Earlier this week, in Vermont v. Misch, the Vermont Supreme Court rejected a state constitutional law challenge to the statutory prohibition on magazines that hold more than 10 rounds of ammunition for long guns and 15 rounds for handguns. Yesterday, the Ninth Circuit voted to grant rehearing en banc in a Second Amendment challenge to California’s very similar law, which a three-judge panel had earlier struck down. The issue is not likely going away anytime soon.
The Vermont challenge arose from a criminal prosecution brought against a man who hopped over the border into New Hampshire to buy 30-round magazines and bring them back into Vermont. As most relevant here, he argued that the law violates his state constitutional right to keep and bear arms; he did not raise a federal Second Amendment challenge.
Vermont’s state constitutional analogue to the Second Amendment—Article 16—provides that “the people have a right to bear arms for the defence of themselves and the State.” Surprisingly (to me, at least), the Vermont Supreme Court had never before defined the scope of the Article 16 right, nor established a standard to assess challenges under it. In considering the scope of the right, the Court first noted the ambiguity in the text and history about whether Article 16 was meant to protect arms possession for self-defense apart from service in a militia. With respect to the phrase “bear arms,” the Court relied on the recent corpus linguistics data that was unavailable at the time of Heller and which Darrell has written about here—the Court even cited Darrell’s work. It concluded that “[w]hile there was some contemporary use of the term ‘bear arms’ in a literal or individualistic sense, corpus data has revealed that ‘bear arms’ most often meant to serve in a military capacity.” The right to bear arms for defense of the State was therefore a right to bear arms for militia service. Article 16 also protects the people’s right to bear arms “for the defence of themselves,” but the Court concluded that text and history were unclear about whether that right protected individual private purposes such as self-defense or not. Instead, it suggested that its prior Article 16 cases, and precedent from sister states construing similar language, had assumed or found such an individual right.
The Court also held, however, that the Article 16 right is “subject to limitations and regulation.” In fleshing out a standard to govern challenges to the right, the Court looked at both the dominant test among the states—the reasonable regulation test—and the dominant test among federal courts of appeals—the two-part framework. Ultimately, the Court concluded that the reasonable regulation test “is most consistent with our case law, our interpretation of Article 16, the nature of the right to bear arms, and our constitutional doctrine as a whole.” In adopting the test, the Court recognized that “the right to bear arms is distinct from other individual rights in the degree to which its exercise is associated with serious risks of harm to self and others.” It thus described the reasonable regulation test as affording the legislature broad deference to exercise its police powers to protect public peace and safety. Drawing on how other courts articulated the test, the Court said:
In applying this test to restrictions on specific firearms, ammunition, or accessories, courts may consider, among other factors, characteristics of the particular weapon restricted, the typical use of the proscribed weapon, and the number and nature of the weapons subjected to the ban compared with the number and nature of the weapons that remain available for the vindication of the right. (citations, quotations marks, and alternations omitted)
The Court clearly distinguished the reasonable regulation test from ordinary rational basis review. The former looks to how the law serves the state’s actual purposes for the law. The latter allows hypothetical government interests to vindicate almost any law. Applying that test to the magazine limit, the Court concluded that the law serves the state’s interest in reducing harm from mass shootings and poses only a minimal burden on the right. In rejecting the reasoning of the (now vacated) Ninth Circuit panel decision in Duncan v. Becerra, the Court clarified that its test does not turn on the popularity of a weapon or magazine (such as whether or not it is in “common use”). “As long as the statute leaves available to Vermonters reasonable means to exercise the right to bear arms in self-defense, we will not question the Legislature’s reasonable policy judgments based on the prevalence of a weapon alone.”