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In April 2018, Vermont banned magazines capable of holding more than 10 or 15 rounds in a rifle or handgun, respectively.[1] It exempted magazines possessed prior to April 11, 2018.[2] The ban was a response to a possible shooting threat to a school in Fair Haven, Vermont.[3] Defendant Misch allegedly purchased two thirty-round magazines in neighboring New Hampshire and was charged with violating the ban.[4] Mr. Misch challenged the law on multiple grounds,[5] including that it violated Article 16 of the Vermont constitution, which reads in its entirety:

That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.[6]

Prompted by an amicus brief, the court first examined whether Article 16’s text and historical context protected the right to bear arms “outside of the context of actual or potential militia service.”[7] Beginning with the historical context surrounding the state’s Declaration of Rights, it noted the great concern with maintaining state, rather than federal, control of the militia, especially under the shadow of a federal standing army.[8]

The court next looked at the meaning of “bear arms for the defense of . . . the State,” opting to examine the import of “themselves” separately.[9] It first examined corpus linguistics studies showing that “bear arms” was typically, but not ubiquitously, used in a military context at the time of the state constitution’s framing.[10] It then looked at the use of the phrase “bearing arms” in another provision of the Vermont constitution, which it found relates exclusively to military service.[11]

The court concluded that, “[o]n this view, the right to bear arms, while an individual right, was an individual right in service of a collective responsibility.”[12] It added that “Although the National Guard is the closest living descendant of the colonial-era militias, it is a distant cousin at best because the federal government controls its weapons and supplies.”[13] Because the militia as envisioned by the state’s founders “no longer exists,” “the right to 'bear arms for the defense . . . of the State' is essentially obsolete. The predicate no longer exists in any meaningful way.”[14]

Returning to the “for defense of themselves” language, the court compared the Vermont constitution’s use of “people” with its use of “person[s]” to conclude that the document usually (but not always) “refers to ‘the people’ when recognizing rights associated with the body politic, to be exercised collectively.”[15]

The court added that, although the Vermont right to bear arms “was likely designed to protect the right of the people to bear arms for the purpose of constituting and serving in the state militia,” it added that “this interpretation does not foreclose the possibility that the provision can and should be understood to protect the right of individuals to own firearms for individual self-defense, independent of service in a state militia.”[16] With that caution set forth, the court shifted to examining both precedent from Vermont and other states, and the history of firearms regulation in Vermont.

Relying on Vermont case law, including the famous State v. Rosenthal,[17] which struck a local licensing requirement for public carry, the justices concluded that (1) “By citing Article 16 [in Rosenthal] in support of our conclusion that carrying firearms is generally permitted under Vermont law, and stating that an ordinance restricting the individual use of firearms is ‘repugnant to the Constitution,’ we suggested that the right to bear arms applied without regard to a connection to state militia service”; (2) “the right to bear arms may be validly restricted by the Legislature,” and (3) “restrictions on the right to bear arms, like most statutes, are presumed to be reasonable and valid.”[18]

Surveying case law from other states, the court concluded that courts in those states have consistently construed their states’ arms-bearing provisions “to protect an individual right to bear arms for self-defense.”[19] The court similarly noted that state courts have interpreted their constitutional arms-bearing provisions lacking a reference to the people “themselves” as protecting an individual right.[20] It added that many state constitutions clearly describe an individual right to bear arms for self-defense.[21]

In the final step of analyzing whether Article 16 protects an individual right to possess and use a firearm for self-defense, the justices noted that although, “[r]elative to many other states, Vermont’s historical regulation of firearms has been less extensive,” various gun-safety regulations throughout the state’s history indicate that the right is subject to reasonable regulation.[22]

The Vermont Supreme Court concluded that “Whereas we have previously relied on stated or unstated assumptions that the individual right to bear arms in self-defense exists but is not unlimited, we now expressly hold as much.”[23] It stated that “this interpretation is the best available way to harmonize and honor the core principles of security and self-protection implicit in the right, the individual right to carry guns as implicitly recognized in our case law, and modern persuasive analysis from sister states.”[24]

Proceeding to determine the test to be used in evaluating Article 16 challenges, the court opted for the reasonable-regulation test adopted by Vermont’s and most other states’ courts, instead of the Two-Part Test employed by most federal courts.[25] Under the reasonable-regulation standard, courts analyze whether the state reasonably exercises its police power in regulating the constitutionally protected conduct.[26] This balancing test “is distinct from rational-basis review because it “‘demands not just a conceivable legitimate purpose but an actual one.’”[27] The court opined that this test was appropriate given the risks associated with firearm use.[28]

