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.

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112 Responses to Do Magazine Limits Pass the Constitutionality Sniff Test?

  1. Good article, thanks Mike.

    “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.”

    Is that actually true?

    And FWIW, my G26 mags hold 13 rounds each, because I put the Pierce extensions on them.

    13+1 total capacity when I’m carrying, with two 13 round mags backing that up.

      • There you go with that whole logic thing again…

        We’re talking guns, buddy, check the logic crap at the door.

      • Or at least carry a bigger magazine for the reload.

        I carry a CZ75 P-01 with a 14+1 capacity, but the reload I (sometimes) carry is a 19-round magazine. If I ever have to reload in a defensive shooting scenario, I won’t be worried about concealing the gun with the reload magazine in.

    • “A related law might limit Congress to bills of only ten pages, at most.”

      I would support that. I would support a Constitutional Amendment that would place such a limit. No more thousands of pages laws like Obamacare.

    • It’s silly looking, but a G26 also takes the big 33 round magazine, too. Silly, but fun at the range.

      Lots of handguns do indeed take ten round magazines, but those are often compact size pistols. If arbitrary ten round compact pistol magazine limits are Constitutional, then can someone please show me where the Bill of Compact Rights may be found? I don’t recall such an enumeration.

      When they downsize the magizines, they upsize the infringement.

  2. Guns and accessories commonly owned are protected according to the supreme court in Heller. There are millions and millions and millions of pistol magazines that hold 11-20 rounds. There are millions and millions of 30 round AR-15/AK/etc mags out there.

  3. How about a ‘limit on free speech for politicians’ that goes something like this:

    They can speak all they want, they just have to agree to wear the “Facilator 100000” – If it detects a lie, it shocks the wearer with 100K volts.

    If nothing else, C-Span would quickly become a new reality TV show. 😀

  4. A 10 round magazine is a gun ban, a smart gun is a gun ban, etc. Anything that would cause a gun to not go bang when you need it is a gun ban. If the court is liberal it is constitutional, if not it’s an infringment. as to the framers of the Constitution, I don’t see how you have the right to bear arms if you have no damn cartridges.

    • An along those lines:

      “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…”

      This is once again a red herring tactic designed to get us to agree that that the subject is even open for discussion. I’m fairly certain the correct interpretation of “…shall not be infringed.” doe NOT include giving the government the authority to infringe if in the opinion of the government the infringement is not a “substantial burden” on the right of the people to keep and bear arms. The Bill of Rights lists what the government is PROHIBITED from doing. They are PROHIBITED from infringing. The debate must stop right there and SCOTUS be damned.

      • I agree Cliff. Quibbling over “substantial burden”, when the only Constitutional, moral, civil standard is ZERO burden, strikes me as negotiating the permissibility of rape in terms of “substantial penetration.” It’s illegal and obscene in equal measure.

        • Volokh lives and teaches in LA. For a person so situated, even a person with a very quick mind, such lapses may be unavoidable. Perhaps he’s just thinking “If we cave on mag size, maybe the rest of Peruta will stick?”

  5. The problem is, as long as there are “experts” willing to testify in a legislative hearing that magazine capacity limitations will reduce crime, courts will continue to be reluctant to intervene. The point of hearings is not to let the voice of the people be heard; rather, it is to create a legislative history that the government can point to when the law is challenged. This is why state senators play solitaire / update Facebook / shop during committee hearings – as long as a few of the magic words and documents make it into the record, mission accomplished.

    • I see people of the gun shun higher education far too often. Can’t become an expert testifier from your couch.

      • I served on a jury in a civil suit that lasted almost 6 months. I know for a FACT expert witnesses will say whatever you pay them to say.

        • In the legal profession, we frequently refer to expert witnesses as whores. Most will claim that they have boundaries, but I have yet to find where they are.

    • Just to be clear, I don’t believe that Volokh is at all advocating this position.

      Rather, he is taking the current case law that is out there, synthesizing it, and trying to think like a an appelate court. I dont’ care for his conclusions, but one should not dismiss them lightly.

