Eugene Volokh On The Second Amendment And Magazine Capacity

BY Herschel Smith
6 months, 2 weeks ago

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.

[ ... ]

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.

[ ... ]

… 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.



  • Archer

    I agree it’s not his best work. Far from it. He’s talking in logical circles to reach the conclusions that magazine capacity limits are not unconstitutional. Part of me wants to suspect this article is satire, but if so, it’s far too serious-toned, and will be taken seriously by the anti-rights side.

    First he says that most criminal shootings use a handful of rounds, so a mag-cap limit of 10 would not help. Then, he points out that criminals/mass-murderers will be able to get standard- and large-cap magazines regardless of a ban, and magazine changes only take a few seconds, and most criminals/mass-murderers carry multiple guns, and victims/bystanders usually won’t be able to tackle a shooter during a mag change, all of which further negate the mag-cap limit.

    He then entirely misses a critical point: When analyzing an enumerated right, any proposed limits must be justified by a clear government interest. Mr. Volokh spends several paragraphs saying that the supposed public safety benefit just isn’t there, but nevertheless concludes that limiting the enumerated right in the name of public safety is not unconstitutional. That’s not how it works. Absent a clearly articulated, well-justified, and well-documented public interest, the court must err on the side of an unrestricted right, and even if there is a valid reason to restrict the right, it must be restricted as little as possible.

    It may very well be that a mag-cap limit is a small restriction, and it may very well be that such a restriction affects the law-abiding nearly as little as it does the criminal class. However, even the smallest of restrictions must strike a balance between liberty and government interests, and in this case – for all the reasons that Mr. Volokh himself acknowledges – the government interest is empty.

  • http://captainsjournal.com/ Herschel Smith

    Good points Archer. The point also occurred to me, “What if most mass shootings had been with bolt action deer rifles, as was the case with the Texas tower shooter?” Would he then be arguing for the constitutionality of a prohibition on bolt action deer rifles because they’re more accurate than semi-automatic rifles?
    America has a short memory.

  • Gary Griffiths

    I am usually very respectful of Mr. Voloh’s opinions, but for the life of me, I can’t see how restricting the magazine capacity (and thus the potential lethality) of a weapon doesn’t infringe on the R2KBA.

  • Roger V. Tranfaglia

    The larger the magizine (the more rounds it holds) the more time you have to engage the “bad guy/mass shooter before you change mags. Pratice changing mags,not only in target stance but on the floor on your back,on your butt -prone posistion-behind cover. If you have to change mags at the WRONG moment YOUR DEAD. ERGO practice makes perfect.
    I’ve never been in the armed services,never been robbed or under fire (have been mugged) do not own a fire arm (yet!) Reading gunwire for the last year I’ve learned PRCTICE PRACTICE PRACTICE……

  • BeGe1

    It’s an odd discussion. A mass shooter may typically use standard 30 round magazines. But why? Because they’re standard. When you get most modern intermediate cartridge semi-auto rifles…that’s what they come with. When you buy spare mags…that’s the size they are. You’d have to be specifically searching for other sized magazines, which are far less common, and in many cases can even be more expensive. So a mass shooter isn’t always going for “high capacity” when using a 30 round magazine in a rifle, or a 17 round magazine in a glock, or whatever. They’re doing it because that’s just the default size that you get when you buy a mag. Let’s be real honest here about something that we don’t like to think about: the actual progression of things like a school shooting. It doesn’t take a lot of sustained fire to walk around shooting unarmed people in the chest as you come by them. The true advantage of a larger magazine is sustained fire for cover/suppressing purposes, a non-existent thing in a mass shooting. A man could do it similarly effective with a 3 round magazine as a 30 in a school shooting, just carry more of them. Note that in columbine one of the shooters used “high capacity” magazines (which were illegal at the time) and the other just carried a larger quantity of 10 round magazines. Both were used with similar effectiveness, to use the word coldly. Magazine size really doesn’t affect mass shootings of the unarmed, they are simply the most common magazine type for modern semi-auto intermediate cartridge rifles, and therefore likely to be the most common magazine type used when those types of rifles are used.

    And quite in opposition to his point, defensive usage is where large capacity is a true boon. The ability to have suppressive fire on your side is a major difference maker when two armed people are engaging each other. Sometimes it’s the only thing that’ll save your life when you can’t get good cover. If I put 20 rounds in quick fashion into the vehicle that has an occupant shooting at me, I’m far more likely to get them to stop shooting back and scuttle off (which is the ultimate goal, preservation of self) than if I put 3 or 4.

  • III J

    “What if most mass shootings had been with bolt action deer rifles,” -

    0r how about, if people were using hammers? Or automobiles? Or assault bricks?

  • Pingback: The Captain's Journal » The History Of Magazines Holding 11 Or More Rounds


You are currently reading "Eugene Volokh On The Second Amendment And Magazine Capacity", entry #11990 on The Captain's Journal.

This article is filed under the category(s) Firearms,Gun Control,Guns,High Capacity Magazines and was published March 9th, 2014 by Herschel Smith.

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