Court: Bans on High-Capacity Magazines Are “Only the Most Minor Burden on the Second Amendment”

In 2013 the city of Sunnyvale, California enacted a ban on so-called high-capacity gun magazines. According to the new law, it was a criminal offense to possess any magazine holding more than 10 rounds, though exceptions to the ban were granted to certain privileged gun owners, such as “any retired peace officer holding a valid, current Carry Concealed Weapons (CCW) permit.”

Several individuals soon filed suit in federal court, challenging the prohibition on Second Amendment grounds. Yesterday, those plaintiffs suffered their first setback when the United States District Court for the Northern District of California, San Jose Division, refused to grant a preliminary injunction that would have stopped the city from enforcing the ban while the litigation moved forward.

Why? Because, the district court declared, “the right to possess magazines having a capacity to accept more than ten rounds lies on the periphery of the Second Amendment right, and proscribing such magazines is, at bare minimum, substantially related to an important government interest.”

At the Volokh Conspiracy, UCLA law professor Eugene Volokh largely concurs with that judgment, arguing that because high-capacity magazine bans do not impose a “substantial burden” on the Second Amendment right to self-defense, they are likely to pass constitutional muster. “Even if bans on magazines with more than 10 rounds are unwise,” Volokh writes, “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.”

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  • UnCivilServant||

    I never understand the tortured logic to go from plain language to stuff like this.

  • sloopyinca||

    Why do you hate children? Why do you want the terrorists to win?

  • UnCivilServant||

    Why do you hate children?

    They're disease vectors, ie, naturally occuring bio-weapons.

    Why do you want the terrorists to win?

    Because, according to the current administration - I am one.

  • sloopyinca||

    Stop. Just stop. You had me at disease.

  • CampingInYourPark||

    Well, you can still keep your one bullet and gun, so: right not infringed

    Barney Fife never complained about it!

  • BSubversive.com||

    Shall not be infringed. Doesn't mean, mean shall not be infringed, you see there is a clause, our wise founders included in invisible ink, the amendment really reads, shall not be infringed, except to save the children.

    The prof is wrong. Unless the courts allow limits on the mags used by the pigs and the military, how can it be justified in limiting us? Oh, yeah, forgot that other clause, the FYTW clause. Silly me.

  • RFID||

    Arent you forgetting the "bad weather exception", the "not in cities" passage and the "muskets only" clause?

  • Invisible Finger||

    What part of "shall NOT be INFRINGED" does Volokh not understand?

    No wonder dunphy hangs out as his blog.

  • sloopyinca||

    Ha! Hivemind.

  • Hopfiend||

    Considering that most constitutional jurisprudence apparently entails the judge reaching a conclusion (based its own biases) and then torturing reason backwards to find some half-assed justification, yea, it is prob constitutional.

  • ||

    “Even if bans on magazines with more than 10 rounds are unwise,” Volokh writes, “not all unwise restrictions are unconstitutional. That’s true for speech restrictions."

    This is, in a nutshell, why lawyers are abject scum. "It may be wrong, but it's OK by my interpretation of the law!" Fuck you, lawyer scumbag. Go die in a fire. Multiple times.

  • Ivan Pike Trolle||

    Volokh writes, “not all unwise restrictions are unconstitutional.

    This is true. However, in this case it is unconstitutional as well.

  • Tim||

    If a shoot is justified, how many times you shot shouldn't be an issue. If a shoot is not justified, even one bullet can (and should) get you jailed for life.

  • sloopyinca||

    Now I know why Dunphy went over to the Volokh site. Those cockstains don't understand what absolute rights are either.

  • ||

    To be fair, they are just talking about the law as it stands.

    Of course, it's also the exact sort of bullshit that helped me realize I don't give all that much of a fuck about the Constitution, so.

  • sloopyinca||

    Yeah, and according to them, restrictions to the Constitutionally guaranteed rights are just dandy. That's a bright line they've crossed, IMO.

  • ||

    This Is Why a Piece of Paper Won't Protect Your Rights, Part 1,379,213

  • sloopyinca||

    Well I know that. I was just lamenting that the people sworn to uphold and protect our rights are contorting themselves every way imaginable in their efforts to subjugate them.

  • ||

    I'm not arguing, just bantering.

