Alan Gura on the 7 Round Limit

Clearly Unconstitutional” I am glad to hear such a firm statement. There have been others in the Second Amendment legal community that have broached the topic of round limitations, and while I realize there’s a limit to how far the federal courts are likely willing to go on these topics, if a ten round limit is conceded as constitutional, why not a seven round limit? What qualifies a judge, or legislator, to make such assessments? I know a lot of folks have derided the “common use” language in Heller as being a circular argument when it comes to machine guns and other long-regulated items, but I think that misses the forest for the trees.

If the Court does, in future cases, cement a “common use” test, that takes such questions out of the hands of judges and lawmakers and puts it squarely in the hands of the American people. You have some subjectivity in determining what does or does not constitute “in common use,” but if it’s interpreted correctly, I think in terms of magazines, it would get you to at least twenty round magazines being protected arms, and a more honest assessment ought to protect thirty round magazines as well. In terms of other arms, I likewise think it offers broad protections, without putting things like rocket launchers, MANPADs, or anti-tank missiles on the table, which federal judges, lawmakers, or the American people, are just never going to accept.

I’ve said before, we lost the machine gun argument in the 1930s. That was the time to have a fight over machine guns and it didn’t happen. I agree that for machine guns, common use is a circular argument, since they are not in common use because of the restrictions. I’d like to own a few myself if they eased the restrictions. But I think we’re beyond arguing for legal protections for machine guns, and the goal now needs to be getting serious and broad protections for everything else.

20 thoughts on “Alan Gura on the 7 Round Limit”

  1. Just brainstorming: If it would be useful to have a “common use” demonstration, as many of us as could be turned out should go to a capitol with our high-cap magazines hanging around our necks.

  2. We need Peelian logic. Police are the people, people are the police. If something is used by the police (there are a lot of cops), it is in common use.

    1. Simiarly:

      “There’s a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people.” — Commander Adama, Battlestar Galactica

      1. It has been observed that there tend to be two types of militaries, expeditionary and inward focused, i.e. the latter, at least the ground units, are focused on “internal security”. They tend to do very badly when faced with competent expeditionary ones; I’m reading a bunch of Falklands Island War histories and memoirs right now, and haven’t gotten to that part yet, but the British were outnumbered something like 1:10 and had nearly impossible supply problems, and nonetheless won on the ground without extreme difficultly.

        Although, from the Max Hastings history I read long ago, after a certain point they were described as generally engaging in one fight “for honor” and then surrendering. But still, they didn’t acquit themselves very well, certainly not compared to the air forces of Argentina.

  3. I’m curious as to what threshold we’d need to cross to establish ‘common use’.

    15 round magazine? Yes, probably common use, because so many pistols (Glocks, S&W, Springfield, etc.) use them.

    17 round? Yes, probably common use, a lot of heavy-duty pistols (Glock 17, for ex.) will use this size magazine.

    20 round? Now…we’re starting to get in a little less common. Still, arguably, there are a lot of plus-sized plates that will expand normally 17-round magazines to this level. Probably okay.

    30 round? We’re breathing some rarefied air here. Yes, it’s standard for our favorite small bore semi-auto rifles, but those really aren’t out in huge numbers like pistols. There are 30 round mags for pistols, but few if any actually carry these on a regular basis, they’re mostly for occasional plinking or novelty value, no?

    100 round? Forget it — no one takes these jam-o-matics seriously….

    1. An actually rational reading of this will probably differ for the various weapon classes. 30-round magazines are clearly in common use for rifles. 20-round magazines easily define common use for pistols, and 8 rounds for shotguns is probably common use.

    2. Well, that gets into the debate of what is “common.” There are millions of 30 round magazines out there. I think I read there are something like 3 million ARs in civilian hands? A number that is growing. There are probably many more M1 carbines out there, though the standard magazine is 15 or 30. So at what point do they become common? One million? Two? Three.

      That’s where it gets subjective. My preference would be if its a firearm or firearm accessory, and there’s a market for it, it’s common and protected. Technically, one can get an RPG, but is there a real market for them? There’s no manufacturer that is making them for civilian use, or marketing them to civilians. There are no retail outlets where they are commonly available. So under my preferred common use test, no market, no protection.

  4. Well I’d argue two things:

    First- A restriction we need to remove is the 86 Hughes Amendment. We can deal with the NFA in its entirety on another day.

