At what point can magazine limits be contested as "Infringement"?


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epijunkie67
January 25, 2013, 10:41 PM
At what point do restrictions on magazine capacity cross over from regulation to infringement? At what point can we get these laws struck down by the SCOTUS?

I've been wondering about this lately since seeing what's happening in NY and other Northeastern states. One common way of "regulating" firearms is to try to limit the capacity of magazines. Originally they limited them to 10 rounds. Now it is 7.

But what happens when this new limit doesn't have the effect they want? What happens when the next psychopath to come along decides to use a 1911? Obviously the next logical step is to reduce the magazine capacity again.

So they drop it to 5 rounds. Then 3 rounds. Then what? 1 round?

If congress passed a law limiting all firearms in the country to single shot it would not be difficult to claim this was an infringement of the second amendment. At what point can 'We the People' sue the government claiming that these magazine restrictions are unconstitutional?

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Sam1911
January 25, 2013, 10:49 PM
It is an infringement whenever the SCOUTS SAYS it is. :) A citizen in any state that enacts a magazine ban and who then was caught in possession of one (or possibly was denied purchase of one) would have standing to appeal that conviction on Constitutional grounds. That would require a lot of funding and a very good legal team, and would also require that the courts actually agree to hear the case.

In theory, any restriction at all that resulted in a prosecution could provide the test case, but the more onerous the restriction the more likely the case would be to go forward.

Unfortunately, there is a certain about of precedent that mag restrictions of some sorts are acceptable under the 2nd Amendment.

gbran
January 25, 2013, 10:49 PM
At some point, they just ban semi-autos. As to SCOTUS, it could take several years for a case to reach them and don't forget they are not sure our 2A rights exist outside our homes.

rcmodel
January 25, 2013, 10:51 PM
And they will be even less sure to be unsure after Obama appoints a couple more Justices in the next four years!

rc

ApacheCoTodd
January 25, 2013, 11:53 PM
At any point.... at every point.

It strikes right at the heart of the effectiveness of a firearm as a tool with which one may protect one's self from tyranny.

Equal to regulation of caliber as far as I'm concerned.

mnrivrat
January 26, 2013, 08:38 AM
Sam got it right . The capacity has never been a challenged issue that I know of ,so the Court would have to decide.

As far as my opinion, which means absoluitedly nothing , any regulation that limits the weapons capacity below that of the Military used model would be infringement . My sig line pretty much explains the original guide line.

PRM
January 26, 2013, 08:46 AM
Agree with posts that say the Court ultimate decision. From my position, its when the government says "you cant."

Hapworth
January 26, 2013, 09:42 AM
The gun control side, all the way up to recent on-the-record remarks from Biden, have already laid the groundwork for an infringement argument: they specifically state a magazine capacity restriction will limit an active shooter's ability to do harm -- they rest their whole thesis regarding magazine restrictions on that.

If that's true, then the reverse by definition must also be true: it will limit he capabilities of an individual acting in legitimate self defense.

Whether or not that reaches legal thresholds for "infringement" has to be decided in courts.

Gun Geezer
January 26, 2013, 10:05 AM
If I can still pick up the loaded gun, then it does not have a Constitutional ammo count loaded in. Any restriction below my ability to pick it up is an infringment.

"Infringe" really is a simple word.

schrodingerscat
January 26, 2013, 10:11 AM
Formal Logic in Law is not read as the reversal in the manner you speak:

This is how it is actually done, you Negate Both sides, so:

"a magazine capacity restriction will limit an active shooter's ability to do harm"

"a magazine capacity restriction will NOT limit an active shooter's ability to NOT do harm"

gym
January 26, 2013, 10:47 AM
Now, would be good.

Sam1911
January 26, 2013, 10:50 AM
Indeed, SAF's coming assault on NY's new laws may indeed be the moment we've all been waiting for.

47CubPilot
January 26, 2013, 11:00 AM
"Regulated" as used in the 2nd Amendment is NOT about regulations as we now think of them (rules, statutes, laws and such).

beatledog7
January 26, 2013, 11:02 AM
You can never, ever, say that some regulation is not an infringement of RKBA as long as that regulation could be restated in this manner:

"...shall not be infringed, but..."

For example: RKBA "...shall not be infringed, but you can only have 10 rounds..."

There is simply no way to "but" a God-given and Constitution-codified right.

Pete D.
January 26, 2013, 11:08 AM
April 20, 2008. District of Columbia vs. Heller.
In a 5-4 decision the Court affirmed the individual's right to bear arms. Part of that decision was this: that right, like all rights, is not unlimited.
A magazine limitation does not limit one's right to bear arms, how ever much it may affect how much ammo is in the arm in question. Think back to when the law was enacted. They had the right to bear arms....muzzleloaders....one shot.

