Are bans on high capacity magazines constitutional?

posted at 8:31 am on March 8, 2014 by Jazz Shaw

A bit of disturbing news comes our way from the Left coast, where a second federal judge has declined to issue a temporary injunction against a Sunnyvale, California ban on weapons magazines holding more than ten rounds, essentially allowing the ban to go into effect while appeals run their course. Any such limits are dismaying to supporters of Second Amendment rights, given the obvious path from there to increasingly restrictive laws which eventually end with only single shot weapons being allowed. (It’s also worth noting that while Andrew Cuomo succeeded in getting one of the most odious gun grabbing laws in the nation upheld in New York, a seven round magazine limit in the law was later thrown out in court.)

But given recent rulings which support the individual citizen’s right to keep and bear arms, are these magazine capacity restrictions actually constitutional? One of the heavy hitters in the constitutional law field, Eugene Volokh, has taken a long look at the question and come up with some potentially depressing conclusions.

A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, California’s ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the court’s rationale was that “a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,” and I think that’s both correct and legally relevant.

Volokh then spends a number of paragraphs making all the same arguments I would make from a common sense perspective. These include the facts that mass shootings involving multiple high capacity magazines are so rare as a subset of all gun crimes as to be insignificant, as well as noting that most mass shooters bring multiple weapons anyway, and magazines can be changed out by a skillful shooter so quickly that it really doesn’t matter. These facts – and more – all lead one to conclude that there is little to no useful purpose served by imposing a capacity restriction, so why would a judge support it?

For the answer, Volokh turns to the precedent of other well known rights where the courts have found some restrictions to be constitutional, provided they don’t impose an unreasonable burden on the citizen exercising those rights. These include examples ranging from restrictions on free speech through volume limits to restrictions on abortions.

For instance, the government may limit the volume of music or constrain sound amplification generally, even though that would necessarily diminish to some extent the potential audience for such music or political advocacy. Substantial restraints on the ability to reach the public would be unconstitutional, but more minor ones — when they don’t discriminate based on the content of the speech — are generally constitutional.

Similarly, while the Court has concluded that the Constitution protects abortion rights, it has said that restrictions on such rights are unconstitutional only when they create a “substantial burden” on women who seek abortions. While there’s the obvious risk that restrictions that aren’t very burdensome will be followed by broader and broader one, courts solve this by saying that they’ll step in when the music volume restrictions or abortion restrictions become too burdensome, not by saying that all such restrictions are categorically unconstitutional.

In a bit of irony, it seems that Volokh is arguing that precisely the same reasons which make magazine limits essentially useless are the ones which may see courts allowing them to sneak through the constitutionality barrier. That is to say, if the restriction really doesn’t do anything to impede the ability of the shooter to use the weapon, (very few self defense scenarios find the victim firing more than three rounds) then a magazine capacity limit doesn’t impose an undue restriction on their rights.

My gut reaction is to disagree with this, but that’s probably more emotional than reason based. As much as I don’t like it – and hope that the courts go the other way – I can see where Volokh is going with this argument, and I fear that some judges may see it that way as well. Your thoughts?


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As the Police say and as the Military Veterans say, anyone worth shooting one bullet to protect yourself is certainly worth a few more bullets.

More bullets and firepower offer a Higher “capacity” to live longer in a life or death situation.

JayTee on March 9, 2014 at 12:46 PM

So if both sides agree it has no effect, why are they doing it?
-
* To punish their enemies.
* To keep their enemies on the defensive.
* To divide their enemies resources.
* To divert their enemies attention from more strategic battles.
* To refresh their perceived moral high ground.
* To revive and milk a never ending cause.
* To expand the tax payer financed bureaucracy from which they progress.
* To progress towards the utopia of an unarmed citizenry.
-

The left watches the right come to their knife fight armed with a great syllogism backed by great evidence. Why should they ridicule this tactic? It is a guaranteed win for them.

