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THE HISTORY OF FIREARM MAGAZINES AND MAGAZINE PROHIBITIONS

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Abstract

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition. Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries. Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms are “in common use” and are “Typically possessed by law-abiding citizens for lawful purposes,” the Article also pays attention to whether and when particular guns and their magazines achieved mass market success in the United States. The first time a rifle did so was in 1866, and the first time a handgun did so was in 1935. The detailed history of various firearms and their magazines stops in 1979 — a year which is somewhat ancient in terms of the current gun control debate. Back in 1979, revolvers still far outsold semi-automatic handguns. No-one was trying to ban so-called “assault weapons,” although such guns were already well-established in the market. For the post-1979 period, Part I briefly explains technological improvements in recent decades have fostered the continuing popularity of magazines holding more than 10 rounds. Part II of the article describes the history of magazine prohibition in the United States. Such prohibitions are of recent vintage, with an important exception: during Prohibition, Michigan, Rhode Island, Ohio, and the District of Columbia banned some firearms which held more than a certain number of rounds. The Michigan, Rhode Island, and Ohio laws were later repealed. The D.C. ban, however, remains in force today, with some revisions.
KOPEL 3/17/2015 11:41 AM
849
THE HISTORY OF FIREARM MAGAZINES AND MAGAZINE
PROHIBITIONS
David B. Kopel*
I. INTRODUCTION
In recent years, the prohibition of firearms magazines has become
an important topic of law and policy debate. This article details the
history of magazines and of magazine prohibition. The article then
applies the historical facts to the methodologies of leading cases
that have looked to history to analyze the constitutionality of gun
control laws.
Because ten rounds is an oft-proposed figure for magazine bans,
Part II of the article provides the story of such magazines from the
sixteenth century onward. Although some people think that multi-
shot guns did not appear until Samuel Colt invented the revolver in
the 1830s, multi-shot guns predate Colonel Colt by over two
centuries.
1
Especially because the Supreme Court’s decision in District of
Columbia v. Heller
2
considers whether arms are “in common use”
and are “typically possessed by law-abiding citizens for lawful
purposes,”
3
the article also pays attention to whether and when
particular guns and their magazines achieved mass-market success
in the United States. The first time a rifle with more than ten
rounds of ammunition did so was in 1866,
4
and the first time a
* Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of
Law. Research Director, Independence Institute, Denver, Colorado. Associate Policy Analyst,
Cato Institute, Washington, D.C. Professor Kopel is the author of fifteen books and over
ninety scholarly journal articles, including the first law school textbook on the Second
Amendment. See generally NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE A. MOCSARY &
MICHAEL P. OSHEA, FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND
POLICY (2012). Professor Kopel’s website is http://www.davekopel.org. The author would like
to thank Joseph Greenlee and Noah Rauscher for research assistance.
1
See Clayton E. Cramer & Joseph Edward Olson, Pistols, Crime, and Public Safety in
Early America, 44 WILLAMETTE L. REV. 699, 716 (2008).
2
District of Columbia v. Heller, 554 U.S. 570 (2008).
3
Id. at 62425, 627.
4
See infra notes 5055 and accompanying text.
KOPEL 3/17/2015 11:41 AM
850 Albany Law Review [Vol. 78.2
handgun did so was in 1935.
5
The detailed history of various firearms and their magazines
stops in 1979a year which is somewhat ancient in terms of the
current gun control debate. Back in 1979, revolvers still far outsold
semiautomatic handguns.
6
No one was trying to ban so-called
assault weapons,
7
although such guns were already well established
in the market.
8
For the post-1979 period, Part II briefly explains how
technological improvements in recent decades have fostered the
continuing popularity of magazines holding more than ten rounds
Part III of the article describes the history of magazine
prohibition in the United States. Such prohibitions are of recent
vintage, with an important exception: during prohibition, Michigan,
Rhode Island, and the District of Columbia banned some arms that
could hold more than a certain number of rounds; Ohio required a
special license for such guns.
9
The Michigan and Rhode Island bans
were repealed decades ago; the Ohio licensing law was repealed in
2014, having previously been modified and interpreted so that it
banned no magazines.
10
The District of Columbia ban, however,
remains in force today, with some revisions.
11
The Supreme Court’s Second Amendment decisions in District of
Columbia v. Heller and McDonald v. Chicago
12
paid careful
5
See infra notes 10203 and accompanying text.
6
The U.S. manufacturing figures were compiled by the Bureau of Alcohol, Tobacco &
Firearms. Although they were public documents, they were not made widely available in the
1970s. The following are the full-year production data by U.S. manufacturers. The figures do
not include production for sale to the military. 1973: 452,232 pistols, 1,170,966 revolvers;
1974: 399,011 pistols, 1,495,861 revolvers; 1975: 455,267 pistols, 1,425,833 revolvers; 1976:
468,638 pistols, 1,425,407 revolvers; 1977: 440,387 pistols, 1,423,984 revolvers; 1978: 499,257
pistols, 1,458,013 revolvers; 1979: 637,067 pistols, 1,531,362 revolvers; 1980: 785,105 pistols,
1,586,149 revolvers. Statistical Tabulation of Firearms Manufactured in the United States
and Firearms Exportedas Reported Yearly by Bureau of Alcohol, Tobacco and Firearms on
ATF Form 4483-A, AM. FIREARMS INDUSTRY (Nov. 1981) at 2829.
7
See David B. Kopel, The Great Gun Control War of the Twentieth Centuryand Its
Lessons for Gun Laws Today, 39 FORDHAM URB. L.J. 1527, 157879 (2012) (beginning of
“assault weapon” issue in the mid- and late 1980s); L. Ingram, Restricting of Assault-Type
Guns Okd by Assembly Unit, L.A. TIMES, Apr. 9, 1985, at 3.
8
Below, this article describes many models of semi-automatic rifles introduced since 1927.
