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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 magazines.

Judge William Cohen issued the ruling Friday, following a hearing in Bennington County Superior criminal court in late May where Misch’s attorneys challenged the constitutionality of the magazine ban that went into effect in Vermont on Oct. 1, 2018.

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

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

Each charge carries a possible maximum penalty of one year in jail and a $500 fine.

“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, then added, “This balance is consistent with the State’s basic law and will not today be disturbed.”

In addition to the criminal case involving Misch, the high-capacity magazine provision of the new law is also being challenged in a state civil court lawsuit pending in Washington County brought by gun rights supporters.

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Prosecutors in Misch’s case have disputed that new law was unconstitutional, contending that it didn’t prevent someone from using a firearm in self-defense, and just set limits on the permissible magazine size.

Rick Burgoon, an attorney representing Misch, declined comment Monday, saying it would be “premature” to comment until a decision is made whether to appeal the ruling.

Misch, in an email message late Monday afternoon, said he intends to appeal it.

Vermont Attorney General TJ Donovan, whose office is prosecuting the case, issued a statement Monday saying he was pleased with the court’s ruling.

“This was common sense legislation necessary for public safety,” he said in the statement.

While the civil lawsuit filed by gun rights supporters has attracted high-powered legal interest and backing of the NRA, Misch is represented in his criminal case by a public defender and Burgoon, who argued the motion to dismiss before the court in May.

Burgoon was described at that hearing as an “intern,” an attorney licensed in California who has been working in the office of Misch’s public defender Frederick Bragdon in Bennington.

Vermont Solicitor General Ben Battles argued the case in court for the Attorney General’s Office. He said Monday that the court has scheduled a status conference for the case for later this month.

The case, Battles added, could take any number of different paths now. He said options include having the case proceed to trial or Misch’s attorneys could seek to appeal the judge’s ruling on the motion to dismiss to the Vermont Supreme Court.

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

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.

Morris, a Bennington Democrat, had been the only black woman in Vermont’s Legislature before deciding not to run again last year.

Donovan, at that press conference earlier in January, said while Misch had been identified as the person responsible for the harassment of Morris, there was insufficient evidence to file charges against him due to free speech protections in the First Amendment.

The magazines charges against Misch were brought the following month.

Donovan has said that a “law enforcement source” came to his office with “new information” the week of Jan. 22. Donovan said he then asked the Vermont State Police to initiate the investigation into Misch.

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Vermont State Police went to a store where they believed the magazine purchases were made, Runnings in Hinsdale, New Hampshire, 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.

Police, armed with a warrant, went to Misch’s Gage Street apartment and searched it. There, according to police, they seized two 30-round magazines “consistent with what was purchased” on Dec. 1 from Runnings.

The provision of the law that went into effect Oct. 1 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 went into effect.

Misch’s attorneys argued that the cap on a firearm’s magazine size violates Article 16 of the Vermont Constitution, which says that “people have the right to bear arms for the defence of themselves and the state.”

In addition, his lawyers contended that the new law also violated Article 7’s Common Benefits Clause by prohibiting him from obtaining new high-capacity magazine while allowing other Vermonters to keep those they owned before the measure became effective.

Cohen, in his ruling, dismissed both contentions.

The judge wrote that the case is “fundamentally about achieving a balance between conflicting rights, the right to bear arms and the commensurate right to live in a community with a measure of safety.”

On one hand, the judge wrote, the Vermont Constitution grants people the right to bear arms for their defense and the defense of the state. This right has a long history in this State and has been recognized on multiple occasions, albeit without much elaboration,” he added.

Also, Cohen wrote, the Constitution provides “that the people of this state by their legal representatives, have the sole, inherent, and exclusive right of governing and regulating the internal police of the same.”

On the other hand, the Constitution also provides that “the people of this state by their legal representatives, have the sole, inherent, and exclusive right of governing and regulating the internal police of the same.”

This provision, the judge wrote, authorizes the Legislature to pass measures for “the general welfare of the people and making the Legislature itself the judge of the necessity or expediency of the means adopted.”

He then added, “This police power is the practical manifestation of each individual’s agreement, as part of the social compact, to subject his rights to the common good when a conflict arises.”

Cohen wrote that it is “clear” that the “legislative purpose” of the high-capacity magazine limits, as one of a package of gun control provisions, was to protect the public from gun violence, particularly mass shootings.

“The grandfather provision,” the judge added, “allowed the Legislature to gradually curtail the availability of large-capacity magazines while lessening the burden on individuals that already possessed these” devices.







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