This is where the argument is going to go. Is limiting how much ammo you or I carry in a gun an infringement of our right to carry that gun? The 2008 decision seems to lead to a no. Further, a la NYS and the Secure Ammunition and Firearms Enforcement Act...is limiting the type of gun that I can own, an infringement my right to own a gun? Again, the court decision leads to a no. ("You can own a gun. Sure. You just can't own that gun.")
Pete

Sam1911
January 26, 2013, 11:13 AM
Think back to when the law was enacted.....muzzleloaders....one shot. They had the right to bear arms.

Absolutely not so. There were multi-barreled arms going back centuries and there were NO prohibitions on such "high-capacity" arms.

Argument falls apart instantly.

kcgunesq
January 26, 2013, 11:19 AM
You can never, ever, say that some regulation is not an infringement of RKBA as long as that regulation could be restated in this manner:

"...shall not be infringed, but..."

For example: RKBA "...shall not be infringed, but you can only have 10 rounds..."

There is simply no way to "but" a God-given and Constitution-codified right.
You are confusing two issues as the poster above pointed out. "Regulated" in the 16th Century vernacular meant "disciplined", "trained", "proficient" and the like as much or more than "controlled" or "licensed". So the previous poster is absolutely correct.

However, you too are correct. None of the individual rights are without limitation. Using the modern parlance, it is fair to say that our right may to some degree or another be "regulated", but that doesn't mean that the word in that context has the same meaning as in the 2nd Amendment.

Edited: BeatleDog7 - upon rereading, I may have misinterpreted what you were trying to say. Either way, I wanted to make the point for others.

xfyrfiter
January 26, 2013, 11:27 AM
The same time period as the second was written, they also had a high power air rifle that would load and fire 21 rounds as fast as you could fire it. Lewis and Clark carried at least 1 on their expedition. The second was, and is not about limits, PERIOD.

Pete D.
January 26, 2013, 11:29 AM
Quote:
Think back to when the law was enacted.....muzzleloaders....one shot. They had the right to bear arms.
Absolutely not so. There were multi-barreled arms going back centuries and there were NO prohibitions on such "high-capacity" arms.

Argument falls apart instantly.

Ok. Point taken. Multi-barreled flintlocks, matchlocks, wheel locks.....I suppose so. They were a rarity, though that does not negate your point.
Please to remember that I am a gun owner also, one of us and not at all pleased with the attempts to control. I am merely trying to see where the arguments are and what counter arguments are viable.
So.....what about the other ideas?

The same time period as the second was written, they also had a high power air rifle that would load and fire 21 rounds as fast as you could fire it. Lewis and Clark carried at least 1 on their expedition. The second was, and is not about limits, PERIOD.

The Girandoni air rifle was a repeater. Twenty or so shots (lead round balls) in a tubular magazine. It had to be cocked manually for each shot. A really neat gun. In modern terms, it is not a firearm. Interesting.
The second amendment according to the court decision cited above does have limits. You may want to argue the point with them.

Once again...I am not arguing for limitations. I am pointing out what some of the arguments are.

beatledog7
January 26, 2013, 11:32 AM
You are confusing two issues as the poster above pointed out. "Regulated" in the 16th Century vernacular meant "disciplined", "trained", "proficient" and the like as much or more than "controlled" or "licensed". So the previous poster is absolutely correct.

My statement has no relationship to the the way term "regulated" was used when 2A was passed and ratified. I meant strictly the way it is used today. The OP's question was about magazine limitations, a topic which 2A does not address and which would therefore qualify as one of the unspecified infringements to which the amendment refers. The whole point of the Constitution is that whatever it does not explicitly allow it implicitly disallows. Too often we forget that.

My post was not intended to rebut the post that immediately preceded it, so that part of your rebuttal to me is irrelevant.

Sam1911
January 26, 2013, 11:39 AM
Please to remember that I am a gun owner also, one of us and not at all pleased with the attempts to control. I am merely trying to see where the arguments are and what counter arguments are viable.Understood. It's good to bring up these things -- even potentially contrary suggestions -- so that we can hash them out.

