The history of firearm magazines and magazine prohibitions.

• Author: Kopel, David B.
• Position: The Right to Keep and Bear Arms in the 21st Century

1. INTRODUCTION

   In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This article details the history of magazines and of magazine prohibition. The article then applies the historical facts to the methodologies of leading cases that have looked to history to analyze the constitutionality of gun control laws.

   Because ten rounds is an oft-proposed figure for magazine bans, Part II of the article provides the story of such magazines from the sixteenth century onward. Although some people think that multishot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Colonel Colt by over two centuries. (1)

   Especially because the Supreme Court's decision in District of Columbia v. Heller (2) considers whether arms are "in common use" and are "typically possessed by law-abiding citizens for lawful purposes," (3) the article also pays attention to whether and when particular guns and their magazines achieved mass-market success in the United States. The first time a rifle with more than ten rounds of ammunition did so was in 1866, (4) and the first time a handgun did so was in 1935. (5)

   The detailed history of various firearms and their magazines stops in 1979--a year which is somewhat ancient in terms of the current gun control debate. Back in 1979, revolvers still far outsold semiautomatic handguns. (6) No one was trying to ban so-called assault weapons, (7) although such guns were already well established in the market. (8)

   For the post-1979 period, Part II briefly explains how technological improvements in recent decades have fostered the continuing popularity of magazines holding more than ten rounds

   Part III of the article describes the history of magazine prohibition in the United States. Such prohibitions are of recent vintage, with an important exception: during prohibition, Michigan, Rhode Island, and the District of Columbia banned some arms that could hold more than a certain number of rounds; Ohio required a special license for such guns. (9) The Michigan and Rhode Island bans were repealed decades ago; the Ohio licensing law was repealed in 2014, having previously been modified and interpreted so that it banned no magazines. (10) The District of Columbia ban, however, remains in force today, with some revisions. (11)

   The Supreme Court's Second Amendment decisions in District of Columbia v. Heller and McDonald v. Chicago (12) paid careful attention to history. Several post-Heller lower court opinions in Second Amendment cases have also examined history as part of their consideration of the constitutionality of gun control statutes. Part IV of this article examines the legality of magazine bans according to the various historical standards that courts have employed.

2. THE HISTORY OF MAGAZINES HOLDING MORE THAN TEN ROUNDS

   In District of Columbia u. Heller, the Supreme Court ruled that the District of Columbia's handgun ban was unconstitutional partly because handguns are in "common use." (13) The Second Amendment protects arms that are "typically possessed by law-abiding citizens for lawful purposes." (14)

   Magazines of more than ten rounds are older than the United States. (15) Box magazines date from 1862. (16) In terms of large-scale commercial success, rifle magazines of more than ten rounds had become popular by the time the Fourteenth Amendment was being ratified. (17) Handgun magazines of more than ten rounds would become popular in the 1930s. (18)

   1. Why Consumers Have Always Sought to Avoid Having to Reload During Defensive Gun Use

      When a firearm being used for defense is out of ammunition, the defender no longer has a functional firearm. The Second Amendment, of course, guarantees the right to an operable firearm. (19) As the Heller Court explained, the Council of the District of Columbia could not require that lawfully-possessed guns be kept in an inoperable status (locked or disassembled) in the home, because doing so negates their utility with respect to "the core lawful purpose of self-defense." (20)

      When the defender is reloading, the defender is especially vulnerable to attack. When ammunition is low but not exhausted (e.g., two or three rounds remaining), that may be insufficient to deter or control the threat, especially if the threat is posed by more than one criminal. If the victim is attacked by a gang of four large people, and a few shots cause the attackers to pause, the victim needs enough reserve ammunition in the firearm to make the attackers worry that even if they rush the victim all at once, the victim will have enough ammunition to knock each attacker down. When guns are fired defensively, it is unusual for a single hit to immediately disable an attacker.

      Accordingly, from the outset of firearms manufacturing, one constant goal has been to design firearms able to fire more rounds without reloading.

      To this end, manufacturers have experimented with various designs of firearms and magazines for centuries. While not all of these experiments were successful in terms of mass sales, they indicated the directions where firearms development was proceeding. The first experiments to gain widespread commercial success in the United States came around the middle of the nineteenth century.

