Page 1 of 2 12 LastLast
Results 1 to 25 of 26

Thread: Eugene Volokh, Are laws limiting magazine capacity to 10 rounds constitutional?

  1. #1
    Regular Member
    Join Date
    Feb 2013
    Location
    Thru Death's Door in Wisconsin
    Posts
    13,162

    Eugene Volokh, Are laws limiting magazine capacity to 10 rounds constitutional?

    "A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, Californiaís ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the courtís rationale was that ďa prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,Ē and I think thatís both correct and legally relevant."

    http://www.washingtonpost.com/news/v...onstitutional/
    I am responsible for my writing, not your understanding of it.

  2. #2
    Regular Member
    Join Date
    Mar 2011
    Location
    California
    Posts
    1,797
    I disagree with him, but only because I think he is looking at it in the wrong light. If the 2A was solely about self defense against other people, then as much as I would dislike it, I would agree with his conclusion. But with it being about keeping a tyrannical government at bay, along with potentially invading armies, I would have to disagree. Limiting rounds to only 10 or less in such a situation would be a HUGE burden on the person.

  3. #3
    Regular Member sudden valley gunner's Avatar
    Join Date
    Dec 2008
    Location
    Whatcom County
    Posts
    17,338
    No.

    Which of the enumerated powers gives them the authority to do it?
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  4. #4
    Regular Member OC for ME's Avatar
    Join Date
    Jan 2010
    Location
    White Oak Plantation
    Posts
    12,274
    It could be that some politician's relative makes 10 rd mags, and mag conversion kits.

  5. #5
    Regular Member sudden valley gunner's Avatar
    Join Date
    Dec 2008
    Location
    Whatcom County
    Posts
    17,338
    Quote Originally Posted by OC for ME View Post
    It could be that some politician's relative makes 10 rd mags, and mag conversion kits.
    I find it no coincidence George Washington a whiskey maker had no problem causing problems for western whiskey makers.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  6. #6
    Regular Member EMNofSeattle's Avatar
    Join Date
    Aug 2012
    Location
    S. Kitsap, Washington state
    Posts
    3,763
    Quote Originally Posted by sudden valley gunner View Post
    No.

    Which of the enumerated powers gives them the authority to do it?
    the constitution only enumerates powers of the federal government. this is a challenge to a city ordinance in a state with no state level protections of RKBA and a different set of enumerated powers. apples and oranges.
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

    NRA Member

  7. #7
    Banned
    Join Date
    Jan 2012
    Location
    earth's crust
    Posts
    17,838
    This judge must think that everyone is a top shot. 10 intruders, 10 bullets is all that is needed.

    Next?

    You don't needs sights .. hell, you still have the gun, shut up.

  8. #8
    Regular Member OC for ME's Avatar
    Join Date
    Jan 2010
    Location
    White Oak Plantation
    Posts
    12,274
    Quote Originally Posted by EMNofSeattle View Post
    the constitution only enumerates powers of the federal government. this is a challenge to a city ordinance in a state with no state level protections of RKBA and a different set of enumerated powers. apples and oranges.
    The 14th amendment incorporates the federal constitution upon the several states. The states are bound by the federal constitution.

  9. #9
    Regular Member Dave1776's Avatar
    Join Date
    Mar 2014
    Location
    Seattle, Wa.
    Posts
    42
    Quote Originally Posted by Nightmare View Post
    "A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, Californiaís ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the courtís rationale was that ďa prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,Ē and I think thatís both correct and legally relevant."

    http://www.washingtonpost.com/news/v...onstitutional/
    First off I am no lawyer this is just my own opinion.

    Secondly I fully support 2A be it with a muzzle loader or the most advanced weapon available because 2A in no way restricts the type of weapon and being it is also used at points in connection with militia service I would have to assume the founders would have wanted you to have the most advanced arms in order to help defend the nation! I also feel we have the right to carry as many bullets as we can purchase.

    That said 2A says you have the right to be armed. Technically even if we all might not like it you are technically armed if you have a gun with 1 bullet in it. Certainly not suitable if you miss your first shot but technically you are armed. That said I disagree with the judges ruling because when they try and limit the bullets you can carry it is already starting to infringe on 2A even if just a little and the amendment is clear that it shall not be infringed and it does not go on to say it's OK just a little. SHALL NOT INFRINGE means SHALL NOT INFRINGE EVEN A LITTLE!!!

