Eugene Volokh:
A gun with a larger than usual capacity magazine is in theory somewhat more lethal than a gun with a 10-round magazine (a common size for most semiautomatic handguns), but in practice nearly all shootings, including criminal ones, use many fewer rounds than that. And mass shootings, in which more rounds are fired, usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer — especially one armed with a backup gun — would hardly be stymied by the magazine size limit. It’s thus hard to see large magazines as materially more dangerous than magazines of normal size.
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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 officers’ defensive needs, though of course there were times when more rounds are needed.
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… even if bans on magazines with more than 10 rounds are unwise, not all unwise restrictions are unconstitutional. That’s true for speech restrictions. It’s true for abortion restrictions. And I think it’s true for gun restrictions as well.
This is an oddball commentary by Eugene. I don’t think the issue is whether, as the judges tried to adjudicate, a magazine capacity restriction burdens the second amendment, but whether those who are protected are burdened by the restriction. It’s not a trivial distinction.
I’m not really sure why he drew on the issue of abortion rights to create the analogue. It isn’t a very good one. The wording of the second amendment is clear, including the phrase “shall not be infringed.” The Supreme Court created a right to abortion ex nihilo.
Even if you believe that such a right exists, the analogous wording isn’t there in the constitution to protect it. Thus, restrictions on abortion have no equivalency to restrictions on firearms.
Furthermore, there is a case to be made that restrictions on abortion and lack of restrictions on firearms have the same goal, i.e., the preservation of life. Eugene provides the defeater argument for his own case, and states a contradictory conclusion anyway. But firearms are used for more than just personal defense. They are also necessary for the amelioration of tyranny. Both of these are life preserving things, just as restrictions on abortion are life preserving restrictions.
Why Eugene didn’t choose to work on this angle and why he chose the opposite, is anyone’s guess. All in all, this isn’t one of Eugene’s better pieces of work. I think he missed the mark, and widely so.
For magazine capacity and what it may do for you, see also my analysis of Mr. Stephen Bayezes.
