By Mike McDaniel
One of the primary tactics of gun banners is to limit the capacity of magazines, ostensibly for safety reasons. To their way of thinking, reduced capacity magazines require shooters to reload more often, which will reduce the death toll in mass shooting attacks. Of course, safety has nothing to do with it. Controlling and disarming the law-abiding population is always the goal, and if semiautomatic handguns cannot be banned, any step that will inconvenience or harry their owners must be pursued with the hope that will lead to greater and more onerous restrictions in the future . . .
With this is mind, law Prof. Eugene Volokh recently published his thoughts in an article titled: “Are Laws Limiting Magazine Capacity to 10 Rounds Constitutional?” While I doubt the good professor is a citizen control advocate, his legal opinion is certainly congenial to them.
“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 recognizes the relevant technical issues:
‘A gun with a larger than usual capacity magazine is in theory somewhat more lethal than a gun with a 10-round magazine (a common size for most semiautomatic handguns), but in practice nearly all shootings, including criminal ones, use many fewer rounds than that. And mass shootings, in which more rounds are fired, usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer — especially one armed with a backup gun — would hardly be stymied by the magazine size limit. It’s thus hard to see large magazines as materially more dangerous than magazines of normal size.”
Volokh also understands that such laws will accomplish little or nothing for the safety of the public:
“It is conceivable that a magazine size ban will help limit the deadliness of some rare mass attacks, if the murderers comply with the law and don’t get a black-market magazine; the Jared Loughner killings, according to press accounts, were stopped when Loughner stopped to reload and was tackled by several people. But given that only a tiny fraction of gun homicides involve more than 10 shots fired (see Kleck, Point Blank, p. 79, and Kleck, Targeting Guns, p. 123), that mass shooters who really want large-capacity magazines will likely be able to get them even if they are outlawed, that mass shooters can and generally do carry multiple guns, and that only very rarely will people be able to tackle someone during the second or two that he needs to reload, I suspect that large-capacity magazine bans will do next to nothing (or perhaps outright nothing) to save lives.”
Put aside the fact that there are tens of millions of standard-sized magazines already in circulation, thus obviating the need for a “black market,” unfortunately, it’s here that Volokh parts ways with history:
“Still, these same reasons probably mean that the magazine size cap would not materially interfere with self-defense, if the cap is set at 10 rather than materially lower. First, recall that until recently even police officers would routinely carry revolvers, which tended to hold only six rounds. Those revolvers were generally seen as adequate for officers’ defensive needs, though of course there were times when more rounds are needed.”
So, ten rounds are more than sufficient, unless one is attacked by multiple attackers, which happens substantially more often than mass attacks. As to the assertion that the capacity of revolvers was seen as adequate, I can attest, as a police officer that carried revolvers for more than a decade, that few, if any officers considered six rounds adequate. I carried three, rather than the usual two speed loaders, which provided a total of 24 rounds. If I had more room on my belt, I would have carried more. We carried revolvers primarily because we had no choice. We had six rounds because that was the capacity of revolvers. Police executives feared semiautomatic pistols and prior to the introduction of Glocks, for the most part wouldn’t allow them.
Volokh also errs in asserting that most semiautomatic pistols have a magazine capacity of ten rounds. This is true only for common .22LR pistols such as the Walther P22, the Ruger SR22 or the Ruger Mark I, but this is so primarily for design reasons: ten rounds of .22LR ammunition fit in the angled, single-stack magazines that fit in grips that accommodate most hands: grips that are commercially viable happen to dictate single-stack ten round magazines. Handguns designed for self defense in calibers appropriate to that purpose commonly use double-stack magazines from 13-17 rounds capacity, which are their standard capacities; they are not “large capacity” magazines.
It’s interesting to note that the diminutive Glock 26—ten round magazine capacity—was designed in response to the Clinton gun ban’s 10 round magazine limit. That handgun encouraged many other manufacturers to design highly concealable handguns with 10 round capacity, which gave citizen control advocates fits. That ban was allowed to sunset after ten years when it became clear that the magazine capacity limitation, and the rest of the law, accomplished nothing at all for public safety. Nothing, since then, has changed in human nature, the frequency and type of crimes, and the law to suggest that similar laws would accomplish any public safety purpose.