  • Bobarian||

    Yes you are!

  • Zeb||

    They are lawyers. Lawyering isn't about what's right or finding the truth or anything like that. It's about dealing with the legal system as it exists in reality. So I'm not going to condemn them for discussing it in terms of what real courts are likely to say.
    And while I agree that the right to be armed is a fundamental, absolute right, the Second Amendment isn't entirely clear on what exactly is legally protected.

  • BSubversive.com||

    The constitution is a meaningless document, ignored by our rulers. Until those rulers end up dead, they have no reason to stop ignoring the restrictions on their powers that document contains. Since they don't fear us, therefor they can fuck us.

  • Anonymous Coward||

    What part of "shall not be infringed" do these sub-Nazgul not understand?

    in·fringe verb \in-ˈfrinj\
    transitive verb
    1: to encroach upon in a way that violates law or the rights of another
    2 obsolete: defeat, frustrate

  • erizzow||

    more "living constitution" bullshit.

  • Leigh||

    Kind of like "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

    It takes a special kind of person to find loopholes in that.

  • sloopyinca||

    1: There are restrictions on religious institutions and their practices. See: Waco.

    2: There are restrictions on speech. See: any protest in Los Angeles where people did not get a permit.

    3: See 2

  • Invisible Finger||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

    It says "or", not "nor", so its a smorgasbord the court can pick one from.

    /lawyerlogic

  • Stormy Dragon||

    So does that mean murder laws are unconstitutional because it prohibits the free exercise of worshipers of Tonatiuh, the Aztec Sun God, by banning human sacrifice?

  • UnCivilServant||

    You would need to find a willing sacrifice and call it "Assisted suicide".

    However, traditionally, the sacrifices walked themselves up the temple steps and accepted their fate.

  • Stormy Dragon||

    Most of the sacrifices were prisoners captured in combat with surrounding tribes. And they "walked themselves up the temple steps and accepted their fate" in the sense that most death row prisoners don't have to be physically dragged into the execution chamber.

  • The Last American Hero||

    As murder isn't addressed in the Constitution, I'm pretty sure it's delegated to the Several States.

    The right to bear arms and the right to free speech do seem to be addressed in the Constitution.

  • Zeb||

    This is why I always argue that religious freedom must not be a separate thing from general freedom. Obviously, the practice of religion can't be completely unrestricted since religions that practice human sacrifice exist (or have existed).

    My answer is that if something is not such a compelling crime that it can be allowed as part of religious practice, then it is something that no one should be forbidden to do. You can't really have religious freedom if you are not free to do the things that one might do as part of religious practice for any reason you want. Otherwise someone else gets to decide what is or is not legitimately religious. If someone else can determine that what you claim as your religion is not legitimately religious, you are not free.

  • Tim||

    From 24/7:

    A US Navy Guided-Missile Destroyer is in the Black Sea — Ukraine Update

    I hope that missile boat is limited to ten shots.

  • UnCivilServant||

    Each launcher only holds one missile.

    It carries a lot of launchers.

  • RFID||

    Does this mean we can get around the 10 round thing via "massive Derringer"?

  • sloopyinca||

    I'm more concerned with Volokh's statements than with the court's ruling. They just refused to issue an injunction while the case was ruled on. That's merely procedural, and IIRC, haven't they recently ruled in favor of gun rights in the Ninth on several suits? But Volokh is supposed to be a legal scholar...and an originalist at that.

  • CampingInYourPark||

    substantially related to an important government interest

    Is this something argued or implied because a law was made? I'd like to see the "important government interest" explained in a sentence.

  • AKrumbach||

    "exceptions to the ban were granted to certain privileged gun owners, such as 'any retired peace officer holding a valid, current Carry Concealed Weapons (CCW) permit.'"

    If this is in the language of the law, why would you challenge it on 2nd Amendment grounds, instead of 14th Amendment grounds? Certainly setting up a class of "certain privileged gun owners" cuts against the very idea of democratic equality.

  • sloopyinca||

    Every person has the equal right to go out and become a cop, retire and then get these special rights, sooooooo no 14th Amendment argument is valid.

    -California law school professor

  • R C Dean||

    Well, Eugene is good on a lot of things, but gets kinda squishy on guns. I think its a blatant transgression of even the pitifully weak "common use" standard.

