State magazine capacity laws violate the Second Amendment. Nearly all state laws were passed prior to recent Supreme Court gun rights cases, but in the light of the rulings they clearly violate the people’s right to keep and bear arms.Several states have laws restricting the capacity of magazines in firearms. With the exception of Colorado, these laws were passed prior to several recent Supreme Court gun rights cases. However, now the Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear that magazine capacity restriction laws violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.
The Second Amendment protects the right of the individual to keep and bear arms – not ‘the right to own a single-shot musket’, but “arms”. In Heller, The Supreme Court defines what “arms” means in legal and historical context:
All firearms constitute arms according the Supreme Court: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons, they also re-affirmed that what is protected are weapons “in common use at the time”. This is further upheld in McDonald.Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).
Rifles with magazines have been in existence for nearly two centuries and are in very common use today. The ATF defines a rifle as “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” under Federal law § 921(a)(3)(A). Magazines are a part of the rifle, and all rifles, with the sole exception of single-shot rifles, have them. A magazine is an ammunition storage and feeding device in a firearm. Magazines can be detachable or internal. Without the magazine, rifle function is impaired, or is nonfunctional; some firearms will not fire unless the magazine is attached. Federal law considers magazines to comprise 3 of the 20 parts of a firearm under section § 922(r).
Rifles featuring magazines have been commonplace since the 1800′s. At this time, magazines were internal. The first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine. Since the early 1900′s, modern rifles more commonly have detachable magazines. The 1911 Colt handgun, still “in common use” today, features detachable box magazines. The Thompson “Tommy gun” was invented in 1919 and features detachable box and drum magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, were later adapted for detachable box magazines.
Today, detachable box magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic AR-15s, as well as virtually all semi-automatic handguns. Because today’s detachable box magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles. So-called “high capacity” or “large capacity” magazines are ‘standard’ every place not prohibited by law.
How common are they? No one has a precise count of magazines, but the numbers easily range from tens of millions to billions. AR-15 variants, for instance, are designed to use a 30 round magazine as standard. NATO countries created the STANAG protocol to standardize magazine features including 30 round capacity. Over 70 countries have produced tens of millions of rifles that accept STANAG magazines with magazine production for these rifles possibly into the billions. Similarly, AK47 variants – with standard 30 round magazines – number an estimated 100 million produced, with magazine production also likely in the billions. It is legal to import these magazines into the U.S. This is just two popular rifles; there are many others, like the Mini-14, FAL, Uzi, H&K 91, and others. Estimates of so-called “high” capacity magazines in the U.S. range from 40 million to 130 million. A 2004 report to the Dept. of Justice (at the close of the ten-year Federal Assault Weapons Ban, which included ban on new production magazines over 10 rounds) estimated nearly 30 million “large capacity” magazines. Millions have been produced and imported every years since the ban was ended. According to the ATF, over 6.5 million firearms were manufactured and over 3.2 million firearms imported in 2011 alone. Major U.S. firearms manufacturers, such as Colt, Ruger, and Mossberg, ship 30 round magazines as standard with their rifles. New production magazines from manufacturers like Magpul, and importers of surplus magazines add to the number annually.
Semi-automatic rifles that utilize detachable box magazines with a standard capacity of 30 rounds have been “overwhelmingly chosen by the American people” for lawful purposes including home and self-defense and hunting. That, according to Heller (pp.55-56) qualifies them as “in common use”, and “as we have explained, that the sorts of weapons protected were those “in common use at the time” (p.55). Therefore laws that restrict their use violate the protections under the Second Amendment. In McDonald, the Court made clear that the 14th Amendment ensures Second Amendment rights cannot be infringed upon by individual states, and the Court struck down Illinois’ unconstitutional gun law. The same must be applied to every state that currently violates the Second Amendment’s protections by restricting magazine capacity.
By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.
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