Eric Davis: Does SCOTUS gun ruling for New York affect Vermont magazine ban?

This commentary is by Eric Davis, president of Gun Owners of Vermont.

Unless you’ve been living under a rock for the last week or so, you’ve probably heard that the United States Supreme Court recently struck down a long-standing requirement by the state of New York that concealed permit applicants must show a legitimate need to obtain permission to carry a firearm in public. To those of you wondering about the possible implications of the NYSRPA v. Bruen decision as it relates to the mag ban in Vermont, we’ll do our best to break it down for you.

Eric Davis, president of Gun Owners of Vermont

The decision as it stands, combined with the fact that the Supreme Court has also remanded two separate cases regarding magazine capacity limits back to the 3rd and 9th Circuit Court of Appeals to be reheard under the context of Bruen, has huge implications for states like Vermont suffering under similar draconian gun laws — obviously.

You might remember that Vermont’s ban on standard capacity magazines was unanimously upheld by the Vermont Supreme Court in June of 2020 in State of VT v. Max Misch. In that ruling, the court applied “interest balancing tests” in which weigh a person’s constitutional right to keep and bear arms against the government’s duty to protect public safety – the same metric that SCOTUS has ordered the lower courts to throw out when re-evaluating these cases.

Good news, right? That means we can get the mag ban thrown out now, right? Well, sort of.

There are a few things we need to consider about the Misch decision before we go any further.  There were two separate cases up for consideration before SCOVT re. the mag ban. The first was a civil suit filed by The Vermont Federation of Sportsmen’s Clubs with the backing of the NRA and other local advocacy groups. The second was the criminal suit in State of VT v. Max Misch in which the state sought to prosecute Misch for violating new law prohibiting magazines over 10 rounds from being brought into the state. In both cases, the pro-gun argument was made from the standpoint that the State of Vermont had violated the people’s ARTICLE 16 right to keep and bear arms under the VERMONT Constitution.

When the court ultimately ruled against Misch — like everyone knew they would, because there was no way a liberal court in deep blue Vermont would rule in favor of the gun rights of an admitted white nationalist — it simultaneously rendered moot the civil case brought by the Federation.

This effectively gutted Article 16 which everyone agreed had STRONGER wording than the Second Amendment (hence the decision at the time to challenge the law on those grounds). Since Article 16 is a state law and not a federal one, it means that this specific case cannot be appealed to a higher court. It means that any further litigation must occur under a different lawsuit. It also means that the text and history test adopted in Bruen might possibly be moot as it relates to Article 16.

Regarding filing a challenge in the post-Bruen world, there are quite a few things to consider about this particular course of action.

To begin with, it would be highly irresponsible for GoVT to go off half-cocked (pardon the bad pun) and immediately file a lawsuit on the matter less than one week after the Bruen ruling, before the dust has had a chance to settle, before either case remanded to the lower courts has had a chance to be heard and the full implications of Bruen have been realized. Let’s take it one step at a time.

Given the time and financial commitment involved in mounting a court challenge, it would help to first: have a favorable ruling on magazine limits from another court and, second: the monetary means to litigate the case properly (as it deserves) in the Vermont court. So, if you want to see change in the short term, here is what you can do.

