
    Spotsylvania Co. VA
    My research has shown that in a mass shooting the assailant is wearing shoes.
    The fact he is wearing shoes makes him more mobile and increases his lethality.
    I hear by move we regulate shoes to better protect the children.

    That’s about as effective and comprehensive as any other proposed laws. fred55
     

    JPG

    Ultimate Member
    Aug 5, 2012
    6,996
    Calvert County
    2A is dead it died a longtime ago. We are just now realizing this. “Health and Safety” is an argument the anti gunners use and it can’t be defeated.

    It amazes me that attorneys don’t use the “shall not be infringed” part of the 2A.
     

    lazarus

    Ultimate Member
    Jun 23, 2015
    13,678
    My research has shown that in a mass shooting the assailant is wearing shoes.
    The fact he is wearing shoes makes him more mobile and increases his lethality.
    I hear by move we regulate shoes to better protect the children.

    That's why we gotta take our shoes off going through security in airports, didn't you know? Reduce the lethality of mass shootings in airport security when big Gus gives you a reach around pat down and someone snaps.
     

    TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,151
    Sun City West, AZ
    At the school shooting in FL several years ago the shooter only used ten round magazines as they concealed easier when higher cap mags wouldn't. That means only long, high cap mags should be mandatory. After all...if it saves one life it's worth it.
     

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