Second Amendment

Amicus Brief on California Confiscation of Standard Magazines


Today I filed an amicus brief in Duncan v. Becarra, a challenge to a California statute confiscating almost all magazines over 10 rounds. Last summer, a federal district court issued a temporary injunction against the confiscation statute. The case is now before a panel of the 9th Circuit Court of Appeals.

The amicus brief mainly addresses the standard of review. The Supreme Court's decision in District of Columbia v. Heller categorically forbids the prohibition (or confiscation) of arms that are "in common use" and "typically possessed by law-abiding citizens." The standard magazines that firearms manufacturers provide for their guns–such as a 12 or 17 round magazine for a semi-automatic pistol–easily meet this standard. Indeed, they constitute nearly half of all magazines.

It is a misnomer to say that standard magazines are "large capacity." The brief does not address genuinely "large" magazines, such as the aftermarket 50 round magazines that are available for some firearms. Instead, the brief concentrates on the types of magazines that have been standard on American firearms for decades.

Although courts have upheld standard magazine bans by applying a feeble version of intermediate scrutiny, we urge the 9th Circuit to adhere to Supreme Court precedent.

The brief suggest that the Circuit Court should ignore arguments about whether standard magazines are "necessary" for self-defense. In Heller, the Supreme Court found that handguns were constitutionally protected because they were commonly chosen by law-abiding Americans for lawful self-defense. Whether long guns were an adequate alternative means of self-defense was irrelevant to the Heller majority. Likewise, standard magazines are commonly chosen for self-defense. Because standard magazines are, beyond dispute, "typical" and "common, prohibition is off the table–to the extent that courts choose to obey Heller.

The brief also addresses some empirical issues. It explains that the evidence before the Court indicates that standard magazines are not disproportionately used in mass shootings. Moreover, even though lawful defenders usually do not fire more than 10 shots, the reserve capacity provided by standard magazines helps to reduce the risk that lawful defenders will be injured by their assaillants:

The awareness that a defensive shooter is capable of firing enough rounds to defuse the threat affects every party to a potential attack. Reserve capacity is a credible deterrent to criminals–especially for a victim confronted by multiple assailants. For example, the five criminals chased off by the Detroit woman in the example above would have had less reason to fear her if she had only a 5-shot revolver. Additionally, a defensive shooter can confidently act knowing she will not suddenly exhaust her ammunition and become a defenseless victim–like the Texan woman in the example above.

Violent confrontations are inherently unpredictable. As [Florida State U. criminology professor Gary] Kleck explained, "victims of crimes generally cannot plan for or anticipate crimes to occur at a specific time and place … Victims who wish to defend themselves with firearms usually have to make do with a single available gun and its ammunition capacity." If a victim sees one assailant, she cannot know if a second assailant may be hiding nearby. If she sees two, there may be three. When a defender has a greater reserve, she will fire more shots at the first attacker knowing that she will have sufficient ammunition to deal with a possible second or third attacker. Obviously, the more shots the defender fires, the greater the possibility that the attacker(s) will be injured and the lesser the chance that the defender will be injured.

Moreover, when a defender has only a limited number of shots, she must make a calculation before each shot to determine whether she can successfully make a threat-ending shot now or whether it is worth the risk to wait a few moments in hopes of a better opportunity. These critical moments the defender spends hesitating and analyzing the situation could be the difference between life and death. By constricting reserve capacity, California's ban increases the risk of injury for victims and reduces it for attackers. That is the opposite of the Second Amendment's intent and purpose.

The amicus brief is on behalf of Doctors for Responsible Gun Ownership, the Independence Institute (where I work), and the Millennial Policy Center (where the brief's lead author, Joseph G.S. Greenlee, is a policy fellow). Plaintiffs in Duncan v. Beccaria are represented by the law firm Kirkland & Ellis and by the Michel & Associates firm. Former U.S. Solicitor General Paul Clement is the counsel of record. The date for oral argument will be set sometime after California Attorney General Xavier Beccaria files his reply brief in a few weeks.

NEXT: Short Circuit: A roundup of recent federal court decisions

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  1. I read the title and the first sentence, and I thought it was about California prisons confiscating reading material from inmates (which would be a reasonable VC subject). It took me a few seconds to parse the other meaning of “magazines.” Then I realized, oh, Kopel, of course it has to be about guns.

    The notion of DRGO is pretty weird. Why would you form a group of members of one profession for a wholly unrelated interest? Musicians for Baking Cookies? Police Officers for Owning SUVs? I suppose the notion must be that people will believe that because they’re doctors, they wouldn’t favor unremitting carnage, so owning guns must be OK.

    1. DRGO was started as a response to the AMA and other medical associations putting out extreme gun control literature and “approved practices” for their members.

      If you saw an influential organization called “Police Officers for Banning SUVs” would you then be surprised to see a counter organization of police officers in favor of SUVs?

      1. Another example of wingnuts forming a fringe, separatist group because they can’t abide liberal, moderate, libertarian, diverse, RINO, or mainstream organizations. Much like the right-wing ACLU, the right-wing AARP, etc.

