Discussion of the Constitutionality of Magazine Limits

Eugene Volokh discusses the issue. I’m sorry to say, because I otherwise think Eugene Volokh has made great contributions to the Second Amendment, but I really think this kind of concession is unhelpful to those of us who want a broad and meaningful Second Amendment right.

I couldn’t disagree more that such limitations are constitutional, at least as far as magazines holding more than ten rounds are commonly used and possessed by law-abiding citizens. Additionally, every state law limiting capacity exempts the police, who use them for self-defense the same as civilians do. For someone who has three intruders break into their house, and runs her magazine dry before stopping her attackers, that person’s Second Amendment right might not as well have existed at all if the state may arbitrarily limit her magazine capacity to ten rounds.

It may, under most circumstances, be a relatively light burden on the right, but I wish Professor Volokh would not concede that there’s a state interest in restricting magazine size to even balance against whatever minor burden it may place on Second Amendment rights. The very fact that police are exempted should call into question the motives in regards to enacting such legislation, which is transparently a hostility toward the concept of an armed civilian population.

We should not concede any state interest here, and then encourage the courts to take an interest balancing approach, where they analyze the burden on the right, and weigh that against the state interest. We’ve seen so far that those kinds of interest balancing approaches will always be weighed in favor of the state when Second Amendment rights are involved.

Firearms with magazine capacities over ten rounds have been commonly selected by civilians and police alike for self-defense virtually since the technology became available, more than a century ago for rifles, but more recently for handguns. It’s not the place of the courts to determine whether such preferences are rational or not. The state may simply not arbitrarily apply these kinds of limits if the Second Amendment, as a right of the people, is to have any real meaning.

50 thoughts on “Discussion of the Constitutionality of Magazine Limits”

  1. Totally Agree.

    Both police and non-police have chosen standard capacity magazines for effective self-defense purposes. Both groups are citizens and should be treated the same (i.e. neither should have special treatment). Police are simply citizens who are paid to provide general public safety services. Non-Police are citizens who are responsible for their immediate personal safety (i.e. first responders).

    1. Sad to say, but the police officers I’ve been around don’t see themselves as “citizens” anymore. They see themselves as a brotherhood against the rest of us. And these guys are “good” cops, that are on our side re: the 2nd Admendment.

      The cops in my little town are all nice guys. If they ever come to try to confiscate my weapons…I really don’t know what I’ll do. Makes me sick just thinking about it.

      I’d like to think they would resign if given such orders. But who knows????

      1. LCB,

        I hear you – but it never hurts to remind them that they are citizens, just like everyone else.

        My nephew, who works as a state corrections officer, is aware of the Oath Keepers and has stated that he will resign before he follows any order to disarm the citizenry.

        However, not all police are like my nephew, so who knows what would happen in the big picture.

  2. He should really look closer on the logic of why it’s okay for police to be exempted from such restrictions.

    One cannot even make the argument of “Well SWAT is different” since all cops are exempt. And beat cop has his gun on his hip for the same reason as Joe-citizen.

    And he plays right into the game of “Why 10?” Why not 7? Or 5?

  3. More than that, he may end up getting quoted by a judge (or Supreme Court Justice) on this very subject.

    1. Yes. He is very influential. Most of the time it’s been for good but I just think he makes an unnecessary concession here. I don’t think this kind of balancing test is appropriate. If you run out of ammunition you are dead. That’s a serious consequence, so it’s not so crazy that people want some insurance.

  4. I think people mistake him as an ally to the 2A folks because his particular opinion on the meaning of the constitution isn’t 100% hostile to the mere existence of the 2A. His passion is constitutional law as he sees it, whether or not it hurts the pro2A folks, and it shows at that link.

  5. Does Volokh read this site? Sebastian is influential as well, and his opinion may hold weight with Eugene.

    1. I doubt Professor Volokh reads this site. He’s a pretty busy guy, and when you run your own blog you have a lot less time to read others. Especially when they aren’t on your main topic. I don’t know Eugene Volokh, though I know a lot of his colleagues in the Second Amendment issue. I wouldn’t say I’m in a position to have any real influence there.

      I have a lot of respect for him, and his work, and I generally believe he has done great things for the Second Amendment with his scholarship. But I think this is really an unnecessary and unhelpful concession. He may have a good faith belief that it’s constitutional, and he may have a better understanding of what federal judges can be influenced to do than I do. But I don’t think limiting magazine capacity is as minor a burden as he thinks it is. It’s not a burden until it is, and then the consequences are grave. That’s not the case with other rights.

  6. This might be a little off topic but do you know the worst school killing ever and what was used to do it? no it was not a firearm. it was dynamite.

  7. Any interpretation of the 2nd Amendment which would permit restriction of magazines to ten round capacity would logically also permit restrictions on ownership of ammunition to as little as ten rounds of ammunition.