      One argument I’ve made is that If I am out for a casual springtime stroll, I might have a carry piece plus one spare mag in a pocket. So that 10 round limit limits me to 20 rounds. A criminal out to do mass violence can carry a purse filled with 10 round mags, plus a few spare guns for New York Reloads. In that scenario, the law-abiding citizen who doesn’t want to clank like a walking arsenal is severely affected by the mag cap limit, whereas the criminal is not.

  6. I think the framers of the Constitution wrote “Shall not be infringed” because once legislation starts to infringe on a right, those infringements themselves become justification for further infringements. The slippery slope of how many rounds in a magazine can eaisly be used to justify limits on number of rounds of ammo in a person’s cache or how many firearms in their collection.

    • “Shall not be infringed” is not really that complicated a concept. Fortunately for us, we have all these wise benefactors in congress who tell us that “infringed” really doesn’t mean infringed, as long as they say so.

  7. No they don’t pass ANY sniff test but I suggest a one-time only compromise:

    All Americans have 100% unfettered 2nd amendment rights with zero restrictions whatsoever except for spree shooters. Spree shooters will be required by law to use only 10 rd magazines loaded with no more than seven rounds each. For the children.

  8. I disagree with Mr. Volokh in this case.

    Whenever government seeks to limit a right, they must have extremely compelling evidence of a huge benefit to the public to pass even a small limitation on that right. Furthermore, there cannot be compelling evidence that disproves the alleged benefit. In other words, “because government says so” and it kind of makes sense to some people is not good enough.

    When it comes to magazine capacity limitations, both simulations (with simunitions and/or live fire) and real world events have demonstrated that 10-round limits do not reduce a spree killer’s ability to kill dozens. Since we can demonstrably show that magazine capacity limitations do not bring about the benefits that government alleges, their limitations must not be allowed to stand.

    • “Whenever government seeks to limit a right, they must have extremely compelling evidence of a huge benefit to the public to pass even a small limitation on that right. ”

      Rights are neither subject to the rule of law nor arguments grounded in social utility.

    • Committee Witness: If [insert mass shooter’s name] did not have [insert type or weapon or magazine], my [insert noun for family member] would be alive today…

      Committee Member: Thank you – this is why we need to pass this bill.

      BOOM — There is your evidence that a court is going to hang its hat on. “We have examined the legislative history of the law in question. While petitioner can point to several parts of the record to support the proposition that [insert gun control measure] would not lower the amount of gun violence, there are several instances in the record supporting the opposite conclusion. Therefore, we decline to resolve these conflicts, as it is a fundamental tenet of judicial review that we reserve matters of fact finding to the legislature…” Check out Metro Broadcasting, Inc. v. FCC for an example of this kind of language.

  9. When asked why the need for a high capacity magazine the correct answer is “Why do you have more than one square of toilet paper? Sh*t happens”

  10. In a broad sense, magazine capacity restrictions are just a version of “Dumbing Deviancy Down.”

    At a roller rink in my youth, a sign confidently proclaimed, “No skater shall skate faster than the average of all skaters.”

    Taken to its logical conclusion, everyone would come to a complete halt. Magazine capacity restrictions are the same and will result in magazines eventually being abolished.

    • Has he priced magazines recently, I wonder?

      For my CZ 75, for instance, for every standard capacity magazine I have, I’d need to buy 1.8 limited-cap magazines to get to the same round count.

      At around $40 plus shipping per magazine, that will get expensive, fast. And that’s not even considering supply-and-demand price increases if a broad ban takes hold.

      That to me would feel like a pretty unreasonable burden, all by itself!

  11. “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.”

    And that’s where he first went astray. I’ve seen no evidence that the government may limit a Right without an overwhelming burden of proof of a safety issue. And there isn’t, by his own admission, one in evidence.

    Done.

  12. The SCOTUS did not rule in Heller on what level of scrutiny should be applied to the Second Amendment orther than categorically rejecting the “rational basis” test. What it did do was apply intermediate scrutiny to the specific law that was in question.

    Part of Due Process incorporation is applying levels of scrutiny specific to the matter at hand rather than categorically.

