AG asks Supreme Court to uphold magazine ban

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The Vermont Attorney General's Office has filed a brief asking the state's highest court to determine that a high-capacity magazine ban enacted last year comports with the Vermont Constitution.

Additionally, a group of 17 states and the District of Columbia, as well as nonprofit organizations Everytown for Gun Safety and the Giffords Law Center to Prevent Gun Violence, the latter joined by Vermont Medical Society and GunSense Vermont, filed amicus briefs that side with the attorney general's office.

Max Misch, of Bennington, who was charged in February with two misdemeanor counts of violating the statute after he allegedly purchased two 30-round magazines in New Hampshire and brought them back to Vermont, has argued that the law violates the state constitution's right-to-bear-arms provision and its common-benefits clause.

Bennington County Superior Court Judge William Cohen rejected that argument this summer and opted not to dismiss the attorney general's case against Misch, who has pleaded not guilty to the charges.

The state and Misch's counsel together sought an assessment of the magazine ban's constitutionality from the Vermont Supreme Court, which agreed in August to consider the appeal.

The law prohibits the possession of magazines that have a capacity of more than 10 rounds of ammunition for long guns and 15 rounds for handguns, though it does not apply to such magazines lawfully acquired on or before the date — Oct. 1, 2018 — it took effect.

In its brief filed Monday, the state argues that the ban does not violate either section of the constitution cited by Misch's counsel.

"Limiting magazine capacity to ten rounds does not significantly burden the right to use a firearm in self-defense," the brief, signed by Solicitor General Benjamin Battles, states. "And even if it did, that burden is justified by the State's interest in protecting public safety by reducing the likelihood and harm of a mass shooting in Vermont."

Misch's claim that the grandfather provision contravenes the common-benefits clause by effectively prohibiting only some Vermonters from possessing high-capacity magazines — but not others who acquired them before the law took effect — "should also be rejected," Battles wrote, because it "is well-settled that the Legislature may use a grandfather provision to mitigate the potential burden of a new regulation."

Attorney General T.J. Donovan said in a news release Tuesday that he hopes the Supreme Court will uphold the trial court's ruling. "This was common sense legislation necessary for public safety," he said.

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The District of Columbia filed the amicus brief on behalf of itself and California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia and Washington.

The states "join this brief not to endorse Vermont's particular limitations on large-capacity ammunition magazines or to suggest that they would be optimal for all States, but to emphasize that the challenged law represents a policy choice that Vermont is constitutionally free to adopt," the brief states in an introductory section.

Misch's legal team has three weeks from Monday to file a response to the government's brief, though "requests for an extension of time to file a response brief are often granted, particularly in cases like this one where several briefs have been filed and have to be reviewed," according to Rebecca Turner, an appellate lawyer for Misch.

"Unsurprisingly, the policy decision made by the Legislature when it enacted the specific magazine ban for certain categories of law-abiding individuals has brought out organizations and state government law enforcement entities who support similar policies, or who at least desire to maintain maximum flexibility to adopt other policies in their respective jurisdictions," Turner said in an email on Wednesday. "The question here, however, is whether Vermont's Constitution tolerates such encroachment on fundamental rights."

Oral arguments will follow the filing of Misch's response to the state's brief.

Misch, a self-described white nationalist, has acknowledged trolling former state Rep. Kiah Morris around the time she complained of racially motivated harassment and threats. Morris, who is African American, resigned in September 2018. Donovan announced earlier this year that Morris was a "victim of racial harassment" but found no grounds for criminal charges.

A Bennington County judge last month rejected Misch's attempt to strike conditions of pre-trial release that prevent him from buying, possessing or using firearms while criminal charges against him are pending. State Police seized four guns, including a semi-automatic rifle, from Misch, a U.S. Army veteran, pursuant to conditions imposed by the court in February at his arraignment.

In cases separate from the one on appeal, the attorney general's office has accused Misch of violating his conditions of release three times this year. In one instance, Misch allegedly purchased a gun from a Bennington store, though he did not physically take possession of it, according to court papers.

Misch has pleaded not guilty to those three charges.

Contact Luke Nathan at lnathan@benningtonbanner.com.


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