        1. I can’t tell if this is the real Rev. Arthur L. Kirkland anymore. You’ve become a parody of yourself.

          1. There was a time when he wasn’t a joke?

            1. There was a time when he wasn’t always a joke, anyway. Just mostly a joke.

              Come to think of it, that’s unfair. He’s still occasionally serious, it’s just a rapidly declining fraction of the time.

              1. I am not attempting to appease the old, cranky, white, male, backward, intolerant, authoritarian audience (which, I admit, appears to constitute the majority at this all-white, all-male, right-wing blog). My comments are more likely to suit the taste of liberal, libertarian, moderate, reason-based, and RINO readers.

                Carry on, clingers.

                1. Okay… I am calling Poe’s Law on this version of AK

                2. I’m just eternally grateful that you made it through one entire post without invoking the term “movement conservatives.” The drinking game was starting to get rough.

            2. There was a time when he wasn’t a blind squirrel?

          2. One Arthur I Kirkland tried to parody the Arthur L. Kirkland, but failed miserably, especially compared to the current Arthur L. Kirkland (who has been accused of being a right wing troll impersonating the original).

            Art, do some self-appraisal.

            1. What is objectionable about the observation that intense right-wingers have formed a series of fringe conservative groups to attempt to counter mainstream organizations such as the ACLU, AARP, NAACP, AMA, ABA, etc.?

              You guys sure seem more touchy, and snowflakey, lately.

              Is it anxiety concerning the 2018 elections?

              Fear of what might occur to your guns-god-and-gays agenda if a prosecutor interviews Pres. Trump (either under oath or with an FBI agent present to make any lie a crime)?

              Emerging understanding that Mexico won’t pay for the wall, she won’t be locked up, Obamacare is here to stay (until replaced by universal coverage), the wall will not be built, coal is not coming back, the economic fundamentals will not be revised to enable uneducated yahoos in the backwaters to prosper at the expense of educated, accomplished residents of successful, modern communities, etc.?

              Or just the standard, gnawing recognition that most conservative aspirations are destined to fail miserably in America over time as our electorate and nation improve and progress?

              1. What happens is that you have mainstream organizations set up for some non-political purpose. Left-wingers worm their way into positions of power, and then divert the organizations’ resources to political ends. The AARP starts promoting the Democratic party, for instance, instead of just representing retirees.

                Conservatives respond by creating alternate organizations addressing the original purpose of the organization the left-wingers have taken over. And, yeah, often as political, only with the opposite valence.

                This offends you because it reduces the resources the left can divert from their intended purposes to advancing left-wing causes. It gives people other options besides the organizations the left has subverted.

      2. DRGO was formed in opposition to a clique at CDC promoting a “guns as virus” approach to gun violence and advocating elimination of the “virus” and the use of research grants to lobby Congress for gun control in violation of CDC Addition Requirement 12 (The Anti-Lobbying Act). DRGO was responsible for CDC Additional Requirement 13 (essentially restating the Anti-Lobbying Act also applied to guns). Research grants from Congressional funds are supposed to be used for empirical research, not for lobbying for specific legislation or research designed to enforce the researchers’ apriori assumptions or political positions.

        1. In re clique, might not claque be more appropriate?

          1. Checking:
            “2. A group of people who pre-arrange among themselves to express strong support for an idea, so as to give the false impression of a wider consensus.”
            What threw me off yesterday was that the most common def is a claque are people paid to attend a performance and clap or boo.

    2. You’ve inverted the sequence. First, the professional group adopts a position wholly unrelated to the group’s purpose, and THEN the new group forms to oppose them.

    3. Why is DRGO any different than Mothers Against Drunk Driving or the Union of Concerned Scientists? For that matter, why is there a League of Women Voters? Women as a group have no more (nor less) interest in informed, well-run elections than any other gender. Yet no one considers those groups “weird” or suspicious.

      1. What is the Union of Concerned Scientists?

        1. A bunch of people, most of them not actually scientists, (It’s not a requirement to join.) who want their political opinions to carry the force of scientific conclusions.

          1. “A bunch of people, most of them not actually scientists, (It’s not a requirement to join.)”

            Being a person isn’t a requirement to join. Anthony Watt’s dog is a member. 🙂

            1. Anthony Watt’s dog is a member.

              And one of the more credentialed ones, from what I can tell.

    4. Just out of interest, why would a post about California infringing the 1st Amendment be a reasonable VC subject, but not a post about California infringing the 2nd Amendment ?

      1. Because the esteemed name-giver of the blog is a professor of 1st Amendment law.

        1. It’s better to remain silent and be thought a fool

        2. Let me suggest that you (re)read the Heller decision, and note that EV was cited by the majority as essentially The authority on the history of the 2nd Amdt, and, in particular, the protection of Keeping and Bearing arms found in the original 13 colony constitutions as they affected the drafting of the 2nd Amdt. He also, apparently, teaches a gun law seminar. You might also wish to review to his curriculum vitae and the link to his work on this site.