    McDonald (which is the case that sets the precedent incorporating the Second Amendment against the states) applied intermediate scrutiny.

    Volokh is applying the same standard that the courts have been applying.

    • Volokh applied the correct test but did so erroneously. Among other flaws, he completely ignored the most important part of the right’s basis, the ability to fend off tyranny locally. Good luck with that 10-round magazine when every podunk PD in rural Hicksville County is packing 30-round magazines.

      Eugene has a large blind-spot when it comes to the ‘tyranny’ argument, and no practical understanding of the self-defense realities. Fighting off two armed attackers requires (by FBI stats for ‘all major calibers’ and its own agent performance) 5 rounds that hit and 6 rounds that miss. In other words, even a fairly common level of criminal aggression will leave the defender with an empty magazine disastrously.

      I have no idea why EV went off the rails on this. I hope it does not involve ambition to become a key part of the new Washington Post under Jeff Bezos’ ownership.

    • Volokh applied the correct test but did so erroneously. Among other flaws, he completely ignored the most important part of the right’s basis, the ability to fend off tyranny locally. Good luck with that 10-round magazine when every podunk PD in rural Hicksville County is packing 30-round magazines.

      Eugene has a large blind-spot when it comes to the ‘tyranny’ argument, and no practical understanding of the self-defense realities. Fighting off two armed attackers requires (by FBI stats for ‘all major calibers’ and its own agent performance) 5 rounds that hit and 6 rounds that miss. In other words, even a fairly common level of criminal aggression will leave the defender with an empty magazine disastrously.

      I have no idea why EV went off the rails on this. I hope it does not involve ambition to become a key part of the new Washington Post under Jeff Bezos’ ownership.

    • You and Mike are BOTH wrong. Heller did NOT say what level of scrutiny applied–it held that the ban on possession of firearms inside the home failed no matter what level of scrutiny was applied, and left it at that. It did NOT apply strict scrutiny, and certainly did NOT say that strict scrutiny applies to any an all invasions on the right to keep and bear arms–as demonstrated by every single case decided by every single federal court of appeals that has addressed this issue since, all of which have (purportedly) applied various iterations of intermediate scrutiny to issues of the right to bear arms outside the home. Heller implied (but certainly did not hold) that limitations on the right to bear arms outside the home, for example in schools and courts, or by felons and the mentally unfit, would pass constitutional scrutiny, which in turns implies (but does not hold) that something less than strict scrutiny applies outside the home. This is just another way of saying that time, place and manner restrictions on the exercise of the Second Amendment are just as valid as similar restrictions on the exercise of the First Amendment, which latter restrictions are well-recognized if unevenly applied. Such restrictions have historically been subjected to a more deferential intermediate scrutiny analysis–which is where Volokh comes out, concluding that capacity restrictions will probably meet this standard.

      while I agree that capacity restrictions are innately arbitrary, I would bet that these restrictions will be upheld by any federal circuit court that addresses them.

      • I agree as to their discussion of the right to firearms for self-defense in the home. I did not see that carried through to their dicta about other limitations.

  13. Volokh may be right. But if we want at least part of the government on our side we need to ensure that every time this issue comes up in a legislative body, folks are there insisting and pushing the right legislators to include LEOs/government agencies to only have the same weapons available to the general public.

    The argument he cites about 10rd mags not really being a limitation on spree shooters, also applies to them not being a limitation on police either. In fact, police have less of an argument against having reduced capacity magazines since they are better trained (well should be), operate with back-up, and have additional resources immediately on call. Not to mention officers responding to an officer needs assistance call tend to show up in a hurry and make it a priority.

    If LEOS had to abide by these limitations they would be presenting the rational arguments against them. As opposed to having the attitude, hey, doesn’t apply to us let’s not get involved.

    • These laws should apply regardless of whether a civilian happens to be an LEO or not. It makes no sense that 10-rounds isn’t enough for civilian LEO’s, but it is plenty for me while I defend my home or person waiting for those same civilian LEO’s to arrive.

      Of course the “Rape-me-Just-don’t-kill-me” crowd doesn’t agree.

