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.Â 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 useÂ 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 HellerÂ and Professor Lund provide anÂ 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.