          Besides, the VC is a collection of (mostly) law profs writing in their area of special expertise. Kopeck happens to be other writer (besides EV) writing about the 2nd Amdt. No different, really, than some of the other Volokh Conspirators writing about 4th Amdt cases. Or Separation of Powers. Etc. that is what the VC has been about since its founding.

          1. Hey, Martinned is new here. It’s not like he has been around reading this blog since at least Obama’s first term, if not longer.

          2. Kopel, not Kopeck.

    5. My first thought was that “Standard Magazines” meant Time, Life and Look. They don’t need to be controlled; they die of old age.

  2. “to the extent that courts choose to obey Heller.”

    Unless the Supreme court starts granting cert to gun cases again, that extent is going to keep declining. Refusing to grant certiori when the lower courts ignore Supreme court precedent is the Supreme court’s way of saying, “Carry on, we didn’t really mean it!”.

    1. I wondert why the Supreme Court does this regarding Heller, but not Roe v. Wade.

      1. Because Roe was a triumph of judicial opinion over the actual Constitution, and judicial opinion has only hardened on that topic.

        While Heller was a partial triumph of the Constitution over judicial opinion, and is at war with that opinion.

        Decisions that are in alignment with the cultural opinions of the judiciary are much more secure than ones which only have the Constitution to shore them up.

        1. Do you two think the Supreme Court granted a bunch of certs to abortion cases post-Roe?? I don’t see a double standard here.

          I kinda like Brett’s weak legal realism – that Justice’s ideals aren’t determinative, but aren’t meaningless either – they have potential to act as a head or tail wind regarding post-opinion application and enforcement.

          But I think the idea that Roe was somehow in keeping with the cultural opinions of the judiciary is unsupported (though I’ll buy that if you can generalize about the judicial culture, Heller went against it.)

          1. Yes, actually they did grant cert to abortion cases post-Roe.

            There were Roe v Wade and Doe v Bolton, same day, (With the latter taking away much of the regulation the former purported to allow.) Planned Parenthood v Casey, Stenberg v Carhart, Gonzales v Carhart.

            By contrast, after Miller, the Supreme court refused certiori without comment to every last case where the 2nd amendment was raised as an issue by the parties, until they shocked everybody by granting certiori to Heller. Probably because Heller had won at the district court level, and to refuse cert was to automatically let the ruling stand.

            69 freaking years during which so much as mentioning the 2nd amendment guaranteed that the Supreme court wouldn’t take your case. And it wasn’t for a lack of test cases, either.

            1. Not buying it, Brett. At all.

              Doe v Bolton was the same case in a different jurisdiction, just as McDonald was for Heller.
              Casey was 21 years after Roe. So we can’t really talk about a double standard until at least 2029.

              There’s no difference, just you taking out your frustrations by abusing reality.

              1. Sixty nine years, Sarcastro. Sixty nine years during which if you so much as mentioned the 2nd amendment in your brief, the Supreme court declined without comment. A human lifespan went by without the Supreme court taking even one Second amendment case, people were born, lived their lives, and died of old age while the Supreme court refused to take any 2nd amendment cases.

                Roe v Wade was in 1971

                PP v Casey, 1992. Somebody born when RvW was issued would have barely had time to be old enough to drink before the next abortion case was heard.

                Stenberg v Carhart, 2000. Merely another 8 years.
                Gonzales v Carhart, barely 6 years later.

                You can’t compare the Supreme court’s repeated hearing of abortion cases to sixty nine years of blank refusal.

                Granted, my son will be an old man before you could say the current refusal of the Court to take 2nd amendment cases was as bad. But they’re clearly blowing off good test cases, and letting the lower courts do as they will.

                1. Your standard is still highly questionable.

                  How long before an abortion case came before the Supreme Court? Since the founding of the Republic, more or less.

                  21 years – ‘barely old enough to drink.’ OK, get back to me by 2029 before you complain about the Court moving too slowly post-Heller.

                  1. I’ve no idea how long it took before it occurred to somebody that you could get the Supreme court to declare a long standing crime to actually be an inalienable right, without any textual basis. Or how much longer it took before the Supreme court was ready to go along with the gag.

                    But I’m offended that the Supreme court is turning away cases where the lower courts are chipping away at one of the enumerated civil rights. I don’t see why I should have to wait until I’m 80 to see the Court put a stop to it.

                    1. Making a distinction of validity between enumerated and non-enumerated rights is begging the question.

                      Once you allow that both rights exist, the distinction you are so frustrated about goes away.

                    2. Well, for one thing, we have had the Supreme Court ignore lower court rulings refusing to uphold an enumerated right for over six decades. This was inexcusable.

                      By contrast, separate but equal in the context of public education did not even last that long.

          2. I saw a study cited here (wherever here was then) that showed when the Justice writing a landmark opinion dies or leaves the court then lower court adhesion to the ruling declines.

            I’m guessing that is what we are seeing with Heller.

            Gorsuch probably needs to write a Super-Heller to get the lower courts back in line for the next 30 years.

