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Prof. Volokh on Large Capacity Magazine Restrictions

I’ve never really understood why we want to offer the federal judiciary grounds for finding restrictions on commonly owned arms constitutional. I’m generally a pretty big fan of Professor Eugene Volokh’s Implementing the Right to Keep and Bear Arms, which has been cited by multiple courts in Second Amendment cases. But when it came out I wrote a series of posts offering some criticism on Prof. Volokh’s paper, where I thought he needlessly ceded ground with a federal judiciary eager for reasons to uphold the status-quo on guns, and find as much as possible constitutional. Because magazines holding more than ten rounds are overwhelmingly preferred by both police and armed citizens for self-defense, it’s difficult for me to see how they can be restricted under the Heller common use test. When it comes to banning arms from civilian hands, the state should face the highest possible burden in showing either the arm is not a personal arm, and doesn’t fall under the right, or that it is, as Heller noted “dangerous and unusual.” Magazines that hold more than 10 rounds are certainly not dangerous, and nor are they unusual, at least not in relation the dangerousness of firearms generally. Prof. Volokh suggests as much in his paper. Given that they are commonly used, they ought to fall under Second Amendment protection according to Heller. I just don’t see any reading of Heller that indicated we needed to concede that ground.

I don’t believe we ought to encourage the courts to use these kinds of balancing tests where courts get to evaluate the lethality of the weapon at hand, and then evaluate how minor or major the burden on self-defense the challenged restriction presents. The rights and interests of the citizen is almost always going to be trumped by the interest of the government when the courts engage in this kind of balancing act.

I prefer a few brighter line tests, some of which Heller has suggested already. I also strongly believe in Prof. Nelson Lund’s supposition, that you have to look at police use when determining whether an arm ought to be protected, because otherwise the government’s default move is going to be to ban any new technology before it becomes in widespread use, such as many states have done with electric stun weapons.

6 Responses to “Prof. Volokh on Large Capacity Magazine Restrictions”

  1. BikerDad says:

    If the police use it, it should fall under 2nd Amendment protection. Note that use by police shouldn’t be a requirement for 2nd Amendment protection, simply that such use should AUTOMATICALLY qualify.

  2. Bill Cyrus says:

    It becomes evident from time to time that Professor Volokh doesn’t spend as much time outside of California as he should. While absolutely brilliant and for the most part pro-gun, it seems that his environment keeps him a little unhealthily removed from our culture and first hand experience.

  3. Patrick H says:

    Why 10? Why not 5? Why not 1? Where is the limit? 10 rounds is commonly used as a max for the law, but not for industry.

    Anyway, in Miller the court said that guns that are used by the military are certainly covered. Given that the military also uses high capacity magazines, means that they are also covered.

    And I agree, giving them ideas or giving them compromise is not a good thing.

  4. GMC70 says:

    BikerDad is exactly correct.

    I ought to be able to buy, without any special taxes or restrictions, anything police in my jurisdiction can buy, assuming I am not a prohibited purchaser.

  5. Dirk Diggler says:

    FYI – Michigan just updated their CCW law to expressly INCLUDE stun guns and reversed years worth of judicial interpretation.

  6. NotClauswitz says:

    Cops are civilians and civilians should be equal, but here in CA cops can have AR’s with no bullet-buttons and high capacity magazines, but civilians can’t. That should be challenged.

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