Vermont Supreme Court Upholds Magazine Ban

(AP Photo/Rich Pedroncelli, File)

Vermont’s law limiting handgun magazines to no more than 15 rounds and long guns to just 10 rounds does not violate the Second Amendment or the state constitution, according to the state’s Supreme Court, which issued its decision in a case brought by a self-described white nationalist who was charged after buying two 30-round magazines in neighboring New Hampshire and bringing them across state lines.

Max Misch was charged with two misdemeanors for violating the state law, which was signed into effect by Gov. Phil Scott in April of 2018. Misch’s attorneys had argued that the ban was an unconstitutional infringement on the right to bear arms by making commonly-owned magazines off-limits to Vermont residents, but in the ruling released today the state Supreme Court declared that the ban was a “a reasonable regulation of the right of the people to bear arms for self-defense.”

Now, I’m not an attorney, but it appears to me that the state Supreme Court has twisted both law and logic to reach its conclusion. First, the Court had to determine what the text of the state constitution actually protects. Even though Vermont’s constitution states clearly that ““the people have a right to bear arms for the defence of themselves and the State,” the Court held that the individual right to keep and bear arms in defense of themselves limited and subject to “reasonable regulation” on the part of the state.

The constitutional text, considered in the historical context surrounding its enactment, is inconclusive as to the full scope and purpose of the right. To the extent that Article 16 established a right to bear arms for the purpose of serving in a state militia, that aspect of the Article 16 right has no contemporary application. Considering the text alone, in light of its likely meaning at the time the Vermont Constitution was enacted, it is unclear whether Article 16 protected an individual’s right to possess guns for self-defense outside of the context of actual or potential state militia service.

Nevertheless, our case law has assumed that Article 16 protects such an individual right subject to reasonable regulation, and courts in most states and the United States Supreme Court have all construed similar provisions to establish a limited right to possess guns for individual self-defense.

No, the U.S. Supreme Court has not construed the Second Amendment as establishing a limited right to possess guns for self-defense. The Supreme Court recognized in the Heller case that the Second Amendment protects a pre-existing right to keep and bear arms, though the question presented in Heller involved keeping guns in the home and not bearing them in public.

It’s telling that the Vermont Supreme Court chose to cite Justice John Paul Stevens’ dissent in Heller, which argued that the right to keep and bear arms was only connected to service in a militia. Even though a majority of Stevens’ colleagues disagreed with his judgment, the justices in Vermont use Stevens’ dissenting opinion as one of the primary sources for their own ruling.

The opinion goes on to say that historically, “bearing arms” was only used in conjunction with military service, again expressly ignoring what the Supreme Court has said. From the Heller opinion authored by Justice Antonin Scalia:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation.

In Muscarello v. United States524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment : Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”

It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”

In the eyes of the Vermont Supreme Court, none of that matters. In a footnote to the opinion released today, the Vermont justices write:

We note that in interpreting our own Constitution, we are not bound by the Supreme Court’s interpretation of the Second Amendment or its understanding of our Constitution. “We are a sovereign state,” and in applying the Vermont Constitution, “this Court is entitled to take issue with any constitutional decision of the United States Supreme Court, regardless of whether our constitution provides the same or a different text.”

The full opinion from the Vermont Supreme Court is far too long to quote in its entirety here, but it relies in part on anti-gun rhetoric from the gun control group Violence Policy Center (which the Court describes as merely a “national 501(c)(3) that conducts research and education on firearms violence”) as well as Giffords and Everytown for Gun Safety to bolster its assertion that banning commonly-owned ammunition magazines is not an infringement on the rights of Vermont gun owners.

Even if the evidence doesn’t show that bans on so-called large capacity magazines are effective in reducing mass shootings or firearm-releated deaths, the Court declared that the state’s magazine ban makes people feel safer, which is another reason why the ban should remain in effect.

In addition to its potential impacts in the event of a mass shooting, § 4021 has the effect of creating a greater sense of security among the public. While this effect and purpose alone may not be sufficient to survive scrutiny under Article 16, it nevertheless is meaningful to the wellbeing of people of Vermont, particularly children.

Because the Court was asked to rule on the legality of the magazine ban as it relates to the Vermont state constitution, the Vermont Supreme Court was free to ignore the language of Heller and McDonald, but the state’s magazine ban could still be challenged in federal court as a violation of the Second Amendment. By the time Vermont’s case could arrive at SCOTUS, however, the Court may have already weighed in on the issue. A challenge to California’s magazine ban is currently in the Ninth Circuit Court of Appeals, though the court doesn’t appear to be in any hurry to decide whether or not to grant an en banc review of the three judge panel that has ruled the California ban unconstitutional.

To say the Vermont decision is disappointing is an understatement. It’s a gift to gun control activists that ignores both history and current events that the judges find inconvenient to their point of view that banning residents from obtaining or possessing commonly-owned arms is merely a “reasonable restriction” and not an infringement on their right to keep and bear arms in self-defense.