  10. #10
    Campaign Veteran marshaul's Avatar
    Join Date
    Aug 2007
    Location
    Fairfax County, Virginia
    Posts
    11,487
    Not for the first time, Volokh shows that he spends too much time in his head, thinking he's right (maybe he should try someone else's for a change).

    He's absolutely right that in a shooting-fish-in-a-barrel scenario magazine size isn't a big factor.

    He shows his disconnect with the real world in the following:

    Still, these same reasons probably mean that the magazine size cap would not materially interfere with self-defense, if the cap is set at 10 rather than materially lower. First, recall that until recently even police officers would routinely carry revolvers, which tended to hold only six rounds. Those revolvers were generally seen as adequate for officersí defensive needs, though of course there were times when more rounds are needed.

    Second, the ability to switch magazines in seconds, which nearly all semiautomatic weapons possess, should suffice for the extremely rare instances when more rounds were needed (though to take advantage of this, the defender would have to make a habit of carrying both the gun and a spare magazine).
    There isn't a sound reason in there.

    First of all, revolvers haven't been considered adequate for police use in almost half a century.

    Secondly, he seems to imagine that, because a mass shooter couldn't gain much benefit from larger magazines, nobody ever could. But that ignores the environment which lead to their development: combat.

    In combat, a second does make a difference. In combat, any advantage matters. And guess what? Self-defense is combat. Mass murdering is not combat (nobody is shooting back!).

    Eugene Volokh is, and always has been, an overcredentialed idiot.

  11. #11
    Regular Member EMNofSeattle's Avatar
    Join Date
    Aug 2012
    Location
    S. Kitsap, Washington state
    Posts
    3,763
    Quote Originally Posted by marshaul View Post
    Not for the first time, Volokh shows that he spends too much time in his head, thinking he's right (maybe he should try someone else's for a change).

    He's absolutely right that in a shooting-fish-in-a-barrel scenario magazine size isn't a big factor.

    He shows his disconnect with the real world in the following:



    There isn't a sound reason in there.

    First of all, revolvers haven't been considered adequate for police use in almost half a.
    What are you talking about? Seattle police issued revolvers until 1996, NYPD until 1994, Los Angeles 1993, my sheriffs office issued revolvers until 2001. That's a hell of a lot more recent then 50 years.
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

    NRA Member

  12. #12
    Regular Member
    Join Date
    Sep 2009
    Location
    Slidell, Louisiana
    Posts
    2,464
    Quote Originally Posted by EMNofSeattle View Post
    What are you talking about? Seattle police issued revolvers until 1996, NYPD until 1994, Los Angeles 1993, my sheriffs office issued revolvers until 2001. That's a hell of a lot more recent then 50 years.
    and his point was...

  13. #13
    Regular Member EMNofSeattle's Avatar
    Join Date
    Aug 2012
    Location
    S. Kitsap, Washington state
    Posts
    3,763
    Quote Originally Posted by georg jetson View Post
    and his point was...
    that revolvers have been considered "inadequate for police use" since 1964, which is quite clearly and demonstrably false.
    Last edited by EMNofSeattle; 03-08-2014 at 12:04 AM.
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

    NRA Member

  14. #14
    Campaign Veteran marshaul's Avatar
    Join Date
    Aug 2007
    Location
    Fairfax County, Virginia
    Posts
    11,487
    Quote Originally Posted by EMNofSeattle View Post
    that revolvers have been considered "inadequate for police use" since 1964, which is quite clearly and demonstrably false.
    OK, so revolvers have been considered inadequate for police use for over two decades.

    Does that change my argument substantially? No it does not.

  15. #15
    Regular Member
    Join Date
    Oct 2008
    Location
    Baton Rouge, Louisiana, USA
    Posts
    125
    Quote Originally Posted by OC for ME View Post
    The 14th amendment incorporates the federal constitution upon the several states. The states are bound by the federal constitution.
    You misunderstand. States are bound by its enumerated protections, but they don't need a power grant from it for their general conduct. This is in contrast to the federal government, which is supposed to be a limited one set by the constitution - a principle which has been largely shelved by the cult of statism, but that was never applied to the states. sudden valley gunner asked where the government's option to interfere, RKBA aside, was in the constitution, and the correct answer you responded to was that they are a state, so they'd be able to do it but for the fact that they are stomping RKBA.

