New Gun Rights Decision: State of Vermont v. Misch

On February 19, the Vermont Supreme Court upheld a state ban on common firearm magazines enacted in 2018 purportedly to stem the problem of school shootings. There has never been a school shooting in Vermont. Indeed, the state has the lowest murder rate in the nation—so close to zero that the CDC does not even calculate it.[1] But in 2018, it was widely reported in the media that the police had supposedly thwarted a high school student in Fair Haven, Vermont, from committing a mass shooting. While no shooting occurred—and indeed, the Vermont Supreme Court later threw out the effort to prosecute the student for attempted murder[2]—pro-gun-control forces in Vermont successfully used the event as a catalyst for enacting a statewide ban on possessing ammunition magazines that hold more than 10 or 15 rounds (for rifles and handguns, respectively), violation of which is punishable by incarceration for up to one year.

Max Misch was charged with violating the new ban. He challenged the ban as unconstitutional under Article 16 of the Vermont Constitution, which provides that “the people have a right to bear arms for the defence of themselves and the State.”[3] The trial court upheld the ban, and the Vermont Supreme Court unanimously affirmed.

Misch, a professed white nationalist who was the first person arrested under the ban,[4] was defended by the Office of the Defender General, which represents needy persons. Pending at the same time was a civil challenge to the ban which brought before the courts well-researched legal authorities, historical material, and criminological studies. The Supreme Court chose to decide the issue based on the sparse record in Misch, disregarding the well-developed record in the civil case, which it summarily dismissed.[5]

The court first asked “whether Article 16 protect[s] an individual’s right to possess guns for self-defense outside of the context of actual or potential state militia service.”[6] Remarkably, the court concluded that this question was not resolved by the plain text’s reference to bearing arms “for the defense of themselves” as well as “the State.”[7] Instead, based on its review of the “historical context” of Article 16, as well as recent “corpus linguistics” data that purportedly “revealed that ‘bear arms’ most often meant to serve in a military capacity,” the court concluded that the text of the provision was best read as “tied to the purpose of preserving a state militia force.”[8] While the court acknowledged that the specific reference to people using arms “for defense of themselves” created “the possibility” that the right extended to “individual self-defense,” it concluded that this phrase could also be read as referring to bearing arms “for the purpose of defending the collective body politic.”[9] The court did not explain why such a reading would not make the “defense of themselves” clause entirely duplicative of the “defense of . . . the State” clause, rendering it essentially meaningless.

Although the opinion includes a heading “Historical Context,”[10] it disregards the rich history of Vermont’s founders such as Ethan and Ira Allen, originally detailed by this author in a 1985 issue of the Vermont Law Review. The individual right to bear arms for self-defense, hunting, militia purposes, and resistance to tyranny was freely exercised by those who created the state of Vermont and adopted its Declaration of Rights.[11]

To exemplify what was commonplace at Vermont’s founding, the Allen brothers once lodged with a Quaker during a journey, and Ira recalled: “We took our pistols out of our holsters and carried them in with us. He looked at the pistols saying ‘What doth thee do with those things?’ He was answered ‘Nothing amongst our friends,’ but we were Green Mountain boys, and meant to protect our persons and property . . . .”[12] Ira Allen was instrumental in establishing Vermont as an independent state, including the adoption of its Declaration of Rights and Constitution.[13]

Nonetheless, the court did “conclude that Article 16 protects a right to possess firearms for self-defense.”[14] Rather than the constitutional text, it based this conclusion on: (1) two of the court’s precedents, which “assumed that Article 16 protects an individual right to bear arms,” and (2) “[c]ase law from our sister states”—in particular, the decisions by “[c]ourts in states with constitutional provisions substantially identical to Vermont’s in referencing a right of ‘the people’ to bear arms ‘for defense of themselves and the State,’” which “have consistently construed these provisions to protect an individual right to bear arms for self-defense.”[15]

The court then turned to “determining the standard for evaluating Article 16 challenges.”[16] Instead of the “two-step” standard applied by several federal appellate courts, the court adopted a “reasonable-regulation test, which is more deferential to the Legislature’s judgment and the police power of the state.”[17] Under that standard, the court starts by “presum[ing] the reasonableness and constitutionality” of the challenged restriction.[18] It then asks whether “there is a reasonable fit between the purpose and means of regulation.”[19] The court asserted that this test “is distinct from rational-basis review because it demands not just a conceivable legitimate purpose but an actual one,” and that a “[r]egulation of firearms is not reasonable if it renders Article 16 a nullity.”[20] But the inquiry “does not override our general deference to the Legislature on matters within its authority,” and it merely ensures that “the Legislature’s choices are anchored to a real, as opposed to hypothetical, foundation.”[21] However, the court failed to address whether the law may have had only a hypothetical foundation, given the lack of any school shootings in Vermont and the lack of a nexus between magazine capacity and school shootings in other states.

Finally, the court held that the state’s ban on 11- or 16-plus-round magazines “does not violate the right to bear arms” under this standard.[22] “There is no question,” the court noted, “that reducing the potential for injury and death in the event of a mass shooting is a proper Legislative purpose within the police power.”[23] Moreover, it thought that “[s]ubstantial available data supports the conclusion that bans on large-capacity magazines may be effective in reducing the fatalities and injuries in the event of a mass shooting.”[24] The court did not address the social science evidence showing that the effect of magazine bans like Vermont’s on mass shootings is inconclusive at best.[25] Nor did it explain how the challenged ban would plausibly reduce “the use of large-capacity magazines” by mass shooters,[26] given that the banned magazines remain freely available across the border in New Hampshire. Indeed, the court even declined to say for certain that it “credit[s] the . . . accounts, studies, and arguments” advanced in support of the ban.[27]

The implications of the Vermont Supreme Court’s decision are significant—both for Vermonters and for other Americans. The magazine ban at issue is the first major piece of gun-control legislation enacted in the state in modern times[28]—perhaps prefiguring a reversal of Vermont’s well-known status as a haven for law-abiding citizens who wish to exercise the right to possess and use firearms freely and responsibly.[29] The decision in Misch indicates that if gun-control activists can persuade the state government to enact further restrictions on the right to keep and bear arms, the state courts are unlikely to provide a meaningful check.

The decision in Misch may also have more national reverberations. Magazines that hold more than 10 rounds are common to the point of ubiquity in the United States—a fact that the Vermont Supreme Court acknowledged.[30] And recent events such as the coronavirus lockdowns and rioting in many urban centers have sparked a new appreciation among many Americans of the benefits of armed self-defense.[31] Yet there is clearly a political desire by some to restrict the use of these common magazines, as evidenced by President Biden’s proposal to enact a magazine ban similar to Vermont’s at the federal level.[32]

More generally, the decision may hint at the beginning of an assault on the U.S. Supreme Court’s 2008 decision in Heller v. District of Columbia[33] holding that the Second Amendment protects an individual right to keep and bear arms for self-defense. Misch signaled contempt for Heller’s reasoning—rejecting the U.S. Supreme Court’s conclusion that Vermont’s constitution “clearly adopted individual rights unconnected to militia service,”[34] and embracing the account of the history of the Second Amendment set forth by Justice Stevens’s dissenting opinion in Heller.[35] And the Vermont court’s reliance on corpus linguistics research to adopt an interpretation of “bear arms” as limited to “a collective or military sense”[36]— contrary to Heller’s core reasoning[37]—tracks an argument advanced by those who have called on the Supreme Court to reverse its decision in Heller.[38] Whether that effort gains any traction outside of Montpelier remains to be seen.