A county judge in Vermont has thrown out a case where the plaintiff argued that his arrest for possessing a firearm magazine holding more than the state government permitted was unconstitutional under the Second Amendment.
Max Misch, a self-proclaimed white nationalist (which has nothing to do with the application of the law), was arrested nearly six years ago for possessing so-called “high-capacity” magazines. He took the state to court, arguing that magazines holding more than 10 rounds are in “common use” and, thereby, protected under the Second Amendment.
Judge Kerry McDonald-Cady of the Bennington County Superior Court, however, disagreed.
“The court cannot reach the conclusion from (Misch’s) arguments or from the record that possession of rifle or pistol magazines capable of holding 30 rounds of ammunition is conduct that the text of the Second Amendment protects,” McDonald-Cady wrote in the ruling.
Judge McDonald-Cady further pointed out in the ruling that the plaintiff’s lawyers didn’t make an adequate case concerning Second Amendment protections.
“Because (Misch), in the context of this case and in consideration of the record presented by both parties, fails to show that the possession of 30-round magazines is protected conduct, the court’s analysis stops here, and the motion to dismiss is denied,” Judge McDonald-Cady wrote.
According to a report at vnews.com, part of a law passed back in 2018 outlawed handgun magazines holding more than 15 rounds and long gun magazines holding more than 10 rounds.
A provision of a firearms law passed by the Vermont Legislature and signed into law by Gov. Phil Scott in 2018 set a 15-round limit for magazines used with handguns and a 10-round limit for those used with long guns. The measure also contained a “grandfather” clause that exempted magazines purchased before the provision went into effect.
Interestingly, the question of whether such magazines are in “common use” and, thereby, protected by the Second Amendment has been answered, just not by the courts. According to a recently released report from the National Shooting Sports Foundation (NSSF), magazines that hold 11 rounds or more are the “national standard.”
According to the report, which surveyed over 30 years of detachable magazine production and distribution, revealed that of the conservatively 963,772,000 detachable magazines supplied from a firearm manufacturer and in the aftermarket, at least 717,900,000 have a capacity exceeding 10 rounds.
“The Detachable Magazine Report (1990-2021) confirms what NSSF has known—that the national standard for magazine capacity for America’s gun owners is greater than 10 rounds,” the organization stated in a news item detailing the report. “With nearly 1 billion detachable magazines in circulation, for both rifles and pistols, they are unquestionably commonly-owned and commonly-used for lawful firearm use, including recreational target shooting, hunting and self-defense. They are ‘arms’ within the meaning of the Second Amendment. Detachable magazines are integral to the design of, and necessary for the proper functioning of, today’s modern semi-automatic firearms.”
