A Second Amendment Challenge in the Green Mountain State

In early 2018, Vermont’s governor signed into law Act 94, which placed numerous restrictions on Vermonters’ ability to acquire and own firearms. One of these restrictions is a ban on “large‐​capacity magazines” (LCMs), which the statute defines as magazines capable of holding more than ten rounds of ammunition for a long gun or more than fifteen rounds for a handgun. Max Misch, a Vermont resident who traveled to New Hampshire to buy two 30‐​round rifle magazines and brought them back to Vermont, was charged with violating the LCM ban.

Misch moved to dismiss the charges, arguing that the ban violates the Vermont Constitution, which declares that “the people have a right to bear arms for the defence of themselves and the State.” The trial court denied his motion, despite recognizing the “long history” of the right to bear arms in Vermont. Although the court acknowledged that the LCM ban imposed a burden on a constitutional right, it determined that the burden was minimal and reasonable.

The question of the LCM ban’s constitutionality has now been taken up by the Vermont Supreme Court. Cato, together with the Independence Institute and four firearms‐​policy organizations has filed a brief supporting Mr. Misch.

We argue that Vermont’s magazine ban is irreconcilable with the social and political setting in which the state’s constitution originated and is therefore unconstitutional. We trace the lengthy history of repeating firearms with magazines exceeding the size allowed under the LCM ban. Guns with magazine sizes banned by the new law have existed and enjoyed enduring popularity for the entire history of Vermont. By contrast, restrictions on magazine size have been a rarity throughout American history.

Vermont ratified its first constitution—which contained the current arms provision—in 1777, against a background of British‐​imposed arms controls. After the Founders’ experience with those restrictions, they hardly intended that their government would have the power to outlaw some of the most common firearms components in the nation. Ethan and Ira Allen, Vermont’s founders, were particularly strong advocates of the right to bear arms. In 1796, Ira successfully defended himself against British seizure of 20,000 arms that he was transporting from France, explaining how in Vermont, citizens were free to “turn their gardens into parks of artillery, and their houses into arsenals, without danger to Government.”

The right to bear arms that Vermont’s founding generation fought and died for is as relevant today as it has been throughout the state’s history. We urge the Vermont Supreme Court to make clear that the state’s constitutional protection of its citizens’ right to bear arms in self‐​defense has not become a dead letter, and to hold the LCM ban unconstitutional.