I don't assume someone who posts a potential argument is actually committed to it unless they say so.

boatmanschneider
January 26, 2013, 11:46 AM
1 Man, 1 Vote, 1 Gun, 1 Bullet?

hnk45acp
January 26, 2013, 11:50 AM
I'm in NYC, what this law does is in effect time travel us back to 1911. Imagine your state saying you can buy any car as long as it's a Model T. We will only be able to buy revolvers and a handful of semi autos (1911s, sub compacts, basically modern day vest guns). It strips the ability of any new gun owner to own 85% of guns out there.

msb45
January 26, 2013, 11:57 AM
OK let's go back to the rules of 1700

Restriction on destructive devices? NO
OK to own a canon? Yes
OK to arm your own warship with multiple cannons? YES
OK to have explosives, unlimited number of guns without permit? Yes
OK to have bladed weapons and bear them without restraint? YES
Limits on importation? NO
Limits on short barrel rifle/Shotguns? NO
Concealed carry without permit? YES

If you want to play that card, I'm willing to.

Of course the fact that your 1st amendment is not restricted by the advent of the computer, phone, or texting has no impact.

That's how we fight stupid limits on magazines.

Pete D.
January 26, 2013, 12:25 PM
I'm in NYC, what this law does is in effect time travel us back to 1911. Imagine your state saying you can buy any car as long as it's a Model T. We will only be able to buy revolvers and a handful of semi autos (1911s, sub compacts, basically modern day vest guns). It strips the ability of any new gun owner to own 85% of guns out there.

As the argument goes, that is incorrect as far as pistol (most pistols) are concerned. The limitation is not on what guns you can own, but on how much ammo you can load into them and the magazines available for doing so. For example, you could still buy a Glock 17 or a Browning Hi-Power. They gotta have seven round magazines.
85%? Did you make that up or do you know for a fact that revolvers, 1911s and subcompacts represent only 15% of the handgun market?


We have to do better....
OK let's go back to the rules of 1700

Restriction on destructive devices? NO
OK to own a canon? Yes
OK to arm your own warship with multiple cannons? YES
OK to have explosives, unlimited number of guns without permit? Yes
OK to have bladed weapons and bear them without restraint? YES
Limits on importation? NO
Limits on short barrel rifle/Shotguns? NO
Concealed carry without permit? YES

If you want to play that card, I'm willing to.

That is how to fight limits on magazines??? None of those examples have anything to do with magazines. In fact, I am pretty sure that none of those weapons had magazines.

Also... it is probably not a good idea to compare a basically pre-industrial society to what we have today.
Note:For example, the population of NYC in 1700 was less than 5000 people. Today.....it is over 8,000,000.

Pete

yokel
January 26, 2013, 01:21 PM
Don't you understand and appreciate that the enemy are not to be trusted when they claim they're only interested in just one more "common sense" or "reasonable" gun-control law? They ultimately want a total ban on weapons and only make incremental claims to disguise their real aims.

The unfortunate truth of the matter is that our obstinate enemies abhor the Second Amendment, and abhor the people who seek to exercise their rights under the Second Amendment.

Caliper_RWVA
January 26, 2013, 02:03 PM
April 20, 2008. District of Columbia vs. Heller.
In a 5-4 decision the Court affirmed the individual's right to bear arms. Part of that decision was this: that right, like all rights, is not unlimited.
A magazine limitation does not limit one's right to bear arms, how ever much it may affect how much ammo is in the arm in question. Think back to when the law was enacted. They had the right to bear arms....muzzleloaders....one shot.

This is where the argument is going to go. Is limiting how much ammo you or I carry in a gun an infringement of our right to carry that gun? The 2008 decision seems to lead to a no. Further, a la NYS and the Secure Ammunition and Firearms Enforcement Act...is limiting the type of gun that I can own, an infringement my right to own a gun? Again, the court decision leads to a no. ("You can own a gun. Sure. You just can't own that gun.")
Pete

So, you inspired me to do some reading...

From pg 3 of the McDonald ruling:

"Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government."

It could easily be held that where the Heller decision allowed magazine capacity bans by the States to fall outside the scope of infringement, that the same ban by the Federal Government would indeed be infringement.

Pete D.
January 26, 2013, 03:56 PM
So, you inspired me to do some reading

Yes! +1 about that.
Pete

47CubPilot
January 26, 2013, 04:34 PM
I am sure that the Framers that wrote the Bill of Rights did not want us to be "regulated", "controlled" or "licensed" by the Government from which the 2nd Amendment was to protect us.

hnk45acp
January 26, 2013, 04:46 PM
As the argument goes, that is incorrect as far as pistol (most pistols) are concerned. The limitation is not on what guns you can own, but on how much ammo you can load into them and the magazines available for doing so. For example, you could still buy a Glock 17 or a Browning Hi-Power. They gotta have seven round magazines.
85%? Did you make that up or do you know for a fact that revolvers, 1911s and subcompacts represent only 15% of the handgun market?

and how many semi autos come with 7 round mags. I'm thinking that not many aside from a few pocket pistols. I can get a Glock 17 but with no magazine what good will that do? 15% is generous.

