Constitutional Scrutiny for Bans on High-Capacity Magazines

July 5th, 2017

Yesterday in National Review, I highlighted the meaningful constitutional scrutiny that Judge Benitez applied to California’s confiscation-measure for “high-capacity” magazines, which hold more than ten rounds. Such bans are often justified on the basis that limiting shooters to smaller magazines forces them to reload more, and during that reloading time, the shooter can be stopped. Unfortunately, there is no evidence this has ever worked.

The government’s expert witnesses fared no better. The court dismissed their evidence as little more than “anecdotal accounts, collected by biased entities, on which educated surmises and tautological observations are framed.” One professor said the ban on high-capacity magazines “seems prudent,” based only on what Judge Benitez labelled “a complete absence of reliable studies done on formal data sets.” Another professor justified the ban on large magazines by citing the need to force “mass shooters to pause and reload ammunition.” That argument, supported by zero data, is belied by common experience. The court noted that during mass shootings in Alexandria, Va., and Fort Hood, Texas, mass shooters were able to reload several times without difficulty; they were stopped only when confronted by another shooter. In any event, why stop at ten rounds? For example, New York sought to limit magazine sizes to seven rounds, because the average defensive gun use involves on average two rounds. Judge Benitez asked, somewhat rhetorically, why not then limit magazines to three rounds?

It is perhaps fitting that I mentioned New York’s ban, because, as illustrated by recent events in Bronx-Lebanon Hospital Center, the limit on magazine-size in no sense limited the killer’s capability. The New York Times recognized this point:

While the weapon did not have some of the features it might have before the SAFE Act was passed, it was just as powerful. “It certainly didn’t hamper him from being able to kill anybody,” said a law enforcement official briefed on the investigation but who was not authorized to speak about it publicly. The law was also aimed at decreasing the damage a gunman could do by limiting the size of a clip to 10 rounds. Dr. Bello, however, carried three of them, the official said. So, as a practical matter, Dr. Bello “had his 30 rounds,” the official said. He only used one clip before killing himself, the official said.

In other words, Bello could have reloaded–giving himself up to 30 rounds–but didn’t. He shot himself before he had the opportunity to.

Reloading a magazine in an AR-15 is very easy, and can be done quite quickly. With a regular AR-15–that does not have the various restrictions imposed by New York or California–it takes about three seconds to reload a magazine.

An AR-15 modified to meet California or New York’s restrictions–such that the fixed magazine cannot be removed–can be reloaded in about ten seconds.

Of course, that presumes that people intent on killing many people will comply with New York’s laws, and will not modify the rifle to permit a removable magazine. Or, as Justice Stephen Breyer noted last year in an opinion striking down Texas’s abortion laws, “determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” Criminals bent on breaking the law will break the law. New York and California’s measures punish law-abiding citizens, limit their ability to defend themselves, and have at best a negligible impact on public safety.

Some may argue that in the abstract, there may be a hiccup during the reloading process, which would allow someone to prevent more carnage: in the three-to-ten seconds it takes to reload , someone can tackle the shooter. Maybe. But constitutional scrutiny demands a much tighter fit between the means (ban on high-capacity magazines) and the ends (promoting public safety). The hypothetical-tackler conjecture does not fit the bill. Note, none of the experts in the California case could adduce any evidence to prove this has ever happened. To once again borrow from Justice Breyer’s opinion in Whole Women’s Health, maybe requiring doctors who perform abortions to have admitting privileges at a nearby hospital will promote safety in a hypothetical case. Maybe, but there is virtually no evidence to support this unlikely scenario. Maybe requiring abortion clinics to have wider hallways will promote public safety. Maybe, but there is virtually no evidence to support this unlikely scenario. Imposing arbitrary restrictions on constitutional rights that will not meaningfully improve public safety does not pass constitutional scrutiny. I am working on an article comparing how courts scrutinize abortion rights (which derive from unenumerated penumbras) with how they scrutinize gun right (which are actually enumerated). Far more than the First Amendment, courts should look to cases like Whole Women’s Health when trying to figure out how to perform meaningful constitutional scrutiny of the exercise of a right that could be used to harm others.