  16. #16
    Campaign Veteran since9's Avatar
    Join Date
    Jan 2010
    Location
    Colorado Springs, Colorado, USA
    Posts
    6,787
    Our Founding Fathers desired there be no confusion whatsoever about our right to keep and bear arms. They considered self-defense, whether against criminal or tyranny, to be an absolute right, or as they put it, an inalienable right. Thus, they made our Second Amendment is abundantly clear when they penned, "...the right of the people to keep and bear Arms, shall not be infringed." They left zero wiggle room, for "shall not" is absolute, and "infringed" all-encompassing.

    The court's judgement, that the law "applies only the most minor burden on the Second Amendment," is nevertheless a burden. Any burden, regardless of how slight, is an infringement. Thus, the law violates the Second Amendment.

    The federal district court FAILED to uphold Constitutional law, thereby failing the people of the State of California. They have every right of appeal, and every incentive to seek remedy by having those who made this decision either punished, removed, or both for the flagrant disregard of the supreme Law of the Land.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

  17. #17
    Regular Member
    Join Date
    Mar 2011
    Location
    California
    Posts
    1,797
    Quote Originally Posted by EMNofSeattle View Post
    that revolvers have been considered "inadequate for police use" since 1964, which is quite clearly and demonstrably false.
    Just because something is considered "inadequate" doesn't mean that people won't use it. I mean gamers use inadequate computers (in relation to their needs/wants) all the time for various reasons; cost of upgrading being the primary. I would be willing to bet that the cost of upgrading in relation to the budget and other priorities would be why various police departments didn't immediately upgrade even once they admitted that the revolve was inadequate.

    Not to mention that anyone who has served in the military could probably come up with a bunch of examples of using inadequate things due to budget constraints.

  18. #18
    Regular Member sudden valley gunner's Avatar
    Join Date
    Dec 2008
    Location
    Whatcom County
    Posts
    17,338
    Quote Originally Posted by EMNofSeattle View Post
    the constitution only enumerates powers of the federal government. this is a challenge to a city ordinance in a state with no state level protections of RKBA and a different set of enumerated powers. apples and oranges.

    And the question of the OP is?.....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  19. #19

    Join Date
    Sep 2006
    Location
    Northern Virginia
    Posts
    1,128
    Relevant to this discussion is the capacity of standard magazines for weapons already generally and widely available, possessed and used for protected purposes.

    Certainly very large numbers of semi-automatic pistols and probably most semi-auto rifles come standard with magazines of greater capacity.

    If I was a lawyer advocating the gun rights side of this issue, I would likely want to have an expert testify to that.

    To the extent that Prof. Eugene is predicting the outcome of a yet to come legal decision, he certainly may be wrong. But it is also true that most of the federal bench has not been quick to embrace my own interpretations of recent US Supreme Court 2A precedent.

    I suppose, at this point, I could go for the psychological boost that sometimes comes from recounting my interpretations of the Constitution to what might be a somewhat sympathetic audience.

    But that would be like an evil butterfly flapping its wings in Africa, in the hope that it might create a hurricane in Galvaston

  20. #20
    Regular Member OC for ME's Avatar
    Join Date
    Jan 2010
    Location
    White Oak Plantation
    Posts
    12,274
    Quote Originally Posted by Seigi View Post
    You misunderstand. States are bound by its enumerated protections, but they don't need a power grant from it for their general conduct. This is in contrast to the federal government, which is supposed to be a limited one set by the constitution - a principle which has been largely shelved by the cult of statism, but that was never applied to the states. sudden valley gunner asked where the government's option to interfere, RKBA aside, was in the constitution, and the correct answer you responded to was that they are a state, so they'd be able to do it but for the fact that they are stomping RKBA.
    I was responding to EMNofSeattle, not SVG. If I had desired to address SVG's point I would have done so directly.

    The 14A most certainly binds the states to the federal constitution.

