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.
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