MISUNDERSTOOD MAGAZINES: "... The term 'high capacity' is used by legislatures to describe standard, common equipment rather than magazines that stretch a weapon's capacity beyond its intended design..... Magazine restrictions should be understood as restrictions on weapons themselves and thus should be taken as seriously and subject to as much scrutiny as restrictions directly on firearms".

• Author: Larosiere, Matthew
• Position: LAW & JUSTICE

SINCE THE EARLY 1990s, several states have passed restrictions on firearm magazines as a purported public safety measure. To date, the Supreme Court repeatedly has refused to hear cases surrounding these "high-capacity" magazine bans. This has led to a fractured and unpredictable state of the law. These laws, as well as the "assault weapon" bans they tend to come packaged with, are abridgments of the natural right to self-defense. Moreover, they fail to provide sufficient benefit to justify their inherent costs.

There are three main problems with these bans. First, the term "high capacity" is used by legislatures to describe standard, common equipment rather than magazines that stretch a weapon's capacity beyond its intended design.

Second, discussions of the issue are replete with fundamental misconceptions about firearm magazines and their place under the Second Amendment. In fact, some courts have held that magazines have no constitutional protection at all, contravening precedent indicating that the right to keep and bear arms protects all bearable arms in common use, including their magazines and ammunition, regardless of the arms in existence at the time of the Founding. Magazines are not mere accessories, but essential components of modem firearms.

Third, there is little evidence that high-capacity magazine restrictions have any positive effects on public safety. To support these laws, states point to horrific crimes involving large-capacity magazines, but the connection between the crime and the magazine is conjectural at best, while the prohibitions against such magazines have disrupted the lives of many otherwise law-abiding gun owners--and all without any evidence of improvements in public safety. In some courts, it seems that merely uttering the phrase "gun violence" suffices to justify any exercise of state power. These policies are ineffective, dangerous, and unconstitutional.

Restrictions on high-capacity magazines come either on their own or as a component of "assault weapon" legislation. They focus on detachable firearm magazines capable of holding more than a certain number of cartridges. The Federal Assault Weapons Ban of 1994, for instance, includes limitations on magazines that could hold more than 10 rounds.

For law-abiding Americans, firearms are tools of recreation and self-defense. Defensive uses of firearms can preserve human life. Citizens use firearms with magazine capacities of 10 to 30 rounds for the same reason law enforcement officers do: because they are effective tools for defensive use. For this reason alone, magazine restrictions should be understood as restrictions on weapons themselves and thus should be taken as seriously and subject to as much scrutiny as restrictions directly on firearms.

Currently, eight states, the District of Columbia, and a number of municipal governments ban or heavily regulate magazines that they have defined as "high capacity." Typical state bans set a limit of 10 rounds per magazine, although some limit capacity to 15. Some municipalities are more restrictive: New York, for example, restricts magazine capacity for long guns to five rounds, stricter than the limit of 10 rounds for long guns and pistols in the rest of the state.

Most jurisdictions allow magazines owned prior to the law to be grandfathered in, but some do not. New York previously had attempted to set the limit at seven rounds--possession of 10-round magazines was allowed, yet loading them beyond seven rounds was forbidden--but that law was ruled unconstitutional.

The court found that the provision was "untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation."

In mid 2017, Judge Roger T. Benitez of the Southern District Court of California blocked Proposition 63, a law that effectively would have banned the possession of magazines capable of holding more than 10 rounds. Although courts generally have treated the right to keep and bear arms as second class and consistently have accepted state justifications for gun control, Judge Benitez subjected the state's claims to a more critical inquiry. As he rightly pointed out, "the phrase 'gun violence' may not be invoked as a talismanic incantation to justify any exercise of state power."

California's Proposition 63 joins the ranks of several other magazine restrictions that have been contested through the various courts of appeals with mixed results. Earlier in the year, Maryland's "assault weapon" bans--which included a magazine restriction of 10 rounds--were upheld by the Fourth Circuit in Kolbe v. Hogan, and the Supreme Court declined to review the case in November 2017.

There are many misconceptions about magazines that must be corrected before there can be a coherent discussion about whether and how to restrict them. Four commonly misunderstood points stand out First, the term "high capacity" does not have a precise definition. Second, a magazine's capacity can vary based on the ammunition that is used. Third, an effective magazine is more than "just a box" for cartridges. Fourth, almost every gun that can accept a magazine is capable of accepting a high-capacity magazine, however defined; thus, it is a mistake to characterize weapons that merely are capable of using high-capacity magazines as particularly dangerous.

Most pistols sold in the U.S. come equipped with magazines that hold between 10 and 17 rounds. In fact, those holding 10 rounds generally are compact or subcompact models. Full-size pistols, like those commonly used by law enforcement officers, overwhelmingly ship with 12- to 20-round magazines as standard--and the most-common self-loading rifles in the U.S. have a standard magazine capacity of between 20 and 30 rounds.

By the end of 2017, however, eight states and the District of Columbia had some sort of restriction or ban based on magazine capacity, and several set the limit at 10 rounds. If anything is arbitrary, it is these limits, since they do not comport with the normal gun market. Those states ban as "high capacity" the "normal-capacity" magazines that come shipped with the gun and are in common use in the rest of the country.

Magazines often can be used for multiple calibers of cartridge, and the number of rounds they can hold depends on the caliber. For instance, a certain magazine often affiliated with the AR-15 will hold 30 rounds of 5.56 mm ammunition but only 10 rounds of the larger .458 SOCOM ammunition. Many popular magazines similarly have variable capacities...