Wyoming leads 19 states to challenge New Jersey’s concealed handgun law

CHEYENNE, Wyo. — Wyoming leads 19 states to challenge New Jersey’s concealed handgun law. The Wyoming-led coalition is asking the U.S. Supreme Court to let them submit a brief supporting a New Jersey man’s challenge to that state’s concealed weapons law. Other states joining in the effort are Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia. The Wyoming attorney general’s office, acting as lawyer for the states, asked the Supreme Court to grant a hearing to John M. Drake and others who are challenging a recent appeals court ruling.

New Jersey’s law requires its citizens to prove a justifiable need to be granted a concealed weapons license. The state does not accept the desire for self-defense as a justifiable need – there must be a demonstrable “urgent necessity.” New Jersey’s legal code specifies:

In the case of a private citizen shall specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun. Where possible the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of such incidents to the appropriate law enforcement agencies.

Drake, of Fredon, N.J., is a business owner who owns and services ATMs, requiring him carry large amounts of cash at times. “It seems unreasonable to me to have to wait until you’re beaten up or shot at to get a permit,” Drake said.

The brief from the Wyoming Attorney General’s Office says that Wyoming and the other states are concerned that if the appeals court ruling stands, it could threaten their less-restrictive concealed carry laws. Wyoming Gov. Matt Mead said, “This decision out of New Jersey impacts the right to keep and bear arms outside of the home… If the current decision stands, states providing greater protections than New Jersey under the Second Amendment may be pre-empted by future federal action… so I felt it was necessary to have the attorney general support a petition to the Supreme Court to hear this case.”

If the Supreme Court decides to hear the case, it may clear up confusion from contradictory rulings by the appellate circuit courts. Last summer, the 3rd U.S. Circuit Court of Appeals ruled against Drake’s challenge to the provision in New Jersey law that says people seeking permits to carry a concealed firearm must prove to police that they have a justifiable need.

However, last year the 7th Circuit Court ruled that the Second Amendment does protect the right to carry a weapon outside of the home for self-defense. Justice Robert R. Thomas, who wrote the court’s decisions cites Madigan v. Moore as well as the Supreme Court cases, D.C. v. Heller, which ruled the Second Amendment is an individual right to bear arms and that the core purpose is for self-defense, and McDonald v. Chicago, which held that the Second Amendment applies to states laws via the 14th Amendment. Justice Thomas wrote that “neither Heller nor McDonald expressly limits the Second Amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the Second Amendment right to keep and bear arms extends beyond the home.”

This year, the 9th Circuit Court struck down California’s concealed-weapons permitting laws, saying the requirement of citizens to show “good cause” before being allowed to obtain a concealed carry permit violated the Second Amendment. The 9th Circuit, like the 7th Circuit ruling, relied on the Supreme Court’s Heller and McDonald decisions. The 9th Circuit also cited Muscarello v. United States, (which is also referenced in the Heller decision) for a definition of what it means to “bear arms,” noting “that surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” The 9th Circuit stated “people are more sensibly said to bear Arms in nondomestic settings.”

This author has argued that, though falling short of explicitly stating the Second Amendment extends outside of the home, based on what the Supreme Court did state in Heller the only rational conclusion one could reach is the Second Amendment does, in fact, extend outside of the home. In Heller, the Court stated several lawful purposes exist for the Second Amendment: self-defense, hunting, militia duty, resisting tyranny from the government, repelling an invasion, and suppressing insurrection. All but self-defense require one to have a firearm outside of the home; while self-defense may be inside or outside of one’s home. If the Supreme Court hears the case, they may clear once and for all what is plainly – though not explicitly – stated in its own previous rulings: that the Second Amendment protects the right to keep and bear arms outside of the home.

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.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication March 3, 2014).

Ninth Circuit strikes down California law restricting concealed weapons carry in Peruta v San Diego

San Diego, Calif., February 13, 2014 — California must allow law-abiding citizens to carry concealed firearms in public, a federal appeals court ruled, striking down the core of the state’s permit system for handguns. In a 2-1 decision issued on February 13th, the Ninth U.S. Circuit Court of Appeals ruled “San Diego County violates the Constitution’s Second Amendment by requiring residents to show ‘good cause’” before being allowed “to obtain a concealed carry permit.”

