San Francisco’s Magazine Ban Wins First Round

San Francisco prevails on magazine capacity. Our side is going to appeal in the case, but I think this is going to be a tough slog, and I fear we may lose in the end. Some of our academics, even the ones on our side that are very influential, preemptively surrendered on this issue (unwisely in my opinion), and magazines will end up being a difficult hole to dig out of if we can accomplish it at all.

Many people on the other side of this issue have argued that judges are in no position to decide things like how many rounds one does or doesn’t need for self-defense, or whether a certain firearm has features that ought or ought not to be protected. I actually agree with them on that argument. But our opponents then turn around and argue this is the reason to leave such things in the hands of legislatures, which is where I strongly disagree. That would render the Second Amendment meaningless as a right, which is I suppose their purpose in such an argument. There is another way.

The Heller “common use” language provides a means for taking such decisions out of the hands of judges and legislatures, and putting it with the people, where it belongs. If the people generally choose magazines with more than ten rounds for self-defense, or choose rifles with pistol grips and adjustable stocks, then those are protected arms. Period. Once it’s shown at trial that such magazines and rifles now represent a significant percentage of guns sold in the American marketplace, no further analysis need be required. It is apparent that magazines greater than ten rounds are overwhelmingly what the public is choosing to arm themselves with, so those are protected. End of analysis.

But common use is not the only mechanism by which we can save judges from having to make judgement calls. After all, it’s always possible a legislature can pass a ban on new technology before it ever gets to be in common use. This is where Professor Nelson’s Lund’s assertion that we must also look at police use comes in handy in relieving judges from having to engage in interest balancing. Any law that citizens are subject to that law enforcement agents are not should automatically make justices suspicious of legislative motives in passing such a restriction. A legislature can not ban an arm for supposedly only having criminal use, or overwhelmingly having a criminal use, or being dangerous and unusual, and then turn around and exempt police officers, claiming those officers need those very arms for their own defense. That goes double if those arms are actually in common police use, such as magazines holding more than ten rounds.

Judges don’t need to engage in interest balancing when deciding the Second Amendment. We already have several proposed mechanisms that would allow the right to be evaluated in a more objective and bright-line fashion. We may have to decide how broadly or narrowly we define “common use,” and how judges and legislatures can classify or sub-classify arms, but the pre-existing mechanisms provided by Heller and Professor Lund provide an inherently better, limiting mechanism that obviates the need for any interest-balancing approach required to decide what the magic number is in regards to how many rounds in a magazine are protected, and how many aren’t.

13 thoughts on “San Francisco’s Magazine Ban Wins First Round”

  1. It’s just another mechanical part of the whole. We suffer arbitrary restrictions on barrel length, overall size, bore diameter, etc., so now we get limits on mag volume (to wit, capacity). Get together with the folks working on repealing NFA laws.

  2. As commenters on the web site have pointed out, Heller specifically rejects interest-balancing approaches. This is going to lose on appeal. Worse: exempting police raises serious questions about whether this really qualifies as public safety. Imagine a law that limited pamphlets to two pages in the interests of saving Mother Earth, but exempted government agencies.

  3. I’ll give the city’s attorneys credit: they succeeded in framing the issue in a way that was favorable to them, to the point that they had the judge telling the plaintiffs they presented zero evidence people commonly needed high-capacity magazines for self-defense.

    One hopes that an appeals court will look at this and say, “Um, no. This case doesn’t turn on the statistical likelihood of a civilian needing to fire more than ten shots in a self-defense scenario.”

    On the other hand, this is coming out of California, and, you know, Ninth Circus.

    On the gripping hand, Peruta. So who knows.

  4. The courts really need to adopt the chilling effect doctrine from First Amendment jurisprudence. Restricting mag capacity puts the chilling effect on the RKBA. And who is to say that 11 rounds is bad, but 10 is fine? Its arbitrary as well.

    1. And To restrict a right- and the right to keep a standard or high capacity magazine is intricately tied to the RKBA- the government needs a compelling governmental interest, narrowly tailored, and the least restrictive means. The compelling government interest would be public safety. Ok its fine. But it isn’t narrowly tailored because it doesn’t do anything actual address public safety- it has no affect on any criminals actions. And its not the least restrictive because it greatly hinders law abiding citizens from defending themselves. Why? A bad guy knows when he will attack and can carry many mags. A good guy may only be able to have the one in the gun. Hence- unconstitutional.

  5. If the people generally choose magazines with more than ten rounds for self-defense, or choose rifles with pistol grips and adjustable stocks, then those are protected arms. Period.

    The only downside I can see is that “in common use” prevents innovation (or at least lets “them” ban it).

    Such a criteria would let bullpups be banned, for instance, just when people are starting to make really decent ones that could catch on, like the RFB.

    (I like Patrick H’s “chilling effect” idea. It’s good for 1A and I think it’s good for 2A.)

  6. The only downside I can see is that “in common use” prevents innovation (or at least lets “them” ban it).

    This. And Lund’s police use theory is wrong, too. After all, the police may not need, say, phased plasma rifles in the forty watt range, but that doesn’t mean that civilians shouldn’t be allowed to have them. But that doctrine allows the legislatures to ban them before they could ever have the chance to pass the “common use” test.

    1. The good news is that no police department will tolerate being denied those 40 watt phased plasma rifles because they need them to go with their MRAPs (and the hypersonic reentry vehicles that will be the big surplus item from DoD to police at the end of this century). And that means without a police exemption, the rest of our rights would be safe under the Lund theory.

  7. Jake — you are reading Lund backwards.

    Use by police would create a presumption that such new weapons are “not dangerous and unusual” and therefor the sort the deserve the highest Constitutional protection under the Heller self-defense doctrine.

    It would not, however, suffice to ban particular from the general citizenry, if the police did not use that particular implement. After all, the police generally do not use revolvers, double barreled shotguns, and lever action rifles, yet it is difficult to credibly claim that makes them “dangerous and unusual” or unsuited for self-defense.

    Plus, one could always come back and defend any arms more suited for military use under the doctrine underwhich Miller was reversed and remanded. . . (Yeah, the antis hate it when you point out the holding in Millier was that, since no one mentioned whether or not a sawed off shotgun was a military grade weapon suitable for military service, they were remanding for disposition on that particular fact alone. Had someone said, “Well, sawed off shotguns are damned useful in trench warfare, your Honors – the AEF used them all the time in France,” there would have been ZERO basis to reverse and remand at all!)

  8. CA has firearms laws premption doesn’t it? How can a city ban stand under STATE law???

    I remember SF passed other gun laws that were struck down for this reason!

    1. California has a weak pre-emption law. Municipalities can’t pass laws that conflict with state gun laws, and they can’t pass laws in areas where the state legislature has manifested an intention to be the single source of regulation — for instance, municipalities can’t have their own CCW schemes.

      Other than that, it’s game on, unfortunately, and San Francisco has always been at the forefront of trying to push back on state pre-emption as far as possible.

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