    That is how we get from where we are today to the anti-gunner final utopia of the Biden ideal state; where the public is only allowed double-barreled shotguns.

  8. Its obviously he’s not a gunner, because none of the things he posts are rational. I mean, just because police used revolvers at one time doesn’t make limits constitutional! There is a reason they are switching to higher capacity semi autos.

    Plus, there is no evidence to that mag limits do anything. Criminals can just carry more mags. Citizens might not have that opportunity. So even if its a minor burden (its not, its quite substantial), if there is no point, that’s all that matters.

    And where do they stop? 10? 9? 5? 1? What’s the limit? Its all arbitrary.

    So mag limits are clearly not Constitutional.

  9. The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.

    Tench Coxe
    The Pennsylvania Gazette, Feb. 20, 1788.

    A 30 round mag is a very useful “terrible instrument of a soldier.”

  10. The number of bullets in a criminal’s gun is sufficient, if the number is one or more, because a criminal generally uses his weapon to intimidate and threaten his victims. The first bullet in his gun, not the 10th, or 30th, is one too many for a criminal to have, and usually the first bullet is quite enough for a criminal to have.

    The number of bullets in the gun of a person defending against criminal attack does, however, matter. There should be no limit under law on how many times a person may use force to stop a violent criminal attack.

    Simple as that, really.

    1. Exactly right. It’s not a question of how many we need.
      The only person who can ask the question of how many we want is the guy selling us the ammo.

  11. Any ammo limit laws that exclude police need to be fought with the 14th amendment (“Equal Protection Clause”,sec. 1 below). The unequal application of laws in these cases should require strict scrutiny, after all the right to self defense is a fundamental right . Under strict scrutiny the statute must be ‘narrowly tailored’ to serve a ‘compelling’ government argument. There is no data, much less compelling data, to support an ammunition limit. A Libtard congressperson or AG stating, “But it makes me feel safer” doesn’t count!

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  12. “Stupid legislation does not become unconstitutional by reason of being stupid.”

    Can’t remember who noted that over at Volokh once, but it is something to always bear in mind. Sometimes bad law is just bad law and needs to be defeated in the Legislature and court of public opinion with reasoned argument, not appeals to the Courts.

    I agree that magazine capacity restrictions are both stupid and unCon, but the one doesn’t necessarily mean the other.

  13. I don’t disagree with Professor Volokh’s analysis, but I do think the situation illustrates the unsuitability of “substantial burden” review for fundamental constitutional rights. As a practical matter it enables government to nibble at the edges of rights without meaningful judicial review as long as a court is persuaded that compliance with the law isn’t a big deal.

    And given the hostility of much of the legal community to gun rights, that’s a bit like asking the fox to guard the henhouse. “Oh, that’s not a substantial burden on your rights, because you have plenty of alternatives.” Well, maybe I do, but where does government get off forcing me to resort to them?

    I agree with Eugene that not every unwise law is also unconstitutional. But when we’re talking about laws that touch on constitutional guarantees there has to be a presumption in favor of the individual and against the government, which the government shouldn’t be able to overcome merely by arguing that its demands are trivial.

  14. If you’re debating how much infringement is allowed, you’ve already lost. Shall not be infringed is the law of the land, that means keep your damn mitts off period. Gun controllers need to amend the constitution if they want to impose limits on firearms. Period. Every single piece of legislation regarding guns infringes upon our rights. Every. Single. One. Either the words mean what they mean or our entire system of government is illegitimate.

    1. Correct Dave. If I need a belt-fed, crew-served heavy machinegun to protect my innocent life as a decent citizen, the government should have no say in the matter.

      Are they trying to say that I can have just a little bit of a deadly weapon, but not too much, and with an arbitrary limit? Really?

      Either I have the right to defend myself or I don’t (but I most certainly do). I don’t appreciate anyone ceding any of my rights.

  15. Some people don’t know the basic definition of “infringe”.

    Some people take an oath to support the Constitution; some people support whatever Five of Nine decree; and some people make a living trying to influence the decrees of Five of Nine.

    If magazine limits become widespread I expect a proliferation of subcompact .357 sig and 10mm automatic designs and sales.

    1. While I’m (somewhat) sympathetic to the cries of “what part of ‘infringe’ don’t these people understand?!?!”, laypeople really need to grasp: the ostensibly-absolute clauses in the Bill of Rights have never been understood as actual absolutes, not even by the drafters and ratifiers of those clauses.

      A good example of this is defamation law, which was part of Anglo-American common law long before the Bill of Rights was a gleam in James Madison’s eye, and which nobody at the time of ratification imagined was barred by the First Amendment. So when a layperson starts shouting, “Congress shall make no law!” in response to a modern attack on the First Amendment, anybody who knows that history (a group including just about every attorney and law student) just rolls their eyes. You’re not making a persuasive point; you’re making a frivolous one.