No one makes 7 rounders for the Glock, even if they did I have one store to buy from so the difficulty may drive that percentage down to 0%

So basically you are ok with giving up 85% of your rights as long as you can exercise the other 15%?

k_dawg
January 26, 2013, 05:27 PM
The key, I believe, will be with what standard or test they apply.

If they use the standard of Heller, that of firearms in common use; then such restrictions ought to be ruled unconstitutional. In fact, the STANAG magazine is likely THE most common magazine in common use today in the US. Primarily because it is a standard used by many different manufactures. However, the AK-47 or 1911 may have the top slot.

In contrast, Glock offers many types of magazines, and they are not compatible with S&W, H&K etc.

texasgun
January 26, 2013, 05:48 PM
I think anything less than 7rds would be hard to get passed the smell test... I mean .... when you talk about banning guns like the iconic 1911 which has been around for more than 100yr years.... you are hardly talking about "modern, assault style" weaponry....

Pete D.
January 26, 2013, 10:12 PM
No one makes 7 rounders for the Glock, even if they did I have one store to buy from so the difficulty may drive that percentage down to 0%
No one makes them...yet.
Pete

zxcvbob
January 26, 2013, 10:17 PM
and how many semi autos come with 7 round mags. I'm thinking that not many aside from a few pocket pistols. I can get a Glock 17 but with no magazine what good will that do? 15% is generous.

No one makes 7 rounders for the Glock, even if they did I have one store to buy from so the difficulty may drive that percentage down to 0%


"Saturday Night Specials" (that's next if this stands)

hnk45acp
January 26, 2013, 10:23 PM
No one makes them...yet.
exactly, so lets postpone our rights until they do, then when the 7 round rule doesn't work let's try 5

Meta
January 26, 2013, 11:07 PM
Justice Scalia destroyed the single shot musket argument that the anti-gunners used for years. He declared in the Heller case that taking the position that the 2nd amendment only protects muskets because that's all they had back then was a frivolous argument. To have a judge call your argument FRIVOLOUS is about the worst thing a litigator can hear from a judge. It's the legal equivalent of bull<[i]deleted[i/]>.
To weaken a right is to infringe upon it, that much is clear. If I told you that you had free speech, but could only own a certain amount of paper with which to print your ideas and distribute them, would it infringe? Yes, clearly. If I told you that you could pray to whatever god ou wanted, but only for 5 days every week, not 6, not 7, would it infringe upon religious liberty? Yes, clearly.
The government can, however, infringe upon your constitutional rights. To do the court will review it's case with strict scrutiny. In essence it's a three pronged test the government must prove to infringe. First, the infringement MUST be CRUCIAL to the interests of the state. Second, the infringement must be as narrowly tailored as possible. Third, it must be the least restrictive means of accomplishing the goal.
The law cannot be simply a policy preference, or an improvement on existing law. The court could, in theory agree that 5 round limitation is a good POLICY, but disagree with the state that it's met the burden of strict scrutiny in that it's critical to the states interest. It might also fail the test that it saves many lives, which may compell the state to act and infringe. The reality as we all know it is that magazine limits cut both ways. If they limit an aggressor then they limit a defender. Another thing the state must prove is that the normal capacity magazine is of such a risk in the first place to warrant an infringement. Lots of very high hurdles for a state to clear. Of course, five liberal democrat appointed judges won't give a rat's behind about the constitutionality of it. Four just like them couldn't find an individual right in the second amendment in the first place.

Pete D.
January 27, 2013, 07:12 AM
^^^^great post.
Lots of very high hurdles for a state to clear.
Not clearing them hasn't stopped NYS from enacting its new law.
Sad.

HNK45.....I see your point.
Mostly, though, my concern was whether or not you had made up the 85% statistic which relegated revolvers, 1911s, subcompacts to only 15% of the market.
My concern about that stems from the fact that so many anti-gun arguments make up statistics and "facts", spin them up out of air. I like to think that we don't do the same thing.
I don't have a source for market share data, nevertheless, I suspect that revolvers, 1911s, subcompacts represent more than you have implied.
None of that changes your point about hicap guns being worthless without magazines. I just like us to be better with facts than them.
Pete

hnk45acp
January 27, 2013, 04:16 PM
I dont remember where the 15% came from, i think it was sales of semi vs revolvers in past few years. The point i was trying to make was that when you have one shop and you cant buy online and you cant travel to shop you have very little choice.

rodinal220
January 27, 2013, 05:30 PM
Any limit on magazine capacity is an infringement,period.

