high capacity magazine pistol
(AP Photo/Rich Pedroncelli)

From the Firearms Policy Coalition . . .

Yesterday, the Firearms Policy Coalition announced the filing of an important brief with the en banc Ninth Circuit Court of Appeals in Duncan v. Becerra, a case challenging California’s ban on magazines capable of holding more than 10 rounds of ammunition. The brief is available online at FPCLegal.org.

Currently, California prohibits the ownership of magazines with capacities greater than 10 rounds, despite the fact that these are some of the most common arms in the nation—over 100 million are owned nationwide. In 2020, a 3-judge panel of the Ninth Circuit struck down the ban, holding that it violates the Second Amendment. But the court recently decided to rehear the case en banc, before an 11-judge panel.

high capacity ar-15 magazines ammunition
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FPC filed a brief with the original 3-judge panel, arguing that because magazines are common arms, they are necessarily not dangerous and unusual, and therefore any ban on them violates the Second Amendment under District of Columbia v. Heller. The panel opinion, swayed by these and other arguments, adopted some of the arguments made in the brief.

Now, FPC, Firearms Policy Foundation (FPF), and California Gun Rights Foundation (CGF) have filed another brief, this time with the 11-judge panel. The brief highlights the history of repeating arms capable of firing more than 10 rounds, making the point that such magazines are not only common now, but have been for centuries. In fact, magazine-fed repeaters capable of firing more than 10 rounds predate the Second Amendment by over 200 years, and the founders embraced them. For example, in 1777, the Continental Congress ordered 100 rifles capable of firing up to 20 rounds from a Pennsylvania manufacturer, and Meriwether Lewis carried a 22-round repeater on the Lewis and Clark Expedition.

fpc firearms policy coalition

“The self-defense benefits of repeating arms capable of firing more than 10 rounds has been evident for centuries. That is why America’s Founders found such arms desirable, and why they are among the most popular arms in America today,” explained FPC’s Director of Constitutional Studies and brief author, Joseph Greenlee. “We are hopeful that the Ninth Circuit follows the Supreme Court’s instructions in D.C. v. Heller and rules for the plaintiffs based on the history and original scope of the Second Amendment, which our brief makes clear. FPC will continue to work tirelessly to rid the United States of arms bans such as the one at issue in this case.”

Firearms Policy Coalition (firearmspolicy.org) is a 501(c)4 nonprofit organization. FPC’s mission is to protect and defend constitutional rights—especially the right to keep and bear arms—advance individual liberty, and restore freedom through litigation and legal action, legislative and regulatory action, education, outreach, grassroots activism, and other programs. FPC Law is the nation’s largest public interest legal team focused on Second Amendment and adjacent fundamental rights, including freedom of speech and due process, conducting litigation, research, scholarly publications, and amicus briefing, among other efforts.

33 COMMENTS

    • *Yawn* They will uphold the ban like carry in the Hawaii case. Because the BOR has the right to public safety in it or whatever other BS reason they come up with.

  1. When the 2A was written they didn’t have guns that would fire 30 rounds. That’s sorta true. However all of those guns used Black Powder and Black Powder makes a bomb that far surpasses any 30 round BS. Try again you pathetic dirty diaper democRats.

    • The argument here is over 10+ round mags, not 30 rounders. That plays nicely for us.

      The BoR was adopted in 1791.

      In 1780, 11 years prior, the Austrian Army had adopted the Girardoni Air Rifle, which would later join Lewis & Clark expedition in 1803. This rifle fires 20-21 shots without reloading. This rifle had been in US inventory at the federal Armory at Harper’s Ferry since at least 1792.

      Before that, were it not for the outlandish price, the same people who wrote the BoR would have purchased a repeating arm called the Belton Flintlock, during the Revolutionary War. This weapon was capable of firing up to seven rounds per pull of the trigger.

      The folks who wrote the BoR were quite well aware of repeating arms which had existed in one form or another for 200 years at the time the BoR was written.