            1. Is there any sign of a lack of adhesion, or is it a lack of adhesion to the maximalists’ interpretation of Heller?

  3. Kopel and other advocates for a civilian arms race prefer extreme interpretations of Heller. They want them frozen in amber, too, decided for all time as a matter of right, so no further discussion will be availing, or even relevant.

    That way, they hope to bypass a few points which might come up if discussion were on the table. For instance, as even gun advocates well understand, most of the defensive value a gun can have is available without need of firing any shots at all, let alone 10, or 17, or some higher number. So all the extra rounds packed into ever-larger magazines add only vanishingly small increments to practical defensive ability. But they are great for empowering spree shooters. And for emboldening them. And that is increased gun danger writ large.

    My suggestion? Recognize the rights the 2A protects, but keep discussion open. There are competing rights. Gun opponents have a right of self-government, and want to use it as an alternative means of protection against guns. If, as must surely happen, competing rights need to be compromised, one useful policy guide would make marginal decisions on the basis that gun owners create the gun danger, and so along with their protected rights should bear also whatever marginal risks policy may require, in the form of magazine size restrictions, for instance.

    1. Look, you didn’t like the Heller decision, you didn’t like the McDonald decision. Fine, you don’t have to.

      That doesn’t mean the states are allowed to violate them. And that’s what California is doing here, outlawing common firearms components in direct violation of Heller.

      1. So Brett, does this mean you accept the authority of SCOTUS to decide the meaning of the Constitution, or not?

        Because I occasionally get the impression that you reserve to yourself the ultimate right to decide, in accord with the Bellmore Rules.

        If I’m wrong, fine, but if not, then Stephen Lathrop, and I, and anyone else who feels like it, can declare a case wrongly decided, and not accept the result.

        1. I accept the formal authority of the Supreme court to bind lower courts. Not their hearts and minds, of course, but their rulings.

          This is quite different from requiring private citizens to accept that the Court has ruled correctly. We are all of us, even federal judges, entitled to say that the Emperor has no clothes. It’s just that the federal judges are obligated to rule as if he was wearing fine robes.

          And, indeed, you, Stephen Lathrop, and I, can declare a case wrongly decided, and not accept the result.

          We might, however, not like the way the government responds to this refusal, depending on what actions it entails.

          1. Declaring a case wrongly decided is to not accepting the result as crafting an argument is to throwing a tantrum.

            1. Depends, I suppose, on what you mean by “not accepting the result”. It can range from simply insisting on stating the ruling wrong, all the way up to violating it.

              1. It’s about accepting that authority you disagree with can still be legitimate.

                I’m all for ‘an unjust law is no law at all’ but pulling that trigger at every opportunity results in a childish worldview.

                1. Authority can be legitimate, and still used illegitimately, Sarcastro. The umpire is still the umpire, having legitimate authority, even if one of the teams has bought and paid for him.

                  We can recognize that the Supreme court has legitimate authority over a question, and still notice that one of their rulings is utter crap.

                  1. Does illegitimacy arise more from motives, methods, or substance for you?

                    It can obviously be any of the three, but bad faith is sufficient, whereas the threshold of wrongness (moral, logical, practical, constitutional, etc) for substance and procedure is a harder line to draw.
                    But bad faith is hard to prove, and the line drawing is going to devolve into an idiosyncratic values judgement.

                    So like unreasonableness and intellectual dishonesty, a rigorous intellectual should be conservative about when you invoke illegitimacy.
                    If you find yourself deciding like half modern Supreme Court jurisprudence is not just wrong but illegitimate, you’ve only delegitimized yourself – leaving the realm of debate and entered the realm of tilting at windmills.

                    1. Well, tilting at dragons, anyway. Just as futile, and more likely to get you burnt to a crisp.

                    2. Eh, America’s still not China; unless you’re military or really egregious and work for a consumer-facing large company, you can say what you want without getting burned.

                2. Yeah I agree Sarcastro, just like you can disagree with a police shooting and the exoneration of an officer for the shooting without thinking the Police don’t have the authority to shoot someone when necessary.

            2. So you accepted the result of Dredd v. Scott? And the Slaughterhouse cases?

        2. So I guess you accepted the constitutionality of the Fugitive Slave Act?

    2. “Gun opponents have a right of self-government, and want to use it as an alternative means of protection against guns.”

      Your Honor, I have the right of self-governance so I made my own drivers license and HAVE NOT MADE JOINDER with the corporate identity FRAUDULENTLY assigned to me by the conspiring entities that claim, I say CLAIM, to hold authority over my SOVEREIGN identity, and HEY WAIT IS THAT GOLD FRINGE?

      I kid, but there really isn’t such a right that encompasses this. If you accept such a position, you must be prepared for legislation permitting discrimination based on race, because white supremacists have the same right of self-governance and can use pro-discrimination laws as an alternative means of protection from blacks. I can’t support that, and neither should you.

      1. “I was traveling! You can’t prove that I was ‘driving’! Oh, and screw you AND your gold-fringed-flag-waving admiralty court!”

