Defending Magazines & the 2nd Amendment

[Noble Cause]

Quoted by CDFingers:

" A semi automatic rifle will function exactly the same using a ten round or a twenty round magazine.

Show us different, or concede. "


Concede to what ? That you have a valid point from a legal perspective ?

It is Absolutely a valid point, that SCOTUS could use such reasoning to allow
states to restrict magazine capacity...possibly to a point where a modern
semi-automatic AR15 rifle was reduced to the capacity of a bolt action.

Is it my burden alone to come up with a valid legal reason SCOTUS should
consider protecting 30 Round AR15 magazines as part of being an "arm" ?

My OP was primarily about generating ideas for us to use to counter
anti-gun rhetoric spewed by our politicians, and the public, egged on by
a biased media.

I listed as many ideas as I could, in the hope others would find them useful.

In regards to the legal dilema you presented, I am intriqued by the Girandoni
Air Rifle as possibly being useful in that regards.

How you ask ? At present, I do not know.

But the fact it had a magazine capable of 20 to 30 rounds as early as 1779,
with deployment starting around 1791, (same year as our Bill of Rights
was being ratified) might be used to our advantage.

Not to mention it was used on the Lewis and Clark expedition circa 1803,
which means it was apparently legal to own, or rather its legality was never
challenged.

Link to extensive article on Girandoni Air Rifle (there is also a new Calguns
discussion on the rifle started by Wingnut.):

http://www.beemans.net/Austrian%20airguns.htm

Noble

[mrdd]

It doesn't function exactly the same. It fires fewer rounds before ceasing to function properly (where functioning properly means firing a round).

So you are saying that if you take a 10 round magazine and load only 5 rounds into it, you have a different mechanism than one with a full magazine?

The complete mechanism is identical in both cases.

[kcbrown]

So you are saying that if you take a 10 round magazine and load only 5 rounds into it, you have a different mechanism than one with a full magazine?

The complete mechanism is identical in both cases.

The mechanism is the same but the function is different.

If you had no rounds in the firearm at all, wouldn't the complete mechanism be the same in that case as well? And yet, a firearm with no rounds in it doesn't function.


The deal is this: the core of the right is self-defense and defense of others. A magazine restriction has a direct impact on the effectiveness of a firearm for general purpose self-defense and defense of others. I say "general purpose" here because the situations in which one may need to defend self or others are as numerous and varied as one can imagine. The fewer rounds one is allowed to have in a magazine, the fewer defense situations that firearm will be suitable for.

As a result, a magazine capacity restriction law is an infringement upon the core of the 2nd Amendment, for it has a direct and detrimental effect on the ability of the citizenry to defend itself, by reducing the number of situations in which a citizen will be able to successfully defend himself and/or others, just as surely as a law restricting firearms does.

[nullman]

Thank you! I have been looking for a good way to say this.

As a result, a magazine capacity restriction law is an infringement upon the core of the 2nd Amendment, for it has a direct and detrimental effect on the ability of the citizenry to defend itself, by reducing the number of situations in which a citizen will be able to successfully defend himself and/or others, just as surely as a law restricting firearms does.

Nick

[gloc19]

Totally agree with you on this. Recently Bersa Arms decided to build in a lock on it's Thunder model handgun. This lock would allow the owner with a special key to render the gun non functional without requiring a separate trigger lock. Instead of praising a gun manufacturer for voluntarily placing a safety device on a gun they took it off the roster in effect punishing them.

I agree I was looking into purchasing one of these for the wife. Truly a great little gun with a lot of punch.

[Untamed1972]

A semi automatic rifle will function exactly the same using a ten round or a twenty round magazine.

Show us different, or concede.

CDFingers

If you fall back to the ultimate intent of the 2A as defense against tyranny......the simple answer as is I NEED them BECAUSE Gov't has them and could use them against me.

We do not need to argue function or any other technical aspect to justify them. They are protected under the 2A as comparable means for use in defense against tyranny.

End of Discussion.

[gloc19]

If you fall back to the ultimate intent of the 2A as defense against tyranny......the simple answer as is I NEED them BECAUSE Gov't has them and could use them against me.

We do not need to argue function or any other technical aspect to justify them. They are protected under the 2A as comparable means for use in defense against tyranny.

End of Discussion.

Good Luck taking on the Gov't I hope you have all the weaponry they have. Give me a break that's the stupidest reason if I've ever heard one.