      The historical argument on magazine capacity is stupid but if we’re going to have it the number needs to be upped to accepting no fewer than 21 rounds since, historically, the BoR was clearly meant to cover such a weapon.

      https://en.wikipedia.org/wiki/Girardoni_air_rifle

      • So son of gunm, even a air rifle could be called an assault rifle, weapon of War. What the hell ban them all.

        • A good .177 or .22 air gun takes out varmints pretty well.

          Present company excepted, of course.

        • “Present company excepted, of course.”

          Pffft, not at my wife’s bird feeders…if it ain’t a bird, and even if it ain’t the right kind of bird, then it’s a varmint.

          “Sundown, you better take care
          If I find you been creepin’ “round my back stairs”

    • And all of those points will be ignored as irrelevant and immaterial.
      It will, instead, be held that, just because there were exotic, custom-built repeating firearms produced as one-offs or in tiny, insignificant numbers, such devices were not in common use and were, instead, novelties completely removed from being practical, everyday military firearms suitable for a militia. Or something.
      It will, instead, be held that any ‘chain-fire’ or ‘roman-candle’ musket firing a stack of charges in succession, or any sliding-lock musket holding multiple charges, or any ‘volley-gun’, was not a practical firearm–which it wasn’t.
      It will also be held that an air-powered ‘firearm’ isn’t even a ‘firearm’ unless one lives in Massachusetts or New Jersey, in which case a pea-shooter is a ‘firearm,’ right up there with the deadly slingshot.
      Sure, WE know that relatively viable repeating firearms were available to those with a great deal of money or the backing of a government; THEY know that as well, but it still won’t make any difference because Reasons.
      ‘You’ say ‘toe-MAY-toe’, and ‘I’ say ‘assault weapon.’ The difference is, ‘I’ (they) hold the power to make the difference.

      • In this state a bb gun with a rifled barrel shooting 620fps is against the law( ha ha) for a felon to posses. Any black powder also.
        And on that, please check your local laws. I hear to often, ” Well I’ll just use a black powder. “

      • You’re probably right about the 9th Circuit since they’ve recently redefined the meaning of the words “bear arms” to mean “not off your property” but there are other examples of repeating firearms older than the Girardoni rifle that were actually manufactured for and used in military service. The Kalthoff Repeater flintlock rifle was in service a full century before the 2nd Amendment was ratified.
        https://en.wikipedia.org/wiki/Kalthoff_repeater

  2. I’m not an attorney nor a legal scholar, but the argument against banning “common arms” may have some serious pro-2A utility. My main concern is, how many people must own something to make it “common”? Are bump stocks and pistol braces “common” accessories since each have millions of copies in public circulation? What about future advancements in small arms technology? Could this argument be used to preemptively legislate away the rights of the people to certain types of arms that could / should be practical for self-defense (e.g. man-portable directed-energy weapons) before they become “common” (i.e. when patent applications are filed)?

    Also, I noted that the brief considers magazines to be “arms”. As magazines are required parts for the operation of certain firearm action types, this makes sense. Could the same argument be made for the ammunition that fills the magazines? What about bump stocks and pistol braces? I’m trying to consider all of the ways this strategy could work for us or against us. Thoughts?

    • Magazines are arms? Dont see how unless you whap somebody upside the head with them. Then I’d want a two hundred round magazine.

      Seriously:, by stating magazines are arms that means they can be regulated.

      • BATFE considers the magazine as part of the gun when looking at 922r compliance, so they are as much a part of an arm as a barrel or trigger. You can’t have an imported semiauto rifle in an unimportable configuration if it uses more than 10 named imported parts. Of the 20 parts listed, magazine bodies, followers, and floorplates are subparts of the magazine. If your imported semi is in a non-sporting configuration with imported receiver, barrel, sear, hammer, trigger, disconnected, forearm, and buttstock, (8 imported parts), you will have an illegal firearm if you insert an imported magazine (11 imported parts). If you use an American made magazine, you would be below the 11 part limit.

