McCarthy/Lautenberg Magazine Capacity Bills


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gc70
January 29, 2011, 06:46 PM
Previous threads about magazine capacity limits have been closed because, as Art noted (http://www.thehighroad.org/showpost.php?p=7038990&postcount=89), "Until there is a House bill and a companion Senate bill, there is little to discuss."

A set of identical bills, titled the Large Capacity Ammunition Feeding Device Act, have now been proposed in the House and Senate to limit magazine capacity.

H.R.308 (http://www.thomas.gov/cgi-bin/bdquery/z?d112:h.r.00308:) introduced by Carolyn McCarthy (D-NY)
S.32 (http://www.thomas.gov/cgi-bin/bdquery/z?d112:s.00032:) introduced by Frank Lautenberg (D-NJ)


The proposed bills are very similar to the magazine limits of the '94 AWB (http://thomas.loc.gov/cgi-bin/query/C?c103:./temp/~c103883IIs). The biggest difference is that the proposed bills would ban transfers of devices in existence before enactment of the bill (allows for continued possession).

Since political discussions are prohibited on THR, please do not rant about McCarthy, Lautenberg, particular political parties, or people who hold particular political beliefs.

The proposed bills contain provisions that are ripe for serious legal discussion. As a starter:


The bills ban transfers, so businesses and people holding magazines exceeding the capacity limits in the bills would not be able to sell them; would this run afoul of the Fifth Amendment's "takings" clause?


The capacity limits in the bills would ban the standard magazines for many of the most popular handguns and rifles commonly in use; would this run afoul of the Heller decision?

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GerryM
January 29, 2011, 07:09 PM
Yep, time to call and send emails to your folks in Washington - let's put a stop to this before it even gets going

TexasRifleman
January 29, 2011, 07:10 PM
Well the Speaker has said that it will not make it out of the House committee. Guess we will see.

Keep in mind that these 2 introduce basically the same stuff every session.

bobbo
January 29, 2011, 07:12 PM
They're in committee. While the Senate might see it come to the floor (eventually), there isn't enough support to stop a filibuster by the GOP, and several Dems will cross the aisle to oppose this.

In the House, as it's been said on here far too many times, it will never leave committee, let alone see an up-or-down floor vote. This bill died before it was born.

Without the House passing it, it won't become a law. Ever. Period.

I'd say lock this up, as absolutely nothing has changed. The only people who will profit off of this continued talk are those with big magazines to sell.

gc70
January 29, 2011, 08:49 PM
Could we please avoid the politics surrounding these bills, including their prospects (or lack thereof) for passage, which has been thoroughly discussed in previous locked threads.

While gun control advocates would like to see the entire AWB reinstated and extended, these bills reflect what our opponents believe are our weakest spot, where they are most likely to gain political traction. Since the political prospects of bills like the ones proposed change over time, it is worthy of our attention to consider whether there are legal defenses against the proposals.

aryfrosty
January 29, 2011, 08:59 PM
I'm sorry. I generally try to avoid politics but it is akin to burying our heads in the sand to completely avoid politics in such discussions. When you can show me an effort by right wing politicians or a particular party to ban guns or gun owner's rights then we will avoid politics. The party of anti-gunner's stands on its' own legs and they need to be held accountable for their silliness. Now, moderators, I did not say the name of the party but if you want to pull my post you certainly can.

Carter
January 29, 2011, 09:04 PM
I've sent my emails to NC's senators and my congressman. I also addressed the issue of banning private sales because it would keep people from getting a fair market value for their private property. Hopefully it doesn't fall of deaf ears.

Just because these bills go against the constitution or court decisions doesn't mean they couldn't be passed. Since when do mere words keep politicians from doing what they want?

I think the fact that it would keep soldiers or police from buying affordable magazines for their duty use without all the departmental red tape should be brought up too.

chihuahuatn
January 29, 2011, 11:40 PM
Without the House passing it, it won't become a law. Ever. Period.
bobbo, my thoughts exactly

A few comments here folks...
1) The climate was much different for the Clinton ban than it is today...we're more informed with the internet and have recent pro-2A court decisions
2) I have to be honest, if this happened early in Obama's presidency with a Dem house controlled I would be worried
3) The Economy/Jobs, Health Care, Rising oil prices, unrest in the middle-east, the GOP taking the house...there are much more important issues at hand
4) When my pro-Obama democrat friends are complaining about Obama getting involved in Gun-Control I know the political climate is not right for gun-control.

Please dont get me wrong I wrote my legislators this week and I believe that as gun supporters we need to fight heavy right from the start to stop anything from progressing. We must be vigilant.