      Brett Bellmore made an argument in the comments thread of that Volokh post that I think gunnies would be wise to adopt:

      Eugene hasn’t yet come to grips with the fact that “reasonable gun regulation” is like “separate but equal”; While, in theory separate could be equal, eventually the legal system had to face that, in practice, it never was, because the people who demanded separate didn’t want equal.

      Likewise, while it is certainly theoretically possible for gun regulations to be reasonable, in practice they virtually never are, because modern gun regulations are driven by people who aren’t reasonable, who are motivated by hostility to gun ownership.

      I think that eventually the legal system will have to confront the fact that almost all regulation of firearms is motivated by hostility towards gun ownership, no matter what pretext for enacting it may be extended, and apply an accordingly strict level of scrutiny to all laws and regulations impinging on gun ownership. This will be a long time in coming, however, because the legal community itself is a center of such animus.

      TL;DR version: While “reasonable firearms regulation” is not a contradiction in terms, virtually all modern firearms laws are unreasonable, motivated by cultural bigotry and animus against exercise of this right.

      1. You’re not making a persuasive point; you’re making a frivolous one.


        I read Volohk’s piece (after I wrote my comment above) and (despite the vast common knowledge of students of history and first year law) found the defamation analogy ludicrous.

        Perhaps while I do some yard work someone can explain logically on how ‘defamation’ is any way a fair analogy.

        1. He’s not making an analogy by using defamation. He’s using it as an example for why even the founders didn’t view the absolute-worded clauses in the Bill of Rights absolutely.

          1. You are right, I misremembered: Volohk used the analogy of sound amplification equipment (not defamation). Volohk did this with direct reference to it being an analogy but hedged on its applicability.

            I see (true or not) the claim founders didn’t view the absolute-worded clauses in the Bill of Rights absolutely as an analogy – the Founders didn’t get hung up on what they wrote, so why should we.

            Same with sound amplification equipment or defamation – whether it is a good fit or not, people do use these an examples, comparisons, analogies.

            Personally, I see the sound amplification equipment example / comparison / analogy to be ludicrous – an amplifier is a device, not speech (no matter what Five of Nine decrees).

            As for defamation – everyone has the right to spout off and print all they want, and only after they have somehow harmed somebody with scandalous words is there some legal mechanism to correct the wrong. For an analogy, one’s right to swing one’s fists ends at the end of another’s nose. Is that really a restriction on the speaker/swinger rights or protection of the others rights?

            What I see is a strawman claim that ‘x’ appears to violate the constitution, but not too much, so we can do ‘y’.

            1. As for defamation – everyone has the right to spout off and print all they want, and only after they have somehow harmed somebody with scandalous words is there some legal mechanism to correct the wrong. For an analogy, one’s right to swing one’s fists ends at the end of another’s nose. Is that really a restriction on the speaker/swinger rights or protection of the others rights?


              Defamation causes a specific harm to another. Owning and using magazines that hold more than [$ARBITRARY_NUMBER] rounds harms no one, just as owning a printer that holds more than [$ARBITRARY_NUMBER] sheets of paper harms no one. Banning “high-capacity” magazines is just as unconstitutional as banning high-speed internet connections to prevent people from publishing defaming statements would be.

              Same with sound amplification equipment

              Yup. We don’t restrict ownership of bullhorns, or loud stereo systems. You only get in trouble when you use them in a manner that is disruptive to others.

              The Second Amendment is the most strongly worded of the Bill of Rights. The phrase “shall not be infringed” is clear, concise, and means that not even the slightest restriction or regulation is to be tolerated.

              1. Please do not mistake me for an apologist for magazine restrictions or the like.

                All I am saying is that this:

                The phrase “shall not be infringed” is clear, concise, and means that not even the slightest restriction or regulation is to be tolerated.

                is inconsistent with the original public meaning of the Second Amendment, and makes you look silly even to originalists who are otherwise on your side of the issue. The same people who ratified the Second Amendment also tolerated robust restrictions on carrying concealed weapons, on the theory that only brigands and highwaymen would be so ignoble as to conceal their weapons.

                Heller discusses this. It’s worth reading, and understanding.

                1. I didn’t think the negative view of concealed carry came about until the 19th century, really. I think Clayton Cramer has written a thing or two about this subject.

                2. Speaking of silly, frivolous, and ludicrous


                  A pretty straight forward symbolic representation of how getting orange from mixing red and yellow is kinda sorta like compared to getting green by mixing blue and yellow. Most pre-school kids who watch Blues Clues get this explanation. Any bust in the, uhh, ‘comparison’ on how one is like the other?

                  Volohk shows us

                  1:sound amplification device::2:10 round magazine

                  Any bust in the comparison?