    • The general consensus is that the 1983 Supreme Court Case “Minneapolis Star Tribune Co. v. Commissioner” holding that a use tax for ink was unconstitutional because ink was a component needed for a “Free Press” should hold for ammunition, magazines and other accessories to “arms” such that they fall under 2A protections.

      However, we all know the 9th Circuit will “find a way” to make the ban constitutional in their eyes.

        • 10A might come close.
          14A (granted not part of BoR) is violated (IMHO) every time a law has ANY carve-out.
          Regardless, with an estimated 10k state and federal laws that place some restriction on “The Right of The People to Keep and Bear Arms”, it would definitely be near the top…

    • We fired our guns and the British kept a commin
      There wasn’t as many as there was awhile ago
      We fired once more and they began to runnin
      On down the Mississippi to the Gulf of Mexico

      • “On down the Mississippi to the Gulf of Mexico…”

        Didn’t that song also talk about Possums?

        “We filled his head with cannonballs ‘n’ powdered his behind
        And when we touched the powder off, the Possum lost his mind!” 😉

        • No gdamnit, it was an Alligator. The possum was in the pot crisp and golden brown.
          Youd think that with all them dead Brits laying around they wouldn’t have had to cook possum. Guess possums are better eating.

  3. Rifling itself was extremely rare in the late 18th century; the “common use” doctrine is a farcical modern invention, albeit by an esteemed jurist and advocate for individual liberty. Rifling is a modern invention that made firearms more effective for their intended use, no different than the removable magazine itself, regardless of capacity.

    The luddites/leftists are hiding their real argument, which is an opposition to the right to effective self-defense, because they view you as lacking free agency and want you state dependent. Moreover, broad “gun control” serves the purpose of hiding the fact that more government is useless because neither illegal actors nor moral actors are influenced by man’s laws.

    • I’m not sure but I think I read somewhere that ,back when, the British made some kind of a law against Americans owning arms with rifled barrels.

  4. Amen. Shall not be infringed seems pretty damn clear to me. At the very least this attracts attention & awareness to the failures of restrictive gun control policies. What happens in CA may be a forerunner of future legislation elsewhere, so fighting this is important to all. Who knows, maybe the supremes will actually take up a serious, weighty case that will have broad impact.

  5. In Young v. Hawaii, the Ninth concluded that there is no right to bare arms outside the home. They have concluded that the “right” to bear arms is subject to the right of the sovereign to provide for the security of the people, and thus to regulate the carriage of arms. If there is a right in the sovereign to regulate carry, it goes without saying that there is a right of the sovereign to regulate the arms themselves as well as the magazines that feed them, all in the public interest.

    Outside of the fact that the opinion is subject to severe criticism, it is the law in the Ninth, and hence the decision in this case is preordained. The panel decision (upholding a decision of the trial court by Judge Benitez) will be reversed. Alternately, the case will be stayed while the petition for certiorari in Young (which has yet to be filed) is determined

      • That’s what happens when you think about one thing when trying to type something else. What I should have said is that in the Ninth, we have only a right to bare arms in public (least ways in incorporated cities and towns) absent governmental permission. We still have a right to bear arms while hunting, camping, fishing, etc. on public lands, but that is about it.

      • Bare arms and breasts on some beaches out there, I hear… 😉

        • This state did away with the indecent exposure of breast for women. But they may as well have forgot about it, this ain’t California.

        • “This state did away with the indecent exposure of breast for women.”

          Yeah, nekkid trailer-trash broads might be a bit much for some folks to handle… 😉

        • “Yeah, nekkid trailer-trash broads might be a bit much for some folks to handle…”

          Meh, imagine if these pansies ran into a naked, blue haired, obese LGBTQer of unknown gender identity. Pardon me, I meant “ran into a strong, beautiful, smart, openminded woman who is brave enough to accept her own body”.

          Or if they ran into the now possible future governor of California…

  6. Anyone who thinks a historical and cogent explanation to this Court is out of touch. They live in their own fantasy land and are willing to use the full force of the law to make you yield to their silly arbitrary and capricious desires.

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