Are Standard Cap Mag Bans Vulnerable to Challenge?

Are standard capacity magazine bans vulnerable to be challenged under the "common use" model? Since the most common weapons of our time use 15, 20, and 30 round mags, aren't they protected under Heller and not subject to being banned?

It's interesting to note that DC plans to replace one magazine capacity ban (over 11 rounds) with another (over 10 rounds)

In my reading of Heller, the Court appears to permit "reasonable" restrictions on firearms. I have tried similar cases in Federal Courts, and if a governing body can prove that the law is rationally related to a compelling state interest, it will be permitted. Whether the ban on high capacity magazines will be so found is highly dependent on the Circuit court where the case is brought. My feeling is that with the current split on the Supreme court, such a challenge has less than a 50% chance of surviving.

Also definitions vary

In Chicago, Ill it's greater than 12 rounds

In NYC for pistol mags its over 17 rounds, over 5 for rifles

Maryland has a 20 round limit

Columbus, Ohio has a 20 round limit

California has a 10 round limit with exceptions

on and on

Isn't the fallacy that there is no such thing as high capacity magazines?

Isn't the fallacy that there is no such thing as high capacity magazines?

That's so balls-on accurate. The antis were the ones who came up with the magic number of 10 rounds. Just like DC cooked up their definition of automatic weapon.

Columbus, Ohio has a 20 round limit Their are no city laws in Ohio only State. The State has a 31 round limit or you have a full auto law.

One probable tack would be in the NJ statute, it's almost impossible to fight on reasonability......So,

In NJ, the magazine size is limited to 15 rounds for ANY type of magazine, pistol or rifle.

For an AR type of weapon no 15 rounds magazines are manufactured or available.

The only way to own a "legal" magaozine is, from out of state, to take a tested, safe and functional 20 round mag, insert a spacer and seal the magazine so it cannot be opened or tampered with.

This alteration, by it's very nature, changes a safe and tested consumer product and makes it far more liable to fail and therefore unsafe.

As such the statute could arguably be fought on state and federal consumer safety grounds as promulgating and codifying the sale of inherently faulty consumer products........:evil:

In NJ, the magazine size is limited to 15 rounds for ANY type of magazine, pistol or rifle.

Well, it is New Jersey after all....it is so bad there that Californians consider themselves blessed!

You should add Ma to the list 10rds rifle or pistol unless it's pre ban

I would grant that there are high-cap mags - such as 100 round AR mags and 50 round M1911 mags.

Yeah, I would consider most drum magazines to be high capacity. Nothing wrong with that though.

NJ/NY hardly qualifies as the USA anymore

Really? Because I consider NYS part of the US and so do the 30+ Million Americans who live there. Let's not try and isolate grand portions of the American population. For career reasons I would really love to live in NYC, but the gun laws there are a major obstacle for me. I'm personally awaiting a challenge to them. I want CCW, I want an apartment in one of the 5 boroughs. And damnit, I want to experience fall in NY with my Glock on. Instead of running away from the antis, let's bring the fight to them. Dick Heller did that. If we can get rid of the stupid mag ban in DC, I think overturning state-wide AWBs will be cake.

Even though Maryland has a 20 round limit it only applies to magazines that are bought, sold, or transferred into or within the state. You can bring back higher-capacity magazines from out of state if you physically leave state borders. Thats why I went to Virginia to get me some 30 and 40 round AK mags :neener: .

I've wondered a little about that myself, heller doesn't seem to be the solid protection against a magazine ban that I'd like, at least on the surface. Of course the same would apply to an AR ban then, no total bans but bans on configurations like flash hiders, pistol grips, etc just like 1994.

In NYC for pistol mags its over 17 rounds, over 5 for rifles

it's 10 for pistols in nyc, not 17

and for rifles, there's a nice little exception to the 5-round limit for 22-caliber rifles that use a tubular magazine, and i think they "look the other way" for the 10-round rotary magazines in 10/22s

Ain't no such thing as "high capacity "mags.... they are standard capacity or reduced capacity!

Since the most common weapons of our time use 15, 20, and 30 round mags, aren't they protected under Heller and not subject to being banned?Heller stated that handguns were as a common class of weapons and had to be allowed. I don't think you can further break down handguns into common classes of handguns & handgun accessories and say that the ruling still applies to each and every subclass of common handgun and/or common handgun accessory.

Heller affirms the individual right to own/possess a handgun in your own home and to have it readily and immediately available for self-defense use. That's about it as far as I can see.