Art Eatman
January 29, 2011, 11:51 PM
aryfrosty, re-read: "...please do not rant about McCarthy, Lautenberg, particular political parties, or people who hold particular political beliefs."

We're talking about the effects of such laws and ways to stop their passage. The people/party stuff is irrelevant.

The point about magazines provided by civilians to troops overseas is probably unknown to most legislators. It's worth a comment in your letter to your Congresscritter. Also worth comment is the track record of purchases of firearms, these last fifteen to twenty years. Just the last three years, I'm told, have had the FBI do some 30+ thousand NICS checks. That's votes.

I've read that in the world of advertising, one snail-mail letter equates to the opinion of 300 more people besides the writer. I have to guess that fairly well would hold true for letters to Congress. Snail mail letters have more import than emails or FAXes.

Sen. KB Hutchison of Texas makes a point of personally reading any hand-written letter. Her staff deals with everything else.

NavyLCDR
January 30, 2011, 12:22 AM
Maybe they should just make it illegal to commit a crime with a "hi-cap" magazine.... or to commit a crime with a gun for that matter.... that would be a law I would throw support behind.

gc70
January 30, 2011, 12:28 AM
Also worth comment is the track record of purchases of firearms, these last fifteen to twenty years.

FBI summary (http://www.fbi.gov/about-us/cjis/nics/reports/total-nics-background-checks) of Total NICS Background Checks, November 30, 1998 - December 31, 2010 = over 124 MILLION.

Balrog
January 30, 2011, 01:05 AM
I do not believe the average person cares much about high capacity magazines, and if they just limit the ban to any mags over 10 rounds (and not try to ban any guns at the same time), I think there will be not too much general resistance from the public at large. This is especially true if they attach it as an amendment to some other important legislation that the Republicans really want to pass.

Maybe they should just make it illegal to commit a crime with a "hi-cap" magazine.... or to commit a crime with a gun for that matter.... that would be a law I would throw support behind.

Well that seems absurd to me. Murder is murder. I would just as soon be shot with a high capacity Glock as a six shot revolver. Dead is dead.

General Geoff
January 30, 2011, 01:20 AM
Well that seems absurd to me. Murder is murder. I would just as soon be shot with a high capacity Glock as a six shot revolver. Dead is dead.

A magazine capacity ban in any form is absurd. Might as well back an absurd law that doesn't affect the law abiding.

Balrog
January 30, 2011, 01:26 AM
A magazine capacity ban in any form is absurd. Might as well back an absurd law that doesn't affect the law abiding.

Or maybe not back any absurd laws.

In any case though, I think a magazine ban, if they leave guns out of it, may well come into being especially if there is another high profile murder using a gun with a high cap magazine.

gc70
January 30, 2011, 01:35 AM
In any case though, I think a magazine ban, if they leave guns out of it, may well come into being especially if there is another high profile murder using a gun with a high cap magazine.

Do we have a basis for judicial recourse to that legislative action?

General Geoff
January 30, 2011, 01:46 AM
Do we have a basis for judicial recourse to that legislative action?

The fact that standard capacity (over 10 rounds) magazines are in common use and would thus be protected by the 2nd Amendment as per the Heller decision.

Onward Allusion
January 30, 2011, 02:36 AM
Well that seems absurd to me. Murder is murder. I would just as soon be shot with a high capacity Glock as a six shot revolver. Dead is dead.

Ding ding ding... So why would a ban on magazines over 10 rounds be effective on crime?

Onward Allusion
January 30, 2011, 02:39 AM
The fact that standard capacity (over 10 rounds) magazines are in common use and would thus be protected by the 2nd Amendment as per the Heller decision.

While that may be the case, one can easily argue that magazines in excess of (fill in the blank - 14, 15 ) rounds are not in common use and would not be covered under Heller.

General Geoff
January 30, 2011, 03:31 AM
While that may be the case, one can easily argue that magazines in excess of (fill in the blank - 14, 15 ) rounds are not in common use and would not be covered under Heller.
It could also easily be argued that standard capacity for AR-15 magazines is 30 rounds, and there are millions of them in the hands of private citizens, which would make them also in common use. For that matter, there are hundreds of thousands, if not millions of drum magazines of various types in circulation in the private sector as well. I don't see any kind of magazine capacity limit passing constitutional muster.

sig220mw
January 30, 2011, 05:56 AM
How can you avoid the politics of these proposals when they are about nothing but politics. If you support people in a party that has gun control as one of it's main party platforms and those people support that platform, then you voted for an anti gunner.

