“The brief also addresses some empirical issues. It explains that the evidence before the Court indicates that standard magazines are not disproportionately used in mass shootings. Moreover, even though lawful defenders usually do not fire more than 10 shots, the reserve capacity provided by standard magazines helps to reduce the risk that lawful defenders will be injured by their assaillants:…”
Today I filed an amicus brief in Duncan v. Becarra, a challenge to a California statute confiscating almost all magazines over 10 rounds. Last summer, a federal district court issued a temporary injunction against the confiscation statute. The case is now before a panel of the 9th Circuit Court of Appeals.
The amicus brief mainly addresses the standard of review. The Supreme Court’s decision in District of Columbia v. Heller categorically forbids the prohibition (or confiscation) of arms that are “in common use” and “typically possessed by law-abiding citizens.” The standard magazines that firearms manufacturers provide for their guns–such as a 12 or 17 round magazine for a semi-automatic pistol–easily meet this standard. Indeed, they constitute nearly half of all magazines.
It is a misnomer to say that standard magazines are “large capacity.” The brief does not address genuinely “large” magazines, such as the aftermarket 50 round magazines that are available for some firearms. Instead, the brief concentrates on the types of magazines that have been standard on American firearms for decades.
Although courts have upheld standard magazine bans by applying a feeble version of intermediate scrutiny, we urge the 9th Circuit to adhere to Supreme Court precedent.
The brief suggest that the Circuit Court should ignore arguments about whether standard magazines are “necessary” for self-defense. In Heller, the Supreme Court found that handguns were constitutionally protected because they were commonly chosen by law-abiding Americans for lawful self-defense. Whether long guns were an adequate alternative means of self-defense was irrelevant to the Heller majority. Likewise, standard magazines are commonly chosen for self-defense. Because standard magazines are, beyond dispute, “typical” and “common, prohibition is off the table–to the extent that courts choose to obey Heller.
by David B. Kopel