In my mind, a high capacity magazine would be a magazine that holds more ammo than the standard mag that comes with the firearm. So a glock 17 with a 33 round mag would be a high capacity mag. A glock17 with a 17 round mag would be standard capacity.

Standard for an AR is 30 rounds.

Standard for a beretta M9 is 15

etc so forth and so on.

A ban on a "higher than standard" magazine is completely retarded. It makes no sense. What are they going to do, put a limit on the number of mags a guy can own? what if I own two 10rounders compared to another guy that owns only one 15round mag?

Pure idiocy. But no one ever accused the gun grabbers of being sensible, did they?

Seems to me what normally comes with the gun should be protected, and anything bigger is fair game to be banned.

I have tried similar cases in Federal Courts, and if a governing body can prove that the law is rationally related to a compelling state interest, it will be permitted.
That may have been true before Heller, but I thought Scalia specifically noted that something more that a rational basis review was necessary for an enumerated right? As shameless copied from "Of Arms and the Law" :

"56: Standard of review: ban on entire class of weapons that are overwhelming the choice for self defense violates any standard of review, hence no need to choose. (Inference: strict scrutiny applies to such a ban)." and
"56 n. 27. Standard of review. Rational basis shd only apply where rationality is part of the constitutional restriction; isn't the case with an enumerated right. Citing Carolene Products. Cites first amendment alongside second."

It's interesting to note that DC plans to replace one magazine capacity ban (over 11 rounds) with another (over 10 rounds)

While it essentially banned magazines (along with the intended target of all semi-autos) it wasn't a "magazine ban." It was a statutory definition (yeah, I know it was wrong...) of any semi that "could" accept a magazine that held more than 13 rounds as a "machine gun" and the inability to register such a machine gun or have a magazine for said "prohibitted" weapon that was the problem.

Now they're redefining "machine gun" to match the Federal definition while only allowing reduced capacity magazines for the newly "allowed" semi-autos.

Heller stated that handguns were as a common class of weapons and had to be allowed. I don't think you can further break down handguns into common classes of handguns & handgun accessories and say that the ruling still applies to each and every subclass of common handgun and/or common handgun accessory.

Why not? Can you, using either strict scrutiny or the alluded to intermediate level (above rational review) restrict the type of megaphone you use to exercise your free speech? Can you limit someone's word precessor to a certain "speed" or "capacity?" What about the number of politicians you can support or the number of religions you may practice? If the right to self-defense is, as Scalia stated, an enumerated right, why would restrictions on the amount of ammunition you can carry in the magazines, especially if they are indeed the most common ones available, not be off limits as an infringement?

I am not saying it will happen overnight, or that Heller was sufficiently specific that all Circuits would automatically throw out all laws restricting standard capacity magazines. I just think it would be possible to construct a pretty convincing argument that Heller would prevent such restrictions. All that would be needed is the model case, the brilliant attorneys, and of course a bucket or two of money.

In my reading of Heller, the Court appears to permit "reasonable" restrictions on firearms. I have tried similar cases in Federal Courts, and if a governing body can prove that the law is rationally related to a compelling state interest, it will be permitted. Whether the ban on high capacity magazines will be so found is highly dependent on the Circuit court where the case is brought. My feeling is that with the current split on the Supreme court, such a challenge has less than a 50% chance of surviving.

Your reading is wrong. The word "reasonable" was only used to deal with the delt with Miller case, and was used all over the dissenting opinion. This implies that it'll be rational basis test, which a mag ban *might* pass through, but Scalia made it very clear it cannot be a rational basis test, which was the determination of the dissent for the handgun ban staying.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Heller affirms the individual right to own/possess a handgun in your own home and to have it readily and immediately available for self-defense use. That's about it as far as I can see.

Read the decision. It goes miles beyond that, and also upholds the appellate court decision. The text of both decisions is our new source for the scope of 2A.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise.

Seems to me that an AR15, with a 30 round magazine, and a Beretta 9mm with it's 15 round mag ought to be the MOST protected arms in the land.

Read the decision.I did read the decision, that's how I arrived at the summary I provided. Rather than simply contradicting my summary, please provide a cite from the decision indicating how it is inadequate or incorrect.Why not? Can you, using either strict scrutiny or the alluded to intermediate level (above rational review) restrict the type of megaphone you use to exercise your free speech?The first doesn't protect your right to own or use a megaphone or word processor, it only protects your right to say/write/publish what you want, within reason, without fear of prosecution/persecution by the government. The analogy is so poor as to be completely irrelevant. just think it would be possible to construct a pretty convincing argument that Heller would prevent such restrictions.Believe me, I understand WHY that is very attractive to think that way, I just can't see how the decision supports such arguments.