Politicians make this about politics. We don't.

I will not vote for ANY PERSON that supports gun control no matter what party.

71Commander
January 30, 2011, 07:07 AM
bills would ban transfers of devices in existence before enactment of the bill

Please correct me if I'm reading this wrong. Does this mean I can break a law before it becomes a law?:confused:

Deus Machina
January 30, 2011, 07:14 AM
No, it means that you get to keep what you have, but can't buy or sell them after the bill passes.

alsaqr
January 30, 2011, 08:14 AM
The House Speaker says that H. R. 308 is dead; therefore, i believe that it is dead.

H. R. 308 could be brought to the floor over the Speaker's objection if it's proponents get the signatures of 218 House members on a discharge petition: That is not going to happen.

Onward Allusion
January 30, 2011, 12:17 PM
It could also easily be argued that standard capacity for AR-15 magazines is 30 rounds, and there are millions of them in the hands of private citizens, which would make them also in common use. For that matter, there are hundreds of thousands, if not millions of drum magazines of various types in circulation in the private sector as well. I don't see any kind of magazine capacity limit passing constitutional muster.

So, one can argue that while 30 round magazine capacity for rifles are common such capacity for handguns are not. Are we willing to give up 33, 31, 20, 18, or even 16 round handgun magazines?

I for one am not.

xcgates
January 30, 2011, 12:20 PM
I'd almost be tempted to draw some correlation between magazine capacity and vehicle horsepower/torque based on arbitrary numbers, but I'd be affraid that politicians would take that and take all the fun vehicles away.

Bottom line is to do all we can to keep the government from imposing artificial limits based on "we don't feel that anyone could possibly need so much!"

General Geoff
January 30, 2011, 12:23 PM
So, one can argue that while 30 round magazine capacity for rifles are common such capacity for handguns are not. Are we willing to give up 33, 31, 20, 18, or even 16 round handgun magazines?

Any legislation specifically banning pistol magazines would be thrown out as unconstitutionally vague, if nothing else, because there are plenty of AR/AK pistol variants on the market.

Mr.Davis
January 30, 2011, 12:43 PM
I plead with you all...take the time to write a note to your senators and reps specifically asking them to oppose this bill. Do not let this be another 1994 moment where our own inaction led to our right being restricted. If you care about the RKBA, you must register your opposition to this bill. Speak and be heard, if not for yourself, for us.

Balrog
January 30, 2011, 12:46 PM
The fact that standard capacity (over 10 rounds) magazines are in common use and would thus be protected by the 2nd Amendment as per the Heller decision.

Heller applies to guns, not magazines. The SC justices were clear that Heller would not prevent additional gun control legislation, including the banning of certain features. I am not even sure how coherent an arguement you could make about a magazine ban being unconstitional under the 2nd amendment. You are still armed if your gun only holds 10 rounds.

I wonder if high capacity magazines could be reclassified by the ATF as destructive devices, and regulated as such, or in the manner of Class III weapons.

General Geoff
January 30, 2011, 12:53 PM
Heller applies to guns, not magazines.

The magazine is an integral part of a firearm, even if it's detachable.

Balrog
January 30, 2011, 05:05 PM
The magazine is an integral part of a firearm, even if it's detachable.

Right, but the number of rounds is irrelevant to function of the gun.

Others here have said that the recent Tuscon shooter would have killed just as many people with a 10 round magazine as with a high capacity magazine. The conclusion to draw from this statement then is that a high cap magazine is not necessary for the gun to work properly, and you are are still keeping and bearing arms even if your gun has 10 rounds not 33.

I don't support a high capacity magazine ban, I am just offering what I believe the opposition will claim as justification for banning them.

xXxplosive
January 30, 2011, 05:55 PM
We already have a 15 round max. magazine requirement here in NJ.....what does Sen. Lautenmummy want now ? Has he risen from the crypt again ?

zxcvbob
January 30, 2011, 06:01 PM
No, it means that you get to keep what you have, but can't buy or sell them after the bill passes.And how does that not violate the Takings Clause (5th Amendment, I think)

bobbo
January 30, 2011, 09:07 PM
And how does that not violate the Takings Clause (5th Amendment, I think)

Because the government isn't saying you can't keep them, but saying you can't sell them. If they were taking them, then they'd have to pay you for them. But their not.

Travis McGee
January 30, 2011, 09:39 PM
I think such a bill WILL PASS this year. Once it's packaged, the MSM will promote it to the sky. Any politician who opposes it will see his picture on TV between Cho and Loughner. "Why does Congressman Smith want maniacs to have easy access to these massacre-makers?"