KyserS on March 9, 2014 at 12:46 PM

Full auto should be allowed because the urge to rock ‘n roll will result in far fewer deaths since you can’t hit anything what you’re shooting at when firing full auto.

jerryofva on March 9, 2014 at 9:27 AM

FIFY. The problem is all the property damage and the innocent bystanders in your firing arc when you cut loose. Because then, you’re much like a policeman with a 13-round magazine and a little adrenaline.

(I actually generally agree with letting folks have full-auto weapons, with perhaps a competency test for shooting the thing – you have to keep all the bullets inside the range or something.)

GWB on March 9, 2014 at 12:49 PM

Volokh’s legal point is if has no effect in the real world it is not an infringement so everything I said is relevant. I will take Eugene’s legal opinion over some guardhouse lawyer posting on Hotair any day.

jerryofva on March 9, 2014 at 9:30 AM

.
What the (expletive) PROOF/EVIDENCE are Eugene and yourself looking for, that would convince the two of you beyond any doubt, that it does in fact have a negative, counter-productive effect/impact in the REAL world, if we limit the ‘firepower capability’ a common civilian is allowed to own, and possess ?
.
Repeating my original comment :

. . . . . the “gang” our founders were thinking most of when the Second Amendment was written, is OUR OWN GOVERNMENT.
Personal, and home defense against common criminals is second.

The ‘common’ citizens of the United States should not be denied privately owning/possessing all of the firepower capability of our Police ON ALL LEVELS. Not just our ‘local’ police.

listens2glenn on March 9, 2014 at 6:35 AM

.
What I said stands. What Eugene thinks about it BE DAMNED.

Whether you take his word over mine about it, BE DAMNED.

This issue IS worth going to ‘civil war’ over.

listens2glenn on March 9, 2014 at 12:54 PM

“a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,”

Minor burden or major burden, it is still an infringement! That’s what “…(S)hall not be infringed,” encompasses. Somehow, I can’t seem to find where it says in the Second Amendment that there is an exception for a minor infringement.

Also, the Court’s admission that the restriction is a burden on the Second Amendment is an admission that it is an infringement, and an admission of disregarding the Constitution. I call that an impeachable offense.

Woody

woodcdi on March 9, 2014 at 12:54 PM

jerryofva on March 9, 2014 at 9:27 AM

.
FIFY. The problem is all the property damage and the innocent bystanders in your firing arc when you cut loose. Because then, you’re much like a policeman with a 13-round magazine and a little adrenaline.

(I actually generally agree with letting folks have full-auto weapons, with perhaps a competency test for shooting the thing – you have to keep all the bullets inside the range or something.)

GWB on March 9, 2014 at 12:49 PM

.
Totally agree with you on the issue of full-auto.

But I would like to see the states handle the licensing, as opposed to the Feds.

In urban combat, an inexperienced persons with full-auto would do more ‘accidental damage’ than they would good.

listens2glenn on March 9, 2014 at 12:59 PM

If you’re in a defensive position, you’re much better off keeping it on semi, picking your shots, and conserving your ammo. You don’t know how long you’ll have to keep it up, only that you need to hold your position or worst case cover your retreat. I’m not counting something like an M60 because it’s a crew serviced weapon made for laying down a field of fire not an individual weapon.

If you’re assaulting a position that’s when full auto in an individual weapon is useful. I think I fired my M16 on full auto only a dozen times in 12 years. Then it was mostly for putting up tracers. Field medical units don’t spend a lot of time assaulting anything.

claudius on March 9, 2014 at 2:40 PM

It’s important that we, the public, begin to push the overlooked argument in that anything that is good enough for (at least) police/law enforcement is good enough for the public. As a law abiding, legally compliant, person who carries our use of firearms isn’t any different than that of police. Police and law enforcement are charged with protecting the public but they are NOT executioners. They carry guns for self defense purposes (at least in theory) and as such their use of firearms matches that of private citizens.

