A criminal court judge has rejected a constitutional challenge of charges brought against a Bennington man for allegedly violating one of the gun control laws supported by Gov. Phil Scott in 2018.
Max B. Misch, 36, was arraigned in Bennington criminal court in February on two misdemeanor counts of possessing large-capacity magazines.
The charges were brought by the Vermont Attorney General’s Office. While Assistant Attorney General Ultan Doyle handled the arraignment, Vermont Attorney General T.J. Donovan was in Bennington for the hearing.
He said he believed Misch was the first person charged for the offense since Vermont outlawed large-capacity magazines.
Misch challenged the charges based on two arguments. The Vermont Constitution guarantees the right of Vermonters to bear arms, Misch argued, and the grandfather provision allowing some Vermonters to own large-capacity magazines violates the common benefits clause of the state constitution.
Judge William Cohen, in a decision filed on June 28, rejected both of Misch’s arguments.
“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. Those freedom-loving people recognized the need to cede a measure of freedom in exchange for the benefits conferred by association and community. In (the large-capacity magazine law) their descendants established a balance between these seemingly adverse interests. The balance is consistent with the state’s basic law and will not today be disturbed,” Cohen wrote.
Cohen said the burden imposed by the ban on large-capacity magazines was minimal because it places no restriction on firearms and does not limit the number of magazines a person may own.
The proper test, Cohen wrote, was whether the law was “substantially related to an important governmental objective.”
“It is clear from the above that the legislative purpose in enacting the large-capacity magazine ban, as one of several gun-control measures, was to protect the public from gun violence in particular, from mass shootings. This public-safety interest is eminently important and indeed compelling,” Cohen wrote.
The common benefits clause argument was rejected by Cohen, who said the law allowed the Legislature to gradually reduce the number of large-capacity magazines without placing an undue burden on those who owned those magazines already.
The grandfather provision allowed large-capacity magazine owners to keep the magazine if it was purchased before April 11, 2018, and allowed licensed dealers to sell their stock until Oct. 1.
Cohen’s seven-page decision says the Legislature’s action has a strong tie to Southern Vermont.
“Following numerous mass shootings in places like Parkland, Las Vegas, Sutherland Springs, Orlando, Newtown and Aurora and an averted attack at Fair Haven Union High School in this state, the Legislature set out to enact gun control legislation,” he wrote.
Misch is accused of buying two 30-round magazines in New Hampshire in December and bringing them back to Vermont. According to an affidavit filed in the case, police executed a search warrant at Misch’s home on Feb. 6 and found two 30-round magazines similar to the ones he allegedly purchased in New Hampshire.
Misch’s name became well-known after he began a campaign of harassment against Kiah Morris, who had represented Bennington in the Vermont House of Representatives. Morris was the second black woman elected to the House.
Last year, she dropped out of the race for re-election, citing the harassment and alleged threats.
Donovan called a press conference in January and explained why he believed Misch’s actions were protected free speech and couldn’t be prosecuted. Misch walked into the press conference, causing many in attendance to accuse him of trying to intimidate Morris.
Misch spoke openly with the media in January, calling himself a “troll” and saying the comments he wrote to Morris had been “fun” for him.
Donovan’s office was strongly criticized for declining to prosecute what members of the Rutland chapter of the NAACP called a campaign of terror against Morris.
Attempts to reach attorney Frederick Bragdon, who represents Misch, and the Vermont Attorney General’s Office were unsuccessful on Monday.
Kinney Drugs announced Friday it would stop selling e-cigarette and vaping products in its 22 Vermont stores starting Monday. This follows a trend of both independent and chain pharmacies that have stopped selling some or all tobacco products in their stores in Vermont and across the country.
According to a press release, Kinney Drugs decided to stop selling vaping products to reduce access for children and teens.