                  1) the device may be used to manipulate the speech, where the magazine is part of the arm

                  2) the device is legal to own, the magazine is not regardless of how/when either is used

                  A fairer claim would be that outlawing 10-round magazines is not infringement then throwing a person in prison for owning an amp would be OK too.

                  Poster above shows us

                  1:defamation::2:10 round magazine

                  Any bust in the comparison?

                  1) defamation is a civil offense where the magazine is a criminal offense

                  2) defamation is not a part of speech/words prohibited from being reproduced in any way or possessed in any way, it is only misuse that is addressed; mere existence of the magazine and its reproduction is prohibited, how it is used is irrelevant.

                  3) defamation does not cause harm without third parties acting on it, magazine restrictions do not require any harm

                  4) the device is legal to own, the magazine is not regardless of how/when either is used

                  A fairer claim would be that outlawing 10-round magazines is not infringement then throwing a person in prison for knowing (NOT using) ten letter words would OK too.

                  PROBLEM here is that some folks just don’t get
                  – that no one has the right to infringe on others rights – that is beyond the definition of a right.
                  – if ‘The Founders’ didn’t mean what they wrote they wouldn’t have wrote it or approved it
                  – ‘The Founders’ were not a homogenous group.

                  And even if you don’t believe that, this problem can be overcome, at least recognize the trivial silly ludicrous fact that


                  To avoid silly trivial ludicrous petty disputes I would even go so far as to agree that ‘The Founders’ agreed, every single last one of them, that despite what the Constitution says, they are cool with these INFRINGEMENTS.

                  Or we all can agree

                  Five of Nine can compare apples and rocks too.

                  1. TL;DR.?

                    Short Version –
                    Don’t debate with those with less rational capacity than your average 5 year old.

                3. The same people who ratified the Second Amendment also tolerated robust restrictions on carrying concealed weapons, on the theory that only brigands and highwaymen would be so ignoble as to conceal their weapons.

                  They also passed the Alien and Sedition Acts, yet we still consider even implied restrictions by the government on free speech to be horrific violations of the First Amendment.

                  That the Founders turned around almost immediately and enacted blatant violations of the Constitution they had just approved does not change the meaning of the words they actually wrote.

                  1. The comparison to the Alien and Sedition Acts is faulty. This was not a situation where they turned around and passed a bunch of new laws in violation of the Constitution they’d just ratified. Rather, it was a situation where there was a non-trivial body of existing common law that the ratifying public didn’t regard as inconsistent with the Bill of Rights, notwithstanding the absolute language of its provisions.

                    Again: Heller discusses this history.

                    1. Actual it was a situation where they turned around and passed a bunch of new laws in violation of the Constitution. Ever heard of the Kentucky and Virginia Resolves? Pointing out the blatant violations of the Constitution by those acts? The fact that it lead to the ouster of John Adams?

  16. “every state law limiting capacity exempts the police”

    This, when combined with the fact (yes, I said fact) that concealed carry permit holders are more law abiding as a group than sworn police officers – undermines the argument that police are the “Only Ones” responsible enough to be trusted with standard capacity magazines. Granted, the mag bans aren’t written specifically to address permit holders vs. non-permit holders, but if it were truly an “interest balancing approach”, then the police would have their mags limited before folks with concealed carry permits. I mean, they carry spare mags, and a rifle in the trunk, right? No problem, a few seconds to swap mags. That’s what I read on washingtonpost.com anyway.

    Of course, we all know it’s not about safety, but about sticking a thumb in the eye of gun owners. If only they had the integrity to admit it. Sadly, I think gun owners will be the last group of people it’s socially acceptable to be a bigot to. Especially if you’re a politician and in front of a TV camera.

  17. While he says he thinks it Constitutional, he promptly adds that a number of Constitutional laws have been and are also stupid. I wish he had been more explicit, perhaps using the Dickens paraphrase “If the Law says that, the Law is an Ass.”

    He also did not emphasize the point, but mentioned [implicitly] that it will not have any effect on criminals. Again, Constitutional but stupid.

    And what about ‘takings?” With no ‘grandfathering’ clause, a lot of tube-magazine firearms will have to be gotten rid of.

  18. The legal theory for overturning Second Amendment regulatory frictions such as magazine capacity limits was described in this 2009 Hastings Law Journal article by Fordham law professor Nicholas Johnson.

    Unfortunately, no one actually litigating Second Amendment cases reads scholarly articles. Hence we get ever more briefs beating the dead horse of “common use.”

    1. To repeat myself: If gun rights were respected to the same degree that abortion rights are, then we would have government subsidized machineguns provided to minors without parental consent!

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  20. If a magazine size limit is constitutional, then limiting the # of magazines you can carry is also constitutional. Limiting the number of magazines and bullets you can own would be constitutional.

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