See infra notes 82101 and accompanying text. All of them have been labeled an “assault
weapon” by one or more proposed bills. See, e.g., LEGAL CMTY. AGAINST VIOLENCE, BANNING
ASSAULT WEAPONSA LEGAL PRIMER FOR STATE AND LOCAL ACTION 5960 (2004), available
at http://smartgunlaws.org/wp-content/uploads/2012/05/Banning_Assault_Weapons
_A_Legal_Primer_8.05_entire.pdf (proposing a model assault weapons law).
9
See infra notes 12930, 134, 140 and accompanying text.
10
See infra notes 13133, 13539 and accompanying text.
11
See infra notes 14045 and accompanying text.
12
McDonald v. City of Chi., 561 U.S. 742 (2010).
KOPEL 3/17/2015 11:41 AM
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attention to history. Several post-Heller lower court opinions in
Second Amendment cases have also examined history as part of
their consideration of the constitutionality of gun control statutes.
Part IV of this article examines the legality of magazine bans
according to the various historical standards that courts have
employed.
II. THE HISTORY OF MAGAZINES HOLDING MORE THAN TEN ROUNDS
In District of Columbia v. Heller, the Supreme Court ruled that
the District of Columbia’s handgun ban was unconstitutional partly
because handguns are in “common use.”
13
The Second Amendment
protects arms that are “typically possessed by law-abiding citizens
for lawful purposes.”
14
Magazines of more than ten rounds are older than the United
States.
15
Box magazines date from 1862.
16
In terms of large-scale
commercial success, rifle magazines of more than ten rounds had
become popular by the time the Fourteenth Amendment was being
ratified.
17
Handgun magazines of more than ten rounds would
become popular in the 1930s.
18
A. Why Consumers Have Always Sought to Avoid Having to Reload
During Defensive Gun Use
When a firearm being used for defense is out of ammunition, the
defender no longer has a functional firearm. The Second
Amendment, of course, guarantees the right to an operable
firearm.
19
As the Heller Court explained, the Council of the District
of Columbia could not require that lawfully-possessed guns be kept
in an inoperable status (locked or disassembled) in the home,
because doing so negates their utility with respect to “the core
lawful purpose of self-defense.”
20
When the defender is reloading, the defender is especially
vulnerable to attack. When ammunition is low but not exhausted
(e.g., two or three rounds remaining), that may be insufficient to
13
District of Columbia v. Heller, 554 U.S. 570, 62729 (2008).
14
Id. at 625.
15
See infra notes 2124 and accompanying text.
16
See infra note 65 and accompanying text.
17
See infra notes 4355, 17273 and accompanying text.
18
See infra notes 10203 and accompanying text.
19
See Heller, 554 U.S. at 630, 635 (declaring the District of Columbia’s requirement that
all firearms in the home be rendered and kept inoperable at all times as unconstitutional).
20
Id.
KOPEL 3/17/2015 11:41 AM
852 Albany Law Review [Vol. 78.2
deter or control the threat, especially if the threat is posed by more
than one criminal. If the victim is attacked by a gang of four large
people, and a few shots cause the attackers to pause, the victim
needs enough reserve ammunition in the firearm to make the
attackers worry that even if they rush the victim all at once, the
victim will have enough ammunition to knock each attacker down.
When guns are fired defensively, it is unusual for a single hit to
immediately disable an attacker.
Accordingly, from the outset of firearms manufacturing, one
constant goal has been to design firearms able to fire more rounds
without reloading.
To this end, manufacturers have experimented with various
designs of firearms and magazines for centuries. While not all of
these experiments were successful in terms of mass sales, they
indicated the directions where firearms development was
proceeding. The first experiments to gain widespread commercial
success in the United States came around the middle of the
nineteenth century.
B. Magazines of Greater than Ten Rounds are More than Four
Hundred Years Old
The first known firearm that was able to fire more than ten
rounds without reloading was a sixteen-shooter created around
1580, using “superposed” loads (each round stacked on top of the
other).
21
Multi-shot guns continued to develop in the next two
centuries, with such guns first issued to the British army in 1658.
22
One early design was the eleven-round “Defence Gun,” patented in
1718 by lawyer and inventor James Puckle.
23
It used eleven
preloaded cylinders; each pull of the trigger fired one cylinder.
24
As with First Amendment technology (such as televisions or
websites), the Second Amendment is not limited to the technology
that existed in 1791.
25
The Heller Court properly described such an
asserted limit as “bordering on the frivolous.”
26
But even if Heller
21
See LEWIS WINANT, FIREARMS CURIOSA 16870 (2009); A 16-Shot Wheel Lock, AMERICAS
1ST FREEDOM (June 2014), http://www.nrapublications.org/index.php/17739/a-16-shot-wheel-
lock/ (NRA member magazine).
22
Cramer & Olson, supra note 1, at 716.
23
Id. at 716 & n.94.
24
See id. at 71617; This Day in History: May 15, 1718, HISTORY, http://www.historychann
el.com.au/classroom/day-in-history/600/defence-rapid-fire-gun-patented (last visited Feb. 21,
2015).
25
Heller, 544 U.S. at 582.
26
Id. (Some have made the argument, bordering on the frivolous, that only those arms in
KOPEL 3/17/2015 11:41 AM
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had created such a rule, magazines of more than ten rounds are
older than the Second Amendment.
At the time that the Second Amendment was being ratified, the
state of the art for multi-shot guns was the Girandoni air rifle, with
a twenty-two-shot magazine capacity.
27
Meriwether Lewis carried a
Girandoni on the Lewis and Clark expedition.
28
At the time, air
guns were ballistically equal to powder guns in terms of bullet size
and velocity.
29
The .46 and .49 caliber Girandoni rifles were
invented around 1779 for use in European armies and were
employed by elite units.
30
One shot could penetrate a one-inch thick
wood plank or take down an elk.
31
C. The Nineteenth Century Saw Broad Commercial Success for
Magazines Holding More than Ten Rounds
Firearm technology progressed rapidly in the 1800s.
