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EXCLUSIVE: Magazine limits and waiting periods face federal court test

By Michael Bielawski,

The Vermont Federation of Sportsmen Clubs is calling for a preliminary injunction in the United States District Court of Vermont over the legal viability of magazine capacity limits and waiting periods to buy guns.

If the judge rules in favor, this would mean some of the most controversial gun laws ever signed by Republican Governor Phil Schott would be at least legally stalled from enforcement, via another public court case. This includes restrictions on the magazine capacity limits as well as waiting periods to take home a gun after purchase.

The plaintiffs make their case

“First, the State banned the acquisition or importation of magazines with a capacity of greater than 15 rounds for handguns and 10 rounds for rifles, which, according to witness testimony, renders common handguns and rifles illegal for sale in their most common, popular, and factory-designed configurations,” their supplemental brief states.

It continues, “Second, the State enacted a 72-hour waiting period for transfer of a firearm, which serves no purpose other than to delay the acquisition of arms, even if the arm is being purchased by a law-abiding citizen who already owns firearms or is facing an imminent threat.”

It further argues that “This waiting period plays no role in ensuring an individual is eligible to purchase a firearm. Plaintiffs, despite passing the federal National Instant Criminal Background Check System (NICS), must still wait to ‘keep and bear’ their purchased arms.”

They argue that common firearms of the modern day are protected by the Second Amendment.

“Both Chris Bradley, the President of the Vermont Federation of Sportsmen’s Clubs, and Bill Cleary, the owner of Powderhorn Outdoor Sports Center, testified that the AR-15 and Glock 17 are common firearms chosen by Americans for self-defense, and that Vermont has banned their sale in the most common and factory-designed configurations,” it states.

It addressed the matter that some guns only take certain magazines. It states, “Both testified that magazines wear out over time or are damaged in various ways, such that the need for replacement of damaged or otherwise inoperable magazines is a certainty. And both testified that they and their customers are forced to wait 72 hours to take possession of a firearm from a dealer [even if the buyer is in urgent need of the gun].”

The document references some recent Supreme Court of the United States’ decisions regarding the Second Amendment. This includes the Bruen decision (Bruen v. New York, 2022) which established that the Second Amendment is a fundamental Constitutional right which does not require “a proper cause” to be state approved as The Empire State wanted to do.

Their brief also questions the credibility of the state’s witnesses.

“Vermont called two witnesses over Plaintiffs’ Daubert objections: Lucy Allen and Robert Spitzer. Both offered testimony irrelevant to the applicable legal tests, thus failing to carry the State’s burden. Allen, an economist and statistician, testified that she had no training in self-defense. She repeatedly failed to explain what a “defensive gun use” (DGU) is, notwithstanding that the State relied on her testimony and the number of DGUs in its briefing,” it states.

The defendants make their case

The defendants also issued a supplemental brief. Each side got to do ten pages and there will be responses issued again from each side. In this one, the state argues that these restrictions on gun use do not account for any legal offenses to the Second Amendment.

It states, “The laws that plaintiffs challenge are modest regulations that in no way burden the ‘core’ right of individual self-defense protected by the Second Amendment. They are also important public safety measures aimed at reducing deaths and injuries in mass shootings and deterring impulsive gun violence, including suicides.”

It also states, “Missing, however, was any showing that Vermont has enacted a ‘complete ban’ on any firearm or otherwise interfered with protected Second Amendment rights. The Court should deny Plaintiffs’ request for a preliminary injunction and leave these public safety measures in place.”

They admit that these laws will impact gun sales in Vermont to law abiding citizens. They write, “Next, Plaintiffs’ witnesses testified about a collection of claimed financial consequences flowing from the challenged laws, but monetary harms are not irreparable.”

It acknowledges that some gun owners are choosing to make their purchases outside of Vermont. They wrote, “Mr. Cleary testified that Vermont gun sellers might be losing business to sellers in other states that do not have magazine size limitations, (testifying that he believes he has lost sales “multiple times a week”)” and it continues on about that testimony.”

They also cite U.S Supreme Court cases. They referenced Gazzola v. Hochul, 2023, when gun dealers sued over state regulations regarding background checks, training requirements, and other matters. The ruling went against the plaintiffs (the gun dealers) as the court alleged they lacked standing.

“Gazzola thus disposes of any argument that having to return a second time to a store is a constitutionally significant burden,” the defendants wrote.

They eventually conclude, “In sum, Plaintiffs’ hearing testimony only amplified the deficiencies in their motion papers. Their failure to make a ‘strong showing’ of irreparable harm on its own means their motion must be denied.”

The author is a writer for the Vermont Daily Chronicle


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