    • Why would you suppose Eugene Volokh is ‘right’ on the issue, when his conclusion complete ignores the “in common use” reality and the “defense against tyranny” motivation of the right, let alone the realities of defense in a rough neighborhood? What exactly is the “he is right because…” predicate you imagine?

  14. ” Keep and Bear Arms” Means those arms, used for offense and defense, and the ammunition used for those arms, in such quantity as to be effective for the stated purpose.

    “Shall not be Infringed” Means the government has no authority to interfere with that right and any and all laws contrary to that right are Unconstitutional.

  15. The problem with the issue is articulating a practical need to the opposition for the use of 10+ round mags.

    Exemptions for the police are easily justified:they have to arrest people for a living,some of whom will violently resist.

    The Average Joe walking down MLK drive does not. If he meets a bad guy,it’ll be because said thug thinks he has the upper hand of force. Once Joes gat comes out, thug is outta there. Magazine capacity would then seem to be irrelevant: bad guys hardly look at a pistol and say ” phht,he’s got a single stack. I’ll rob him anyways”

    So, we can’t use need as a basis. What we have to do is categorize 10+ round mags as what they are- a convenient tool for civil gun owners.No different then an extended fuel tank for a car.

    • —The problem with the issue is articulating a practical need to the opposition for the use of 10+ round mags.—

      Shifting the burden- a legal no no. It’s the gov’t that needs to do the articulating here, even under intermediate scrutiny, as to how mag limits further “an important government interest in a way that is substantially related to that interest”.

      —Exemptions for the police are easily justified:they have to arrest people for a living, some of whom will violently resist.

      The Average Joe walking down MLK drive does not. If he meets a bad guy, it’ll be because said thug thinks he has the upper hand of force. Once Joes gat comes out, thug is outta there. Magazine capacity would then seem to be irrelevant: bad guys hardly look at a pistol and say ” phht, he’s got a single stack. I’ll rob him anyways”.—

      Totally unsupported premise. Bad guys are:
      A- Not always encountered while walking down the street.
      B- Quite often working as a group.
      C- Often armed themselves.
      D- Possbly intoxicated, insane or
      E- Motivated to do some harm other than a mere mugging [rape, kidnapping, assault, murder, etc].
      E- Just as likely to attack an armed citizen as an armed police officer.

      —So, we can’t use need as a basis. What we have to do is categorize 10+ round mags as what they are- a convenient tool for civil gun owners.No different then an extended fuel tank for a car.—
      U wot m8? Cars have zero place in a discussion about natural and constitutional rights.

    • I disagree. Although a police officer may be more likely to be involved in a violent encounter. Once in an encounter than the requirements for the weapon to defend oneself are identical for the civilian and LEO.

      In fact, because the LEO normally operates with backup, and has additional resources available on call, they have less of an argument for standard capacity weapons. Additionally, in many police shootings the officers fire far more rounds than are ‘required’ (Two older women delivering newspapers being shot at more than 100 times) which tends to argue against them having too few rounds available.

    • The reply to the question of why one needs a higher-capacity magazine should simply be, “Because I want one”. That should be all that’s necessary.

  16. NO! And I’ll tell you why it does NOT pass the sniff test. The Second Amendment was written in such a way that the common person could be armed with weapons EQUAL to what the army of the day was using. Anything less than that is an infringement, it’s that plain and simple.

    • This is a historical argument that reflects what the court stated in Heller. But does it include Claymore mines?

      And no, it does not include nukes, since they are not in common usage by the military. In fact, they were used twice almost 70 years ago — hardly common.

      • Given the prevalence of fences and walls, the question of mortars remains. Small mortars. How else am I to respond to attack by guys who insist on shooting 45/70?

  17. The thing that gets me of course is the whole ‘oh, that will give someone the time to charge them as they reload’ thing. Yeah, really?? I think that’s been proven false. Most people can swap mags in about 2 seconds, with a round still in the chamber.

    But the bigger questions is to our gun grabber ‘friends’ who promote this retarded notion is: So are YOU going to be the one to charge the pyscho during mag changes????

    I didn’t think so. So you just assume someone else will then, huh???

