News Analysis

Davis: What SCOTUS decision means to Vermont gun laws

By Eric Davis

Unless you’ve been living under a rock for the last week or so, you’ve probably heard that the United States Supreme Court recently struck down a long-standing requirement by the state of New York that concealed permit applicants must show a legitimate need to obtain permission to carry a firearm in public. To those of you wondering about the possible implications of the NYSRPA v. Bruen decision as it relates to the mag ban in VT, we’ll do our best to break it down for you.

The decision as it stands, combined with the fact that the Supreme Court has also remanded two separate cases re. magazine capacity limits back to the 3rd and 9th circuit court of appeals to be reheard under the context of Bruen, has huge implications for states like Vermont suffering under similar draconian gun laws – obviously.

You might remember that Vermont’s ban on standard capacity magazines was unanimously upheld by the Vermont Supreme Court in June of 2020 in State of VT v. Max Misch. In that ruling, the court applied “interest balancing tests” in which weigh a person’s constitutional right to keep and bear arms against the government’s duty to protect public safety – the same metric that SCOTUS has ordered the lower courts to throw out when re-evaluating these cases. 

Good news, right? That means we can get the mag ban thrown out now, right? Well, sort of.

There are a few things we need to consider about the Misch decision before we go any further.  There were two separate cases up for consideration before SCOVT re. the mag ban. The first was a civil suit filed by The Vermont Federation of Sportsmen’s Clubs with the backing of the NRA and other local advocacy groups. The second was the criminal suit in State of VT v. Max Misch in which the state sought to prosecute Misch for violating new law prohibiting magazines over 10 rounds from being brought into the state. In both cases, the pro-gun argument was made from the standpoint that the State of Vermont had violated the people’s ARTICLE 16 right to keep and bear arms under the VERMONT Constitution.

When the court ultimately ruled against Misch – like everyone knew they would, because there was no way a liberal court in deep blue Vermont would rule in favor of the gun rights of an admitted white nationalist – it simultaneously rendered moot the civil case brought by the Federation.

This effectively gutted Article 16 which everyone agreed had STRONGER wording than the Second Amendment (hence the decision at the time to challenge the law on those grounds). Since Article 16 is a state law and not a federal one, it means that this specific case cannot be appealed to a higher court. It means that any further litigation must occur under a different lawsuit. It also means that the text and history test adopted in Bruen might possibly be moot as it relates to Article 16.

Regarding filing a challenge in the post-Bruen world, there are quite a few things to consider about this particular course of action.

To begin with, it would be highly irresponsible for GoVT to go off half-cocked (pardon the bad pun) and immediately file a lawsuit on the matter less than one week after the Bruen ruling, before the dust has had a chance to settle, before either case remanded to the lower courts has had a chance to be heard and the full implications of Bruen have been realized. Let’s take it one step at a time.

Given the time and financial commitment involved in mounting a court challenge, it would help to first: have a favorable ruling on magazine limits from another court and, second: the monetary means to litigate the case properly (as it deserves) in the Vermont court. So, if you want to see change in the short term, here is what you can do.

  1. Become a paid member of GoVT. Just like every other volunteer organization, the majority of tasks here are handled by a small (and I mean really small) handful of people. I would love nothing more than to have a team of lawyers and lobbyists whose only job is to hang out in Montpelier and be a royal pain-in-the-butt to the hoplophobes and victim disarmament crowd, but it takes cash. To help, you must put down the keyboard and open your wallet. Sorry, not sorry.
  1. Get involved in your local politics. The gun grabbers win if we succumb to apathy while they organize. Run for office. Volunteer to wave signs or knock on doors for a pro-gun candidate in your area. Attend a legislative mixer. Attend a school board meeting. Attend a GOTV meeting. Anything. Policy is not created, and legal battles are not won on Facebook.
  1. Stop sewing hate and discontent among your fellow citizens – especially those who share your concern about the constant erosion of civil rights in this country. Social media can be a great tool for communication, but it also has a funny way of turning reasonable people into seething, keyboard-cannibals. Instead of bludgeoning each other over the small percentage of issues on which we disagree, try focusing on positive solutions to affect those issues that we all agree need attention. Stay on point, be courteous and respectful, and if something isn’t going the way you like with this organization (or anything else for that matter), get involved, volunteer your time and money, and change it.
  1. VOTE. Stop with the excuses. Stop with the blathering on about how “it’s rigged!” and “my vote doesn’t count!” and all that other garbage. Even if there is some truth to your argument, the fact that you can’t be bothered to stop for ten minutes and put a dang check mark on a piece of paper every two years is exactly what the anti-gunners want. 

We can cite multiple examples of pro-gun candidates losing elections at the state level by less than 20 votes. The quickest way to overturn bad policy is to elect people who are willing to do so.

Get in the fight!

And you can join GoVT for a whopping $20 per year.

The author is president of Gun Owners of Vermont. 