If police need 20 round magazines in their handguns and 30 round magazines in their AR-15′s then the public should have no less. The notion that the public “shouldn’t need” that much ammo is an excuse to take it from you. It’s an excuse peddled by individuals who neither own guns, nor understand the dynamics of what happens in self defense shootings.

If it’s good enough for cops, it’s good enough for the rest of us.

Flashwing on March 9, 2014 at 2:59 PM

jerryofva let me repeat what has been stated:

1) The 2nd is not about defending oneself from criminals

2) To say that because of some stories you read that there is no reason civilians need more than 10 rounds is blatantly dishonest.

3) You wish to infringe upon a right because you think people don’t need hi-cap magazines all while deliberately ignoring the definition of “average”.

4) It is clear you came to a conclusion then set about justifying it. You are not interested in honest discourse and it shows.

Hard Right on March 9, 2014 at 3:02 PM

The public should have the same number of rounds as the police. If the police need 15-17 round magazines to protect themselves, the public should have the same… it’s simple.

RedManBlueState on March 9, 2014 at 3:42 PM

But I would like to see the states handle the licensing, as opposed to the Feds.

listens2glenn on March 9, 2014 at 12:59 PM

Oh, I agree! It’s easy to forget the federalism argument sometimes when you’re fighting another part of the fight!

I’m not counting something like an M60 because it’s a crew serviced weapon made for laying down a field of fire not an individual weapon.

claudius on March 9, 2014 at 2:40 PM

OK, are crew-served weapons allowed to be owned by individuals? Or, should you be required to form a club or FOA* to own them? ;)
* Firearm Owners Association – like an HOA with much more polite meetings and not nearly so interested in your lawn.

1) The 2nd is not about defending oneself from criminals

Hard Right on March 9, 2014 at 3:02 PM

It isn’t solely about defending oneself from everyday criminals.

there is no reason civilians need

Hard Right on March 9, 2014 at 3:02 PM

We shouldn’t be arguing from need, at all. That’s one of the fundamental problems with these things – the gun-grabbers argue you don’t need something, then we end up arguing why we think we do need it. Nowhere in the exercise of our rights is need the deciding factor.

GWB on March 9, 2014 at 4:50 PM

That’s right. ‘Need” has nothing to do with it. It’s all about “Shall Not Be Infringed.”

woodcdi on March 9, 2014 at 6:28 PM

2nd ammendment + 14th ammendment = i get the same weapons as police if not same as military. Wait, you mean the 14th ammendment is only for gheys trying create fake marriages?

Nutstuyu on March 9, 2014 at 7:12 PM

In urban combat, an inexperienced persons with full-auto would do more ‘accidental damage’ than they would good.

Experienced personnel don’t do all that well either. As I said above experienced troopers from the 101st armed with M-1s defeated experienced German’s of the 26th Volksgrenadiers armed with StG 44 select fire assault rifles in urban combat during the siege of Bastogne. Most rounds fired in full auto just pass through empty space to no effect. I like to think about magazine capacity in terms of trigger pulls per mag. Full auto gives you fewer trigger pulls than an M-1.

jerryofva on March 9, 2014 at 7:21 PM

A criminal is able to plan for whatever limits the law sets for magazine capacity, and carry more magazines. He can adjust his set up and equipment as necessary during the planning stages. Victims do not get a planning stage they are only able to respond with what they have on hand. If you are awakened at 2am from a break-in, it is doubtful you are going to be able to sling on your gun belt and have the additional magazines you need with you. Try holding four magazines in one hand and changing one out in the gun while standing in your tighty whities, or less for some people. Limited capacity is more than a little inconvenient for persons in an emergency.

mbrans on March 9, 2014 at 8:41 PM

A criminal [government agent] is able to plan for whatever limits the law sets for magazine capacity, and carry more magazines. He can adjust his set up and equipment as necessary during the planning stages. Victims do not get a planning stage they are only able to respond with what they have on hand.

mbrans on March 9, 2014 at 8:41 PM

Applies to the primary reason for the 2nd Amendment as well.