Gura was quoted on THR as stating that forcing DC to abandon their semi-auto ban would require a second suit as the Heller ruling wouldn't support an attack on that particular ban.

http://www.thehighroad.org/showthread.php?p=4718064#post4718064

Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case.

I expect other cases to be brought as the need to define every little word seems to be the crux of the arguments.before 1934 the gun laws were only aimed at a certain ethnic group.then at political classes.
machine guns and cannons were legal for anyone to own.1934 was the start of the modern gun control it lagged for a while and then in 1968 took off again
on a new course.and any one for CCW/PTC is willing to summit to control.the 2nd does not mention permits "shall not be infringed"what part of infringe dont you understand.period.:uhoh::confused::fire:

The first doesn't protect your right to own or use a megaphone or word processor, it only protects your right to say/write/publish what you want, within reason, without fear of prosecution/persecution by the government. The analogy is so poor as to be completely irrelevant.

First, let me apologize for the "completely irrelevant" analogy. While I understand that the First Amendement does not protect the right to own either a megaphone or a word processor, any attempts to restrict access to or use of them for the purposes of restricting free speech would not be legal, correct? So, if self-defense is a right, like free speech, why are the tools of self-defense (at least those not already restricted by the NFA or other such laws) not treated in similar fashion to the tools of free speech and any restrictions required to pass the strict scrutiny used for First Amendment restrictions?

And, why if Heller stated that it was illegal to ban a type of gun because it was "common," why would it be so illogical to assume that the most common size magazine, and the one specifically manufactured for that common gun, could be banned?

So again, I apologize for constructing an inartful analogy, but the questions remain unanswered. I will be the first to admit IANAL, nor do I fully understand all of the intricacies of the law. That is why I ask questions of supposed experts like yourself here in THR. I wish to learn and become better informed. Unfortunately I really didn't learn anything from your response, but I am sure that is more because of my inadequacies rather than yours.

Quote:
just think it would be possible to construct a pretty convincing argument that Heller would prevent such restrictions.

Believe me, I understand WHY that is very attractive to think that way, I just can't see how the decision supports such arguments.

Gura was quoted on THR as stating that forcing DC to abandon their semi-auto ban would require a second suit as the Heller ruling wouldn't support an attack on that particular ban.

I never suggested that Heller, in and of itself, could be used to negate an arbitrary limit on magazine capacity. That being said, it would appear that, at least in part, that the threat of a second "Heller" suit did influence the recent changes to DC's laws regarding the classification of semi-automatics. So, by extension, it would seem logical that additional actions (either threatened or actual), using some of the aformentioned reasoning and findings in Heller(irrelevant analogies aside) could therefore have some influence on magazine bans.

Again, thanks for you help.

There is no such thing as a 'high capacity magazine'

There are normal capacity mags, which are design specific and low capacity mags which are 10 rounder in a gun that takes more!


I think Heller would prohibit a ban on any such things IMO, as they are definantly in common usage

So, if self-defense is a right, like free speech, why are the tools of self-defense (at least those not already restricted by the NFA or other such laws) not treated in similar fashion to the tools of free speech and any restrictions required to pass the strict scrutiny used for First Amendment restrictions?I see where you're coming from. Unfortunately the analogy is badly flawed. The 2nd is specifically about protecting the right to firearms ownership (which may be used for self-defense as well as other legal uses). It's NOT specifically about protecting the right to self-defend, that's just one of the benefits of owning firearms.

The First, on the other hand is specifically about protecting free speech, not about protecting the right to own items which may be used (among other things) to effect free speech....why would it be so illogical to assume that the most common size magazine, and the one specifically manufactured for that common gun, could be banned?Because that's not what it says. It says that handguns (a VERY general class) are a commonly used class of weapon that offers important features that are unavailable from other legal and commonly used classes of weapons. Specifically it offers a person the ability to easily use the firearm effectively with one hand.

To use Heller to try to break the magazine/semi-auto bans would require demonstrating that high-capacity semi-autos (as a commonly used class of weapon) offer some similarly critical benefit that is unavailable from other legal & commonly used classes of weapons. I don't think it would be possible to construct a strong argument along those lines.I never suggested that Heller...That also clarifies things a bit. If you read my initial post on this thread it was very clearly and very specifically aimed at the Heller ruling and it's "range of usefulness". I assumed you were responding along the same lines.it would appear that, at least in part, that the threat of a second "Heller" suit did influence the recent changes to DC's laws regarding the classification of semi-automatics.I agree 100%. Which is, if you think about it, very strong evidence that the people in the know don't believe that Heller is sufficient to effect those particular changes.