“This decision is in response to alarming statistics demonstrating that these products are increasingly being used by teens and children,” the release stated. “According to the Centers for Disease Control and Prevention (CDC), tobacco use among children grew nearly 38% between 2017 and 2018, driven largely by a surge in e-cigarette use.”
This decision by the pharmacy goes into effect the same day as the statewide tax increase of 92% on e-cigarettes and vaping products that Gov. Phil Scott approved in late May.
Sarah Cosgrove, a respiratory therapist and education coordinator at Rutland Regional Medical Center, applauded Kinney Drugs’ decision.
“It sends a positive message that reduces the visibility of these products,” she said. “Especially given that there is a youth epidemic of using these products, this is great because it makes them less accessible.”
Cosgrove has long advocated for measures that keep e-cigarettes out of the hands of young people.
“I’ve seen kids as young as fourth grade using these things, it’s heartbreaking,” she said. “If we can prevent them from starting using these products, that’s the battle.”
Cosgrove hopes that still others will follow Kinney Drugs’ example. Among the leaders in this movement, she referenced CVS, which stopped selling all tobacco products in its stores nationwide in 2014.
“I think we’ll see more chain pharmacies following suit with a wellness model,” she said. “I think this is going to become the norm.”
Rhonda Williams, chronic disease prevention chief with the Vermont Department of Health, has also seen a trend of pharmacies in Vermont pulling back from tobacco sales, with many electing to stop selling tobacco altogether.
“In Vermont, all but one of the independent pharmacies don’t sell tobacco,” she said. “They were early adopters, and that was the case before CVS became tobacco-free in 2014.”
Both Wilcox LTC Pharmacy and Rutland Pharmacy do not sell tobacco products in their stores.
Williams believes that getting vaping products out of pharmacies helps counteract misinformation about e-cigarettes being “safer” than regular cigarettes.
“It’s right in line with where healthcare is going in taking a holistic approach,” she said. “We certainly applaud Kinney Drugs’ steps in the direction looking to reduce youth initiation and use of tobacco.”
For those adults who still want to purchase e-cigarettes, Williams pointed out that there are plenty of other options.
“In our data, we see that convenience stores commonly sell vapor products,” she said. “We don’t see this as steps against those who use vaping products but rather as an important and really proactive step for preventing those who are most vulnerable to marketing techniques and to price discounts [from using].”
Cosgrove hopes that in addition to removing products from stores, there will be a continued increase in education about the risks related to e-cigarette use, especially the risks posed to youth who vape.
“We need more anti e-cigarette information available and out there,” she said. “As a respiratory therapist, the respiratory piece concerns me, but it’s that priming for addiction that scares me the most.”
Ocean State Job Lot opened quietly late last week and is already doing strong business.
Manager Rob Couras said that what looked like a reasonable crowd for a Monday afternoon was actually slow compared to the customer traffic he’d seen since Rutland’s newest store opened its doors at 12:30 p.m. Thursday.
“It’s been busy,” he said. “I think we’re doing a lot better than expected. When we do a soft opening, we expect it to be very soft. The doors open at 8 and we have people here at 9 o’clock. I’ve had one lady who’s been here every day.”
Ocean State Job Lot is the newest occupant of the space behind Panera Bread on South Main Street. The 47,000-square-foot building previously held a Hannaford and then a Hobby Lobby. The store is planning a grand opening on July 13. In addition to holding a ribbon-cutting, it will mark the occasion by donating a tractor-trailer full of food to a local food bank. Couras touted the company’s charitable giving, saying it donated 300 truckloads of food last year to food banks around New England.
The Rutland location is the 140th store in the Rhode Island-based discount retailer chain. The store has about 40 employees, most of them part-time.
“We’re still looking for people — I’d say five to 10 more,” Couras said.
At a glance, it looks similar to a WalMart or a Big Lots. Couras said the main differences are pricing and quantities.
“When we buy something ... we’re going to have pallets upon pallets upon pallets,” he said.