Manufacturers were constantly attempting to produce reliable
firearms with greater ammunition capacities for consumers. One
notable step came in 1821 with the introduction of the Jennings
multi-shot flintlock rifle, which, borrowing the superposed projectile
design from centuries before, could fire twelve shots before
reloading.
32
Around the same time, pistol technology also advanced to permit
more than ten shots being fired without reloading. “Pepperbox”
existence in the 18th century are protected by the Second Amendment. We do not interpret
constitutional rights that way. Just as the First Amendment protects modern forms of
communications, and the Fourth Amendment applies to modern forms of search, the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms, even
those that were not in existence at the time of the founding. (citations omitted)).
27
JIM SUPICA ET AL., TREASURES OF THE NRA NATIONAL FIREARMS MUSEUM 31 (2013).
28
JIM GARRY, WEAPONS OF THE LEWIS & CLARK EXPEDITION 94 (2012).
29
JOHN L. PLASTER, THE HISTORY OF SNIPING AND SHARPSHOOTING 6970 (2008).
30
See SUPICA ET AL., supra note 27, at 31.
31
Id. The Lewis and Clark gun is on display at the National Rifle Associations Sporting
Arms Museum in Springfield, Missouri. Mark Yost, The Story of Guns in America, WALL ST.
J., Sept. 3, 2014, at D5.
32
NORM FLAYDERMAN, FLAYDERMANS GUIDE TO ANTIQUE AMERICAN FIREARMS AND THEIR
VALUES 683 (9th ed. 2007) [hereinafter FLAYDERMANS GUIDE]. According to James S.
Hutchins, historian emeritus at the National Museum of American History, Smithsonian
Institution, Mr. Flayderman has been a revered expert in antique American arms and a vast
range of other Americana for half a century . . . .” James S. Hutchins, Foreword to NORM
FLAYDERMAN, THE BOWIE KNIFE: UNSHEATHING THE AMERICAN LEGEND 7 (2004). Mr.
Flayderman has been appointed as historical consultant to the U.S. Army Museum, U.S.
Marine Corps Museum, and the State of Connecticuts historic weapons collections. Andrea
Valluzzo, E. Norman Flayderman, 84; Antique Arms Expert, ANTIQUES & ARTS WKLY. (July 2,
2013), http://test.antiquesandthearts.com/node/185567#.VMvRAGjF8YM.
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854 Albany Law Review [Vol. 78.2
pistols began to be produced in America in the 1830s.
33
These
pistols had multiple barrels that would fire sequentially.
34
While
the most common configurations were five or six shots,
35
some
models had twelve independently-firing barrels,
36
and there were
even models with eighteen or twenty-four independently-firing
barrels.
37
Pepperboxes were commercially successful and it took a
number of years for Samuel Colt’s revolvers (also invented in the
1830s) to surpass them in the marketplace.
38
The 1830s through the 1850s saw a number of different firearm
designs intended to increase ammunition capacity. In 1838, the
Bennett and Haviland Rifle was invented; it was a rifle version of
the pepperbox, with twelve individual chambers that were manually
rotated after each shot.
39
This would bring a new chamber,
preloaded with powder and shot, into the breach, ready to be fired.
40
Alexander Hall and Colonel Parry W. Porter each created rifles with
capacities greater than ten in the 1850s.
41
Hall’s design had a
fifteen-shot rotating cylinder (similar to a revolver), while Porter’s
design used a thirty-eight-shot canister magazine.
42
The great breakthrough, however, began with a collaboration of
Daniel Wesson (of Smith and Wesson) and Oliver Winchester. They
produced the first metallic cartridgecontaining the gunpowder,
primer, and ammunition in a metallic case similar to modern
ammunition.
43
Furthermore, they invented a firearms mechanism
that was well suited to the new metallic cartridge: the lever
33
JACK DUNLAP, AMERICAN BRITISH & CONTINENTAL PEPPERBOX FIREARMS 16 (1964).
34
LEWIS WINANT, PEPPERBOX FIREARMS 7 (1952).
35
See, e.g., Pocektsize Allen and Thurber Pepperbox Revolver, ANTIQUE ARMS, http://aaawt
.com/html/firearms/f102.html (last visited Feb. 21, 2015).
36
DOE RUN LEAD COMPANYS MUSEUM, CATALOGUE OF CONTENTS 66 (1912).
37
DUNLAP, supra note 33, at 14849, 167 (describing three European eighteen-shot models
and one twenty-four-shot model); SUPICA ET AL., supra note 27, at 33 (describing the Marietta
eighteen-shot model); WINANT, supra note 21, at 24950 (describing a twenty-four-shot
pepperbox).
38
WINANT, supra note 34, at 28.
39
FLAYDERMANS GUIDE, supra note 32, at 711.
40
See id.
41
Id. at 713, 716.
42
Id. The Porter Rifle was said to be able to fire up to sixty shots per minute. Mary
Moran, P.W. Porter, Inventor of the Porter Rifle, DEAD MEMPHIS TALKING (April 18, 2014),
http://deadmemphistalking.blogspot.com/2014/04/pw-porter-inventor-of-porter-rifle.html
(reprinting an article from New York Post). About 1250 of these guns were produced. S.P.
Fjestad, Whats It Worth? The Porter Rifle, FIELD & STREAM, http://www.fieldandstream.com/
articles/guns/rifles/2009/01/whats-it-worth-porter-rifle (last visited Feb. 21, 2015).
43
See FLAYDERMANS GUIDE, supra note 32, at 303 (The self-contained cartridge was a
special type, the hollowed out conical bullet containing the powder, and backed by the
primer.); HAROLD F. WILLIAMSON, WINCHESTER: THE GUN THAT WON THE WEST 2627
(1952).
KOPEL 3/17/2015 11:41 AM
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action.
44
Their company, the Volcanic Repeating Arms Company,
introduced the lever action rifle in 1855.
45
This rifle had up to a
thirty-round tubular magazine under the barrel that was operated
by manipulating a lever on the bottom of the stock.