    3. Sorry. You are arguing for balancing of a fundamental enumerated right against nonenumerated, non fundamental, feeling non rights. Doesn’t work that way for other fundamental rights, so why should it work this way for just this one fundamental right? Shouldn’t that mean that the religious beliefs of pro-life people be able to be weighed against women wishing abortions (abortion being a fundamental, but unenumerated, right)?

      Besides, one of the purposes of the Bill of Rights is to protect the minority from the elected will of the majority. In this case, you probably don’t even have a national majority on your side. My suggestion is that if you really want to be able weigh other rights against those guaranteed by the Bill of Rights, the Amendment process is the only legitimate way to go for you.

      1. Bruce Hayden, didn’t you notice this: The United States shall guarantee to every State in this Union a Republican Form of Government? Looks like an enumeration to me. Besides which, what do you suppose is going on in Article 1 and Article 2?

        Gun advocates sometimes seem to think that only the 2A really matters, trumping even the other rights in the Bill of Rights. And like Hayden here, they are quick to assert that rights outside the Bill of Rights are no rights at all, even when they have been specifically enumerated elsewhere in the Constitution.

        You have to read a Constitution whole, and today’s gun advocates are too often unwilling to do that. (They aren’t even willing to read the 2A whole!)

        Aside from disqualifying for foolishness a whole lot of pro-gun commentary, that attitude leads to this other recurring problem?in political debate, every assertion of a right is really just an attempt to kick over the table and end discussion on that point. I suggest to gun advocates that you really have to be crazy-confident in what is going to happen down the road to make that seem like a promising tactic. You guys ought to be considering whether there is a safer, more constructive strategy based on engagement and compromise.

        1. Wherein Stephen Lathrop demonstrates that he doesn’t understand what a Republican Form of Government is.

      2. Bruce Hayden commented “…abortion being a fundamental, but unenumerated, right.”

        I confess I thought I knew what you were talking about until I read this. First, I don’t agree that abortion is a fundamental right; I think the so-called right was invented by the court as an extension of the right of privacy, which is unenumerated.

        But, I truly don’t know what an unenumerated, fundamental right can be. Can you please elaborate?

        1. Moore v. City of East Cleveland

        2. Pierce v. Society of Sisters, Moore v. Nebraska too.

    4. Gun opponents have a right of self-government, and want to use it as an alternative means of protection against guns.

      Segregationists have said the same thing less than half a century ago.

    5. Civilian arms race? Seriously, does it hurt to be that ignorant?

      Semiautomatic firearms (pistol, rifle, & shotgun) have been designed and manufactured by civilians for use and sale to civilians since ~1905, over 100 years. The federal government didn’t start using them until later ~1935 IIRC.

      Semiautomatic AR-15 (AR = Armalite Rifle) was designed and manufactured by civilians for use and sale to civilians; it was later that the government requested Armalite to make an automatic version for use by the military.

      Now we have people like SL that are wanting to ban common use firearms based on cosmetic appearance not actual ballistics using made up terms like Assault Weapons, military style, large capacity, etc.

      In the words of that great philosopher, Forrest Gump:
      Progressive is as Progressive does!

      1. Civilian arms race? Seriously, does it hurt to be that ignorant?

        Especially in this context, where we’re talking not about legalizing larger magazines, but trying to prevent the banning and confiscation of typical magazines. SL is batty.

  4. Stephen, you insist on these hidden assumptions such as “gun owners create the gun danger”. In context, that can only refer to lawful gun owners because those are the only ones that your assumed marginal risks can be assigned back to.

    So your full statement is “[lawful] gun owners create the gun danger” and no, they don’t. Or at least, not at any statistically significant level. The gun danger is created almost entirely by people who were already breaking the law.

    1. No, Rossami, my full statement is the one I wrote, not the one you would prefer to substitute. The difference in our thinking is apparently that you suppose that somehow law and policy either have to come in two flavors?a stringent flavor for bad guys, and a lenient flavor for everyone else?or they can’t be made at all. I don’t think that way.

      I think laws and policies have to apply alike to good guys and bad guys, and where it’s decided that a law is needed to constrain bad guys, then the good guys just have to suck it up and obey the law too. Except in these goofy gun debates that’s the way it always works, and nobody among the good guys starts yelling that he’s being “punished” if he has to obey the law. Just the gun guys do that.

      1. So it’s an even sillier hidden assumption – that the bad guys will feel even slightly constrained by all these laws that you want to impose despite the fact that they’re not feeling constrained by any of the existing laws.

        Re: uniform application of the law – That has nothing to do with whether or not it’s a good law. Consider a law passed to outlaw a particular type of speech (because bad guys use it). If that law were constitutional, then the good guys would have to suck it up and obey the law. But no one in their right mind would say it’s a good law nor that it was constitutional. And, yes, many people would say they were being “punished” for having to obey that new law.

        The only thing goofy about the gun debate is the endless cycle of proposals to make criminals out of the law-abiding gun owners while proposing nothing at all to change the behavior of the actual violent criminals.