    Second- the common use can’t just apply to personal citizens. Because MGs are currently so heavily regulated, nobody can argue whether they would be in common use without the NFA (though maybe suppressors give a hint?). So you have to combine the Heller standard with the Miller standard. Heller defines common use for citizens as protected, Miller says that arms protected include those in common use by the military. So together, they say that MGs are protected by the Second. Now, it could be argued that they still need to be regulated, but that the current NFA system goes to far. Maybe registration is still required, and a tax stamp, but that is all down when purchased after a standard NICS check.

    I don’t know, just some thoughts.

    1. Yep. But it doesnt even need to be that legally structured. We are still winning at the state level for the most part. We can be thinking long-term societal evolution.

      If we hold and win on AR’s and standard cap mags short term, at that point the antis are effectively done, this is their last stand really.

      Even during this trial we can keep moving toward getting and steadily improving shall issue in all 50 states with more non-Federally mandated reciprocity. Heck, Illinois may fall this session and HI and CA are looking down the barrel of progressing lawsuits. We had several states almost go Con Carry last year. If we can pick up one a year that’s also momentum.

      More states are loosening suppressor laws as well, and costs are dropping with more competition. I can see suppressors going to over the counter with NICs and the Hughes Amendment going by the wayside in several years without needing a court case.

      1. Another thought to add about suppressors, with the current lean our courts seem to have toward enforcing foreign law as if it were US law, several European countries do sell suppressors over the counter.
        Perhaps this could be used to our advantage here?

  5. Almost every one of the current crop of modern sporting rifles was designed around the 30 round box. This is your ARs, the SIG 55x, the Ruger Mini-x, the Steyr Aug, the FN SCAR, the Daewoo, the It is the most common mag to be found for the HK33 / HK53 semi variants, and the HK 94 types (although 40 is also relatively common.) 35 for Galil types, and common enough to be carried by a major importer. 30+ for all of the pistol caliber carbines, whether it is Glock, Sten, or Colt magazine types. And nearly 30 for almost all of the .22 LR trainer models based on the modern sporting rifle designs.

    If we are looking at the test of common as in x percentage of all offerings, we have to be honest enough to admit that STANAG is the baseline, versus dividing the house into how narrowly we can draw a distinction so that no matter how one looks at it the 5 round Mauser action is the only rifle considered just a rifle.

    And if by common, you mean offered by one or more major manufacturers as a stock item, then we start to really have a wide open discussion.

    Arbitrary numbered limits on lawfully owned magazines have no rational basis. They should be rejected in any form,

    1. Don’t forget the 40 round mags common to AK builds. They were original to the Romanian and Russian builds as far as I know.

    2. Even the M1 carbine could be argued to use 30 rnd mags as ‘standard’.
      And that’s been around since WW2.

  6. Thjis opens a dangerous door.

    If you argue that you don’t care someone’s right to own machine guns, since after all that fight is “already lost” (even though it was not really ever fought), why should someone care for your right to own self-loading pistols?

    Remember, it’s not only the Fudds who say “screw you, I’ve got mine”.

    The people who are more ‘hardcore’ (how I detest this word!), might decide they’re not interested in the fight either – “screw you, if I can’t have mine.”

    I’m not saying that’s right or proper or respectable. But I AM saying this is sometyhing that might happen to some people, some times.

    1. I think the Second Amendment ought to cover machine guns, but it’s a lost cause. Because that battle was never really fought, is why it’s lost. Once something is “longstanding” the Courts are inclined not to overturn it. It doesn’t violate the “no one gets thrown off the lifeboat” rule because those people drowned years ago. Everyone alive today grew up under the NFA.

      MB, we’re going to be damned lucky even to get AR-15s protected, not even mentioning M4s and M16s. Protecting machine guns is just not in the realm of what the courts today are willing to do. No one I know who’s an expert on this believes that. Gura is a great optimist on this issue, and his skills back up his optimism, but even he’ll tell you that machine guns are a lost cause in court.

      1. We hold on AR’s and 30 rd mags and fix Hughes and other NFA issues in Congress. Invalidate the interp of Miller by statute.

        After all, it isn’t just suppressors we can point to in Europe (and Canada), it’s also SBR’s and SBS’s.

        Even now the anti’s only real response to pointing out the Euro position on such things is “well, they have more regulations.” If we win that “more regulations” like registration are unCon, that response loses some legitimacy.

  7. Don’t forget,boys and girls,the ol model 1911 carries a 7 round mag (8)…the ol winchester 94 30 30 carries 7 (8)..I could sallez (sic) forth into the unknown carrying these two anytime….

  8. NFA will fall, if at all, in parts. I think that SBR/SBS/AoW is low-hanging fruit, due to the logical inconsistencies in the definitions. (AR-15 “pistol” legal if you assemble as pistol first but illegal if assembled as rifle first?)

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