46
The lever-
action allowed a shooter to quickly expel spent cartridges and ready
the firearm for additional shots.
47
An 1859 advertisement bragged
that the guns could be loaded and fire thirty shots in less than a
minute.
48
In 1862, the Volcanic evolved into the sixteen-round
Henry lever action rifle, lauded for its defensive utility.
49
The Henry rifle further evolved into the Winchester repeating
rifle, and the market for these firearms greatly expanded with the
first gun produced under the Winchester name.
50
Winchester
touted the Model 1866 for defense against “sudden attack either
from robbers or Indians.”
51
According to advertising, the M1866
“can . . . be fired thirty times a minute,
52
or with seventeen in the
magazine and one in the chamber, “eighteen charges, which can be
fired in nine seconds.”
53
The gun was a particularly big seller in the
American West.
54
There were over 170,000 Model 1866s produced.
55
Next came the Winchester M1873, “[t]he gun that won the
West.”
56
The Winchester M1873 and then the M1892 were lever
actions holding ten to eleven rounds in tubular magazines.
57
There
were over 720,000 copies of the Winchester 1873 made from 1873 to
44
See Smith & Wesson History, SMITH & WESSON, http://www.smith-wesson.com/webapp/
wcs/stores/servlet/Category4_750001_750051_757941_-1_757938_757812_image (last visited
Feb. 21, 2015).
45
FLAYDERMANS GUIDE, supra note 32, at 304.
46
Id. at 303; WILLIAMSON, supra note 43, at 13.
47
WILLIAMSON, supra note 43, at 25. Oliver Winchester had an ownership interest in
Volcanic and acquired the company in 1857. FLAYDERMANS GUIDE, supra note 32, at 300.
48
WILLIAMSON, supra note 43, at 25.
49
See Id., at 2831; Joseph Bilby, The Guns of 1864, AM. RIFLEMAN (May 5, 2014), http://w
ww.americanrifleman.org/articles/2014/5/5/the-guns-of-1864/. About 14,000 Henry rifles were
sold in 186066. FLAYDERMANS GUIDE, supra note 32, at 305. The Henry Rifle is still in
production today. See About Henry Repeating, HENRY, http://www.henryrifles.com/about-henr
y-repeating/ (last visited Feb. 21, 2015).
50
See WILLIAMSON, supra note 43, at 49.
51
R.L. WILSON, WINCHESTER: AN AMERICAN LEGEND 32 (1991).
52
WILLIAMSON, supra note 43, at 49.
53
LOUIS A. GARAVAGLIA & CHARLES G. WORMAN, FIREARMS OF THE AMERICAN WEST 1866
1894, at 128 (1985). The Winchester Model 1866 was produced until 1898. FLAYDERMANS
GUIDE, supra note 32, at 306.
54
WILSON, supra note 51, at 34.
55
FLAYDERMANS GUIDE, supra note 32, at 306.
56
Model 1873 Short Rifle, WINCHESTER REPEATING ARMS, http://www.winchesterguns.com/
products/catalog/detail.asp?family=027C&mid=534200 (last visited Feb. 21, 2015).
57
Id.
KOPEL 3/17/2015 11:41 AM
856 Albany Law Review [Vol. 78.2
1919.
58
Over a million of the M1892 were manufactured from 1892
to 1941.
59
The Italian company Uberti, which specializes in high-
quality reproductions of western firearms, produces reproductions
of all of the above Winchesters today.
60
Another iconic rifle of the
latter nineteenth century was the pump action Colt Lightning rifle,
with a fifteen-round capacity.
61
Manufactured in Maine, the Evans Repeating Rifle came on the
market in 1873.
62
The innovative rotary helical magazine in the
buttstock held thirty-four rounds.
63
It was commercially successful
for a while, although not at Winchester’s or Colt’s levels. Over
12,000 copies were produced.
64
Meanwhile, the first handgun to use a detachable box magazine
was the ten-round Jarre harmonica pistol, patented in 1862.
65
In
the 1890s, the box magazine would become common for handguns.
66
Pin-fire revolvers with capacities of up to twenty or twenty-one
entered the market in the 1850s;
67
they were produced for the next
half-century, but were significantly more popular in Europe than in
America.
68
For revolvers with other firing mechanisms, there were
some models with more than seventeen rounds.
69
The twenty-round
Josselyn belt-fed chain pistol was introduced in 1866, and various
other chain pistols had even greater capacity.
70
Chain pistols did
not win much market share, perhaps in part because the large
58
FLAYDERMANS GUIDE, supra note 32, at 307. The Model 1873 was Pa Cartwrights gun
on the 1959 to 1973 television series Bonanza. SUPICA ET AL., supra note 27, at 108.
59
FLAYDERMANS GUIDE, supra note 32, at 311. The Model 1892 was John Waynes gun in
many movies. SUPICA ET AL., supra note 27, at 109.
60
2014 STANDARD CATALOG OF FIREARMS: THE COLLECTORS PRICE & REFERENCE GUIDE,
1237 (Jerry Lee ed., 2013). The 1995 edition of this annually-published guide was relied on
by the court in Kirkland v. District of Columbia, 70 F.3d 629, 635 n.3 (D.C. Cir. 1995).
61
The original Colt held up to fifteen rounds in calibers of .32.20, .38.40, and .44.40.
FLAYDERMANS GUIDE, supra note 32, at 122. Uberti currently produces a modern replica of
the Colt Lightning, medium frame model, of which 89,000 were produced between 1884 and
1902. Id.
62
Id. at 694.
63
DWIGHT B. DEMERITT, JR., MAINE MADE GUNS & THEIR MAKERS 29395 (rev. ed. 1997);
FLAYDERMANS GUIDE, supra note 32, at 694. A later iteration of the rifle held twenty-five or
twenty-eight rounds in the buttstock. DEMERITT, supra, at 301. The American Society of
Arms Collectors endorses the Demeritt book as the definitive work for historians and
collectors of Maine guns. DEMERITT, supra, at vi.