        1. I don’t think First Amendment arguments are likely to make much headway with Mr. Lathrop who seems to feel that DMCA safe harbors have punished the responsible press.

          1. Oh, he’s all sorts of pro-censorship. There might be a civil right SL is for, but I couldn’t tell you what it is from the hundreds of posts of his I’ve read.

            Wait, voting. He does favor that one. Tyranny of the majority.

      2. Just the gun guys do that? Guess you forget all the whining from so-called reporters and news companies when anyone talks about restricting their 1A Constitutional Rights?

  5. Recent journal article on the subject:

    “Do bans on large-capacity magazines (LCMs) for semiautomatic firearms have
    significant potential for reducing the number of deaths and injuries in mass shootings?”

    Full PDF:…..7116674926

    1. Spoiler alert – the study essentially refuted the hypothesis that banning LCMs would reduce fatalities in mass shootings.

      But that is really irrelevant, even if it had come out the other way, because there are just not that many people die from mass shootings in this country, in comparison to the number killed or wounded otherwise by guns in this country. Or, even worse, the number of people saved through defensive gun uses every year.

      Besides, we aren’t dealing with LCMs, but rather standard capacity magazines. Calling them “high capacity” doesn’t make them such. Rather, if you look at the universe of handgun magazines in this country, probably a significant majority of the magazines in this country would be considered “high capacity” under the laws of the most gun rights limiting states in this country. A definite majority of handgun owners and handgun carriers in this country would likely consider any handgun magazine under maybe 20 rounds as “standard”. In my case, I probably own 20 handgun magazines, only one of which I consider “high capacity” – a 32 round Glock magazine. Most of the rest fall into the 15-17 range.

      1. I personally own a Calico carbine, and will freely concede that the 100 and 50 round magazines for it are “high capacity”. But very handy for an afternoon of plinking in the backyard.

        The 17 round magazines for my 9mm handgun are perfectly ordinary capacity.

        And the 3 round magazines for my deer gun are absurdly low capacity, but mandated by state law.

        But, yes, the point here is that California has decided to ban “high capacity” magazines, and it’s definition of “high capacity” is erroneous. They’re banning normal capacity magazines, in wide use across the country.

        And Heller doesn’t permit them to do that. Which they doubtless know, they’re just hoping to sneak it through anyway.

        1. Sounds like you need to spend far more time at the range than in the woods if you’re needing more than three rounds to take down a deer.

          1. At the time I was using that gun I owned considerable acreage in Michigan adjacent to a corn field, and had landowner permits to take about a dozen deer if I wanted.

            If you can do that with three rounds, I’m impressed.

            But, no, I was just commenting that outside of hunting regulations, a 3 round magazine was pretty small.

            1. Around here, if you miss with the first shot, the deer hightails for the woods. I own a few single shot guns. (But legal pest control has no mag capacity limit here.)

              My current go-to defensive guns are 5 shot revolvers.

              Target competition is ten rounds per target for score. I usually use one magazine loaded with 10 rd (or two with 5rd — standard mag for 1911 is 7rds, for CZ52 8). For vintage and modern military rifle matches, I use 15, 20, or 30 rd standard as-issued magazines loaded with 10 rds each.

              I see no need for over 10 rd capacity, And I do not see any point in allowing the government to confiscate my over 10 rd magazines. I don’t believe it would enhance public safety any more than the 1950s crusade against “Tales from the Crypt” comic books to stop juvenile delinquency. These gun laws are as silly as burning Beatles’ White Albums in response to the Manson family Helter Skelter murders. I refuse to participate in empty symbolic gestures of voodoo criminology just to appease moral panickers.

              Besides. replacing the standard as issued magazines with smaller capacity civilian magazines would lessen the value of my military guns, cost me money if reduced capacity mags are available, and as the gun control advocates usually do, would encourage calls for more restrictions. I grew up under local option alcohol prohibition 1953-1968 and this malum prohibitum rhetoric is tiresome.

              1. Never were much for plinking, were you? But the chief utility of my 100 round magazines was as an upraised finger to my then Congressman, Rep. “Comrade” Bonior.

                And because a Calico looks silly with a 10 round magazine, of course.

                1. That’s an apt depiction of current wingnuts — clinging to a 100-round magazine as a middle finger to their betters as our society progresses at the expense of conservatives’ intolerant, stale wishes.

                  Carry on.

              2. I see no need for…

                That’s one of the better ways to render your argument utterly meaningless and your opinion of no value. Well done.

                1. If I see no need for something, that renders my argument against prohibition and confiscation meaningless and my opinion of no value?


                  If I see no need for absinth, the writings of Voltaire, or the Beatles’ White Album, my arguments against prohibition and confiscation are meaningless and valueless?
                  One can only argue against prohibition or confiscation of things they need?


                  If I think prohibitions and confiscations are a waste of tax payer dollars, do no good, or create black markets and cause harm with solving problems, I can only pose an argument or opinion if it’s something I see a need for.

