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Teachable Moment: Self Defense, Not An Effective Legal Argument Against Mag Cap Restrictions

Eric at the Gunmart Blog

Eric at the Gunmart Blog

United States --(Ammoland.com)- OK – I want to start things off by making it perfectly clear that I am vehemently opposed to the government regulating how many rounds of ammunition I am allowed to have in my firearm.

I personally believe that the idea of limiting magazine capacity is unconstitutional, absurd, and dangerous. It does nothing but endanger the lives of the American citizens, and in my humble opinion all of this is perfectly illustrated by the fact that law enforcement officers would never dream of carrying magazines with neutered capacity.

OK, now that I gotten that out of the way I want to point you to a recent article by Eugene Volokh, a man who knows far more about the law than I do. In that article he addresses the unconstitutionality of magazine capacity bans up against the legal argument of a necessity for “self defense”. Its a great article and you should read the whole thing, but basically he completely undresses the argument and comes to the very sound conclusion that it does not create what the court would see as a ‘substantial burden‘ and that it does not interfere with self defense.

And you know what… (go read the whole thing)… he is right. Its not an effective legal argument.

So, here we are engaged in this battle that I assume we all want to win… I want to win it… do you want to win it? The way I see it, what we have here is a teachable moment for our side in how we argue this matter in court. First of all, the Second Amendment is not about Self Defense or hunting. The Second Amendment is there for Tyranny Defense, and Tyrant Hunting. It is there to preserve liberty and defend against a tyrannical government. The Second Amendment is not there so that We The People can have a firearm for defense against an armed thug… that is merely a wonderful bi-product.

I have said it in the past several times and I think it bears repeating here… What makes sound logical sense in the real world and wins us the battle in the court of public opinion will not always win us the battle in the court of law. It does not matter what your personal opinions are on the matter of how many bullets you feel that you need to be prepared to defend yourself, the only thing that matters is if this is an effective argument in court. Recent court cases are showing us that it is NOT an effective legal argument.

If you read through some of the court opinions that have already come down on these types of decisions you will see that using the idea of needing full capacity magazines for self defense is a losing argument not just in theory, but also in practice. The most recent efforts to roll back the draconian law that is the NY SAFE Act was lost because of the use of the “self defense” argument. Likewise, the effort to strike down the San Francisco magazine capacity ban was also lost because of our side relying on the same “self defense” argument. In fact, the Judge in the San Francisco magazine capacity case ruled in favor of the ban because he felt that it would be a very rare instance where anyone would ever need to fire more than 10 rounds in self defense, and thus it did not meet the threshold of being a substantial burden. He even cited a National Rifle Association report that found Americans who used their firearms to defend themselves fired an average of only 2.1-2.2 shots.

The argument of “self defense” is simply proving itself to be too easily rebuked in court by the other side.

Let me ask you this… Do you carry a 30 round magazine when you carry your concealed firearm? Nope. Neither do I. Nor does my “nightstand gun” have a 30 round magazine in it (Full disclosure – it has a 17 round mag). Also, when I carry my concealed firearm for self defense outside of the home, the Glock 26 that I choose to carry has a magazine capacity of… wait for it… only 10 rounds. I don’t carry a 10 round magazine in my Glock because a municipality dictates that I am legally required to do so, I carry it of my own free will and choice. Further, when I am not carrying my Glock 26 for personal protection I carry a 6 round snub-nosed revolver as a concealed carry handgun. That gun’s capacity is well below the 10 round threshold that is being so actively pushed by the civilian disarmament crowd, and it is even less than the 7 rounds dictated by the NY SAFE Act. But here I am freely choosing to carry low capacity firearms for self defense. Likewise, millions of other people are doing the exact same thing.

So what is our rebuttal to that going to be when the anti-gun crowd’s legal council brings it up in court? When they show that its not a substantial burden because millions upon millions of gun owners choose these types of weapons of their own free will? How do we think that we are going to make a compelling case of need when the other side stands there and goes on and on about the fact that we are actively choosing these smaller capacity guns not because of a government mandate, but because they actually help facilitate self defense… that we choose these firearms because they are smaller, lighter, and easier to carry and conceal? We need to realize that the “Self Defense” argument is getting us no where and we need change the way that we argue these cases in court.