California has long had some of the nation’s strongest restrictions on gun ownership, and, according to the court, is one of only eight states that allow local governments to deny concealed-weapons permits. State law requires applicants to demonstrate good cause, as well as good moral character, to carry concealed handguns, while leaving the permit process up to each city and county. The court noted that the state did not accept the desire to be able to defend oneself as sufficient to demonstrate “good cause”.

California’s law was challenged by the National Rifle and Pistol Foundation (NRPF) and individuals who challenged the San Diego County system. C.D. Michael, lawyer for the NRPF, said “The right to self-defense doesn’t end at your threshold.”
The court agreed, ruling that the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense both inside and outside of the home. Judge O’Scannlain’s majority opinion emphasized “the right to bear arms includes the right to carry an operable arm outside the home for the lawful purpose of self-defense.” The courts said the Second Amendment must be read as including “the right to carry weapons outside the home” because “the risk of armed confrontation” is in no way limited to one’s home, citing the examples of “a woman toting a small handgun in her purse as she walks through a dangerous neighborhood or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.”

This author previously wrote a two-part series on the Second Amendment extending outside of one’s home based on Supreme Court’s 2008, D.C v Heller ruling. In the ruling, the high court says:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

As previously noted, the Supreme Courts ruling says “for lawful purposes”, plural, and then says “such as self-defense within the home.” This means that self-defense within the home is one of several lawful purposes, not the sole lawful purpose for which the right to keep and bear arms is protected. Further, the Court explicitly mentions several other lawful purposes in Heller, including hunting, resisting tyranny from the government, repelling an invasion, suppressing an insurrection, in addition to self-defense. Hunting, resisting tyranny, repelling an invasion, and suppressing insurrection all require one to be outside of the home. And as is covered in part two of the series, the language used in Heller in no way suggests that self-defense itself would be confined to the home.

The Supreme Court wrote in Heller that people at the time of ratification understood the Second Amendment as protecting “the natural right of resistance and self-preservation” and that “Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p.21). Further, Heller reaffirms the court’s prior definition of “bear arms” in Muscarello v. United States, that “surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

The Ninth Circuit’s ruling is in line with this analysis of what the Supreme Court has already clearly stated in Heller, as well as Muscarello and MacDonald v Chicago. Citing Heller, the Ninth Circuit’s judgment states: “Second Amendment codified a pre-exisiting, individual right to keep and bear arms and that that central component of the right is self-defense” (p.6). The Ninth Circuit further states “…people are more sensibly said to bear Arms in nondomestic settings” (p.16). Citing McDonald v Chicago, the Ninth Circuit notes that: “self-defense, recognized since ancient times as a basic right, is the central component of the Second Amendment… consequently, that right restricted not only the Federal government but under the Fourteeth Amendment, also the states” (p.7). Therefore, California’s law was stricken.

The Ninth Circuit ruling is a departure from other federal appeals courts that have upheld similar laws in New York, New Jersey and Maryland. But the decision concurs with an appellate court that struck down Illinois’ absolute ban on concealed weapons in public. The split among appellate circuits increases the prospect that the U.S. Supreme Court will take up the issue. If that happens, gun rights activists can expect the Ninth Circuit court’s ruling to be upheld, since it is built upon multiple – and several recent – Supreme Court rulings.

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.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication February 20, 2014).

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Helleris self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v.Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely onreading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean “self-defense… as long as you’re in your home; but nowhere else” because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify this as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

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.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication November 26, 2013).

The Second Amendment Right Extends Outside The Home, Pt 2

by Matt MacBradaigh | Nov 26, 2013 | 2nd Amendment Facts | 2 comments

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes – plural – of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Heller is self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v. Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely on reading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean ‘self-defense… as long as you’re in your home; but nowhere else’ because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify guns for self-defense in the home only as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

This article was originally published on Brenner Brief. Original publish date Nov 26, 2013. Original author, Matt MacBradaigh.

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme 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 any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

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).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

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. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; 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.

 Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

 

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

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.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication November 7, 2013).

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

by Matt MacBradaigh | Nov 7, 2013 | 2nd Amendment Facts | 1 comment

Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme 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 any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

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).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

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. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; 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.

Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

This article was originally published on The Brenner Brief. Original publish date Nov. 7, 2013. Original author, Matt MacBradaigh.