Gun rights leaders respond to state Supreme Court magazine ruling, say federal courts may offer relief

The Vermont Supreme Court has sided against a constitutional challenge to a 2018 state law banning standard capacity magazines, and now Vermont gun rights advocates may focus on a separate legal challenge — and one Second Amendment advocate says the issue could be headed for the federal courts.

In response to Friday’s ruling that “the magazine ban is a reasonable regulation of the right of the people to bear arms,” Bill Moore, firearms policy analyst for the Vermont Traditions Coalition, told True North the fight may need to go all the way to the U.S. Supreme Court.

“Decisions poorly researched, poorly written and poorly decided are ripe for being overturned by justices who respect the law over politics,” he said. Those justices are sitting in the Supreme Court of the United States and prepared to do just that. And sooner than later.”

Bruce Parker/TNR

Vermont Supreme Court building

In 2018, Republican Gov. Phil Scott signed S.55, legislation that imposed a magazine limit of 15 rounds for handguns and 10 rounds for rifles. It also expanded background checks to include private gun sales, raised firearms purchase age to 21, and banned bump stocks.

Max Misch, a Bennington resident and activist who regularly makes headlines with public controversies, became the first Vermonter charged with violating the new law when he purchased two 30-round magazines from New Hampshire and brought them back to Vermont. Misch’s defense argued that the magazine limit violates Article 16 of the Vermont Constitution, which states “people have the right to bear arms for the defence of themselves and the state.”

In a separate civil case also before the court, various gun rights supporters and groups are suing state officials who do the task of enforcing the gun law. Plaintiffs in that case include the Vermont State Rifle & Pistol Association, the Federation of Sportsmen’s Clubs, Powderhorn Outdoor Sports, and other firearms sellers and buyers. Defendants include Attorney General TJ Donovan, Vermont State Police Col. Matthew Birmingham, Orange County State’s Attorney William Porter and Chittenden County State’s Attorney Sarah George.

Currently, the Vermont Supreme Court considers the case resolved via this entry order from November.

In the above-captioned case, this Court accepted an appeal on report posing the question: Does 13 V.S.A. § 4021 violate Chapter I, Article 16 of the Vermont Constitution? This Court has resolved the same question in a decision issued this day in the case of State v. Misch, 2021 VT 10, __Vt. __, __ A.3d __. For the reasons set forth in that opinion, we answer the question reported in this case as follows: 13 V.S.A. § 4021 does not violate Chapter I, Article 16 of the Vermont Constitution.

Moore continued that the battle over the issue may get to federal courts.

“When the SCOTUS [Supreme Court of the United States] inevitably rules this is not a second-class constitutional right as some state courts have done, we will have the respect for these rights envisioned by the Founders and enshrined in the Bill of Rights. Remember, these 10 amendments were a condition demanded by our first patriots for their support of the new Constitution. They understood, even if Vermont’s best lawyers in black robes do not.”

He brought up a 2010 ruling from outside Vermont as an example of judges getting it right.

“The McDonald v. Chicago case incorporates the Second Amendment as an individual right subject to the Equal Protection Clause of the 14th Amendment as against state infringement,” he stated.

According to a summary at Britannica.com, the Second Amendment that established “the right of the people to keep and bear arms,” applies to both state and local governments.

Chris Bradley, president of the Vermont Federation of Sportsmen’s Club, told True North by phone Friday that plaintiffs in the ongoing civil case are taking legal advice before issuing an official response.

“The fed will have to review the written opinion to decide our course of action,” he said during the call. ” … There are two cases, one of them is still undecided.”

Eric Davis, president of Gun Owners of Vermont, refused to comment, but said his organization would issue a response soon.

The Vermont Supreme Court decision is counter to a 9th U.S. Circuit Court of Appeals ruling in 2020, in which a three-judge panel ruled California’s limits on magazine capacity violate the U.S. Constitution. In that case, appellate Judge Kenneth Lee wrote that a limit on magazine sizes “strikes at the core of the Second Amendment” and the right to personal defense.

Michael Bielawski is a reporter for True North. Send him news tips at bielawski82@yahoo.com and follow him on Twitter @TrueNorthMikeB.

Images courtesy of Wikimedia Commons/todos and Bruce Parker/TNR

15 thoughts on “Gun rights leaders respond to state Supreme Court magazine ruling, say federal courts may offer relief

  1. So it appears the court ruled on Article 16 of the Vermont constitution but ignored the federal constitution’s 2nd Amendment. How does that work in lawyer land? I had high expectations but knew in the back of my mind that the liberal court would rule for the liberal Gov and legislature. This is how they play the game. It takes time and money to get the supreme court to review the messes the lower courts make. Given the current election mess and the denial of the supreme court to intervene, we have the makings of a police state. When the courts refuse to honor their oaths to defend the constitution, where do the citizens turn for the defense of our rights not privileges. The constitution grants our rights, not the government and the courts are supposed to defend them under the pains and penalties of perjury.