    All power resides with the people and the federal constitution lists a few powers that the "people have delegated" to the government. If only this were case in practice. State constitutions are pretty much decorative at this point in our history. The feds have claimed so much power that state governments are essentially 50 departments of the federal government. When the EPA can transfer a million plus acres of land to the Indian Tribes this is all ya need to know. Wyoming is too beholden to DC to do the natural, and right thing, inform the EPA, and DC, to stick it, we ain't giving no land to the Indian Tribes.

    The 2A is the least of my worries. I'm more concerned with the eradication of the 4A and 5A. LE has a substantial investment in eradicating the 4A and 5A. The Massachusetts Constitution Suspension Event, Aurora Colorado, and the Dorner event in California are prime examples of LE very much desiring to have the 4A and 5A tossed into the dust bin of history.

  21. #21
    Campaign Veteran marshaul's Avatar
    Join Date
    Aug 2007
    Location
    Fairfax County, Virginia
    Posts
    11,487
    Quote Originally Posted by OC for ME View Post
    The 2A is the least of my worries. I'm more concerned with the eradication of the 4A and 5A. LE has a substantial investment in eradicating the 4A and 5A. The Massachusetts Constitution Suspension Event, Aurora Colorado, and the Dorner event in California are prime examples of LE very much desiring to have the 4A and 5A tossed into the dust bin of history.
    Frankly, I agree.

    The 2nd amendment has genuine & widespread grassroots and lobby support (although the latter is generally blown out of proportion by its opponents).

    The 4th and the 5th, meanwhile, are consistently lobbied against by groups with significant influence.

  22. #22
    Regular Member Jack House's Avatar
    Join Date
    Jun 2010
    Location
    I80, USA
    Posts
    2,661
    Let's pretend for a moment that a 10cap limit would be a most minor inconvenience for gun owners. Okay, if it's that minor of an inconvenience for the LAC, then it is also that minor of an inconvenience for the guy shooting up the school. That necessarily means the law is ineffective. Therefore even according to the courts, it is an illegal encroachment on gun rights.

  23. #23
    Regular Member
    Join Date
    Jul 2011
    Location
    northern wis
    Posts
    3,202
    Quote Originally Posted by marshaul View Post
    First of all, revolvers haven't been considered adequate for police use in almost half a century.

    .
    That would be 1964 the real turn towards semi autos started in the mid 80s. I was one of the few LEOs that carried a semi auto in the late 70's and early 80s a Browning Hi power.

    Back then recruit schools only offered 38spl ammo.

    By the 90s lots of depts. were starting to switch but one can still find revolvers in use. I carried one for a decade and never felt under armed.
    Personal Defensive Solutions professional personal firearms, edge weapons and hands on defensive training and tactics pdsolutions@hotmail.com

    Any and all spelling errors are just to give the spelling Nazis something to do

  24. #24
    Regular Member
    Join Date
    Feb 2013
    Location
    Bothell
    Posts
    586
    During the 94 AWB, a study/investigation/report from Maryland (iirc, it's on Der Fuherstein's site) said that in crimes during the AWB, "high-capacity" magazines were rarely used- or recovered at the scene.

    The anti's use this report to further mag limits but on a moment's reflection, anyone can see that mag limits will do nothing.

    Personally, I think "high-capacity" magazines should be considered as the following:
    1) Any drum, magazine or belt for a rifle or shotgun that holds 40 or more rounds.
    2) Any magazine that extends outside of the grip portion of a pistol. (Who's really going to make a pistol grip 12" or 16" long?)

    Do I think they should be banned? No. Do I think they should be registered? I don't know. If "high capacity" (as I defined them) magazines were found in a significant number of crimes, then maybe. Significant could be, say, as little as 25%. It'd be no less ridiculous to have "high capacity" mags part of the NFA as suppressors and SBRs.

  25. #25
    Regular Member
    Join Date
    Jul 2011
    Location
    northern wis
    Posts
    3,202
    Quote Originally Posted by mikeyb View Post
    It'd be no less ridiculous to have "high capacity" mags part of the NFA as suppressors and SBRs.
    And the NFA restrictions are ridiculous.
    Personal Defensive Solutions professional personal firearms, edge weapons and hands on defensive training and tactics pdsolutions@hotmail.com

    Any and all spelling errors are just to give the spelling Nazis something to do

Page 1 of 2 12 LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •