State: magazine ban constitutional, upholds public safety

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MONTPELIER — The state has a duty to pass reasonable regulations that would protect the public from gun violence, the attorney general's office told the Vermont Supreme Court in response to a challenge to Vermont's ban on large-capacity firearm magazines.

The state is opposing a request by attorneys for Max Misch, of Bennington, to invalidate the ban under which Misch was charged last year.

The magazine ban is constitutional, because nothing in the state constitution explicitly prohibits the regulation of magazine capacity, Solicitor General Benjamin Battles said in a brief filed Friday.

"To the contrary, multiple provisions anticipate legislative regulation of firearms," he said in the state's response to the brief of Max Misch, who is charged with twin counts of possessing two 30-round rifle magazines.

Authorities said Misch, 37, bought the magazines after Oct. 1, 2018, when the state banned magazines containing more than 10 rounds for long guns and more than 15 rounds for handguns.

Misch's lawyers earlier told the state Supreme Court that the ban violates two articles in the Vermont Constitution: people's right to bear arms for defense, as well as a prohibition against the passage of laws that benefit only certain people.

The defense attorneys said the court has already recognized that while the state legislature's powers are expansive, it can't infringe on any part of the state constitution.

The Vermont Attorney General's office, which is prosecuting Misch, responded that people's right to bear arms should be governed by a "reasonable regulation" standard, which allows lawmakers the "flexibility to protect Vermonters against gun violence."

Battles argued in the brief, prepared alongside three assistant state attorney generals, that any burden the ban places on the right to bear arms in self-defense is at most minimal. Vermonters can buy as many firearms and law-compliant magazines as they want, he said, adding incidents have shown that Vermonters who fire in self-defense don't dispense more than 15 rounds from a handgun or 10 rounds from a long gun.

But limiting magazine size helps the state reduce the likelihood of mass shootings and the harm that comes from them, Battles said, reiterating the state's position. Quoting case precedent, he said large-capacity magazines are disproportionately used in mass shootings, and result in more people wounded and wounds per victim.

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Battles said Misch has not proposed a workable alternative to the goal of balancing interests, instead suggesting "absolutist" approaches.

"At the most extreme, defendant's desired right to bear arms without 'limitation' would seemingly permit him to acquire a machine gun, a rocket launcher, or even a nuclear warhead without the State being able to intervene."

In response to Misch's contention that the ban's exemptions offer preferential treatment to the government — including law enforcement personnel — Battles said the law does not violate the state constitution's common benefits clause because the exemptions are justified by public safety.

"Although large-capacity magazines have limited utility as a self-defense tool, law enforcement — unlike the general public — at times must use force offensively," he said. "Excluding officers trained to handle particularly dangerous firearms is reasonably related to the State's public safety goals."

But if any of the exemptions violates the constitution, the state said the solution is to remove that portion rather than strike down the entire magazine ban.

Misch's attorneys are asking for the opportunity to argue their case before the Supreme Court justices, according to the court clerk's office. The schedule is pending.

A ruling in Misch's favor could lead to the dismissal of the two misdemeanor charges, each count punishable by up to a year in jail and a fine of $500. Misch is believed to be the first person charged for violating Vermont's magazine ban.

Associate Justice William Cohen, recently appointed to the state Supreme Court, deemed the ban lawful when he heard Misch's case in Bennington County Superior Court. Afterward, the attorney general's office and Misch's attorneys together asked the Vermont Supreme Court to assess the ban's constitutionality. Cohen is recusing himself from the appeal.

Misch is free from jail on conditions. The state also has accused him of violating his conditions of release three times in 2019. In one instance, he allegedly purchased a gun from a Bennington store, though he did not physically take possession of it, according to court documents. Misch has pleaded not guilty to those three charges.

A self-described white nationalist, Misch has admitted to trolling former state Rep. Kiah Morris around the time she filed complaints of racially motivated harassment and threats. Attorney General T.J. Donovan said that Morris, who is African American, was a "victim of racial harassment," but found no grounds for criminal charges.

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


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