I’m not going to sit here and try to make the case that our Supreme Court Justices are not divided along political lines (on both sides). We all know how people like Kagan, Sotomayor, and Ginsburg are going to vote no matter what case is presented, BUT… I think we need to realize that some of these judges in the lower courts that will be deciding these things may not be pro-gun or anti-gun at all. They may not be deciding things based on what is in the best interest of the republic vs ‘the socialist agenda’. Some of these judges merely exist in the vacuum of law-school academia… They are “legal scholars”, and to them this is all just the major leagues of debate team/mock trial. Their only concern is protecting the integrity of the game.

Its verbal combat and you have to play the game correctly if they are going to declare you the victor in their arena. No matter how “common sense” your argument is, it still might not be an airtight enough legal argument to stand on. If we are not fully presenting our side of the debate within the parameters of their pre-defined rules for combat, then they will laugh at you for looking like a first year law student and give the victory to the other guy.

We can’t afford to do that. The margin of error is too thin. We have to go out there and play the game the right way, and pretty much throw a perfect game each and every time out.

So here is a novel idea that I think the pro-gun lawyers that we have working for us need to get on board with… lets stop using a losing argument in our attempt to win this battle over magazine capacity restrictions. In order to come away with a victory we have to present an argument that can hold up better to rebuttal than the “self defense” argument is proving capably of. The old cliche is that ‘The definition of insanity is doing the same thing over and over again, but expecting a different result’… well, we have tried the “self defense” argument.

Its NOT an effective legal argument in this case. Figure something else out or the results will continue to be the same.

About:
Eric at the Gunmart Blog – Eric is a gun blogger, firearms enthusiast, and sorry excuse for a hunter. He is also an AmmoLand Shoting Sports News Columnist. Leave him some comments on this article before you go. You can also follow Eric on Facebook, Twitter and at his blog, Gunmart. Visit: GunmartBlog.com

  • 13 User comments to “Teachable Moment: Self Defense, Not An Effective Legal Argument Against Mag Cap Restrictions”

    1. […] Here is my latest being published over at Ammoland today… Go check it out. […]

    2. My argument is that if the polce can have them, than so can the people. The police show up after the fact, it is the people that are on the front lines everyday and night and we usually face it alone. To limit us and not them is a tyrannical act and is an infringement on the rights of the people.

    3. How about the argument “shall not be infringed?”

    4. TDR Tactical on March 10, 2014 at 2:01 PM said:

      The Second amendment states, “Shall not be infringed”. So take your articals and personal assessments and shove them. I carry a G26 as well, and at night, I have a 33 round mag that gets incerted! Second, A pick up truck full of “looters” for lack of a politically correct term, stops in front of my house and 15 armed men jump out. 30 rounds would be nice to have right?

      Glock 26 Pistol High Cap Mag

    5. Ok, but what about the mom who shot all six into one bad guy( hitting five times) and he still ran away? Gun empty now and what if there was a second person with him? How about the cop that put 14 45′s in to a bad guy shooting at him?

      Ive never read a report were the guy said damn I sorry I had all that extra all. But ive read many were the officer said I nearly ran out or damn next time I’m carrying more ammo.

    6. Gala Poola on March 10, 2014 at 10:09 PM said:

      SCOTUS said that the Constitution is not technology bound, guns in common use can’t be banned, a 5, 10, 15 or 30 round mag may be the standard size in a common use rifle/pistol. If a 15 round mag fits in my Ruger PT-89, that’s the standard mag and mag capacity. Therefore, end of story.

    7. We know the history of the 2nd Amendment and that it was included to allow citizens to throw off an out of control government. At the time firearms were barely more than a closed ended pipe with gunpowder in them and were used by both citizens and armies alike.

      If one looks at the history of arms in this country from 1787 to today, we find a remarkable circumstance. For the majority of our history, civilians often out-gunned the military. Our nation’s people often adopted state-of-the-art new designs before the military.

      The civil war ushered in the age of both the cartridge and the repeating rifle. In post war years, Army units were issued single-shot rifles while civilians bought Henry or Winchester repeating rifles.

      As technology improved so did civilian arms. When the Army switched to a bolt-action rifle in 1892, civilians had been using them since circa 1885. The US Army always seemed to be playing “catch up” with technology adopted by civilians.