It is equally interesting to note that magazine limitations—with the exception of the dim-witted but arrogant New York Legislature—always exclude the police, who apparently do not see ten rounds—or less—as adequate for their defensive needs. Of course, New York police officers merely ignore that particular law, which also serves to illuminate the shaky ground on which such laws stand. Are police officers lives of greater value than the lives of others?
Volokh’s ultimate conclusion is that such bans are constitutional because they do not create a “substantial burden” on the exercise of the Second Amendment:
“More broadly, even if bans on magazines with more than 10 rounds are unwise, not all unwise restrictions are unconstitutional. That’s true for speech restrictions. It’s true for abortion restrictions. And I think it’s true for gun restrictions as well.”
In deciding Heller, the Supreme Court made clear that analysis of Second Amendment issues should be based on “strict scrutiny,” which is a far higher standard than Volokh would apparently apply. In order for restrictions to be valid the government must prove they are necessary to achieve a compelling governmental interest, and they must employ the least restrictive means to accomplish that interest.
The “substantial burden” standard allows all manner of mischief, and renders the Second Amendment a fundamental, inalienable right without any real application in the real world. If limiting handguns with a design capacity of 15 rounds to only ten is not a substantial burden, what is? What’s magical about ten rounds? Wouldn’t nine rounds be as reasonable? Seven? Why not six, like revolvers, which Volokh believes the police found adequate? And if six is no burden, why not one? After all, a gun will still shoot with a single round, and magazines can be rapidly changed. And why does anyone need a laser sight or a “sniper scope?” Surely these things are designed only for killing more efficiently. Why not mandate 30-pound triggers and soft plastic bullets that can only cause bruises, all for the purpose of greater public safety? With these improvements in public safety, people can still keep and bear arms, can’t they?
Those who support the Second Amendment and understand firearm technology recognize the absurdity of such things, but citizen control advocates would not see such limitations as anything but desirable. For them, there is no limit to restrictions absent complete bans and confiscation of all weapons. Perhaps not even that would satisfy their utopian desires.
Where, then, is the compelling governmental interest? Volokh admits that such bans would not prevent mass shootings or reduce the death toll, and the decade of the Clinton Gun Ban proved conclusively that magazine capacity limitations do nothing at all for public safety. Americans are buying guns—including handguns and rifles with standard capacity magazines of from 13-30 rounds—in ever-increasing numbers. There are far more firearms in private hands than at any time in history, yet with all those guns and magazines, the crime rate—particularly violent crime—continues to decrease, and firearm accidents are at an all-time low. Firearms in honest hands prevent or stop crimes as often as 2.5 millions times per year. By any measure, firearms are used for good reasons, reasons that are a benefit to society, far more often than they are used for ill. The nebulous argument that magazines capacity limitations would somehow improve society also fails.
The argument that because magazines may be quickly changed capacity bans are not a significant burden argues exactly the opposite. There is no public safety advantage to be realized, hence there is no compelling governmental interest in such laws.
Since Prof. Volokh suggested that First Amendment restrictions also allow Second Amendment restrictions, is not the opposite true? President Obama is famous for employing ten sentence answers where a one-sentence answer would suffice. Why not limit politicians to no more than two-sentence replies (and no compound-complex “assault sentences,” either!), and no more than ten paragraph speeches (three simple sentences per paragraph, maximum)? Surely this would not be a substantial burden on the freedom of speech? No lives would hang in the balance, and it would have the compelling governmental purpose of imposing clarity, brevity and even sometimes forcing politicians to tell the truth, if only by accident. A related law might limit Congress to bills of only ten pages, at most.
Mark Twain said: “No man’s life, liberty or property are safe when the legislature is in session.” Magazine limits only harm the Constitution and the innocent. Politician speech and legislation limits just might save both.