Citing several studies arguing that the use of the banned magazines in mass shootings causes more injury, the court concluded that “it is reasonable to conclude that the limit on large-capacity magazines will have an appreciable impact in reducing the injuries and fatalities in the event of mass-shooting events.”[29] Acknowledging that it did not cite “thoughtful analyses and arguments of those opposed to the legislation,” and noting that the Vermont Legislature made no formal findings on the matter, the court stated that it listed only studies supporting the Legislature’s position to show that the legislation was reasonable.[30] The court concluded its reasonableness analysis by determining that the law’s burden on the right to bear arms was minimal because, among other reasons, few shots are fired in defensive encounters, and the banned magazines are rarely used in such situations.[31]

The Vermont Supreme Court thus upheld the ban on magazines capable of holding more than 10 or 15 rounds in a rifle or handgun.[32]

[1] State of Vermont v. Misch, 2021 Vt. 10 ¶¶ 68-69.

[2] Id. ¶ 68.

[3] Id. ¶ 69.

[4] Id. ¶ 2.

[5] The court did not address Mr. Misch’s other claims on the ground that they were not properly preserved. Misch, 2021 Vt. 10 ¶ 7 n.5.

[6] Vt. Const. ch. 1, art. 16 (Chapter 1 is A Declaration of the Rights of the Inhabitants of the State of Vermont.”)

[7] Misch, 2021 Vt. 10 ¶¶ 10, 43 n.15.

[8] Id. ¶¶ 13-14.

[9] Id. ¶¶ 15, 24. Although Article 16, as originally drafted, used “defence,” the court adopted the more modern “defense” spelling throughout its opinion.

[10] Id. ¶ 17.

[11] Id. ¶ 18.

[12] Id. ¶ 19.

[13] Id. ¶ 22.

[14] Id. ¶ 22-23. The court quotes a law review article for the proposition that the militia no longer exists. Although that article discusses the federal Second Amendment, the court presumably applied this reasoning to the “Vermont militia” to which its discussion was referring. Id. ¶ 22.

[15] Id. ¶¶ 26-27.

[16] Id. ¶ 31.

[17] 55 A. 610 (1903).

[18] Id. ¶¶ 35, 36, 38.

[19] Id. ¶¶ 40-41.

[20] Id. ¶ 42.

[21] Id. ¶ 42 n.14.

[22] Id. ¶¶ 44-45.

[23] Id. ¶ 48.

[24] Id.

[25] Id. ¶¶ 51-56, ¶ 53 n.18.

[26] Id. ¶ 57. By contrast, “the Two-Part Test (also called the Two-Step Test) uses the familiar standards of strict scrutiny, intermediate scrutiny, and rational basis, depending on the circumstances.” Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy 906 (2d ed. 2017). Further:

Part One of the Two-Part Test asks “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. . . . If it does not, [the court’s] inquiry is complete.” If the answer to Step One is “yes,” the court proceeds to Step Two to “evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.” The type of heightened scrutiny applied at Step Two depends on the severity of the burden on the Second Amendment right; the greater the burden, the greater the scrutiny.

Id. (citing United States v. Marzzarella, 614 F.3d 85, 89, 97 (3d Cir. 2010)) (internal citations omitted).

[27] Id. ¶¶ 57 (quoting Rocky Mountain Gun Owners, 2020 CO 66, ¶ 56), 66.

[28] Id. ¶ 61.

[29] Id. ¶¶ 71-79. Misch is unusual in that its initially published version contained five statements suggesting that the legislature considered empirical data in passing the ban at issue. The Vermont Supreme Court withdrew that version and reissued the opinion without that language. The original version, with both the removed language marked and replacement language noted, is available at Misch Revisions, Firearms Regulation,

[30] Id. ¶ 79.

[31] Id. ¶¶ 82, 84. The court referred to the “Legislature’s conclusion” that the law is not a significant burden on the right to bear arms for self-defense. Id. ¶ 82. Misch does not cite legislative material or other authority in support of this conclusion. It could not have done so, given the absence of legislative findings. Id. ¶¶ 71, 8p; see supra note 29.

[32] Id. ¶ 89.