    It appears that citizens of Vermont have no protections from unruly legislators who also take oaths to defend our rights as written long ago by much wiser men. Since these rulers can’t legislate an evil mind, they choose an object to vilify. Murder is illegal by whatever means used, be it knife, fire, bomb automobile or any number of other implements or objects. All of these other murderous things are still available but that’s not the point. Banning any of them does not address the mind that uses them to commit mayhem. And most of them are not going to be regulated or banned. There are millions upon millions of firearms and magazines in our country. What has been accomplished with this law? Absolutely nothing. The legislature and the governor acted in haste for the feel good moment. Of course there’s more coming from the progressive incremental legislative death by a thousand laws plan.

    After many decades of watching this state go to hell, I’ve about had enough. My choice is to stay here and bow down and lose my rights or cross the River and join the conservatives in NH. If I move, it’s because I’m being driven out by the craziness and lack of quality leadership by a government that’s no longer Of the people, by the people or for the people. We have a government of an ideology and it is wrong on all accounts. The constitution is just a piece of old paper to these people and their oaths are worthless.

  2. ………” all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    “One cannot have a right to life if one cannot defend it using the same tools at least as powerful as those who would take it from you”* This includes any rogue organized groups, the government whether State or Federal who violate our civil liberties.

    * Karl Denninger

  3. From the NRA-ILA dated 2/23: Vermont: “Public Hearing” on Gun Bill Tomorrow This has to be the NY professor’s bill. He’s the one that’s intimated when walking by people in DANGEROUS hunting garb.
    Copied:
    The Statehouse in Montpelier remains shuddered under the continued protocols of COVID, however the business of the Legislature forges ahead on the Internet tomorrow morning. On Wednesday at 9:00 a.m., the Senate Judiciary Committee will hold a “public hearing” on Zoom/YouTube. In a normal year, an entire cadre of orange-clad Second Amendment supporters would have ventured to Montpelier to testify against the latest iteration of gun control. This year, in lieu of an in-person hearing in the House chambers, various groups and their representatives will present their cases to lawmakers on the panel electronically.

    S.30 is not only unnecessary, but it will create more problems than it will solve. Under the legislation, there is no consideration of criminal intent. Anyone who unknowingly has a firearm in one of these “gun free zones” would face criminal prosecution. For example, the hunter who goes out hunting before work, locks his shotgun in the trunk and parks in the wrong place could now be prosecuted. What about the person who rushes mom or dad to the hospital for emergency treatment and has a firearm either on their person or in the car? And, if you are using a neighbor for day care in their private home, you may have now run afoul of the law. There are many different scenarios where law-abiding gun owners could be ensnared by this bill. It does nothing to enhance public safety. The bill’s lack of a requirement to prove criminal intent is dangerous to those who routinely exercise their constitutional rights.

  4. Amazing that in VT, you can’t remove the governor. He has dictatorial powers unlike many states. Power crazed. The best thing to do is ignore him, not enough jail space to accomplish his goals.

    I have had a lawsuit heard in the Supreme Court, a complete waste. Cost $250 and only allowed 5 mins to be heard. If they question anything that counts against your time. My lawyer had only about 2.5 mins to argue, they asked many Q’s. Apparently when you file papers, they read them and make a ruling before the hearing. Usually it takes a month or more for a judgement, I heard back in two weeks. It was a land dispute. Previous Superior Court decision was frustrating when I had all the evidence on my side. That also cost $$$, not including the attorney cost. He was lousy, how do you know, they are spin artists.

    Those “Justices” are only lawyers in a black robe. Experiences by many people know first hand how bad many lawyers are. Those selected to the SC are no different. If they can’t make a living being honest and not ambulance chasers and not elected to Congress to make a living somewhere there are honest lawyers that could sit on a bench. Hard to have respect.

    Many of them in VT are Liberal. They don’t respect the Constitutions, established law, or past judgements are derelict of duty and fairness. The scales of the blindfolded justice is heavily tilted to the left and vertically downward.

    Something to think about if anyone has to waste 5 mins and $250 (court cost alone)

    • in vermont we other powers that other stated do not
      we have the power to instruct our officials an common meaning say they have to obey uless low or necessity prohibits it. and they have a law thats says if they do not do thier duty its a crime. but they courts are are crooked and all rigged. every aspect of trying to bring a official to justice is rigged the supreme court is rigged.. the entire system is a wash and they do as they please. i know this because i was arrested for asking to see a warrent. and got railroaded by my own lawyer judge and everyone along the line

  5. Unconstitutional laws like this one tend to be ignored by educated folks when all the standard-capacity (30rd) magazines one might like to purchase to defend one’s family are in stock across the border in NH.

    • 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 U.S. 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 it’s 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.
      “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

      Supreme courts of the states and U S should give serious consideration to Patrick Henrys words as they have proven their first duty is not to the Constitutions as written.