  18. The correct number of rounds happens to be the number of rounds the gun I choose to carry holds. If it is my Glock 22 than it is 15, if it is my Kimber 1911 than it is 8, if it is my snub nose S&W air weight than it is 5. I choose how many rounds is right, not a politician.

  19. The correct number of rounds depends on the gun I choose to carry. If it is my Glock 22 than it is 15, if it is my Kimber 1911 than it is 8, if it is my snub nose S&W than it is 5. I choose how many rounds I want, not a politician.

    Flip the argument against them: they say pro choice is about choice as the mom chooses to kill her baby or not, and that if you outlaw abortion then women will be forced to seek out dangerous back alley abortions.

    Same holds true for guns. Outlaw more than 10 rounds, only outlaws will have more than 10 rounds.

  20. Why should we not ban more then 10 page magazines? Or 10 minutes of broadcasting per day? Or a 10 word maximum on all editorials? More than that is just rabble-rousing nonsense.

  21. First of all, I love Volokh, but I think he got things half wrong.

    Also, the OP got the standard of review wrong. SCOTUS applied medium scrutiny in Heller because it declared that the challenged law failed under even that standard. The Court did not announce which standard(s) would be applied in future cases.

    Heller was also a ban — and the Court is going to look sideways at bans.

    Putting all that aside, SCOTUS might determine — and (if SCOTUS takes on mag limits) I think will determine — that States can set mag limits for outside the home where the their interest in pubic safety is compelling. For inside the home, I think that the exigencies are different and limits would fail judicial review under a heightened standard.

    The power of states to limit ammo within firearms in public is well settled. For example, try turkey hunting with a tube full of 5 or 7 shot shells or deer hunting with a mag full of 8 or 10 rounds of .30-06. In most states, either one would be naughty, naughty. But when the Mighty Nimrod gets back home, he can fill those same mags to his heart’s content.

    The State’s interest on what goes on outside the home may be compelling, but inside your home may be less. Heller, McDonald and two hundred years of jurisprudence say so.

    Fortunately, if the Court holds that the States cannot regulate mag limits inside the home but they can outside the home, then mag limit laws fail if they prohibit or confiscate, rather than regulate the where and the when.

    Yes, I know this is complex and will piss off the “absolute” crowd. But if 2A is absolute, how come prisoners can’t carry in jail?

    • Just to be argumentative, one can wonder if there are some States that will limit the capacity of your turkey gun, but will at the same time allow you to carry a sidearm for self-protection while hunting.

      But here is an honest non-argumentative question. What puzzles me here is the fact that they we are dealing with a number. Sure, no court will say legislature can’t regulate the capacity at all, but how is the court to decide on the constitutionality of a number? States/localities have set magazine size limit anywhere from 5 to 30. How is a judge to know where between 5 and 30 the magazine size limit ceases to be constitutional?

      • You have hit the numbered nail right on its head. No court will presume to know the magic number. Accordingly, the courts will defer to the legislatures, which are paid to make just such decisions and who also have the right to be wrong.

        • And some legislatures seem paid to pick the smallest politically palatable number, and then revisit the issue in a few years to make it smaller yet. This is so depressing.

    • It sounds like you are saying that 30 round AR mags would still be legal to buy, sell and produce, but you could load no more than ten rounds in them (or whatever the magic number is) when outside of your property. Ditto for glock 17 mags, etc. Did I get that right?

    • Your suggested likely outcome does seem like the sort of thing they’ll do. The standard magazines can be stored indoors for those inevitable moments when tyranny appears, perhaps.

      Suddenly I care about the clerks the justices hired this year.

    • Putting all that aside, SCOTUS might determine — and (if SCOTUS takes on mag limits) I think will determine — that States can set mag limits for outside the home where the their interest in pubic safety is compelling.

      Still waiting for the argument proving that “interest in public safety is compelling”. In fact, all known evidence is to the contrary.