Pete D.
January 27, 2013, 06:59 PM
Any limit on magazine capacity is an infringement,period.
That kind of statement is just what I am worried about.
My apologies in advance; I mean no disrespect. I really don't.
I am on a campaign to have us provide better explanations for our beliefs. Goodness knows what we have been doing is not working.
So we have to do better than line in the sand statements the end in "period". An anti arguing would say that limiting magazine capacity does not prevent you from owning and using firearms. And he or she would be correct. So....you might have to explain the infringement if you expect to make headway. Make no mistake.....we need all the forward momentum we can get at this point.
We may not want to explain. We may believe that we don't have to or shouldn't have to explain our rights but walking away from the argument without a new way of presenting our position is akin to putting our heads in the sand.

Pete

Meta
January 27, 2013, 10:52 PM
An explanation in a non-legal context might go as follows:
If a magazine capacity limitation effectively limits the capacity of criminals to commit violent crime with a gun then that same limitation on the law abiding MUST neccesarily limit their ability to defend themselves against a violent crime. Both offense and defense with a gun are governed by the same rules. If a law handicaps one, it must handicap the other. Now, we all know that criminals won't bother with the law and most law abiding will, eventually. But, for the thought experiment it should be considered plausible.
Also, why do the police get normal capacity magazines and assault weapons if these weapons serve no legitimate purpose for defense? Do they face some special type of criminal that we, the citizen do not encounter? Are there lives more important than ours?
Do normal capacity magazines present such a danger that it's crucial to the interests of the state that they be banned? Are "assault weapons" so dangerous that they must be banned but functionally identical weapons without the scary COSMETIC features OK for us to own? A law, especially one that is infringing on a constitutional right, may not be arbitrary. It must be absolutely crucial to the interests of the state and it must be as narrowly tailored as possible. A hard boat to row for the state in all of this banning nonsense. Now, let's hope there are five justices that are honest.....

BHP FAN
January 27, 2013, 11:06 PM
isn't New Jersey going from 15 to 5? I'm betting that ends up in court PDQ.

Pete D.
January 28, 2013, 06:37 AM
An explanation in a non-legal context might go as follows:
If a magazine capacity limitation effectively limits the capacity of criminals to commit violent crime with a gun then that same limitation on the law abiding MUST neccesarily limit their ability to defend themselves against a violent crime. Both offense and defense with a gun are governed by the same rules. If a law handicaps one, it must handicap the other. Now, we all know that criminals won't bother with the law and most law abiding will, eventually. But, for the thought experiment it should be considered plausible.
Also, why do the police get normal capacity magazines and assault weapons if these weapons serve no legitimate purpose for defense? Do they face some special type of criminal that we, the citizen do not encounter? Are there lives more important than ours?
Do normal capacity magazines present such a danger that it's crucial to the interests of the state that they be banned? Are "assault weapons" so dangerous that they must be banned but functionally identical weapons without the scary COSMETIC features OK for us to own? A law, especially one that is infringing on a constitutional right, may not be arbitrary. It must be absolutely crucial to the interests of the state and it must be as narrowly tailored as possible. A hard boat to row for the state in all of this banning nonsense. Now, let's hope there are five justices that are honest.....

I like that. Makes sense to me.
Pete

eye5600
January 28, 2013, 03:49 PM
Of course, five liberal democrat appointed judges won't give a rat's behind about the constitutionality of it. Four just like them couldn't find an individual right in the second amendment in the first place.

The first commenter was right: it all depends on the SCOTUS, however the liberal judges are somewhat limited by the Heller and MacDonald decisions. However much they disagree with them, it takes some real oomph to override a prior decision, especially such a recent one.

My own view is that the argument for capacity restriction is pretty weak. The first AWB did not have big effect, capacity restriction or no. You can get some anecdotal evidence in favor (Colin Ferguson, Jerad Loughner) but that's about it.

One other thing: "sensible" is a politician's word. It means roughly "I want to give the impression that I agree with you, but I don't want to be so specific that you can figure out than I don't." Politicians use it all the time, not just for gun issues. It makes me want to puke.

Meta
January 28, 2013, 04:22 PM
Actually, contrary to current media reports, Loughner's Glock jammed BECAUSE he was using an extra, super, mega, high capacity magazine. He was tackled as he was spending several extra seconds clearing a jam to reload. We should encourage psychopaths to use magazines that are more prone to jamming.

zxcvbob
January 30, 2013, 02:20 PM
At what point can magazine limits be contested as "Infringement"?

At what point is it NOT an infringement? Even that will depend on the gun.

If you enjoyed reading about "At what point can magazine limits be contested as "Infringement"?" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!