Couras also touted the selection of dry and canned foods, which ranged from giant jars of pickles to more esoteric snack foods.
“There’s some stuff you don’t find in other spots,” he said. “You’re going to find different kinds of sardines. Sometimes we have caviar. We never know what’s going to come off the truck.”
He also said the store wasn’t fully stocked as of Monday afternoon.
“We’re at 80% filled,” he said. “That’s why we do the soft opening. We’ll be at full by the 13th when we do our celebration.”
This article has been updated to correct the spelling of the company name to "Ocean State Job Lot".
CLARENDON — Part of a bill signed into law last month aims to make it easier for state airports to develop, especially with regards to solar energy and electric charging stations for cars and airplanes.
House Rep. Michael Marcotte, R-Newport, vice chair of the House Committee on Commerce and Economic Development, said in an interview Monday he sponsored the section of S.162 that has to do with state-owned airport permitting.
Marcotte said every 10 years the state updates the “Vermont Airport System Plan,” and is in the process of doing so now. S.162, among many other things, requires state-owned airports have in their plans the adding of electric vehicle charging stations for both cars and aircraft.
Marcotte said there’s only one company in Vermont that he’s aware of that is working on electric aircraft, but that may change as the technology improves and proliferates.
BETA, based in South Burlington, according to its website, says it’s working on building electric aircraft and electric aircraft charging technology.
Marcotte’s bill does a number of other things for state airports as well, namely streamlining the permitting process for new construction and allowing state agencies to waive associated permitting fees. It also calls for solar panels to be added at airports where it’s practical to do so. Marcotte said the vision for this was to put the arrays on rooftops and similar structures.
He said this effort began last session, but other things the Legislature was working on overshadowed it for a time. Marcotte said this was added near the end of the most recent legislative session and passed fairly easily, as it was supported by lawmakers and the Scott administration.
The bill was praised at a Rutland Regional Transportation Council meeting held Thursday at the Rutland Southern Vermont Regional Airport.
Airport Manager Christ Beitzel told the council the law will streamline the permitting processes around the airport.
“It also talked about installing electric charging stations for electrified aircraft, which is the future of aviation,” he said. “It’s going to be more electric vehicles and aircraft moving forward, and this bill helps prepare for that.”
In addition to the statewide system plan, each airport has its own development plan. Beitzel said the local airport has been working on it for several months now.
“As part of the master plan update we’ve had surveyors out on the field surveying all the pavement we’ve created over the last few years,” he told the council.
“They also survey beyond the airport, the area around the airfield, looking for obstructions, trees and vegetation that may have grown up in the protected airspace.”
Many at the council meeting were officials from Rutland County towns. Devon Neary, transportation planner at the Rutland County Regional Planning Commission, said towns can help promote the airport by including links to its website on their town websites. The airport can do the same for towns. He and others feel the airport is a little-known resource for the area and that some coordinated marketing efforts could raise its profile.
“I don’t think either side wants war, but both sides do want leverage. We’re in for a rough ride.”
Cliff Kupchan, a chairman at the Eurasia Group and longtime Iran watcher, commenting on US-Iran tensions after the news that Iran had broken the limit set on its stockpile of low-enriched uranium by its 2015 nuclear deal with world powers. B4
Taco Experiment, a local taqueria, is set to open this week in the old Tot’s Diner location in Poultney. A2
Held in jail
A Brandon man is being held in jail after an alleged shooting incident on Saturday. A3
Vermont Supreme Court justices rule in favor of a Rutland shop. A3
Killington Music Festival opened its 37th season of chamber music concerts Saturday with a particularly rich performance. A5
‘Tunesdays’ on the Farm
Featuring Krishna Guthrie. A social gathering for friends and neighbors with live, local music. Share dinner, music and games. Bring a blanket and a picnic dinner, or visit our food vendors. $5 per family suggested donation, 6-8 p.m. Pittsford Village Farm, 42 Elm Street, Pittsford, email@example.com.