Levy Throws Magazine Rights Under the Bus

Robert Levy, on the board of the Cato Institute, has said he sees no reason a magazine ban shouldn’t be constitutional. I appreciate what he did with funding Heller, but he’s not a gun guy, and should leave this stuff to organizations who have been doing this a while. To me it’s unacceptable from a libertarian standpoint to suggest liberty can be limited in this way, while the state is given an exemption to whatever ban might be proposed. It’s also hard to argue that greater than 10 round magazines, which are a common part of ordinary police equipment, and are equally popular among civilians, do not pass the “common use” test posited in Heller.

21 thoughts on “Levy Throws Magazine Rights Under the Bus”

  1. Well, Mr. Levy can say what he wants, but we are going to hold him to a standard of having to make sense. I suspect certain things we don’t want to happen might pass muster (if the question ever gets there). But I also suspect that certain things won’t. What does Levy offer to justify his opinion? “That some regulations are allowed under Heller.” Well, OK then. I guess that settles it? I suspect MSNBC isn’t giving us everything that Levy said … but anyway,

    While saying that he [Levy] saw it as a “close call,” he said that a restriction of “10 to 15 rounds makes sense.”

    “Makes sense” does not equal “passes muster.” It depends on the scrutiny. “Makes sense” passes muster on a rational basis review, but the second amendment clearly requires more scrutiny than that.

    Moreover, we may not even get to arguing the policy implications of a mag ban. After all, constitutional questions come first, policy ones come after. I know that the two too often mix.

    Finally, where are the “bars” on magazine capacity? Well, zero (banning mags completely) would be the floor, and infinity (whatever the market and physical reality will bear) would be the roof. The floor is off the table. Infinity is the way things are now (federally), which is obviously the most sensible and harmonious approach. Folks can use magazines as designed. The trouble is the middle … I can think of no way to assign a capacity number where one number is “OK and constitutional” and the next lower number is “too restrictive” and the next higher number is “excessive.” That is a game for fools to play, and a bill for fools to introduce. One cannot escape arbitrary and capricious. And regarding the second amendment, restrictions applied in an arbitrary and capricious manner are almost certainly not going to pass muster.

    And why is 10 rounds the magic number? Because that was the number in the 1994 legislation? What do “longstanding” and 1994 have in common? It was arbitrary then, and is arbitrary today.

    IF the second amendment is first and foremost about one’s ability to defend themselves or others from harm … I just don’t see how legislation that will clearly diminish that ability can pass muster. And making self-defense less effective certainly diminishes the right.

    Damn … sorry for being so rambly. This whole discussion of gun infringement legislation strikes as knee-jerk opportunism, wholly inappropriate vis a vis rights deemed fundamental, and it just really sets me off.

  2. If a magazine capacity limit is constitutional in his opinion, what is the lower limit?

    Could Congress pass a law saying that magazines could not hold more than 1 round?

    When expressed that way it quickly becomes apparent it wouldn’t be constitutional.

  3. “dedicated to the principles of individual liberty, limited government, free markets and peace.”

    Liberty and limited government. Sounds like somebody shouldn’t be on the board anymore.

  4. They could just conduct a study and use the results to claim that the appropriate number of rounds was not concluded in an arbitrary manner.

  5. If a magazine capacity can be limited then the number of guns owned can also be limited – because even here in CA he could have had three guns and done a “New York” re-load.

  6. Of course Levy ignores the later part of the decision, which states:

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

  7. Lessee here…
    Giffords was what, the first person shot? Second? Third? Fourth? Fifth? Sixth? Seventh? Eighth? Ninth? Tenth? Eleventh? Twelfth? …
    How is this 0-15 round limitation relevant to that which allegedly initiates it?

  8. Robert Levy (among others) are currently on my local NPR.

    I must say that listening to his comments, in context, renews my admiration for the man.

    He’s not saying outright that “bans on magazines are constitutional” … he’s saying that to be constitutional, the government must prove that they don’t unduly restrict second amendment rights, that the government prove that such restrictions are actually effective in reducing violent crime, and that they are narrowly tailored to meet the purpose.

    I’m not sure that he’s arguing that such restrictions meet “strict scrutiny” … but he’s certainly arguing that they meet a rather high level of scrutiny.

    Those are, after all, some of the criteria that must be met before fundamental rights are violated.

  9. Interestingly, this NPR show has a “token gun rights advocate” speaking for “gun owners.”

    Tracy Larson, who is claimed to blog at “The Well Heeled Shooter”


    She’s on NPR saying that there is no need for gun owners to own extended magazines, that there is no legitimate use for them, etc.

    I looked up her blog. It has TWO entries, one from 8 Jan 11 and one from 16 Jan 11. What the hell? Who is this person who represents gun owners, and where in the world did they find her? Maybe they asked Paul Helmke to provide a “gun owner” to counter-argument?

    Funny … Carolyn McCarthy refers to Paul as “Henke.

  10. I think the question regarding “where did they find her?” is the key there. Indeed. How did they find her? If she’s just some ordinary gun owner blogger.

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