AesopFan on March 9, 2014 at 10:39 PM

THE RIGHT OF THE PEOPLE……

….SHALL-NOT-BE-INFRINGED

TX-96 on March 10, 2014 at 8:44 AM

I can agree to a 10-round capacity limit – IF and WHEN that same restriction applies to government. Local, state, and federal law enforcement, and any military stationed on US soil. That will never happen, so in order to preserve the intention of 2A, we need a law guaranteeing that civilians have the right to own any weapon that law enforcement may legally possess or operate.

Beo on March 10, 2014 at 9:43 AM

“Shall not be infringed” is plain English. Enough said.

Amazingoly on March 10, 2014 at 10:15 AM

JohnGalt23 on March 8, 2014 at 10:11 AM

Please start living up to your name. Thank you!

Dunedainn on March 10, 2014 at 11:12 AM

CT Police Refusing To Enforce New Anti-Gun Law
Via The Examiner:
A showdown is developing between a sizable number of Connecticut state police officers and the politicians who passed into law highly restrictive gun control, gun bans, and bans on high capacity magazines.

Gun rights legal expert and activist David Hardy reported Friday that 250 law enforcement officers in Connecticut have signed an open letter stating that they will not enforce the new anti-gun and magazine laws, which they consider to be a violation of the Second Amendment to the U.S. Constitution.

A major news story on these developments is due to be published soon, but Hardy received an advanced notice via email from Tyler Jackson, the head of the Connecticut Peace Officers Association, the organization that sent the open letter.
http://weaselzippers.us/178783-ct-police-depts-refusing-to-enforce-new-anti-gun-law/

DinaRehn on March 10, 2014 at 11:20 AM

DinaRehn on March 10, 2014 at 11:20 AM

Smart move for the cops who don’t want to get shot while confiscating guns – especially given that their border is only 40 miles away from Minuteman National Park in Concord, MA.
Hmmmmm – and what was it that happened there?
I guess at least some of the cops in CT don’t want to be the new redcoats…..

dentarthurdent on March 10, 2014 at 12:17 PM

I’m not counting something like an M60 because it’s a crew serviced weapon made for laying down a field of fire not an individual weapon.

claudius on March 9, 2014 at 2:40 PM

OK, are crew-served weapons allowed to be owned by individuals? Or, should you be required to form a club or FOA* to own them? ;)
* Firearm Owners Association – like an HOA with much more polite meetings and not nearly so interested in your lawn.

GWB on March 9, 2014 at 4:50 PM

No, I think individuals should be able to buy M60s if they want them. I was just remarking that the rules for using them in a firefight are different because the are actual machine-guns, not individual weapons.

claudius on March 11, 2014 at 9:36 AM

Smart move for the cops who don’t want to get shot while confiscating guns – especially given that their border is only 40 miles away from Minuteman National Park in Concord, MA.
Hmmmmm – and what was it that happened there?
I guess at least some of the cops in CT don’t want to be the new redcoats…..

dentarthurdent on March 10, 2014 at 12:17 PM

And yet there is at least one CT cop yearning, nigh begging to kick your mfing door down in a paramilitary raid to take your weapon. He might even let your dog live.

Vet: Conn. Cop said ‘I cannot wait to get the order to kick your door in’

John Cinque, a Navy veteran who told Connecticut lawmakers last year he would not comply with the state’s new gun control law, told Connecticut gubernatorial candidate Joe Visconti that a Branford police officer said he couldn’t “wait to get the order to kick your door in,” Freedom Outpost reported Saturday, citing a YouTube video posted Friday.

“I live in Branford, and his words straight out were ‘I cannot wait to get the order to kick your door in,’” he told Visconti.

Your DUTY is to take at least one with you in this scenario.

Murphy9 on March 11, 2014 at 10:29 AM

Your DUTY is to take at least one with you in this scenario.

And don’t forget those who sent him. Therein resides the real threat to your liberty, freedoms, rights, and personal sovereignty.

Woody

woodcdi on March 11, 2014 at 10:40 AM

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