Judge rejects state’s motion to dismiss high-capacity magazine ban case

Judge Mary Miles Teachout says attorneys arguing for and against a high-capacity magazine ban in Vermont need to fight it out in court before she decides on the constitutionality of a law passed last year.

The state filed a motion to dismiss the case, arguing that the gun owners and sellers bringing the case did not have legal standing to challenge the constitutionality of the ban. Attorneys representing the gun owners were seeking a summary judgement, arguing that the facts of the case proved beyond debate that the ban is unconstitutional.

Teachout didn’t buy either argument in her decision, dated March 20.

“Both parties would have the court rule on their arguments without a factual record meaningfully tested by the adversarial process. The court declines to do so,” she wrote. “A factual record developed by the adversarial method will provide a firm foundation for resolution of the important legal issue presented by this case.”

Teachout heard arguments last month in Washington County Superior Court from Vermont’s solicitor general, Ben Battles, and David Thompson, the managing partner of a Washington, D.C., law firm with a history of representing the National Rifle Association.

Vermont Solicitor General Benjamin Battles asked the court to throw out the lawsuit challenging the state’s high-capacity gun magazine ban. Photo by Mike Dougherty/VTDigger

Neither attorney was immediately available for comment Wednesday evening.

The state argued last month that the gun owners could not show that they had been damaged by the new law, and therefore did not have standing to challenge it. Battles pointed to Max Misch, the first person charged under the law, as someone who would have standing.

Teachout said that the plaintiffs’ claim that they were being prevented from purchasing devices that would be legal, if not for the law in question, gave them sufficient standing. Owners of gun shops and a shooting range are also plaintiffs in the case, and she said they had the same standing.

“Courts do not require law-abiding citizens to become criminals to earn the privilege to challenge the constitutionality of a statute,” she wrote. “Plaintiffs’ allegations are easily sufficient to show standing at this stage of litigation.”

In rejecting the plaintiff’s’ motion for a summary judgement, Teachout rejected their argument that information submitted in the initial hearings were factual on their face. She noted that the state had expressed the desire to challenge those facts if its motion to dismiss was rejected.

It appears they will be allowed to do that. Teachout said that the plaintiffs’ request that she accept information in their argument as “legislative facts” not subject to a challenge from the defense would be problematic.

David Thompson, the managing partner of litigation firm Cooper & Kirk, is the lead counsel on the legal challenge to Vermont’s high-capacity gun magazine ban. Photo by Mike Dougherty/VTDigger

“This concept of what constitutes a fact to be relied on in making a judicial ruling could easily be applied in such an expansive way that it would be difficult to determine the basis of a judicial decision and thus compromise the public confidence in the rigor of judicial decision making,” she wrote.

How the case proceeds from here is unclear. Teachout asked the legal teams to propose pretrial schedules within two weeks.

The high-capacity magazine ban was part of a package of gun bills passed last year. It bans Vermonters from purchasing, importing, selling, transferring or possessing magazines that were not owned prior to the law taking effect in October 2018.

The Senate Judiciary Committee approved some changes last week to the magazine ban, which was the most controversial aspect of last year landmark gun bill, S.55.

Supporters of the ban say it limits the damage a mass shooter can inflict, and the opportunity for police or bystanders to intervene, by requiring shooters to reload more often.

Opponents of the ban say it puts law abiding citizens at a disadvantage in a shootout with someone who has a high-capacity magazine. And they say it’s unenforceable, because the devices don’t have serial numbers showing when they were made or purchased.

The senators decided to allow Vermonters to use high-capacity magazines during shooting competitions, but only if the devices were legally possessed before the law came into effect. They also broadened the family members who can legally exchange the devices.

Sen. Dick Sears confers with Sen. Phil Baruth during a recess in debate on S.55 in March 2018. Photo by Mike Dougherty/VTDigger

During debate on those changed, Sen. Dick Sears, D-Bennington, the Senate Judiciary chair, said the magazine ban was unenforceable. He suggested repealing it entirely, but then said that would probably be unconstitutional because it was being challenged in the courts.

“The law was stupid,” he said to Sen. Phil Baruth, D/P-Chittenden, one of its main backers. “Frankly, Phil, that ban came out of the House with no debate and never got discussed in any committee of the Senate and I find it the most objectionable thing that happened in S.55.”

Baruth said everything that passed in the Senate had been under debate.

“Yeah, but it wasn’t allowed to be changed because you had the votes to not change it,” Sears said.

“It would be allowed to be changed if you had the votes,” Baruth said.