[T]he state of Vermont is asking a judge to toss out a lawsuit brought by sportsmen groups and firearms dealers challenging a law passed earlier this year that sets limits on the size of gun magazines.
Vermont Solicitor General Benjamin Battles of the Attorney General’s office filed a motion to dismiss that lawsuit late Tuesday afternoon in Washington County Superior civil court, which is where the case is pending.
“The Court should reject plaintiffs’ attempt to conjure a constitutional right to sell and possess large-capacity magazines in Vermont,” Battles wrote in the filing.
“Courts around the country repeatedly have refused to find this right under the Second Amendment or parallel provisions in other state constitutions,” he added. “Indeed, many of those unsuccessful cases were litigated by the same attorneys representing the plaintiffs here.”
Brady Toensing, a lawyer from Charlotte with the Washington, D.C.-based firm, DiGenova and Toensing, is representing the plaintiffs bringing the lawsuit. Last month, lawyers for Cooper and Kirk, another D.C.-based law firm, were added to the team for their experience litigating cases backed by the National Rifle Association.
Toensing said late Tuesday afternoon that he had only just received the state’s 69-page filing and hadn’t yet had the time to review it and offer comment.
Attorney General TJ Donovan said Tuesday afternoon that courts across the nation have ruled in favor of gun regulations.
“I think it’s a public safety and public health concern and I think reasonable regulations are valid and legitimate,” he said.
Toensing and his legal team will most likely file a response to the state’s motion before an expected hearing in which both sides will present arguments before Judge Mary Miles Teachout, who will then issue a ruling on the matter.
The plaintiffs in the lawsuit include the Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Powderhorn Outdoor Sports, Locust Creek Outfitters and Leah Stewart, a gun owner from Bethel.
Among the defendants are Vermont State Police Col. Matthew Birmingham, Attorney General TJ Donovan, Chittenden County State’s Attorney Sarah George and Windsor County State’s Attorney David Cahill.
The new law bans the sale, possession or transfer of long-gun magazines with a capacity greater than 10 rounds and handgun magazines with a capacity greater than 15 rounds. Magazines possessed before Oct. 1, 2018, are allowed.
The legal challenge was filed shortly after Republican Gov. Phil Scott signed the provision into law in April at a Statehouse ceremony during which hecklers in the crowd called him a “traitor” and supporters of the bill cheered in appreciation.
The lawsuit states that the cap on a firearm’s magazine size violates Article 16 of the Vermont Constitution, which says that “people have the right to bear arms for the defence of themselves and the state.”
The lawsuit claims the law is “unenforceable” because there is no tracking system in place for magazines. For example, the devices bear no markings that indicate the date of manufacture.
Also, according to the lawsuit, firearms dealers will no longer be able to sell the “standard” size magazines to customers in Vermont, resulting in a loss of business from customers they anticipate will travel out of state to buy the devices.
The complaint asks the judge to declare the high-capacity magazine ban unconstitutional and grant an injunction to prevent its enforcement.
Battles, in his filing seeking to have the case thrown out, attacks the lawsuit’s argument about the state constitution.
“Nothing in the text of Article 16, its history, or Vermont case law suggests that our constitution alone enshrines an inviolable right to shoot more than ten rounds without having to reload,” Battles wrote.
“Mass shootings have become a horrifying fact of life in the United States,” he added. “The people of Vermont, through their elected representatives, rightly and reasonably want to reduce the likelihood and harm of a mass shooting here.”
Battles goes on to describe the process the Legislature took in passing S.55, which includes the provision setting the magazine limits for guns.That bill also increases the age to purchase a firearm to 21, expands background checks to private sales, and bans bump stock rapid-firing devices.
The blitz of gun legislation came after the governor said in mid-February he was “jolted” by details revealed in an affidavit supporting the arrest of an 18-year-old Poultney man in what police said was a foiled school shooting plot in Fair Haven.
That arrest came just a day after a school shooting in Parkland, Florida, left 17 people dead.
The filing also stated that the law regarding magazine limits also has several “safe harbor provisions.”
The law, Battles wrote, does not apply to devices “lawfully possessed” on or before April 11, the effective date of the law. Also, up until Oct. 1, the law allows for the possession, transfer, sale, and purchase of such devices possessed by a licensed firearms dealer on or before April 11, allowing them to clear out stock.
Also, he wrote, the law contains “carve-outs” for governmental entities, law enforcement agencies and officers, and commercial manufacturers (an exemption that Toensing lobbied for on behalf of Century International Arms).
In addition to disputing the constitutional challenge to the lawsuit, Battles also contested the standing of the parties to even bring such as lawsuit.
“(The sportsmen and shooting groups) allegations concerning their members’ vague wishes to buy large-capacity magazines at some point in the future mirror those of plaintiffs in other cases who brought pre-enforcement challenges to state and federal gun control measures on Second Amendment and other constitutional grounds,” Battles wrote.
“These plaintiffs were found to lack standing because they failed to allege or establish that they had sufficiently concrete plans to violate the challenged restrictions.”
The case has attracted national attention from groups on both sides on the gun debate.
The Giffords Law Center to Prevent Gun Violence has recently submitted a filing asking to appear in the case, amicus curiae, or “as friends” of the court.
“We welcome their input,” Battles, the state’s solicitor general, said Tuesday. “I think this case is part of the national conversation on gun rights.”
Battles said the organization isn’t providing any financial assistance to the state in defending the law.
The group in its court filing says it can provide “perspective and data” to Judge Teachout, who is presiding over the case.
The filing by the Giffords Law Center to Prevent Gun Violence backing the new Vermont gun law follows the NRA’s legal arm coming out in support of the lawsuit shortly after it was brought in April.
An NRA spokesperson declined to say earlier this year whether its support would include financial backing. Toensing has also declined to say who is funding the case.
The Giffords Law Center was formerly known as the Law Center to Prevent Gun Violence. “The organization was founded in 1993 after a gun massacre at a San Francisco law firm perpetrated by a shooter armed with semi-automatic pistols and large-capacity magazines,” the group’s filing states.
It was renamed the Giffords Law Center in October, joining up with the organization founded by Gabrielle Giffords, a former Arizona congresswoman who survived a mass shooting at a campaign event in 2011.
The filing was submitted on behalf of the Giffords Law Center by Tristram Coffin, an attorney with the Burlington-based law firm Downs Rachlin and Martin. Coffin is the former U.S. attorney for Vermont, the top federal prosecutor in the state.
Coffin did not return a phone message Tuesday seeking comment. Also, officials with the Giffords Law Center to Prevent Gun Violence could not be reached Tuesday for comment.
Toensing, the attorney representing the plaintiffs, said Tuesday he does not intend to oppose the Giffords Law Center’s request to appear amicus curiae in the case.
He did say that he found it unusual that the organization was seeking amicus curiae status at the trial court stage, when such filings generally happen during appeals.
In addition Toensing, who is the vice chair of the state’s Republican Party, the plaintiff’s legal team includes David Thompson, the managing partner of Cooper and Kirk. Thompson will serve as lead counsel challenging the law.
Charles Cooper, the firm’s founder of Cooper and Kirk, has also been called “the NRA’s Top Outside Lawyer.” The firm is known for its work arguing in support of gun rights in high-profile cases.
In addition to Battles, Vermont Assistant Attorneys General David Boyd and John Alexander are representing the state.
Xander Landen contributed reporting.