64
FLAYDERMANS GUIDE, supra note 32, at 694.
65
WINANT, supra note 21, at 24445. The magazine stuck out horizontally from the side of
the firing chamber, making the handgun difficult to carry in a holster, which perhaps
explains why the gun never had mass success. SUPICA ET AL., supra note 27, at 33.
66
See infra notes 7277 and accompanying text.
67
SUPICA ET AL., supra note 27, at 4849; WINANT, supra note 21, at 6770.
68
SUPICA ET AL., supra note 27, at 49.
69
See, e.g., WINANT, supra note 21, at 6263, 20708.
70
Id. at 204, 206.
KOPEL 3/17/2015 11:41 AM
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dangling chain was such an impediment to carrying the gun.
71
The semiautomatic firearm and its detachable box magazine were
invented before the turn of the century. It was the latest success in
the centuries-old effort to improve the reliability and capacity of
multi-shot guns.
In 1896, Germany’s Mauser introduced the C96 “broomhandle”
pistol, which remained in production until the late 1930s, selling
nearly a million to civilians worldwide.
72
The most common
configuration was in ten-round capacity, but there were a variety of
models with capacities as low as six or as high as twenty.
73
The
latter was the Cone Hammer pistol, with twenty-round box
magazine.
74
The Luger semiautomatic pistol was brought to the market in
1899 (although it is commonly known as the “1900”).
75
Through
many variants, it was very popular for both civilians and the
military markets, and remained in production for nearly a
century.
76
The most common magazines were seven or eight
rounds, but there was also a thirty-two-round drum magazine.
77
D. Manufacturers in the Twentieth Century Continued the Trend of
Increasing Ammunition Capacity and Reliability for Civilian
Firearms.
The twentieth century saw improvements on the designs
pioneered in the 1800s and expanding popularity for firearms with
more than ten rounds.
71
See id. at 205.
72
JOHN W. BREATHED, JR. & JOSEPH J. SCHROEDER, JR., SYSTEM MAUSER, A PICTORIAL
HISTORY OF THE MODEL 1896 SELF-LOADING PISTOL 272 (1967) (production of 1,150,000, of
which “almost a million” were sold on the commercial, non-military market); see John Elliot,
A Sweeping History of the Mauser C96 Broomhandle Pistol, GUNS.COM (Jan. 26, 2012),
http://www.guns.com/2012/01/26/a-sweeping-history-of-the-mauser-c96-broomhandl
e-pistol/.
73
2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 70809.
74
Id.; BREATHED & SCHROEDER, supra note 72, at 23, 3031, 3839, 5455. At least
between 1896 and 1905, Mausers direct sales to the United States were small. Id. at 26667.
Spains Astra brought out its own versions of the Mauser, with several models having
twenty-round magazines starting in 1928. Id. at 208. But these do not appear to have had
much distribution in the United States. Id. at 26667.
75
See 2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 650.
76
Among the many models was the 1906 American Eagle. Id. at 653. George Lugers
invention was licensed to many companies, including Mauser (Germany) and Vickers
(England). Id. at 65758. The gun was never manufactured under Lugers own name. See
id. at 65062.
77
JEAN-NOËL MOURET, PISTOLS AND REVOLVERS 12627 (1993); SUPICA ET AL., supra note
27, at 86.
KOPEL 3/17/2015 11:41 AM
858 Albany Law Review [Vol. 78.2
Since the late 1890s, the Savage Arms Company has been one of
the classic American firearms manufacturers.
78
In 1911, the
company introduced their bolt-action Model 1911, a twenty-shot
repeater with a tubular magazine in .22 short caliber.
79
The rifle
was popular for boys and for shooting galleries.
80
By the 1930s, American manufacturers such as Remington,
Marlin, and Winchester were producing many tubular magazine
rifles in .22 caliber.
81
These firearms are classic rifles for “plinking”
(casual target shooting), especially popular for young people. Based
on firearms catalogues from 1936 to 1971, there are over twenty
such firearms models from major American manufacturers with
magazines of sixteen to thirty rounds in one or more of the
calibers.
82
In 1927, the Auto Ordinance Company introduced their
78
See Savage Arms History, SAVAGE ARMS, http://www.savagearms.com/history/ (last
visited Feb. 21, 2015).
79
JIM PERKINS, AMERICAN BOYS RIFLES 18901945, at 191 (1976).
80
Id. Similarly, the Remington Model 12B Gallery Special was introduced in 1910, with
an optional extended magazine that held twenty-five .22 shorts. ROY MARCOT, REMINGTON,
AMERICAS OLDEST GUN MAKER 149 (James W. Bequette & Joel J. Hutchcroft eds. 1998).
81
See, e.g., 2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 68788, 870, 1343.
82
Models listed in the 1936 Shooter’s Bible include; Remington Model 34 bolt action,
Remington Model 121 slide action, Remington Model 341 bolt action, Stevens No. 71 slide
action, Savage Model 5 bolt action, Stevens Model 76 semiauto, Stevens-Springfield Model 86
bolt action, Winchester Model 62 slide action, and Winchester Model 61 slide action. STOGER
ARMS CORP., SHOOTERS BIBLE, 1936, at 10809, 112, 12324, 12627, 140 (photo. reprint
1974).
Some additional models include: Stevens Model 87 bolt action, Remington 550 semiauto,
Mossberg Model 46B bolt action, Mossberg Model 46M bolt action, Winchester Model 74
semiautomatic, Marlin 39 A lever action, and Marlin Model 81 DL bolt action. BOB
BROWNELL, 2 THE GUNSMITHS MART, 19491950, at 212, 214, 216, 218, 221 (2011) (reprinting
article from Hunting & Fishing, Oct. 1948).
The 1959 annual edition of the Shooters Bible adds the semiautomatic Savage Model 6 to
the above list. STOGER ARMS CORP., SHOOTERS BIBLE, 1959, at 103 (1959). For some of the
models previously mentioned, see id. at 80, 87, 91, 101.