I don't know if another suit would be successful, but I'm inclined to be as cautious about the outcome as DC apparently is...

JohnKSa,

Thanks for the additional info, it was helpful but I still think we may not be on the same page. When I say (or infer) that Heller may be useful for attacking magazine limits, I mean via the dicta and logic used to form the opinion, as it might be used in subsequent actions. Hence my original post stating that all we needed was the "right case," a brilliant attorney, and buckets of money.

If I may beg your indulgence for a moment, I'd like to go back the analogy mentioned earlier. Let me set up my question: The First protects free speech and extends (generally speaking) that protection to the tools used to exercise that right.

The Second, protects a tool (the gun) that can be used for "the core lawful purpose" of self-protection.

To me, it seems odd that you can not (generally speaking) restrict the tools necessary to exercise an enumerated right, free speech, but the gun, the possession of which is an enumerated right, can be restricted in a fashion that could arguably affect it's ability to provide the level of protection (I think it would be difficult to refute the argument that tactically speaking, more rounds per magazine are superior to less rounds) it was intended to provide? Adding to that, those restrictions would make the originally manufactured equipment for a gun (assuming it was a magazine over 10 rounds), and therefore the most common, illegal.

Again, I am not suggesting that Heller will magically make magazine bans go away, just that an argument could be made (hopefully in a well designed case by someone more convincing than I) that supports the premise that restricting magazine capacity to something less than original specifications could affect one's ability to protect themself, and therefore be subject to higher levels of scritiny before a ban or limitations could be implemented.

Again, thanks for the info...I realize that sometimes I have a difficult time with the complicated legal issues and theories involved, and appreciate any attempt to clarify my misunderstandings.

If the argument for banning standard capacity magazines is that the weapons are too effective for their intended purpose, then I think the argument is over before it starts.

How much self defense is too much? Can a law abiding citizenry be too prepared to resist foreign invasion or future domestic tyranny?

Even those people who would disparage the idea that our present roster of government leaders are capable of becoming despotic tyrants, would need to develop a case of historical amnesia to claim that it will never be so in the future.

That's why the right is so desperately important to preserve, important enough to warrant strict scrutiny.

Again, I am not suggesting that Heller will magically make magazine bans go away, just that an argument could be made (hopefully in a well designed case by someone more convincing than I) that supports the premise that restricting magazine capacity to something less than original specifications could affect one's ability to protect themself, and therefore be subject to higher levels of scritiny before a ban or limitations could be implemented.The problem is that the difference between a handgun and other commonly used classes of weapons is very significant. It offers the very unique capability of being easily wielded with one hand. Heller makes a point of this as being an important reason why handguns can not be banned.

The differences between an auto and a revolver or between a 10 round auto and a hi-cap auto are a matter of degree, not a matter of one providing a unique capability that the other does not. My read of the decision does not seem to support the idea that anything other than the loss of a unique capability is going to make a ban unconstitutional according to SCOTUS.

You could correctly argue that I am not a legal expert, and I would have to agree. However it seems clear that my inexpert read agrees with Alan Gura's assessment that the constitutionality of a semi-auto ban could not be resolved in the context of Heller.

My read of the decision does not seem to support the idea that anything other than the loss of a unique capability is going to make a ban unconstitutional according to SCOTUS.
I'm inclined to agree at this point and I think that feature based bans like the 1994 awb would be ok too while explicitly outlawing certain models of popular guns (say the CA awb) would not.

Isn't the fallacy that there is no such thing as high capacity magazines?
No the fallacy is that regular capacity magazines are now called high capacity. Once that law is in place for awhile reduced capacity become the new 'normal' capacity, and regular are given credibility as being high capacity.

However there was high capacity magazines. If a pistol is designed for 17 rounds, and a normal magazine holds 17 rounds, then using a 30 round magazine or a drum magazine on it would be using a high capacity magazine.

If a rifle was built to take a magazine with dimensions that hold 20 or 30 round box magazines, then using a 100 round drum would be a high capacity magazine.

The term has been applied to standard capacity magazines and then codified into law. That is decietful, but there is still high capacity magazines to regular people that speak english and recognize standard capacity for what it is.