                  I’ll bet if I argued that I saw a need for it, it would be cast as what I needed didn’t matter.

                  1. No, the fact that you think your not seeing a need for something constitutes a reason to legally prohibit others from having it renders your opinion of no value.

                    1. Ah…never mind…I’m an idiot. I misread your post and then confused you with another poster.

  6. “When a defender has a greater reserve, she will fire more shots at the first attacker knowing that she will have sufficient ammunition to deal with a possible second or third attacker. Obviously, the more shots the defender fires, the greater the possibility that the attacker(s) will be injured and the lesser the chance that the defender will be injured.”

    I assume someone has done some sort of research into the average number of shots fired by cops vs the average number of shots fired by the average citizen in a DGU. Anyone got a link to that? Is there, I wonder a correlation and/or causation between the amount of reserve ammo carried and the number of shots fired?

    1. Right off the bat, non-police DGUsers need larger capacity magazines than cops, because they don’t carry (for reasons of practicality) as many extra magazines.

      1. They also don’t have backup and usually don’t routinely wear bulletproof vests.

      2. And need more rounds because they aren’t the ones picking the time and place where a confrontation might occur. Or how many opponents they might face.

  7. Why limit the argument to self defense, why not claim 15 round magazines are useful for the common defense and cite Aymette?

    ” the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”


    “The citizens have the unqualified right to keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow that they may be borne by an individual, merely to terrify the people or for purposes of private assassination. And, as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence.”

    This would at least protect the individual right to “keep” such magazines. Laws regulating the bearing of them might or might not be constitutional depending on circumstances.

    1. Maybe because the Militia Clause was essentially utilized to justify the NFA in the Miller case. The case essentially Justice, legally, limiting military firearms in civilian hands because there hadn’t been a finding in lower courts that the firearms being regulated were, indeed, military firearms. And that case may be part of why self-defense has been the focus in recent cases.

      1. Miller was a trial in abstentia; Miller had died by the time it reached the Supreme court, and wasn’t represented before the Court. Otherwise it would have been quite easy to demonstrate that the gun in question, a sawn off shotgun, had military utility, having been used in WWI trench warfare.

        None the less, the Court clearly ruled that Miller’s ownership of the gun would be protected if it were of military utility. The gun, mind you, not Miller’s ownership of it; The ruling was about the sort of arms the 2nd amendment protected, and it was taken as a given that it applied to the private citizen (And career criminal!) Miller. The case was referred back to the lower court, (Where Miller had prevailed!) for a resolution of that factual question, but that resolution never happened because the case was moot, Miller being dead.

        I tend to think that we dodged a bullet in Miller; It came after “the switch in time that saved nine”, and that the government would prevail was unquestionable. That Miller was unrepresented allowed the Court to rule in favor of the government on the narrowest possible basis, rather than in detail that would have set bad precedents.

        Not that that really helped us much, as during the 70 subsequent years during which the Supreme court refused to take any case where the 2nd amendment was at issue, the lower courts mangled the holding in Miller, eventually standing it on its head.

        1. Note: I’m quite irate about the way Scalia misrepresented the holding in Miller, when he wrote the Heller opinion. He transformed a right of private citizens to own military arms, into a right to own just such arms as didn’t frighten the government.

          I suppose he thought it was the most he could get 5 votes for, but it was still an awful misrepresentation, and he had to have been aware of what he was doing.

          1. The reason for this is that Scalia, being a good NJ boy, doesn’t know much about guns. Someone asked him about whether automatics would be protected as they’d be in common use if not effectively banned in 1934, and he responded, “I don’t really know whether people would be interested in owning them.”

            It’s obvious to anyone who knows anything about firearms that they would. A standard AR-15 costs the same as a model that includes a trigger selector with a 3 round burst or full-auto selection. Even if the average shooter wouldn’t use it (as it would waste ammo and cause a loss of control), I can’t imagine anyone would not choose to have the capability at the same price.

            1. That’s what amicus briefs are for, to relieve ignorance, and one would think he’d have at least read the Miller decision before citing it.

              No, I’m certain he knew what he was doing.

              1. So he wanted to lay out a general right to bear arms but put in enough dicta that the states can basically regulate whatever they want to except in the most outrageous of cases?

                1. Pretty much. Not at all the right to “all the terrible implements of the soldier” the 2nd amendment was written to guarantee us, and Miller upheld.

  8. No mention of 5th amendment argument that the state isn’t compensating the owners for seized property?

    1. You don’t want to win the battle and lose the war. For the 5th amendment argument to concede then you would have already lost the argument that the state can outlaw greater than 10 round magazines.

      Its not always a good idea to layout a compromise position that isn’t really a compromise you can live with.

    2. Compensation for property does not apply when the property is contraband.

      1. Well, that makes seizing specific land awfully cheap and easy, huh

  9. Criminals might use fast, good handling cars to escape, and might steal them, so henceforth everyone in California will forfeit their present car under penalty of law, and drive a Smart Fourtwo.

