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Vermont Supreme Court Hears Challenge To State's Ban On High-Capacity Magazines

A loaded AR-15 rifle magazine on top of a loaded 9mm pistol magazine.
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A 2018 gun control law, now being challenged before the Vermont Supreme Court, banned long gun magazines of more than 10 rounds, and pistol magazines of more than 15 rounds.

In 2018, Vermont lawmakers passed — at the behest of Gov. Phil Scott — multiple new gun control laws. Among them was a ban on the sale, possession or transfer of long gun magazines holding more than 10 rounds, and hand gun magazines holding more than 15.

Now that ban is being challenged before the Vermont Supreme Court. We talk with a reporter following the case and the arguments the court is hearing.

Our guest is:

  • Alan Keays, VTDigger’s criminal justice reporter 

Broadcast live on Thursday, July 2, 2020 at noon; rebroadcast at 7 p.m.

The following has been edited and condensed for clarity.

Jane Lindholm: So this all gets very complicated very quickly. Can you just lay out for us exactly what the Supreme Court is supposed to be deciding in this case?

Alan Keays: If the high capacity magazine ban limit is constitutional under Vermont's constitution. And the limit set for magazines is 15 rounds for handguns and 10 rounds for long guns. That's the issue that they're looking to resolve.

So what the Supreme Court is trying to figure out is, is this constitutional to have this ban on what are often called high capacity magazines?

Correct.

Can you describe the case that's at the heart of it and then why the Supreme Court is being asked to look at the constitutionality of this ban and how it relates to that case?

Yeah. Well, Max Misch, self-described white supremacist from Bennington, is the first and only person charged under the law, which went into effect on Oct. 1, 2018. He was charged in Feb. 2019 by the attorney general's Office with possessing two 30-round magazines.

You may remember Misch is the person who admitted to racially harassing Kiah Morris, who had been the only Black woman in the state legislature at the time in 2018.

More from VPR: Breakdown In Bennington

And in the case, they're alleging that Misch went across the border and bought these 30-round magazines and brought them back into Vermont after the ban had gone into effect.

Yes. And then they went to his apartment and seized them early after, and it’s the possession of them that he's charged with.

And the reason Misch came to the attention of law enforcement was because of the harassment of Kiah Morris - so he was already on the radar of law enforcement. Because, I think it's safe to presume that other Vermonters also went and bought larger capacity magazines than the law allows, even after the ban went into place. But Misch was already on the radar of law enforcement.

He certainly was. And actually his attorney argued in the criminal case that the attorney general's office brought the charge as a way… They used the word “vindictive” in bringing the charge against Misch, when they filed a motion to dismiss the case against him, that was rejected by the judge.

And it's the fact that this motion to dismiss was rejected. That has now led it to the Vermont Supreme Court, right?

Correct. Judge William Cohen, who was sitting in Bennington at the time, ruled that the limit on the high capacity magazine set under the law was constitutional. Judge Cohen has since been appointed to the Vermont Supreme Court that is hearing this appeal of his decision. He has recused himself from the case because of his earlier involvement in the case.

More from VPR: Gov. Phil Scott Vetoes Gun Purchase Waiting Period Bill

How are the arguments going? What are you hearing?

It was kind of a fascinating oral argument because right away, as both attorneys started into their presentations, the justices jumped in to ask questions, and they were big questions. The point that most of them were trying to address was: Is this new law or provision of the law reasonable? Is it too restrictive? And then, I mean, obviously, the prosecution from the attorney general's office believed that it was reasonable, and said that the constitution allows the Legislature to set laws that help promote public safety. They talked about having a limit on the magazine size because in mass shootings, the larger capacity magazines are often used and it doesn't allow for a person to stop and have to put a new magazine in. It allows for a shooting of more bullets at once.

Listen to VPR’s Jolted, a five-part podcast about a school shooting that didn’t happen

Are you getting any sense from what the justices are asking and the way that the oral arguments have gone into the way the court might be leaning?

It's hard to tell because actually there are two justices who are not regular members of the court, because Justice Cohen had stepped down and also Chief Justice Paul Reiber has stepped down from the case. He did not give a reason why he recused himself. So that just leaves three of the permanent members, as well as two retired superior court justices who are hearing the case. I don't know much about the track record of those two superior court judges ruling on appeal cases, but there certainly appeared to be some split among those three justices who asked a lot of questions: Justice Caroll, Justice Robinson and Justice Eaton. Eaton seem to be the most critical of the law in asking his questions. But I don't know how he's going go, either way.

"The state is arguing that the Constitution does give the Legislature the ability to pass laws and the governor can sign and enact laws specifically to promote public safety." %u2013 Alan Keays, VTDigger

We know that Max Misch’s attorneys are arguing that this ban is unconstitutional and that therefore, the charges against their client should be dismissed. What's the state arguing?

The state is arguing that the Constitution does give the Legislature the ability to pass laws and the governor can sign and enact laws specifically to promote public safety. Again, they say that this is a reasonable step in protecting public safety.

Who else is weighing in in this case?

There are several groups that are weighing in, mainly for the prosecution side. The attorney representing them spoke during the oral arguments last month. They included Gifford Center, the Giffords Law Center to Prevent Gun Violence. The Vermont Medical Society has weighed in, Gun Sense Vermont has weighed in. They all filed amicus briefs in the case, laying out why they believe that the law is constitutional.

And Alan, what happens next? Can you lay out what happens if they decide that the ban is unconstitutional, or if they decide, you know, that this is constitutional and essentially they are not overturning the lower court's ruling?

If it is ruled to be unconstitutional, it appears that the charges against Max – the two misdemeanor charges against him – will be dismissed because there's no grounds for bringing them. If the charges are determined to be constitutional, then the case will go back to the lower court in Bennington, where it's pending, and it will move forward to a trial.

And in terms of this civil suit against this magazine capacity ban, what can you tell us about other ways that people who don't like this law are challenging it?

Yeah, a group of sportsmen are challenging the law in civil court in Washington County. That case is still pending. It's unclear how this case is going to affect that case. I haven't gotten a clear answer yet on how that's going to impact it. I mean, obviously, this would set a precedent I would believe in whether or not the law is constitutional.

If Max Misch is ultimately found guilty of the two charges against him, what kind of penalty could he face?

He could face a year in jail on each charge (that's the maximum). Though very rarely do people get the maximum – it's up to a year in jail. And I should say also that his attorneys are arguing that the law also violates the Common Benefits clause of the constitution, which means that other people can have them, but he can't, because a provision of the law allows people who had [these large magazines] before the law went into effect to still keep them.

Right, the people who already had these were grandfathered in.

Yes. His attorneys argued that that's unfair, that some people in Vermont can get to have these, while others can't.

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