      The bolt-action rifle was the standard Army issue until just before WW-II. But civilians had been using semi-automatic rifles, like the Remington Model 8 and Model 24 (rimfire) since the early 1900′s. Until 1934, civilians could easily purchase automatic weapons too, although the prices were usually prohibitive for many.

      In post WW-II years, Americans bought millions of surplus semi-auto rifles including Garands and Carbines. The M1 Carbine’s standard magazine was 15 rounds and a 30 round was also issued. Companies built semi-automatic rifles for civilian sales with 20 and 30 round magazines in the 1950′s through the 1980′s. The box magazine has been around since 1885 and 20 round magazines since 1908. Their use is so common that they are ubiquitous in the firearms world.

      The notion that 20 or 30 round magazine weapons are inherently more dangerous because police would be “outgunned” is specious. Police, like the Army, have always lagged behind (until recently). Police used six-shot revolvers during prohibition when gangsters favored the 7-shot .45 pistol and automatic rifles or the Thompson SMG. It took police over 50 years to switch from revolvers to pistols. Police did not start using “patrol” rifles until the late 1990′s, so they have almost ALWAYS been “outgunned”.

      The argument to ban certain rifles because they are “weapons of war” is also specious. The 1939 U.S. v Miller case illustrates that such rifles would be “protected by the second amendment” because their contribution to the “efficiency of a well regulated militia” is easily demonstrated.

      For handguns, the development of pistols that hold over 15 rounds is simply a technological one with roots before WW-II and common in the US since the 1960′s. Pistols so equipped are well suited for “militia” use since the militia may also be used as an auxiliary police force during times of “riot and insurrection”.

      Bans on “military-style” rifles and large magazines would not only be a prohibited infringement of our civil right to arms, it would be the MOST egregious form – akin to prohibiting rifled weapons in 1776.

    8. The author is a moron. Does he work for Brady, CSGV, or what????
      While hunting tyrants is certainly one of the motivations for 2A, it is absurd to even think that the Founders and authors of the 2A didn’t intend to protect the right of self-defense too. The idea that “people don’t have a right to arms to defend themselves” would have been so foreign to them that they’d have looked at you like you had two heads.
      This is the lamest, stupidest article I’ve ever seen here, and I find it offensive that this venue would even publish such nonsense as if it had even a smidgen of merit and validity.
      The fact that leftist judges ignore facts and rule based on their statist, collectivist biases doesn’t mean we should give up perfectly sound arguments. It simply means that we need to replace those judges (and the author of this article) with people with brains, common sense, and principles. Those who violate our inherent rights have no place on the bench, and should be removed by any means necessary to protect our rights from their tyranny.

    9. Unfortunately, this makes sense, contrary to the greatly over-simplified “shall not be infringed” argument.
      The 2nd amendment isn’t about hunting, so we don’t use hunting as a defense of it. As you point out, neither is the 2nd amendment about self-defense, so we shouldn’t use self-defense as a defense of the law either.
      both hunting and self-defense are wonderful by-products of the right to bear arms, but that right is about citizen defense from a tyrannical government. So it follows that we should use that factual and constitutionally sound argument to defend the 2nd amendment, right?
      But that puts us in the unenviable position of arguing to the government that our fear of the government justifies our firepower.
      Isn’t that like a running back arguing with a linebacker that he shouldn’t get tackled?

    10. So if you have to use a gun in self defense unload the whole magazine so we can get the 1-2 rounds up to say 15 or 20 rounds average used for self defense then it is a reasonable argument.

    11. What if the woman at home with her babies is not an Annie Oakley?

      Some crazy person armed and high on some new designer drug may not go down without multiple hits.

      No matter the mag limit, have multiple mags ready to use should the time ever come when you have to survive.

    12. How many rounds a LEO carries is significant. LEOs do not carry guns to protect citizens. They carry guns to protect themselves.
      Very rarely do LEOs stop a crime in progress. Due to manpower restrictions, they usually show up after the fact to take a report / gather evidence / have the bodies taken away.

    13. Law Enforcement hit their intended target 15-20% of the time (typical distances less than ten feet). Hit does not mean between the eyes, but could be in the arm, toe, etc. Ten round magazine gives you an average hit of two if you are doing as well as LE. Two hits will probably not be enough to stop a threat (in particular, if there are two (or three)). The threats will probably not limit themselves to ten rounds.
      Yes, second amendment is to protect against tyrannical government as well as to enable one to protect god given rights!

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