Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment
Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

Thompson Tommy Gun, invented in 1919 and features detachable magazines

All firearms constitute arms according the Supreme Court: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; the first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine.

 Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

 

This article was originally published on The Brenner Brief. Original publish date Nov. 7, 2013. Original author, Matt MacBradaigh.

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1 Comment

  1. EXCELLENT . A MUST READ FOR ALL MILLENNIALS, HIGH SCHOOL AND MIDDLE SCHOOL STUDENTS AND TEACHERS!!!

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