The Vermont Supreme Court has upheld a state gun control law, enacted after the “threatened mass shooting” at Fair Haven High School on Feb. 14, 2018, a decision which leaves criminal charges standing against a Bennington man who admitted to racially harassing a Black state legislator.

Rep. Kiah Morris, D-Bennington, resigned from the Vermont House after complaining that she had been harrassed by Max B. Misch, 37, of Bennington.

In 2019, Vermont Attorney General T.J. Donovan hosted a news conference in Bennington announcing that he had found he could not charge Misch, who walked into the meeting. Afterward, Misch told reporters he had harassed Morris and believed it was “fun.”

In 2019, Misch was arrested and charged in Bennington criminal court with two misdemeanor counts of possessing large-capacity magazines.

The magazines were illegal in Vermont at the time, but Misch allegedly bought the two 30-round capacity magazines in New Hampshire and brought them back to Vermont.

Misch challenged the charges against him, arguing the law against owning the large-capacity magazines was unconstitutional and because the Vermont Constitution gives citizens the right to bear arms.

The argument, as well as one that maintained the ban violated the Common Benefits Clause of the state constitution because it treats people who possess large-capacity magazines differently, was dismissed by the criminal court in 2019, but was allowed to pass to the Vermont Supreme Court.

A decision, published on Friday, upheld the ban.

“(W)e conclude that (the large-capacity magazine ban) satisfies the reasonable-regulation test because the statute has a valid purpose of reducing the lethality of mass shootings, the Legislature was within its authority in concluding that the regulation promotes this purpose, and the statute leaves ample means for Vermonters to exercise their right to bear arms in self-defense,” the supreme court decision said.

In the appeal to the Supreme Court, lawyers for the state, including Donovan, said Article 16 of the Vermont Constitution “establishes a limited right to bear arms in self-defense” while attorneys representing Misch argued the right to bear arms was “express and without limitation.”

In the 50-page decision, the justices gave an extensive history that looked at Article 16, their interpretation of its meaning, the history of gun laws, court challenges of those laws and the purpose of the restrictions passed since police investigated the possibility that Jack Sawyer, 18, a graduate of Fair Haven High School, actually intended to carry out his alleged plot at his former school.

The case against Sawyer was ultimately moved to family court, apparently, where it has become confidential.

The Supreme Court decision pointed out that police first learned of the alleged shooting plot on the same day a school shooting that killed 17 people happened in Parkland, Florida.

In response to that threat, the decision found, it was reasonable for the Legislature to look at ways to reduce the risk of death in the event of a mass shooting. The decision cites several studies that found shootings where large-capacity magazines were used tended to have higher fatalities.

“Similarly, a group of scholars at Johns Hopkins University analyzed data from the FBI and other publicly available databases to calculate state-level annual incidence of fatal mass shootings from 1984-2017... After performing a statistical analysis of the association between fatal mass shootings and these gun laws, they concluded that bans of large-capacity magazines were one of two policies associated with reductions in the incidence of fatal mass shootings,” the decision said.

Some of the studies have suggested those at the scene of a mass shooting have an opportunity to flee or intervene when the person with the gun is reloading.

“In addition to its potential impacts in the event of a mass shooting, (the ban) has the effect of creating a greater sense of security among the public. While this effect and purpose alone may not be sufficient to survive scrutiny under Article 16, it nevertheless is meaningful to the well-being of people of Vermont, particularly children. Mass shootings are ‘highly salient’ events and cause significant stress for both adults and teenagers,” the decision said.

In a statement, Donovan said on Friday he was “pleased with the court’s ruling.”

“Vermont’s ban on large capacity magazines, according to the Court, is a reasonable exercise of the State’s police power and poses a minimal, if any, burden on the right to bear arms. The Court noted that large capacity magazines are rarely, if ever, used in self-defense.” Donovan said.

With the legality of the large-capacity magazine ban upheld, Donovan said the focus will be on prosecuting Misch.

patrick.mcardle @rutlandherald.com

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