MONTPELIER, Vt. — The Vermont Attorney General’s office is asking the Vermont Supreme Court to uphold a large-capacity magazine ban, created in part as a response to what the state described as a “narrowly averted school shooting in Fair Haven.”
A 200-plus-page brief, filed by Solicitor General Benjamin Battles, of the state attorney general’s office, argues the “state has a compelling interest in reducing the likelihood and harm of a mass shooting, restricting magazine capacity is reasonably related to that interest and any burden on the right to bear arms in self-defense is, at most, minimal.”
In February, Max B. Misch, 36, of Bennington, was charged with two misdemeanor counts of possession of large-capacity magazines.
Vermont Attorney General T.J. Donovan said at the time he believed it was the first time the law had been used in a criminal case.
Misch attracted attention previously for his harassment of Kiah Morris, of Bennington, the second African-American woman elected to the Vermont House of Representatives, causing her not to seek re-election.
Misch has spoken several times with the media about the campaign of harassment and intimidation against Morris. He described himself as a “troll” and said it had been “fun.”
Misch appeared at a Bennington press conference at which Donovan announced he could not file charges against Misch because Misch’s online comments were protected free speech.
Misch was arrested after a woman reported he had bought two 30-round magazines in Hinsdale, New Hampshire, in December, after they had become illegal in Vermont. If convicted of the two misdemeanor charges, he could be sentenced to up to two years in jail.
Bennington County Public Defender Frederick Bragdon challenged the charges to the Bennington County criminal court, arguing that the gun laws violated the Vermont Constitution’s right to bear arms and the common benefits clause. But in June, Judge William Cohen rejected both of those arguments.
But recognizing the importance of the issues involved and wanting the Vermont Supreme Court to resolve the Constitutional question, the state agreed to certify the question, which Battles said gave the attorney general’s officer the right to file the first brief.
In addition to the brief from the attorney general’s office, supporting briefs were filed by more than 15 states, including California, New York, New Hampshire and Connecticut, and the District of Columbia; the Giffords Law Center; and Everytown for Gun Safety.
In an email, Rebecca Kelley, communications director for the governor, said Gov. Phil Scott still believed in the legislation he signed into law in 2018.
“As the governor said when he signed these bills on the steps of the state house: If he thought they violated Vermonters’ constitutional rights, he wouldn’t have signed them. We expect the courts to continue to agree that this law is constitutional,” Kelley said.
Battles said he expected it would take some time for the office of the Vermont Defender General, which is now handling Misch’s case, to respond. He said he expected the case wouldn’t be heard by the Vermont Supreme Court until next year.
The decision will be a test for laws passed in response to what happened in Fair Haven in February 2018.
“I think that brought home for a lot of folks here that we’re not immune from the threat of gun violence, and the Legislature and the governor responded,” Battles said.
Police believe Jack Sawyer was planning a school shooting at Fair Haven Union High School in February 2018. Sawyer, who was 18 at the time, was arrested without incident. Police learned after his arrest that Sawyer recently purchased a Maverick model 88 12-gauge shotgun with 20 buckshot shells, and that he kept a diary, on the cover of which was written, “Journal of an Active Shooter.”
“I’ve remembered why I almost shot up my old school in the first place and that’s because people (expletive) me off so much that I’ve developed a hatred to mostly every person I’ve ever met,” the journal read. “They’re all (expletive) idiots and deserve to be shot. Moral of the story: don’t (expletive) me the (expletive) off.”
In February 2018, Sawyer, who was living in Poultney at the time of the alleged incident, was charged with four felonies — two counts of aggravated attempted murder, one count of first-degree attempted murder and one count of aggravated assault with a weapon. The felonies were eventually dismissed and reduced to two misdemeanor charges. Sawyer was charged as a youthful offender and the case was moved to family court.
In response to the incident, Gov. Phil Scott signaled his interest in changes to Vermont’s gun legislation. Changes included bans on large-capacity magazines, the sale of guns to people younger than 21 and bump stocks.
Vermont Defender General Matthew Valerio did not immediately respond to a call on Tuesday requesting comment.