Gun Owners Ask SCOTUS to Block Implementation of High-Capacity Magazine Ban


Does the Second Amendment protect the right of gun owners to possess magazines that hold more than 10 rounds of ammunition? A group of California gun owners says it does, and today they asked Supreme Court Justice Anthony Kennedy to block the implementation of one such ban as they mount a Second Amendment challenge to it in federal court.

At issue in Fyock v. City of Sunnyvale is that municipality's 2013 law banning the possession of high-capacity magazines. Last week the U.S. 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, arguing that the ban represents "only the most minor burden on the Second Amendment." The U.S. Court of Appeals for the 9th Circuit likewise refused to block the law from going into effect.

The plaintiffs now seek redress at the hands of Justice Kennedy, whose duties include fielding such motions originating from the 9th Circuit. "Granting the injunction will simply preserve Applicants' rights while the case is decided on the merits," the plaintiffs' motion states. By contrast, the lower courts have endorsed a "Hobson's choice," requiring otherwise law-abiding gun owners to either hand over their property "or continue exercising their constitutional right to possess the items in violation of the law, subjecting themselves to criminal penalties."

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  1. the ban represents “only the most minor burden on the Second Amendment.”

    Incrementalism? What incrementalism? It’s only a tinsy-tiny infringement on your rights. We will never come back to the table and demand more if you just give us this one thing. Pinky swear.

  2. Well, I’d say the Second Amendment secures the right of Americans to own machine-pistols, heavy machineguns, and artillery.

    But I won’t hold my breath for the Supreme Court to agree with the plain letter and logic of the law.

    (From the Founding to this day, there is no Federal prohibition on owning muzzle-loading artillery. In fact, the Letter of Marque Clause in the Constitution implictly assumes privately owned cannon.

    The National Firearms Act’s effective ban on breechloading artillery violates the spirit and arguably the letter of the Constitution; even moreso its ridiculous regulations on barrel lengths, stocks, sound suppression equipment [put in to “stop poaching”, of course], and automatic operation.)

    1. sound suppression equipment [put in to “stop poaching”, of course]

      States are all legalizing suppressors for hunting.The states where they are legal and when the federal tax is paid anyways.

      I’d like to see gun rights activists start dismantling the NFA piecemeal.
      (only because they couldn’t get it repealed all at once)

      1. And one of the common ways gun-control folks use to shut down shooting ranges is to legislate against their “noise pollution.”

    2. In fact, the Letter of Marque Clause in the Constitution implictly assumes privately owned cannon.

      I don’t know why this argument isn’t better known, but I can’t recall having seen it until this post. If ever there were clearer indication of what the protected right to own and bear arms entailed–for need of the militia or otherwise–it’s in the provision of letters of marque and reprisal.

      For that matter, I can’t recall hearing letters of marque brought up at all in the public sphere outside of Ron Paul discussing them as a non-military means of combating terrorism and piracy.

    3. In fact, the Letter of Marque Clause in the Constitution implictly assumes privately owned cannon.

      I’d say that in this day and age, it implicitly assumes private ownership of rather more than that. But I’m one of the nutjobs (term used in jest) who agrees with you about machine-pistols, heavy machine guns, and artillery. 😀

  3. If you own a handgun that *only accepts* magazines of greater than 10 rounds, then isn’t the law a de-facto ‘gun ban’?

    They seem to have no bullshit provision like NY where you only load your mags to 10, *or else*…. meaning, the magazines themselves are verbotten, making the firearm effectively useless if that is the case.

    I believe Glock, Sig, others do make 10rd variant mags for many of their larger-cap handguns to comply with Cali statutes… is this the case for *all* firearms sold in Cali? (do they all have to have 10max cap mags available?) just curious.

    1. Also, NY’s SAFE act limits it to 7, though I think there is a case there where some guy had 10 in a mag and is contesting the law, but it may be due to probably cause.

      I heard Volok Conspiracy wrote that these mag bans were constitutional for the same BS reason – minor inconvenience, but if the law is not really effective (I assume they are trying to stop mass murder) then it seems courts should say, no point to the law, so it’s burdensome without purpose.

      Not a lawyer, but I hope my feeble engineer brain reasoning would make sense to most people

      1. “Root Boy|3.10.14 @ 7:16PM|#

        Also, NY’s SAFE act limits it to 7

        Not anymore

        Got changed to 10 because NYS is so full of idiot legislators that they created a law requiring magazines that didn’t exist (see my point above) so changed it to 10 so that it had some kind of tenuous-connection-to-reality

        “Bans possession of any “high-capacity magazines” regardless of when they were made or sold. The maximum capacity for all magazines is 10 rounds. .22 caliber tubular magazines are exempt from this limit. Previously legal “pre-1994-ban” magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned in to local authorities. The magazine limit took effect April 15, 2013.[8][9] Originally the law allowed only seven rounds to be loaded into a magazine, but this provision was struck down by a federal judge on December 21, 2013.[10]

      2. if the law is not really effective … then it seems courts should say … it’s burdensome without purpose.

        Ah, but it does have purpose: it keeps lawyers and law enforcement employed.

    2. Many of the larger capacity magazines have stops inside to make them legal in states like CA. Its the same *size* mag and spring, there’s just a little plastic block inside to keep you from loading more than whatever arbitrary limit your state imposes.

      1. Like AZ limits you to a three round mag for bird-hunting with a shotgun. So you just have a plug installed.

        Though too many people (including AZ game and Fish who are normally pretty good about this sort of thing) conflate ‘hunting’ with ‘sport’.

        Sure, for many people hunting is a sport, for others it provides food for the table. So ‘sportmen’ can limit themselves to three rounds ‘for the challenge’, others just want to get dinner as efficiently as possible.

        1. That’s not an Arizona requirement, it’s a federal requirement, and is based on the Migratory Game Bird Treaty Act of 1918.

  4. 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.”

    Do these clowns listen to themselves *at all*?

    Makes me want to dig up the whole ruling to see what other gems they came up with. 8-(

    1. They do not, the “important government interest” does not exist. These laws cannot stop mass killings or whatever they are trying to solve.

      Fuck them all with a stick.

      1. They solve the problem of a well-armed public. That’s their idea of an “important government interest.”

    2. Remember that the district courts ruling on gun control laws are all in jurisdictions where there is strict gun control*, and many of the judges have never lived under anything else.

      * You can’t sue civilized states over restrictive registration laws/magazine limit restrictions/discriminatory license policies because they don’t have any.

  5. And yet people wonder why people in CT are refusing to register their possession of such items.

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