   2. Magazines of Greater than Ten Rounds are More than Four Hundred Years Old

      The first known firearm that was able to fire more than ten rounds without reloading was a sixteen-shooter created around 1580, using "superposed" loads (each round stacked on top of the other). (21) Multi-shot guns continued to develop in the next two centuries, with such guns first issued to the British army in 1658. (22) One early design was the eleven-round "Defence Gun," patented in 1718 by lawyer and inventor James Puckle. (23) It used eleven preloaded cylinders; each pull of the trigger fired one cylinder. (24)

      As with First Amendment technology (such as televisions or websites), the Second Amendment is not limited to the technology that existed in 1791. (25) The Heller Court properly described such an asserted limit as "bordering on the frivolous." (26) But even if Heller had created such a rule, magazines of more than ten rounds are older than the Second Amendment.

      At the time that the Second Amendment was being ratified, the state of the art for multi-shot guns was the Girandoni air rifle, with a twenty-two-shot magazine capacity. (27) Meriwether Lewis carried a Girandoni on the Lewis and Clark expedition. (28) At the time, air guns were ballistically equal to powder guns in terms of bullet size and velocity. (29) The .46 and .49 caliber Girandoni rifles were invented around 1779 for use in European armies and were employed by elite units. (30) One shot could penetrate a one-inch thick wood plank or take down an elk. (31)

   3. The Nineteenth Century Saw Broad Commercial Success for Magazines Holding More than Ten Rounds

      Firearm technology progressed rapidly in the 1800s. Manufacturers were constantly attempting to produce reliable firearms with greater ammunition capacities for consumers. One notable step came in 1821 with the introduction of the Jennings multi-shot flintlock rifle, which, borrowing the superposed projectile design from centuries before, could fire twelve shots before reloading. (32)

      Around the same time, pistol technology also advanced to permit more than ten shots being fired without reloading. "Pepperbox" pistols began to be produced in America in the 1830s. (33) These pistols had multiple barrels that would fire sequentially. (34) While the most common configurations were five or six shots, (35) some models had twelve independently-firing barrels, (36) and there were even models with eighteen or twenty-four independently-firing barrels. (37) Pepperboxes were commercially successful and it took a number of years for Samuel Colt's revolvers (also invented in the 1830s) to surpass them in the marketplace. (38)

      The 1830s through the 1850s saw a number of different firearm designs intended to increase ammunition capacity. In 1838, the Bennett and Haviland Rifle was invented; it was a rifle version of the pepperbox, with twelve individual chambers that were manually rotated after each shot. (39) This would bring a new chamber, preloaded with powder and shot, into the breach, ready to be fired. (40) Alexander Hall and Colonel Parry W. Porter each created rifles with capacities greater than ten in the 1850s. (41) Hall's design had a fifteen-shot rotating cylinder (similar to a revolver), while Porter's design used a thirty-eight-shot canister magazine. (42)

      The great breakthrough, however, began with a collaboration of Daniel Wesson (of Smith and Wesson) and Oliver Winchester. They produced the first metallic cartridge--containing the gunpowder, primer, and ammunition in a metallic case similar to modern ammunition. (43) Furthermore, they invented a firearms mechanism that was well suited to the new metallic cartridge: the lever action. (44) Their company, the Volcanic Repeating Arms Company, introduced the lever action rifle in 1855. (45) This rifle had up to a thirty-round tubular magazine under the barrel that was operated by manipulating a lever on the bottom of the stock. (46) The lever-action allowed a shooter to quickly expel spent cartridges and ready the firearm for additional shots. (47) An 1859 advertisement bragged that the guns could be loaded and fire thirty shots in less than a minute. (48) In 1862, the Volcanic evolved into the sixteen-round Henry lever action rifle, lauded for its defensive utility. (49)

      The Henry rifle further evolved into the Winchester repeating rifle, and the market for these firearms greatly expanded with the first gun produced under the Winchester name. (50) Winchester touted the Model 1866 for defense against "sudden attack either from robbers or Indians." (51) According to advertising, the M1866 "can ... be fired thirty times a minute," (52) or with seventeen...