  1. Become a paid member of GoVT. Just like every other volunteer organization, the majority of tasks here are handled by a small (and I mean really small) handful of people. I would love nothing more than to have a team of lawyers and lobbyists whose only job is to hang out in Montpelier and be a royal pain-in-the-butt to the hoplophobes and victim disarmament crowd, but it takes cash. To help, you must put down the keyboard and open your wallet. Sorry, not sorry.
  1. Get involved in your local politics. The gun grabbers win if we succumb to apathy while they organize. Run for office. Volunteer to wave signs or knock on doors for a pro-gun candidate in your area. Attend a legislative mixer. Attend a school board meeting. Attend a GOTV meeting. Anything. Policy is not created, and legal battles are not won on Facebook.
  1. Stop sewing hate and discontent among your fellow citizens – especially those who share your concern about the constant erosion of civil rights in this country. Social media can be a great tool for communication, but it also has a funny way of turning reasonable people into seething, keyboard-cannibals. Instead of bludgeoning each other over the small percentage of issues on which we disagree, try focusing on positive solutions to affect those issues that we all agree need attention. Stay on point, be courteous and respectful, and if something isn’t going the way you like with this organization (or anything else for that matter), get involved, volunteer your time and money, and change it.
  1. VOTE. Stop with the excuses. Stop with the blathering on about how “it’s rigged!” and “my vote doesn’t count!” and all that other garbage. Even if there is some truth to your argument, the fact that you can’t be bothered to stop for ten minutes and put a dang check mark on a piece of paper every two years is exactly what the anti-gunners want.

We can cite multiple examples of pro-gun candidates losing elections at the state level by less than 20 votes. The quickest way to overturn bad policy is to elect people who are willing to do so.

Get in the fight!

Image courtesy of Wikimedia Commons

13 thoughts on “Eric Davis: Does SCOTUS gun ruling for New York affect Vermont magazine ban?

  1. vermont dosnt care about the laws they will do what they want and you cannot do a thing about it…and thats a fact.. they rigg jurys with social media monitored jury pools

    they will get 12 liberals and they will miss inform them and under in form them and your done for..
    had it happen and i got cahill fire for it..

    shall not be infringed .. period

  2. If anybody really think that a citizen of Vermont who owns an AR15 can’t get a 30-round magazine? Then they probably think prisoners can’t get drugs in prison.

    If it’s unconstitutional it’s already a moot point. We do not have to follow unconstitutional laws. Citizens of the United States should disobey or circumvent these laws whenever possible. The Supreme Court has already decided in 1886 that any law which is unconstitutional on its face is null and void as though it was never passed. It carries no weight of law.

    Unconstitutional Official Acts
    16 Am Jur 2d, Sec 177 late 2d, Sec 256:
    The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The US. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
    The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.… A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it. The Supreme Court’s decision is as follows; “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it in legal contemplation, as inoperative as though it has never been passed”. Norton vs Shelby County 1886 – 118 US 425 p.442.

    Alexander Hamilton explains unconstitutional law in Federalist No.76; “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid”.

  3. Eric, thanks for the update and your support for our rights, and you are correct it takes
    ” money ” to fight for our rights, and Vermont’s ” Anti-Gun ” has plenty of it from outside

    What still boggles my mind is every time I’ve been to Montpelier to a rally in support of our
    gun rights, it’s always the same fifty to a hundred ” pro-gun ” citizens out there, with all the
    gun owners in Vermont where are they ??

    We have had it pretty easy in the state, but just look back ” ten years ” on what we had and what
    we are dealing with today, the leftist ” transplants ” we have running the state have an agenda
    and they don’t care about your rights as a gun owner……….

    If pro-gun Vermonters don’t stand up and support what we have, well just look around the country
    we’ll be next, we need to gather the wagons under one big tent, we have plenty of smart people
    in support of our 2A rights within the state and all that’s needed is $$$.

    We have it today, we may not have it tomorrow !!

  4. Thank you Eric Davis and Gun Owners of Vermont for standing up for Vermonters’ rights!!!

  5. It also would appear as if Phil Scott saddled the wrong horse,because of the Bruen decision all magazine and semi auto bans
     are going to be found repugnant to the constitution,nation wide as regardless what the black robed toadies of Vermont it is also repugnant to article 16 as well and always was.

    The third and ninth circuts,now because of SCOTUS GVR orders,G grant cert, V vacate the circuits previous decision and R rehearing under SCOTUS method for a decision. However those circuits have not yet reheard the cases and ruled on them, that said when they do based on the decision method now required they will be found un Constitutional. Vermonts and the nations magazine bans are going to be overturned as well as any semi auto bans, the second amendment says what it means “Shall Not Be Infringed” after Bruen.