    I’m sure Californians would be all right with that.

  10. There’s no legitimate argument that the Constitution permits bans on any magazines or any type of standard rifle.

  11. I support the 10 round magazine limit because my 13 round 1866 Winchester replica is exempt because of its tubular magazine and I will have an edge if the exchange goes over 10 rounds.

    1. Except that the government thugs you should be most concerned about will have magazines as large as they need.

  12. It may say something about my age and the culture I grew up in. But it took me a moment to realize this is not a First Amendment case.

  13. It may say something about my age and the culture I grew up in. But it took me a moment to realize this is not a First Amendment case.

  14. I have mixed feelings about this litigation. When I bought my Springfield XDm, the box contained a sticker noting that the weapon is not legal in the State of California (I presume because it has a 13-round magazine). Residing as I do in the State of Texas, I considered that a feature. This litigation might mean I no longer have that special feature. Alas.

    1. In addition to magazine restrictions, CA also has an approved list of handguns that have passed their ridiculous destructive tests. That’s probably what the sticker was noting. Most small manufacturers refuse to give them handguns to destroy to prove they meet CA standards. This has the effect of slowly reducing the # of handguns available for purchase in CA which is what the law is really designed to do.

  15. I hope that if universal concealed carry ever comes to pass the lawmakers remember to address the issue of states like California trying to illegalize some particular feature of the weapon you pack.

    1. The current bill preempts all magazine and ammunition restrictions.

  16. If I may piggyback another confiscation issue on this thread, in my LE career I once encountered a murder defendant who was exceedingly proud of his one significant worldly asset—a beautifully restored 1967 Camaro. After he was found guilty, I noticed his defense attorney driving a gorgeous vintage Camaro.

    That anecdote set me to thinking about cash forfeiture cases. If the defense attorney succeeds in arguing it was an illegal stop or something a drug defendant gets his cash back (often a big bag of it) but that money often goes to pay the legal fee of the attorney. In theory, IRS agents should be breathing down the defendant’s neck to account for the unreported income (on which taxes are still owed) and when the lawyer declares his income for the year the same money will be taxed again.

    Finally, I arrive at my question. Assume a citizen is gunned down on the sidewalk in a seedy neighborhood. His nearby car is searched by the police in the heat of the moment. A million $ is found and seized. No drugs were in the car. Then Republicans in this bright new year eliminate estate taxes. The dead citizen’s family demands the cops give dad’s cash back to them.

    Did this money escape taxation?

    1. re: taxation of seized money. Short answer, no. Longer answer, it depends.

      Consider scenario A. Citizen is a very successful small businessperson. Because it’s a seedy neighborhood (or because Citizen is an immigrant from a country with poor financial controls and lots of corruption or some other unlikely but legitimate reason), Citizen does not trust banks and chooses to carry cash. More than you or I would feel safe with but it’s not illegal to have lots of cash. Citizen’s heirs demand (and receive) the cash. Did this money escape taxation? No. Citizen’s cash was already been taxed when it was earned as income.

      Consider scenario B. Citizen is a very successful small businessperson but this time in the business of drug-dealing. Citizen’s heirs demand (and receive) the cash. Did this money escape taxation? Probably, yes but Citizen was a drug-dealer and not going to pay taxes regardless. Transfer of the assets to the heirs is no different than if the drug-dealer had bought a house which the heirs inherited. The right to seize the proceeds of an illegal business depends on securing a conviction that Citizen actually was a drug-dealer. Can’t prove that? Then the presumption of innocence applies and the heirs get to keep the assets.

      1. In the instance where the citizen is deceased. he is not a convicted drug dealer. Is it common for posthumous prosecutions to be done for tax or other purposes? I would guess not, so if a drug dealer sent his kids off to law school, they might realize that dad (sans an estate tax) is worth a lot more dead as far as pure cash value. They might shoot him.

        Thank you for the teachings. . .

        1. AMENDMENT VI

          In all criminal prosecutions,
          the accused shall enjoy the right to a speedy and public trial,
          by an impartial jury of the state and district
          wherein the crime shall have been committed,
          which district shall have been previously ascertained by law,
          and to be informed of the nature and cause of the accusation;
          to be confronted with the witnesses against him;
          to have compulsory process for obtaining witnesses in his favor,
          and to have the assistance of counsel for his defense.

          How would one conduct a posthumous prosecution of a deceased defendant?

  17. A good brief. Thank you, David, for fighting the good fight, even in the thankless 9th Circuit.

  18. I’d wish the analysis of standard v higher capacity magazines or even that of the constitutionality of black semi autos would resist arguing a given utility for self defense.. The constitutionality of these devices lies in the fact that the US and foreign armies (terror organizations) equip and drill their combatants with these small arms.

    The 2nd Amendment goes beyond defending against bodega stick-ups. The 2A contemplates the right to confront invaders, organized usurpers of the law, armed insurrectionists and occupying foreign powers. Ten shot limits are laughable when imposed on the citizen while the enemies of the citizenry enyoy standard and high capacity small arms.

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