      Patrick Henry wrote in Constitutions, Governments, and Charters: “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.”

      “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”

  6. So the Commiecrat “Men In Black” of the Vermont Supreme Court decides that the unconstitutional magazine ban doesn’t violate the Vermont Constitution. Then that means the Vermont Constitution is unconstitutional because it would allow an infringement of the United States Constitution by allowing it to violate the 2nd Amendment, which violates the Supremacy Clause. ( Deceive, Inveigle, Obfuscate ) Their decision violates the Supreme Court decision 2010 McDonald v Chicago which said we are allowed the same weapons in common use by the National Guard, which is comprised of citizen soldiers. The National Guard’s rifle of issue is the M4/M4A1 Carbine with 30 round magazines.

    McDonald v Chicago 2010 is a landmark Supreme Court case that is important to understand. In its most basic form, the decision dismisses the proposition that a State (e.g., NY, IL, CT) or lower government (e.g., Chicago) can supersede or ignore the rights guaranteed in the Constitution, specifically the Second Amendment.

    “None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.”

    This ruling clarifies the principle that Americans can keep and bear arms that are equivalent to those in common use by the National Guard, which the court considers an example of a “well regulated militia.” We have a RIGHT to the SAME arms and accessories issued to the National Guard that they use in defense of the United States.

    Now what they really did is create a “Black Market”. They have absolutely no way of stopping people from going to other states to buy magazines or have friends and relatives send them or bring them into the state. Why pass a law you can’t enforce ? If they could the state would be free of illegal drugs. What they are trying is to do is slowly create a police state, because law enforcement and the military are exempt from the ban.

    So what’s next ? If they can tell us what guns we can own, how about what bullets we can own and how many we can buy at one time. No more online buying of ammo. No more bulk buying. How about issuing you a permit to buy ammo or registering how many rounds of what you bought, where you bought them and where you are storing them. They have already did this in Connecticut. And to all of you hunters and sportsmen out there don’t worry they don’t want your hunting rifle. Not until the rename it a “Sniper Rifle”.

    This is nothing more than seeing how far they can push their agenda. I urge everyone to engage in civil disobedience and do not follow unconstitutional laws. When Obiden sends me my stimulus check I know how I’m going to spend it.

    Ayn Rand got it right. “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for me to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed or enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.”

  7. “…the magazine ban is a reasonable regulation of the right of the people to bear arms,”
    “…REASONABLE REGULATION OF THE RIGHT OF THE PEOPLE…?! Are you kidding me???
    The rights written into the Constitution were put there to define those areas of our lives where government has no authority to intervene. Apparently our governor and Vermont’s Supreme Court justices were absent from their civics class when that fact was presented. Rights are not granted, or regulated by governments in a Democratic Republic. It’s time for our legislators and Supreme Court justices to get de-programmed and re-learn their limits and how America is supposed to work.

  8. If we’ve learned anything in the past few years it’s that laws are now optional. From illegal aliens getting everything paid for (by you and me), driver privilege cards, etc to Sarah George and TJ’s catch and release program for violent offenders, drug dealers, etc, etc…. We used to say that only good citizens would obey the law and criminals would not. As they continue to strip our Constitutional rights I’m pretty sure that good citizens are going to ignore laws like these to ensure the safety of their families. Guaranteed Max Misch isn’t the only person who’s been to NH to bolster their defense.

  9. Knowing that Governor Phil Scott was a turncoat I’d like to know who the heck voted for him in the last election.

    Is anyone really foolish enough to expect good results from someone of his caliber?

    I’m wondering when vermonters are finally going to wake up and take a stand against people with no backbone.

    • I voted for the Rino the first time for Governor, after seeing what he did I have refused to vote for that MFAH !!! The only reason he gets voted in is that the left votes for him as they know they can control his puppet strings. He’s was for Obumass and Killary, and the pedophile biden.. That should show everyone what kind of governor he is.. all about control. He and the Vermont swamp democrats want to keep Vermonters under their control, If you all have been paying real attention to what is going on with the money from the Federal government you should have seen the money has been helping just certain small businesses. and pet projects of the swamp in the legislation.
      Cities and towns that are run by democrats are changing Vt into the states that these fools came from.. They want the money in their pockets
      Vermonters need to start TAKING BACK VERMONT and come together and get these swamp bottom-dwellers out of office. Rino Scott needs to put a (D) after his name. he said “I have always been a Republican and the people needs to deal with it, I will not step down or change what I have done.” He is a democrat true as hell. He needs to GO.. sent down the road with his tail between his legs..

      • Rino Scott needs (CS) after his name, he’s part of the Communist swamp in Montpelier.
        That would correctly identify the D’s, I’s, P’s, and Rino’s, the letter confusion might stop as to the hell who they are. Four identifiers for Socialists, one identifier for Reps (R), no guessing.

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