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’sÂ 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 theÂ HellerÂ 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.Â I also strongly believe in Prof. Nelson Lund’s supposition,Â 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.