Histories of Savage and Stevens firearms include the following not listed above: Stevens
No. 66 bolt action, Stevens Model 46 bolt action, Model 1914 slide action, Savage Model 29
slide action, Savage Model 29 G slide action. JAY KIMMEL, SAVAGE AND STEVENS ARMS
COLLECTORS HISTORY 35 (1990); BILL WEST, SAVAGE AND STEVENS ARMS, at 1112, 138,
1444, 1510, 1610 (1971). Savage purchased Stevens in 1920. Savage Arms History,
supra note 78.
For use of the Shooters Bible by the courts, see United States v. Olson, No. 94-30387, 1995
U.S. App. LEXIS 36973, at *12 (9th Cir. Dec. 15, 1995) (stating that the book was properly
used as a source for a Bureau of Alcohol, Tobacco, and Firearms agents expert opinion);
United States v. Fisher, 353 F.2d 396, 399 (5th Cir. 1965) (Gewin, J., dissenting) (considering
information in the book to determine whether the evidence relied on by the trial court was
sufficient to justify the trial courts holding); Potter v. United States, 167 Ct. Cl. 28, 48 n.1
(Ct. Cl. 1964) (citing the book for the history of Gabilondo firearms); United States v. Precise
Imports Corp., 458 F.2d 1376, 1377 (C.C.P.A. 1972) (reviewing the record produced at the
trial court, which included pages from the 1967 edition of the book).
KOPEL 3/17/2015 11:41 AM
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semiautomatic rifle that used thirty-round magazines.
83
These
rifles are still in production today.
84
The M-1 carbine was invented for the citizen solider of World War
II.
85
Thereafter, the M-1 carbine became and has remained a
popular rifle for civilians in America.
86
The U.S. government’s
Civilian Marksmanship Program, created by Congress, put nearly a
quarter million of these guns into the hands of law-abiding
American citizens starting in 1963, at steeply-discounted prices.
87
Partly using surplus government parts, the Plainfield Machine
Company, Iver Johnson, and more than a dozen other companies
cumulatively manufactured over 200,000 for the civilian market,
starting in the late 1950s.
88
The standard magazines are fifteen
and thirty rounds.
89
The most popular rifle in American history is the AR-15 platform,
a semiautomatic rifle with standard magazines of twenty or thirty
rounds.
90
The AR-15 was brought to the market in 1963, with a
83
2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 84; T1-C, THOMPSON,
www.auto-ordnance.com//firearms/thompson-t1-c.asp (last visited Feb. 21, 2015).
84
See T1-C, supra note 83.
85
See BRUCE N. CANFIELD, BRUCE CANFIELDS COMPLETE GUIDE TO THE M1 GARAND AND
THE M1 CARBINE 163 (1999).
86
See id. at 163, 279 (noting high desirability and demand for the firearm after the war
ended); see also Joseph P. Tartaro, The Great Assault Weapon Hoax, 20 U. DAYTON L. REV.
619, 622 (1995) ([T]he M1 carbine [is] beloved by millions of war veterans, collectors, and
recreational shooters.).
87
CANFIELD, supra note 85, at 163; LARRY L. RUTH, 2 WAR BABY! COMES HOME: THE U.S.
CALIBER .30 CARBINE 575 (R. Blake Stevens ed., 1993); About the CMP, CIV. MARKSMANSHIP
PROGRAM, http://thecmp.org/about/ (last visited Feb. 21, 2015).
88
See CANFIELD, supra note 85, at 163, 279 (noting the large quantity of surplus carbine
parts and that firms created commercial carbines using these parts in the 1950s and 1960s).
The largest producers were Plainfields 112,000 from 1962 to 1978 and Iver Johnsons 96,700
from 1978 to 1992. Post WWII Commercially Manufactured M1 Carbines (U.S.A.): Iver
Johnson Arms, M1CARBINESINC.COM, http://www.m1carbinesinc.com/carbine_ij.html (last
visited Feb. 21, 2015); Post WWII Commercially Manufactured M1 Carbines (U.S.A.):
Plainfield Machine Co., Inc., M1CARBINESINC.COM., http://www.m1carbinesinc.com/carbine_pl
ainfield.html (last visited Feb. 21, 2015). The U.S. Government sold 240,000 of its own
surplus in 1963 into the Civilian Marksmanship Program. CANFIELD, supra note 85, at 163.
Thereafter, the program (then known as DCM”—Director of Civilian Marksmanship) sold
M1s to Americans from the supply of World War II M1 carbines that had been exported to
allied nations and subsequently returned to the United States when the allied nation
switched to a newer type of rifle. See RUTH, supra note 87, at 575, 723. As of 2014, the
Civilian Marksmanship Programs supply of carbines for sale has been exhausted. M1
Carbine, CIV. MARKSMANSHIP PROGRAM, http://www.thecmp.org/Sales/carbine.htm (last
visited Feb. 21, 2015).
89
RUTH, supra note 87, at 575.
90
See NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE A. MOCSARY & MICHAEL P. OSHEA,
FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY 12, 809
(2012) (noting the wide range of uses for the gun and its popularity). The AR stands for
ArmaLite Rifle. Modern Sporting Rifle Facts, NATL SHOOTING SPORTS FOUND., http://www.
nssf.org/msr/facts.cfm (last visited Feb. 21, 2015). ArmaLite did the initial design work on
KOPEL 3/17/2015 11:41 AM
860 Albany Law Review [Vol. 78.2
then-standard magazine of twenty; the thirty-round standard
magazine was developed a few years later.
91
The 1994 Supreme
Court case Staples v. United States
92
described the AR-15 as “the
civilian version of the military’s M–16 rifle,” and noted that many
parts are interchangeable between the two guns.
93
The crucial
distinction, explained the Court, is that the AR-15 is like all other
semiautomatic firearms in that it can fire “only one shot with each
pull of the trigger.”
94
The Court pointed out that semiautomatic
firearms “traditionally have been widely accepted as lawful
possessions.”