  22. Easy: No.

    The 2A clearly prohibits infringement on the right of the people to bear arms, and explicitly for the performance of the duties of a Militia (other reasons for the right, e.g. self-defense or hunting notwithstanding). The right most explicitly protected, therefore, is that to the arms necessary to a militia, that is, the normal load-out of an infantry soldier (probably not crew-served weapons, Apaches, or nuclear bombs, to deflect a ridiculous strawman). It would be absurd to assume the writers intended to facilitate a militia limited to weapons suitable only for hunting, or limited to a small amount of ammunition, which would then be expected to defend the nation. Therefore, the ‘right to an infantry soldier’s load-out’ view is the most obvious and logical reading of the whole 2A.

    Miller held the same – if someone had testified that short-barreled shotguns were in common military use (which they were), the SC said the 2A would have protected the right to civilian ownership of short-barreled shotguns. No one brought this to the attention of the SC, apparently.

    I’m not sure exactly what Heller or McDonald say, since I haven’t read them. Nonetheless, it is the internally consistent reading.

    Any infringement on the right of the average non-criminal, non-mentally-incompetent/incapacitated citizen, to the possession and use of common infantry weapons, is prima facie a violation of the 2A.

    Volokh would have to argue that soldiers don’t need more than 10 rounds in a magazine to protect the nation. He’s sort of trying with the revolver BS, but that again is an irrelevant strawman. The people are the infantry, and the Constitution was intended to limit the government’s power to destroy that balance of power.

    In reality, the Constitution has failed miserably, obviously. But I’m only arguing the internal consistency of the Constitution, not how it has been interpreted and applied.

      • Walmart, I think. Unless there are some kind of unconstitutional laws against them somewhere. Then you’ll have to go to a crooked ATF agent.

      • Maybe try here, ask for “Eric”: 202-514-2000

        In reality, as I’m sure you know, the 2A did protect the ownership of grenades at the time it was written (pre-Claymore). If the people thought the USG should be allowed to prohibit them from having grenades, there was Article V. I would personally argue that since they are weapons purpose-built to kill indiscriminately (as opposed, say, to guns with sights), probably the people should be prohibited from owning them. Again, though, Article V, not some BS made-up ‘interpretation’.

        Even the idea that the SC gets to say what the Constitution says, or to limit the rights ostensibly protected therein, is the SC’s own idea, not from the Constitution. As I said, I’m just arguing what it says, not how it’s been used (as toilet paper) since it was ratified.

        • It’s likely that grenade ownership would be deemed beyond the reach of 2A precisely for the reason you mentioned — they are indiscriminate and therefore “dangerous and unusual,” to use the Heller Court’s language, even though they are in common use.

          The same argument could be applied to automatic weapons. Which would then force nine old people to determine what’s “dangerous and unusual,” and what isn’t, instead of focusing on what the Constitution actually says.

        • Hand grenades were used in America well before the Revolutionary War–some anti-vaccinators threw one into Franklin’s press room. The founders would have been familiar with them. Then, as now, they were arms. And no more indiscriminate than cannons, which private citizens also owned.

          Also, they’re so easy to make.

        • “Granado” was thrown into Cotton Mather’s home, not Franklin’s press room. [NOTE TO SELF: Don’t rely on way-back memory]

  23. Mike McDaniel’s points and counter points are very well done. Good job Sir.

    This topic, along with other’s constructs that explore the plethora of “infringements”, can be found all around zee web. There are many thoughts addressing these issues, many opinions, and some even having a considerable degree of scholarship.

    All these various sources are always an interesting ‘read’ because often there are nuggets that provide the reader with an epiphany for deeper understanding, no matter how well versed in Constitutional Rights or things ‘gun’ they already were beforehand.

    Typically within “The Volokh Conspiracy”, the real Mother Lode of thought goes on within the Comments section. Untypically, Eugene Volokh misses the mark on this particular Second Amendment discussion.

    Methinks it’s worth your time to give the whole thing a read because many address the issue without an over abundance of “Reasonableness” arguments and kinda mostly prof just “….. the facts Ma’am” from the Legal Chattering Class’ (sic) perspective.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/06/are-laws-limiting-magazine-capacity-to-10-rounds-constitutional/

  24. 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.