You guys have no faith in our police and military do you think they're all drones or something and wouldn't stand up in our defense? We ARE their FAMILIES.

And if by some chance they do turn on us. its a lose lose buddy. You got an Apache parked in your backyard and i supposed to you drive a tank to work?

[kcbrown]

Good Luck taking on the Gov't I hope you have all the weaponry they have. Give me a break that's the stupidest reason if I've ever heard one.

You guys have no faith in our police and military do you think they're all drones or something and wouldn't stand up in our defense? We ARE their FAMILIES.

Considering what they did in the Katrina aftermath? No, I don't think they'd stand up in our defense at all. They will generally do what they're told because that's what they're trained to do.

They may go through a class here and there that tells them that they have the duty to disobey an Unconstitutional order, but the vast, vast majority of their training involves following orders without question. Which do you think is going to kick in when the chips are down?

There's a reason Unconstitutional laws are so readily enforced. Fail to understand it, and you will be failing to learn from history as well as potentially placing yourself in greater risk than you might otherwise.


While I agree that if the military sides with the government, there's no way a revolutionary effort can succeed, that's not really the point. If the government is going to tyrannize the population, it is up to us to ensure that doing so is as expensive to the government as possible. That cannot be done if the population lacks militia-grade weaponry.

[gloc19]

Good Luck taking on the Gov't I hope you have all the weaponry they have. Give me a break that's the stupidest reason if I've ever heard one.

You guys have no faith in our police and military do you think they're all drones or something and wouldn't stand up in our defense? We ARE their FAMILIES.

And if by some chance they do turn on us. its a lose lose buddy. You got an Apache parked in your backyard and i supposed to you drive a tank to work?

C'mon now you're smarter than that. We all know that Social Economic Status is the main reason. That region is predominately poor and urban, hence the reason why billions of dollars weren't allocated to that disaster. To this day the affects of Katrina are still visible

[pepper214]

Quote by Hogstir:
"In Ca we may only purchase roster handguns approved by DOJ."

The so called "Safe Handgun List". So idiotic that apparently even a slight
change in the color of the stock apparently makes the handgun "Unsafe"
and therefore unavailable for Californians to purchase. Apparently some
colors, such as Tan, are considered to be an "Assault Color" and too
dangerous for the general public. <sighs>

Just another example of anti-gun politicians incrementally legislating our
rights away. Without the efforts of Calguns, Calguns Foundation, NRA,
SAF, etc, California's Sphagetti-Code of imbecilic firearm laws would be
even worse.

Noble Cause

I enjoyed your article but I can say that I agree with your opinion of how effective the political representation for our side has been in Sacramento. Killing bad legislation is pretty easy, yet bad gun laws keep getting enacted.

[Noble Cause]

Adding this gem to the list of talking points...

Anti-Gunner:

"So you think the 2nd gives you the right to own Tanks, and Jets, and uh... Cannons ?!! "

Your Calm Response:

"Actually, Americans already privately own Tanks, Jets, and Cannons.
You never heard of them hurting anyone, have you ? "

This will cause their head to explode in about 3 seconds, so stand back !

Noble

[nicoroshi]

Wow, remember its alright to talk to yourself, and even answer yourself but when you start debating your own posts on a public forum one has to wonder about the sanity of the individual.

obvious troll is obvious


Thank you Noble Cause for your write up.

[CDFingers]

There is no "need" provision in the Second. We cannot use "need" to defend a desire to have more than a ten round mag. We have to find another way.

I also do not buy the argument that a magazine limit will prevent self defense. We don't often read about attacks from eleven member out law biker gangs. While a claim may be made using the "what if", it will be weak.

The only thing I can think of is to say that a mag ban will limit commerce in the trade of these products. Certainly interstate commerce may be regulated by Congress, but commerce within a state may be regulated by its own lege, as California.

CDFingers

[Noble Cause]

If we can prove magazines are "arms," we can use the Second Amendment. However, I don't see how this can be proven, because a semi auto rifle will fire fine with a ten round mag or a thirty round mag. This means that changing the size of the magazine will not affect the function of the rifle.

It turns out that magazines are just another product absent proof that they are "arms." Without that proof, magazines may be treated like an old Corvair.

I'm not against opposition to magazine size bans. It's just that I can't defend against a magazine size limit using gun laws.