    “Bloomberg Law noted that in remanding the cases Justice Clarence Thomas wrote, “While that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here.”

    The four cases in question involve challenges to New Jersey and California’s ban on “large capacity” magazines as well as Maryland’s ban on so-called assault weapons and Hawaii’s “may issue” permitting process for open carry (the similar “may issue” requirement for concealed carry was upheld by the Ninth Circuit in a case called Peruta v. San Diego back in 2016). The Third, Fourth, and Ninth Circuits will now have to revisit their decisions upholding all of these gun laws, all of which relied on the two-part interest-balancing test explicitly rejected by the Supreme Court in Bruen.

    Instead, the courts will now have to determine whether these types of bans are “consistent with this Nation’s historical tradition of firearm regulation”, specifically at the time of the ratification of the Bill of Rights and in the post-Civil War period when the Fourteenth Amendment was ratified. It’s going to be awfully difficult to do so given that there is no historical tradition of banning entire classes of firearms or limiting their ammunition capacity.

    Those cases, ANJRPC v. Bruck and Duncan v. Bonta, challenge New Jersey and California laws that ban magazines capable of holding more than 10 rounds of ammunition.

    First things first, when those cases are overturned, those wins will affect the entire nation and thus Vermont,good things come to those who wait.

  6. Anti 2A folks redefine standard capacity mags as “large capacity” the same way they define any semi-automatic long gun with a detachable magazine as an “assault rifle”. It is the SCOTUS who will ultimately define either of these as IN COMMON USE and having that status for over 100 years. An M-1 Garand issued to WWII infantry is functionally identical to a modern sporting rifle such as the AR-15 style. One looks more “menacing” perhaps, just as a 2022 Corvette looks more capable than a ’57 Chevy BelAire, but are basically functionally identical. Misch didn’t do the issue of magazine capacity any favors but we all know that case was brought specifically to tie a new gun restriction to someone that the handmaiden media consistently tied to “white supremacy”. It’s all part of the consistent left-wing narrative to stigmatize gun owners the same way they turned tobacco users into second-class citizens. Try as they might to discourage gun ownership, their devaluing of police and the justice system is sending a lot of people to the gun shops including many who have never before sought to bear arms.

    • Mr. Lachapelle
      You said

      “It is the SCOTUS who will ultimately define either of these as IN COMMON USE and having that status for over 100 years.”

      In the New York State Rifle & Pistol Assn., INC. v. BRUEN,SCOTUS has done just that.Beyond what it means for Shall Issue in all 50 states, it also set forth the method for all circuit courts in their decisions regaurding the 2 nd. amendment, no more interest balancing that brought forth arms, magazine and ammunition bans, the death nell for gun control.

      “(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.”

        ”(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people,” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. Pp. 15–17.”

        ”(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582.”

       ”To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).”

       ”To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.”

      If you haven’t had the chance to read the decision,you really should to under stand how important this decision really is.

  7. The difference between a democracy and a republic was once explained to me very simply.

    A DEMOCRACY is two wolves and a sheep deciding what to have for dinner.

    A REPUBLIC is the same two wolves deciding but with an armed sheep disputing the decision…

  8. Interesting times.

    This is why we are republic, not a democracy. Officials know well what they are saying when they say, “save our democracy”, our founding fathers knew history, they knew mob rule, majority rule soon falls under the pressure of public opinion.

    Officials that declare our nation and our state a democracy should be rightfully, viewed with skepticism. Truth be told 80% of our population does not know the difference between the two. This is a catastrophic example of failure on part of our educational system and in particular civics.

    Democracies are also the tool used to subvert a country, the favorite for many. We found this nice little video the explains the difference.

    There are many in Vermont that know what is going on, those with VTGOV are better versed in constitutional law than our current trove of officials. Our schools and country would be better off if was trained people about our country instead of the Marxist lies.

    Huh….our accounts have been suspended….wonder if by accident…..anyway. Free speech is another issue, that and know the difference between fact and propaganda. .

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