    So, if 11 round mags can be banned, why not 10? 9? 8?

    And is there really no equal protection issue raised by their privileged class of ex-LEOs?

    Every person has the equal right to go out and become a cop, retire marry someone of the opposite sex and then get these special rights, sooooooo no 14th Amendment argument is valid.

    -recently fired California law school professor

  • Acosmist||

    What's the protected class?

  • Tim||

    Would three ten round mags be worse than 2 fifteen round mags?

  • Slammer||

    And I think it’s true for gun restrictions as well.

    Well, it has to be true if you think so, obviously true.

  • The Late P Brooks||

    Does anybody really need a magazine with more than three pro-GUNZ articles?

    Come on, be reasonable and grown up for change.

  • ||

    The link on "refused" takes me to a Kansas Supreme Court case.

  • Applederry||

    Did not the Heller decision affirm the "in common use" standard for determining the legality of restrictions? Whether you're applying it to private citizens, law enforcement, or the military, magazines with greater than 10 round capacity are definitely in common use and thus should be protected from any burden, minor or major. Volokh's position on this is very strange, and concerning.

  • Wandering Texan||

    Only ten round magazines?

    Fine.

  • Adam.||

    SF'ed

  • Wandering Texan||

  • UnCivilServant||

    Under the "SAFE" Act, that is still a high capacity feeding device for ammunition, because it makes it faster. (They class even two clipped-together external magazines as such)

  • Wandering Texan||

    That is goddamn ridiculous. What about spring-assisted mag-wells, or beveled mag-wells, or mag-pulls? Those speed-up magazine swaps.

  • Bobarian||

    Don't give them ideas.

  • UnCivilServant||

    But they're not one aggregate device holding more bullets than the limit.

  • RFID||

    "50 rounds in 50" states isnt correct, as technically you could only load 7 rounds per mag in NY. So that would be "50 rounds in 49 states, and 35 in NY"

  • The Late P Brooks||

    Eugene Volokh largely concurs with that judgment

    Well, Lincoln was successfully assassinated with a single shot cap and ball derringer. If it was good enough for John Wilkes Booth, it's good enough for you.

    ps- Kiss my ass, Volokh.

  • The Late P Brooks||

    My simple test:

    If a cop can carry it, so can I.

  • sarcasmic||

    I think that's the government interest.

    Government agents must always have more bullets than peasants.

  • UnCivilServant||

    So long as they have no primer or powder, I'm okay with that.

  • CampingInYourPark||

    the district court declared, "the right to possess magazines having a capacity to accept more than ten rounds lies on the periphery of the Second Amendment right...

    Because we're discussing ammunition and not guns themselves they aren't the "arms" mentioned in the second amendment? Or is it because minimum capability isn't spelled out in the amendment that discussing ammunition capacity is peripheral? What the fuck does this mean?

  • ||

    I think he's saying that smaller mags than standard are an annoyance, and an annoyance isn't necessarily an infringement. Which seems silly to me.

  • UnCivilServant||

    One of the plaintiffs in the anti-SAFE Act suit is a one-armed man who has trouble changing magazines. It's a bit more than an annoyance to him where self-defense is involved.

  • CampingInYourPark||

    It's a bit more than an annoyance to him where self-defense is involved.

    It would be more than annoying to anybody that needed bullet #11 quickly while defending themselves.

  • ||

    Does the SAFE Act make it illegal to carry a shitload of guns? Because I suppose the court could argue that he could just make like the one-armed deputy in Unforgiven. "Well I just don't want to be killed for lack of shootin' back."

  • UnCivilServant||

    Given the state of carry in New York, they didn't have to add that.

    And one of the sickest provisions hidden in the law is that if you own more than X guns for any reason, outside of being a licenced reseller, that's a felony weapon possession charge. I forget the value of X.

  • CampingInYourPark||

    If that's his point then "it's simply annoying you can only use a knife to defend yourself now that guns are banned" could be just as valid an argument.

  • OldMexican||

    "Even if bans on magazines with more than 10 rounds are unwise," Volokh writes, "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."


    "Because there are gradations of freedom, just like there are gradations of slavery!"

    It's the same argument that justifies statements like "there can be such a thing as too much freedom", normally based on opinion rather than objective truth or deductive reasoning.

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