CDFingers

This might be another step in proving the "arms" in the 2nd amendment
could refer to magazines... apparently items such as the graphic below,
and the "Belton Flintlock" which could fire multiple rounds AND...<wait for it>

Congress in 1777, ordered 100 of Belton multiple shot Flintlocks !

This means the founding fathers were very much aware firearm technology
was moving forward and improving, and that multiple shot firearms existed.

The founders were well read, informed men for their time, so it is very
likely they had knowlegde of the Puckle Gun, and its 11 shot replaceable
cylinder (magazine of its time ?!). Hence...their deliberate choice of the
all encompassing word "arms", versus a restrictive choice like "musket".

The Puckle Gun, Circa 1718:


Link to a site that talks about it:

http://www.thebulletproofpatriot.com/blog/

Fellow Calgunner "The Wingnut" has a thread that made me aware of the
Belton Flintlock, which I had never heard of before until yesterday.
I was aware of the Girandoni Air Rifle, with its 20+ rounds capability,
but the Belton Flintlock is exciting, because Congress was aware of a firearm
that was capable of multiple shots.

"The Wingnut" thread on "The most important rifle in US History":

http://www.calguns.net/calgunforum/showthread.php?t=685127

Noble

[kcbrown]

There is no "need" provision in the Second. We cannot use "need" to defend a desire to have more than a ten round mag. We have to find another way.

I also do not buy the argument that a magazine limit will prevent self defense. We don't often read about attacks from eleven member out law biker gangs. While a claim may be made using the "what if", it will be weak.

A magazine limit will limit the options available to someone in a defensive role. The need for self-defense is generally a low-probability thing, and yet that is the core of the 2nd Amendment.

The fewer the options available to you in a defensive situation, the less likely you are to survive and/or prevail. It's that simple. The reason you can't argue that nobody "needs" a 30 round magazine (for example) is that you cannot argue that a defensive situation in which such a magazine makes the difference between successful defense and failure will never happen. It may be highly unlikely, but that is already true of the need for self-defense.

A restriction on magazine capacity is the same as a restriction on the capacity of a fire extinguisher. How large a fire do you think you'll "need" to put out? The answer is that you simply do not know. It depends entirely on the situation you're presented with, and that is simply not predictable. And the same holds for defensive situations. They are unpredictable. If they were predictable, then they would never occur because people would simply avoid being present at the time and place they were predicted to occur.

As a result, the only thing anyone can do is prepare for the possibilities they are comfortable preparing for. That means, among other things, buying the largest fire extinguishers they are comfortable with (there is a tradeoff between capacity and ease of use and storage). Indeed, someone who wanted to be well-prepared for the possibility of a fire would probably buy extinguishers of varying sizes and types. Similarly, in terms of preparing for defensive situations, it means buying a firearm that has the right balance between capacity and power, between accuracy and portability. And just as with the preparation for a fire, someone who wishes to be well-prepared for a defensive situation will buy a variety of firearms, because they vary so much in their characteristics.

A magazine capacity limit in law is an artificial limitation on the capability of firearms. It reduces what they are capable of. Something that is less capable is more likely to be unsuitable for some defensive situations than is something that is more capable. Something that is unsuitable for a specific defensive situation will, if used in that situation anyway, result in defensive failure. The government does not have the legitimate power to limit the defensive situations in which a law-abiding citizen can prevail, most especially when the limit in question does not even actually serve a useful purpose, as is the case with magazine limits.


How do we know that magazine limits serve no useful purpose? Simple: because they were part of the last assault weapons ban. That ban utterly failed to do any good whatsoever. It had no discernable impact on crime. That means that every single limitation within the ban failed to yield positive results, and that includes the magazine capacity limit. Since the magazine capacity limit had no beneficial effects the last time around, there is no reason to believe it will have any beneficial effects this time around. That means it has no rational basis.

If a magazine ban cannot even meet the rational basis requirement, there is most certainly no way it can meet the more strict requirements surrounding a fundamental Constitutional right. Indeed, a plain reading of Heller says that anything which actually infringes the right to keep and bear arms is categorically Unconstitutional. Because a magazine capacity limit detrimentally impacts self-defense by reducing the defensive capability of firearms, it is an infringement of the 2nd Amendment's core, and as a result it is categorically Unconstitutional.


We may find out whether such an argument is persuasive to the courts.