Categories: News Analysis

10 replies »

  1. I couldn’t agree more. Social media divides and pacifies. It’s time to get directly involved in the political process. We have a government of the people, by the people, and for the people. I’m a Vermonter and a Constitutionalist. I support our US 2nd Amendment and VT 16th. Support me in my campaign to bring a level playing field to the House in Montpelier.
    Rob North for a Balanced Vermont, Addison-3

  2. Of course, Article 16 wouldn’t be upheld by liberal activist judges in Vermont. They have probably been appointed by liberals like our current governor. Aside from that, VT SC court struck down Article 16 by using the safe community standard that federal constitutional laws are determined by. Vermont’s Article 16 is plainly written but the court used the federal 2 step rule to claim the mag ban to be constitutional. The second step is the historical bases related to the 2nd amendment’s history. Since there’s very little history of mag bans there’s no credible means to show any reason for the ban. Now that the community safety standard is no longer valid, it can’t be used by a Vermont court either. Then there’s the matter of the US Constitution that supersedes state law. In that matter, it’s the 2nd Amendment in the Bill of Rights, not the bill of privileges granted by government overlords.

    So, while article 16 isn’t supposedly valid according to the VT SC the 2nd Amendment is. I agree that waiting for the other courts is advisable. But since the VT court used the invalidated Community Safety Standard. the court cannot use it again in a future lawsuit. The Heller decision also ruled that items in common use were constitutional and that magazines are an integral part of a firearm. The large capacity name that the anti-gunners use is a misnomer. The magazines are standard size magazines and are part of the firearm when shipped to dealers.

    After, the remanded court cases are settled and when standard magazines bans thrown out as unconstitutional, the Vermont ban should automatically be moot as it will then violate the 2nd Amendment and The Bill of Rights.

  3. If it’s unconstitutional it’s already a moot point. We do not have to follow unconstitutional laws. Citizens of the United States should disobey or circumvent these laws whenever possible. The Supreme Court has already decided in 1886 that any law which is unconstitutional on its face is null and void as though it was never passed. It carries no weight of law.

    Unconstitutional Official Acts
    16 Am Jur 2d, Sec 177 late 2d, Sec 256:
    The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The US. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
    The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.… A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it. The Supreme Court’s decision is as follows; “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it in legal contemplation, as inoperative as though it has never been passed”. Norton vs Shelby County 1886 – 118 US 425 p.442.

    Alexander Hamilton explains unconstitutional law in Federalist No.76; “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; the servant is above his master; that the representatives of the people are superior to the people themselves; those men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid”.

    “Defiance is the American answer to overbearing authority”. – Ayn Rand

  4. Two Supreme Court decisions, Heller vs the District of Columbia 2008 and McDonald vs Chicago 2010. Both decisions affirm that the people’s right to keep and bear arms is an individual right and that citizens are allowed firearms in common use, those small arms or those that operate like them and are issued to our National Guard which comprises of citizen soldiers.

  5. Anti 2A folks redefine standard capacity mags as “large capacity” the same way they define any semi-automatic long gun with a detachable magazine as an “assault rifle”. It is the SCOTUS who will ultimately define either of these as IN COMMON USE and having that status for over 100 years. An M-1 Garand issued to WWII infantry is functionally identical to a modern sporting rifle such as the AR-15 style. One looks more “menacing” perhaps, just as a 2022 Corvette looks more capable than a ’57 Chevy BelAire, but are basically functionally identical. Misch didn’t do the issue of magazine capacity any favors but we all know that case was brought specifically to tie a new gun restriction to someone that the handmaiden media consistently tied to “white supremacy”. It’s all part of the consistent left-wing narrative to stigmatize gun owners the same way they turned tobacco users into second-class citizens. Try as they might to discourtage gun ownership, their devaluing of police and the justice system is sending a lot of people to the gun shops including many who have never before sought to bear arms.

    • I ask all to read Negros with Guns. By Robert F Williams. This is the an example of mind of the Democrats and Progressives, even today. They want to restrict guns for mostly Black men and women to be sure we are still under thumb and in fact “know our place”. Well my place is behind the sites of my various weapons to protect me and mine. I do not live in a “They Live ” society that is ignorant to the machinations of the left and the traitors from the right mostly I see how they are changing this world to ” Idiocracy”. Guess that makes me a “fag.” If you are offended see the movies.

  6. Does anybody really think that a citizen of Vermont that owns an AR15 can’t get 30 round magazines if he really wants them? C’mon Man!

    • As long as they dont have a date stamped on them and you are not stupid enough to use a credit card or a check in New Hampshire to purchase one, there is no way of determining if you purchased one pre-ban. It was a feel-good law from the get go…right Phil Baruth?

  7. Rebecca Balint has been running full time u tube ads on how she passed gun bills in vermont as she runs for congress. VERMONTERS BEWARE of this liberal progressive she’d be worse than Leahy

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