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Amicus Brief of Giffords Law Center, Vermont Medical Society, and Gun Sense Vermont in Support of Appellant State of Vermont

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Amicus Brief of Giffords Law Center, Vermont Medical Society, and Gun Sense Vermont in Support of Appellant State of Vermont IN THE SUPREME COURT OF THE STATE OF VERMONT DOCKET NO. 2019-266 State of Vermont, Appellant v. Max Misch, Defendant-Appellee APPEAL FROM SUPERIOR COURT, CRIMINAL DIVISION (BENNINGTON) Docket No. 173-2-19 Bncr AMICUS BRIEF OF GIFFORDS LAW CENTER, VERMONT MEDICAL SOCIETY, AND GUN SENSE VERMONT IN SUPPORT OF APPELLANT STATE OF VERMONT Of Counsel: Tristram J. Coffin, Esq. J. Adam Skaggs, Esq. Jennifer McDonald, Esq. Giffords Law Center to Prevent Gun Violence William T. Clark, Esq. 223 West 38th St. #90 Downs Rachlin Martin, PLLC New York, NY 10018 P.O. Box 190 (917) 680-3473 Burlington, VT 05402-190 (802) 863-2375 Hannah Shearer, Esq. Bridget C. Asay, Esq. Giffords Law Center to Prevent Gun Violence Michael Donofrio, Esq. 268 Bush St. #555 Stris & Maher LLP San Francisco, CA 94104 28 Elm Street, 2nd Floor (415) 433-2062 Montpelier, VT 05602 (802) 858-4285 Counsel for Amici Curiae TABLE OF CONTENTS Table of Contents ........................................................................................................... ii Table of Authorities ...................................................................................................... iii Interest of Amici Curiae ................................................................................................ 1 Introduction and Summary of Argument ..................................................................... 2 I. Vermont’s LCM ban survives any standard of review. ................................... 4 A. LCMs allow shooters to kill more people and thus pose an unjustifiable threat to public health and safety. ....................................... 5 B. Courts have upheld LCM bans as permissible regulations to protect public safety and reduce crime. ............................................................... 13 C. The Vermont Legislature relied on substantial and compelling evidence to address an unprecedented risk to public safety................... 16 II. The Vermont Constitution permits reasonable restrictions on dangerous weapons to protect public safety. ................................................................... 22 A. The rights protected by Article 16 do not extend to military-style weapons that are not reasonably needed or useful for self-defense. ...... 22 B. Consistent with text, history, and precedent, the Court should construe Article 16 in a manner that respects the Legislature’s traditional authority to regulate public safety. ....................................... 25 C. The Court should construe Article 16 in a manner that affords deference to reasonable legislative judgments ........................................ 30 Conclusion .................................................................................................................... 33 ii TABLE OF AUTHORITIES Page(s) Cases Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney Gen. New Jersey, 910 F.3d 106 (3d Cir. 2018) .............................................................................. 12, 13 Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469 ............................................................. 27, 31 Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999) .................................................................... passim Bleiler v. Chief, Dover Police Dep’t, 927 A.2d 1216 (N.H. 2007) ..................................................................................... 30 Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632 (Del. 2017) .......................................................................................... 1 Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997) .................................................. 31 Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016) ................................................................................ 13 District of Columbia v. Heller, 554 U.S. 570 (2008) ......................................................................................... passim Duncan v. Becerra, 742 F. App'x 218 (9th Cir. 2018) ............................................................................ 14 Duncan v. Becerra, No. 17-CV-1017-BEN-JLB, 2019 WL 1510340 (S.D. Cal. Apr. 4, 2019) ........................................................................................................................ 14 Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015) ........................................................................ 1, 13, 15 Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) ............................................................................ 13, 14 Ex parte Guerra, 94 Vt. 1, 110 A. 224 (1920) ..................................................................................... 25 iii Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)............................................................................... 14 Hertz v. Bennett, 751 S.E.2d 90 (Ga. 2013) ........................................................................................ 29 Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) ........................................................... passim Lincoln v. Smith, 27 Vt. 328 (1855) ..................................................................................................... 26 McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) .................................................................................................. 1 N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015) .............................................................................. 13, 14 Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995) .................................................................................. 11 National Shooting Sports Foundation, Inc. v. California, No. S239397, 2018 Cal. LEXIS 4696 (Cal. Jun. 28, 2018) ...................................... 1 People v. Schwartz, No. 291313, 2010 WL 4137453 (Mich. Ct. App. Oct. 21, 2010) ............................. 29 State v. Christian, 307 P.3d 429 (Or. 2013) .......................................................................................... 29 State v. Cole, 665 N.W.2d 328 (Wis. 2003) ................................................................................... 29 State v. Curley-Egan, 2006 VT 95, 180 Vt. 305, 910 A.2d 200.................................................................. 25 State v. Duranleau, 128 Vt. 206, 260 A.2d 383 (1969) ..................................................................... 25, 26 State v. Fernandez, 808 S.E.2d 362 (N.C. Ct. App. 2017) ...................................................................... 29 State v. Flowers, 808 N.W.2d 743, 2011 WL 6156961 (Wis. Ct. App. Dec. 13, 2011) ...................... 29 State v. Jorgenson, 312 P. 3d 960 (Wash. 2013) .............................................................................. 29, 30 iv State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991) ............................................................................... 26 State v. Record, 150 Vt. 84, 548 A.2d 422 (1988) ............................................................................. 26 State v. Sawyer, 2018 VT 43, 187 A.3d 377 .................................................................................. 3, 16 Turner v. Shumlin, 2017 VT 2, 163 A.3d 1173 ...................................................................................... 30 Vermont Supreme Court Admin. Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036 (1990) ................................................................... 27, 28 Wilson v. Cook Cty., No. 18-2686, 2019 WL 4063568 (7th Cir. Aug. 29, 2019) ..................................... 15 Worman v. Healey, 922 F.3d 26 (1st Cir. 2019) ..................................................................................... 13 Zullo v. State, 2019 VT 1, 205 A.3d 466 .................................................................................. 28, 30 Constitution and Statutes Vt. Const. ch. I, art. 6 .................................................................................................. 21 Vt. Const. ch. I, art. 7 .................................................................................................. 27 Vt. Const. ch. I, art. 12 .......................................................................................... 27, 28 Vt. Const. ch. I, art. 16 ................................................................................................ 22 10 V.S.A. § 4704 ........................................................................................................... 20 13 V.S.A. §§ 4007-4008 ................................................................................................ 21 13 V.S.A. § 4010 ........................................................................................................... 20 13 V.S.A. § 4021 ....................................................................................................... 4, 24 1896 Vt. Acts & Resolves No. 111 ............................................................................... 20 1904 Vt. Acts & Resolves No. 152, § 1 ........................................................................ 20 1912 Vt. Acts & Resolves No. 229 ............................................................................... 21 v 1912 Vt. Acts & Resolves No. 237 ............................................................................... 20 1923 Vt. Acts & Resolves No. 130 ..............................................................................
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