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

[yokel]

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_Mi]

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.]

yes!

So, you inspired me to do some reading

Yes! +1 about that.
Pete

 

[47CubPilot]

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]

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]

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]

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.]

Yet

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]

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]

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]

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<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.]

Nice

^^^^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]

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]

Any limit on magazine capacity is an infringement,period.

 

[Pete D.]

More

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]

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]

isn't New Jersey going from 15 to 5? I'm betting that ends up in court PDQ.

 

[Pete D.]

Yes.

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]

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]

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]

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.