    I often find EV’s opinions interesting, but this paragraph is overloaded with fail: The 2nd amendment enshrines the right not only to fend of the mugger in rags, but the mugger with a government badge. To point out that police officers generally carried a six-gun in the past is to ignore two factors: They abandoned six rounds as adequate to deal with criminals, and they kept a shotgun (and often a rifle) in the cruiser. Additionally, the police officer’s preparations do not involve at any level “a right” but rather only “departmental orders.” Certainly the firearm a PO carries does not fall withing that part of the the 2nd amendment enshrining the need to fend of tyranny. Three fundamental elements related to the 2nd amendment are blithely ignored by Volokh for reasons I cannot guess. It is out of character.

    If EV’s goal was to wonder where the practical line can be drawn by the courts, the very least the courts need to consider is what is in fact in almost universal use by citizen gun owners, and what is necessary in order to present a credible threat to would-be tyrants. Volokh did neither. Volokh committed the very error the Supreme Court has warned of before, that of a judge feeling compelled to establish a limitation in a subject matter on which he has no expertise.

  25. This illustrates the danger, the very real danger, of lawyers arguing our case. Somehow, the good class of councilors got betwixt God and man. They will have to explain that in the eternal to St. Peter at least.

    I nearly puked when I heard David Kopel and Alan Gura give the symbolic shoulder shrug essentially to full auto ownership years ago. Just last week on the BBC the immediate past President of the NRA David Keene did the same. All these folks are NOT people of the gun. They are lawyers first and foremost. And DC lawyers most of them. As such they are perfectly happy at arguing either side of the case. They don’t have any real skin in the game. They would be excited to argue the case for any given round count. All the way down to 1. If memory serves me right, the country of Ireland has a 1 round capacity for rifles.

    • This illustrates the danger, the very real danger, of lawyers arguing our case.

      Yes, I’d prefer to use Mr. Softee salesmen to make our Supreme Court arguments, but I don’t know any whose truck would make it all the way to DC without the axles falling off.

  26. Bunch of legalistic mumbo-jumbo nonsense IMO. No one has any requirement to provide a “need” for why they would own standard capacity magazines. The almighty State has to prove a need for why it seeks to limit magazine capacity. This applies to any right. Otherwise, what size magazines a person has is none of the government’s business.

    • You don’t get it. The founders spent months arguing over the placement of a comma, but it’s beneath you? Face it — the whole Constitution is a bunch of legalistic mumbo-jumbo. It’s not a comic book and there’s no Readers Digest version.

      • MINIMUM (OR RATIONAL BASIS) SCURTINY (The government need only demonstrate that the challenged classification is rationally related to serving a legitimate State interest.)

        MIDDLE-TIER (INTERMEDIATE) SCRUTINY (The government must demonstrate that the challenged classification serves an important State interest and that the classification is at least substantially related to serving that interest.)

        STRICT SCRUTINY (The government must demonstrate that the challenged classification serves a compelling State interest and that the classification is necessary to serve that interest.)

        FUNCTIONAL LITERACY TEST (For use by the Court regarding challenging words such as “Infringed”. Webster’s allowed as an open-book option, as long as the edition predates Post War Progressive Revisionism.)

      • I disagree that the whole Constitution is legalistic mumbo-jumbo. But all this mumbo-jumbo about how it’s okay for the government to infringe on arms rights in this way and that way is nonsense IMO.

  27. “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.”

    Yeah, see this is crap. Limiting an attacker (which is silly anyway) depends on mounting an attack when you can.

    Self defense is about already being attacked. Every second matters. That’s why magazine limits can actually kill you.

    Also all that stuff mentioned in the article.

  28. As others have pointed out, Heller did not define what level of review was appropriate for these cases. I hope Mike or someone corrects the article. People should not have to read the comments to find out that there are factual errors in the original article.

  29. Re-read Volokh’s article again. He’s not arguing that mag limits are Constitutional. He’s arguing that the self-defense argument rebutting mag limits is weak, and that the defense from tyranny argument is the stronger one to assert.

    He’s right.

    • Volokh begins thus: 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.

