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Judge rejects challenge to magazine ban



VtDigger
Monday, July 01, 2019

BENNINGTON, Vt. — A Vermont judge has denied a bid by Max Misch, a self-professed white nationalist online troll, to throw out charges that he illegally possessed high-capacity magazine.

Judge William Cohen issued the ruling Friday. The decision followed a May hearing in Bennington County Superior Court where Misch’s attorney challenged the constitutionality of the magazine ban that went into effect in Vermont on Oct. 1, 2018.

Misch is believed to be the first person charged under a provision of a gun control law, Act 94, that passed the Legislature and was signed by Gov. Phi Scott in April 2018.

Cohen’s seven-page decision means Misch still faces two misdemeanor counts of possessing magazines over the size limits set in the new law.

“Over 240 years ago, the people of Vermont inscribed on their basic law their right to bear arms and their commensurate right to circumscribe that right through reasonable legislation,” the judge wrote.

“Those freedom-loving people recognized the need to cede a measure of freedom in exchange for the benefits conferred by association and community,” Cohen wrote, adding, “This balance is consistent with the State’s basic law and will not today be disturbed.”

Misch’s attorneys challenged the constitutionality of the magazine limits as enacted into law. That provision is also being challenged in a state civil court lawsuit pending in Washington County brought by gun rights supporters.

Prosecutors argued the new law is constitutional and said it didn’t prevent someone from using a firearm in self-defense. The measure just set limits on the permissible magazine size, they said.

The magazine charges were brought about a month after Vermont Attorney General TJ Donovan announced at a press conference in Bennington that he wouldn’t be bringing any charges against Misch, or anyone else, for racist harassment against former Vermont state representative Kiah Morris, D-Bennington.

Misch’s attorneys have alleged that the magazine charges were a political move in response to the backlash against Donovan for his decision not to bring harassment charges. Donovan has denied that.

According to court filings, the therapist for Misch’s ex-wife went to authorities after she had heard that he was purchasing high-capacity magazines and weapons.

Vermont State Police said they then went to the store where they believed those purchases were made, Runnings in Hinsdale, N.H., and viewed receipts and security footage that showed Misch and his ex-wife shopping there on Dec. 1.

The purchases included two 30-round magazines, according to court filings.

Vermont’s new gun law set limits for magazine sizes of 15 rounds for handguns and 10 rounds for long guns.

The measure also contained a “grandfather” clause that exempts from the law magazines purchased before the provision.