95
So legally speaking, the semiautomatic AR-15 is the
opposite of the M-16 machine gun: “[C]ertain categories of gunsno
doubt including the machineguns, sawed-off shotguns, and artillery
pieces that Congress has subjected to regulation . . . have the
same quasi-suspect character we attributed to owning hand
grenades . . . . But . . . guns falling outside those categories
traditionally have been widely accepted as lawful possessions . . .
.
96
By 1969, the AR-15 faced competition from the Armalite-180
(twenty-round optional magazine), the J&R 68 carbine (thirty
rounds), and the Eagle Apache carbine (thirty rounds).
97
Springfield Armory brought out the M1A semiautomatic rifle in
1974, with a twenty-round detachable box magazine.
98
The next
year, the Ruger Mini-14 rifle was introduced, with manufacturer-
supplied standard five, ten, or twenty-round detachable
magazines.
99
Both the M1A and the Mini-14 are very popular to
this day.
100
the AR-15 before selling the rights to Colts. ARMALITE, INC., A HISTORICAL REVIEW OF
ARMALITE 3 (Jan. 4, 2010), available at http://www.armalite.com/images/Library%5CHistory
.pdf.
91
PATRICK SWEENEY, THE GUN DIGEST BOOK OF THE AR-15, at 104 (2005). About this
time, the Cetme-Sport semiauto rifle with an optional twenty-round detachable box mag
magazine came on the market. GUN DIGEST 1968, at 335 (John T. Amber ed., 22nd
Anniversary Deluxe ed. 1967).
92
Staples v. United States, 511 U.S. 600 (1994).
93
Id. at 603.
94
Id. at 602 n.1, 603.
95
See id. at 612.
96
See id. at 61112.
97
See GUN DIGEST 1970, at 294 (John T. Amber ed., 24th Anniversary Deluxe ed. 1969).
98
See 2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 1102 (noting the twenty-
round box magazine); M1A Series, SPRINGFIELD ARMORY, http://www.springfield-
armory.com/m1a-series/ (last visited Feb. 21, 2015).
99
2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 1173.
100
See M1A Scout, What is an M1A Rifle, M1A RIFLES (July 2, 2009), http://www.m1arifles
.com/tag/m14/; Shawn Skipper, 8 Things You Might Not Know About the Ruger Mini-14,
DAILY CALLER (June 3, 2014), http://dailycaller.com/2014/06/03/8-things-you-might-not-know-
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By 1979, all of the above guns were challenged in the American
market by high-quality European imports such as the Belgian FN-
FAL Competition rifle (optional twenty-round magazine), the
German Heckler & Koch HK-91 and HK-93 rifles (twenty rounds),
the Swiss SIG AMT rifle (twenty rounds), and the Finnish Valmet
M-71S rifle (thirty rounds).
101
Citizen firearms with detachable magazines holding more than
ten rounds were not limited to rifles, however. In 1935, Browning
introduced the Hi-Power pistol.
102
This handgun was sold with a
thirteen-round detachable magazine and is still in production.
103
In Europe, more so than in America, Browning had to compete
against the Spanish Gabilondo twenty-round Plus Ultra, introduced
in 1925.
104
Spain’s Arostegui, Eulogio brought out the Azula
semiautomatic with standard magazines of ten, twenty and thirty
in 1935.
105
Browning’s first notable American competition came with the
1964 introduction of the Plainfield Machine Company’s “Enforcer,” a
pistol version of the M1 carbine with a thirty-round magazine.
106
A tremendous commercial success was the Beretta model 92, a
nine millimeter pistol with a sixteen-round magazine, which
entered the market in 1976.
107
In various configurations (currently
the Beretta 92F) the Beretta is one of the most popular of all
modern handguns.
108
Browning introduced another popular
handgun in 1977, the fourteen-round BDA (Browning Double
Action).
109
Also coming on the market at this time were European
handguns such as Austria’s L.E.S. P-18 (eighteen rounds) and
about-the-ruger-mini-14/. Another gun introduced in 1976 also used magazines larger than
fifteen. The Bingham company (from Norcross, Georgia) brought out the PPS 50 and AK-22,
.22 caliber rifles with detachable magazines of fifty or twenty-nine rounds. 2014 STANDARD
CATALOG OF FIREARMS, supra note 60, at 163. The PPS-50 is currently manufactured by
Mitchells Mausers. See PPS-50/22, MITCHELLS MOUSERS, http://www.mauser.org/pps-50-
22/ (last visited Feb. 21, 2015). That the gun is still in production four decades later is
impressive, but the PPS-50 never became an all-American favorite as did the M1, AR-15,
M1A and the Mini-14.
101
GUN DIGEST 1980, at 31921 (Ken Warner ed., 34th Anniversary Deluxe ed. 1979).
Also on the market were the Commando Arms carbine (five, fifteen, thirty or ninety rounds),
and the Wilkinson Terry carbine (thirty-one rounds). Id. at 319, 322.
102
2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 182.
103
Id. at 43233.
104
See id. at 465.
105
Id. at 72; BREATHED & SCHROEDER, supra note 74, at 21617.
106
See GUN DIGEST 1965, at 229 (John T. Amber eds., 19th Anniversary Deluxe ed. 1964).
107
2014 STANDARD CATALOG OF FIREARMS, supra note 60, at 121.
108
Id. at 122. In 1985 the M9 version of this pistol became the standard U.S. military
issue sidearm. Id. at 124.
109
Id. at 184.
KOPEL 3/17/2015 11:41 AM
862 Albany Law Review [Vol. 78.2
Germany’s Heckler & Koch VP 70Z (also eighteen rounds).
110
E. Magazines After 1979
We end this story in 1979, when Jimmy Carter was President,
111
the Bee Gees bestrode the AM radio Top 40,
112
Gaston Glock was
manufacturing curtain rods in his garage,
113
Americans were
watching Love Boat on broadcast television,
114
and people on the
cutting edge of technology were adopting VisiCalc, the first
spreadsheet program, run from huge floppy discs.