      I read Volokh’s article carefully the day he posted on it, and commented at the time that he accepted the court’s “minor burden” statement as correct, argueing solely from the self-defense aspect of the right, and that this was an error because the limitation to such small magazine capacity ignores the ‘tyranny’ basis of the right. (I argued the same above in this present thread.)

      I’ve just gone over EV’s post again, and he nowhere argues that the “defense against tyranny” is the better basis for objecting to below-standard magazine capacity. He never touches on the ‘tyranny’ basis at all. Why do you think he does?

      • -and I am chagrined to notice that my post on WaPoVolokh is even under the nom-de-web ‘ropingdown,’ whereas on Classic Volokh Conspiracy I always used my actual name.

      • But let’s limit ourselves to self-defense for a moment. Is it actually a “minor burden” on self-defense to be limited to 10-round magazines?

        • No. It’s a major limitation. I argued that above in “three ways EV fails.” But when picking on Ralph one has to stay focussed…and wear a helmet.

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

    there. fixed it fer ya.

    The destruction of the 2nd Amendment is insidious.

  31. The Colorado shooter had a 100 rnd magazine that jammed immediatly during his attack thus saving at least 100 lives.

    • Far more than 100 lives were saved that day. ALL of the lives present in the several, non-gun-free-zone theaters Loughner passed (including, IIRC, the largest theater in the State) in order to reach his gun-free-zone target theater were saved.

      And let’s take that argument farther: 100-round drum magazines are notoriously unreliable. Had Loughner been limited to 10-round magazines (and assuming that a mass murderer constrains himself to such laws – a quaint thought, that), and instead of one, 100-round drum had 10, 10-round magazines, a single magazine failure would have left him with 9 more, fully functional magazines – thus endangering the lives of even more people.

  32. I’ll accept trades when the military, national guard, and all law enforcement trade in everything they have for muzzle loading black powder rifles & pistols…..

    How about LE in restrictive states actually following the same laws as their fellow state citizens? Its only fair right?

  33. While I would agree that a 10 round limit does not run afoul of the Second Amendment, simply banning them because of the lack of Constitutional muster is nothing more than a ban because a legislature can. MOre like a petulant child pouting because an adult removes his primary source of enjoyment, the child reverts to something it can control. Can’t ban the gun or the possession, well we will just screw with your ammo capacity. Pouting.
    What this ammo limit does do is to run afoul of common sense, rational thought and is an answer in search of a problem. Anyone worth a darn can cause as much havoc with a 1911 and an 8 round magazine as one can with a larger capacity. Additionally, as some here have noted, since the police are exempt from magazine capacity limitations due to their perceived “need”, those calling for these limits have vanquished their own argument. Why should one class of people have a greater need to self defense than others? Rhetorical I know as the state considers itself to be much more important than its serfs.
    Mag limits are something that need to be ignored. It is a state control on our freedom which achieves nothing more than an illustration that the state will do anything to exert that control and it will have the last word. Pouting.

    • What this ammo limit does do is to run afoul of common sense, rational thought and is an answer in search of a problem.

      And being irrational still doesn’t make it unconstitutional?

    • What this ammo limit does do is to run afoul of common sense, rational thought and is an answer in search of a problem.

      In other words, magazine-capacity limits are neither substantially required nor necessary (irrational, afoul of common sense) to serve an important – much less, compelling – government interest (answer in search of a problem).

  34. My understanding is that Volokh is not a liberal goo-goo, and is actually pretty spot-on in his assessments. I do wonder about his failure to address the strict-scrutiny “must advance a compelling state interest” standard. The interest is certainly compelling, but Volokh’s own article pretty well dismantles the idea that magazine limitations would materially advance it.

  35. In the absence of guiding law the State will take it’s turn at legislation. Magazines vary greatly in size, function, and practically dozens of calibers but I fear the movement will try to have all magazines banned since they allow a firearm to be reloaded quickly.
    And then we will see the 16 shot revolver.

  36. I fear that if magazine limits are ruled to be contitutional, it will not take long that we are legislated…either Federally or via the states…..to 1 round magazines and the libs will declare that our right is still not infringed. Oh..revolvers will be mandated to have 4 or 5, depending one size, charge holes permanately filled in. JFC….what a mess!

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