Fact is, no Congressman will want his mug between those two killers on TV. At least 50 R's will cross the aisle to vote for it. Even Dick "Shotgun" Cheney has said,"We don't need these magazines." Plenty of Fudd "sportsmen" will go on TV to agree.

I would buy any "standard capacity" mags holding over 10 rounds pretty soon. Once the bill is up for consideration, prices will skyrocket and availability will go down. The grabbers have learned from the AWB. Instead of a comprehensive bill, they will target the low-hanging fruit: high cap mags. And this time, there won't be a sunset. Gone will be gone.

gc70
January 30, 2011, 09:57 PM
Because the government isn't saying you can't keep them, but saying you can't sell them.

Prohibiting a business from selling a product takes away its ability to recover its cost or investment in the product.

‘‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’’

Balrog
January 31, 2011, 02:16 AM
Prohibiting a business from selling a product takes away its ability to recover its cost or investment in the product.


So... the law would say after a certain date a business could no longer sell the product, which would give them time to move the inventory and stop reordering it.

Products become prohibitted from time to time, its just the way things are.

Onward Allusion
January 31, 2011, 11:44 AM
Travis McGee (http://www.thehighroad.org/member.php?u=2956)
I think such a bill WILL PASS this year. Once it's packaged, the MSM will promote it to the sky. Any politician who opposes it will see his picture on TV between Cho and Loughner. "Why does Congressman Smith want maniacs to have easy access to these massacre-makers?"

Fact is, no Congressman will want his mug between those two killers on TV. At least 50 R's will cross the aisle to vote for it. Even Dick "Shotgun" Cheney has said,"We don't need these magazines." Plenty of Fudd "sportsmen" will go on TV to agree.
<SNIP>



WILL pass??? Maybe it will pass in some form, but it's not a definite. In any event - GO HERE...

http://whoismyrepresentative.com/

AND write a snail mail letter to your reps. Forget about email. Do the letter thing. Much more effective. If you're lazy, pick up the phone.

TexasRifleman
January 31, 2011, 12:02 PM
I think such a bill WILL PASS this year. Once it's packaged, the MSM will promote it to the sky.

These 2, McCarthy and Lautenberg, propose these types of bill every session, they never get out of committee.

Speaker Boehner said they won't get out of House committee this time either.

It didn't happen even when Cho did his thing and Congress was made up of even more anti gun members. This one shooting in Arizona doesn't appear to be such a attitude shift as would be required to push this through.

I just don't see a compelling reason for the entire attitude of the nation and their representatives to make a 180 degree shift here.

Leverb66
January 31, 2011, 12:30 PM
Many Reps have indicated that email is a better communication tool for them than snail mail.

Onward Allusion
January 31, 2011, 12:49 PM
Many Reps have indicated that email is a better communication tool for them than snail mail.

Yes, so that they don't have to actually open the envelope and file it away. Too easy for email to be dragged and dropped into an electronic folder... Do both...

Travis McGee
February 1, 2011, 08:38 AM
I hope you guys are right, but I fear that squishy RINOs will cave on this one. Cho didn't kill one of their congressperson pals. Any pol who opposes this law will see his photo on the MSM between Cho and Loughner. They won't want that, at all.

Husker_Fan
February 1, 2011, 08:54 AM
It would be really interesting to see how the courts treat such a restriction post Heller and MacDonald.

As for the "Takings Clause." It's likely a closer case than most people think. Any physical taking is going to be a violation, but this isn't. This is what would be called a regulatory taking. The threshold for finding a violation of the Takings Clause is much by regulation is much higher, but this could do it.

I still don't think this sees the light of day in either house. If Reid had lost to Angle, then Schumer would be Majority Leader and this would be heading for a floor vote. With Reid in the Senate, this is dead there too.

alsaqr
February 1, 2011, 09:03 AM
H. R. 308 has 65 co-sponsors. It will go nowhere unless 218 house members sign a discharge petition.

JustinL
February 1, 2011, 09:23 AM
As I have written before, there are 262 NRA 'A' rated members in Congress as well as 50 'A' rated Senators. If they were 'squishy' on second amendment issues they would not have received such a rating.

This bill is going nowhere.

TexasRifleman
February 1, 2011, 09:33 AM
H. R. 308 has 65 co-sponsors. It will go nowhere unless 218 house members sign a discharge petition.

Gonna stop with this one for now. Unless these numbers change there isn't anything to discuss or get active over.

That's about the same number of sponsors this bill gets every session so it's a little early to try to figure out how the confiscations will take place.

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