115
Long before 1979, magazines of more than ten rounds had been
well established in the mainstream of American gun ownership.
Indeed, they had been so established before almost everyone alive in
1979 was born.
After 1979, technological improvements continued to foster the
popularity of magazines holding more than ten rounds. First of all,
there were improvements across the board in manufacturing, so
that magazine springs became more reliable, particularly for
magazines holding up to thirty rounds. This greatly reduced the
risk of a misfeed. Reliability was also enhanced by improvements in
shaping the magazines’ “lips”the angled wings at the top of the
magazine which guide the next round of ammunition into the firing
chamber.
116
Magazines of all sizes benefited from increasing use of plastic
polymers in manufacturing.
117
Today, many magazine walls are
110
See GUN DIGEST 1980, supra note 101, at 29798. L.E.S. was the American partner of
Austrias Steyr. The following courts have relied on one of the annual issues of GUN DIGEST:
Sturm, Ruger & Co. v. Arcadia Mach. & Tool, Inc., No. CV 85-8459 MRP, 1988 U.S. Dist.
LEXIS 16451, at *34 (C.D. Cal. Nov. 4, 1988); A. Uberti & C. v. Leonardo, 892 P.2d 1354,
1364 (Ariz. 1995) (discussing how the inclusion of the defendants guns in the Gun Digest
established that defendant had sufficient minimum contacts with the state to satisfy personal
jurisdiction); Couplin v. State, 378 A.2d 197, 202 n.2 (Md. Ct. Spec. App. 1977); Citizens for a
Safer Cmty. v. City of Rochester, 627 N.Y.S.2d 193, 203 n.5 (Sup. Ct. 1994).
111
JULIAN E. ZELIZER, JIMMY CARTER 3 (2010).
112
See DAVID N. MEYER, THE BEE GEES: THE BIOGRAPHY 21314 (2013).
113
PAUL M. BARRETT, GLOCK: THE RISE OF AMERICAS GUN 1316 (2012).
114
GAVIN MACLEOD & MARK DAGOSTINO, THIS IS YOUR CAPTAIN SPEAKING: MY FANTASTIC
VOYAGE THROUGH HOLLYWOOD, FAITH & LIFE 13839 (2013).
115
See, e.g., BOB DENTON, THE PC PIONEERS 97100 (2d ed. 2014); ROBERT E. WILLIAMS &
BRUCE J. TAYLOR, THE POWER OF: VISICALC (1981) (advising how to properly use the VisiCalc
system and providing practice exercises on the system).
116
See generally David Tong, The Care, Feeding and Reliability of Semi-Automatic Pistols,
CHUCKHAWKS.COM, http://www.chuckhawks.com/care_reliability_autopistols.htm (last visited
Feb. 21, 2015).
117
See, e.g., Tim Lau, AR15/M16 Magazine Drop Test: Plastic Vs. Aluminum, MODERN
SERVICE WEAPONS, (Dec. 9, 2012), http://modernserviceweapons.com/?p=1072 (comparing the
performance of plastic and aluminum magazines).
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made from plastic, rather than metal. Closer tolerances in
manufacturing, lower costs, and increased durability have all
improved magazine quality and reliability.
Likewise, the vast majority of magazines today have a removable
baseplate (also known as a “foot plate”).
118
Removal of the baseplate
allows the magazine to be disassembled for cleaning (e.g., removal
of gunpowder residue) or repair (e.g., replacing a worn-out
spring).
119
The existence of a removable baseplate also makes it
possible for consumers to add after-market extenders to a
magazine.
120
These extenders may simply increase the grip length
(to better fit a particular consumer’s hands), and they may also
increase capacity by one, two, or three rounds.
121
Thus, a consumer
with a ten-round factory magazine can add a two-rounder extender
to create a twelve-round magazine.
Most importantly, the double-stack magazine was perfected. In
some box magazines, the ammunition is contained in a single
column.
122
In the double-stack magazine, there are two columns of
ammunition, side-by-side and touching.
123
When the gun is used,
the magazine will first reload a round from column A, then a round
from column B, then from column A, and so on.
124
The practical effect is this: for a handgun, a single stack magazine
of seventeen rounds would stick out far below the bottom of the
grip, making the gun unwieldy for carrying and holstering. With a
double-stack configuration, a seventeen-round magazine can fit
inside a standard full-sized handgun grip. The practical limitation
of grip size (the size of the human hand) means that relatively
larger capacity magazines are possible for relatively smaller
cartridges. Thus, a double-stack magazine for the midsize nine
millimeter round might hold up to twenty or twenty-one rounds,
whereas a double-stack for the thicker .45 ACP cartridge would hold
118
Michael Shain, Expert Report and Opinion at 56, Cooke v. Hickenlooper, No. 13-cv-
01300-MSK-MJW (D. Colo. Aug. 1, 2013), available at http://coloradoguncase.org/Shain-
report.pdf. Kopel is counsel for the Colorado Sheriffs who are the plaintiffs in this case,
which is currently on appeal to the Tenth Circuit.
119
See Mike Wood, 3 Simple Keys to Cleaning Your Pistol Magazines, POLICEONE.COM,
July 11, 2014, http://www.policeone.com/Officer-Safety/articles/7358758-3-simple-keys-to-clea
ning-your-pistol-magazines/.
120
Michael Shain, Expert Report and Opinion at 57, Cooke, No. 13-cv-01300-MSK-MJW.
121
See, e.g., Magazine Adapters, TOP GUN SUPPLY, http://www.topgunsupply.com/gun-acces
sories-for-sale/magazine-adapters.html (last visited Feb. 19, 2014) (selling magazine adapters
that increase capacity and/or increase grip length).
122
Magazines, Clips, and Speedloaders, FIREARMS ADVANTAGE, http://www.firearmsadvant
age.com/magazines_clips_speedloaders.html (last visited Feb. 21, 2015).
123
Id.
124
Id.
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864 Albany Law Review [Vol. 78.2
no more than fifteen.
III. THE HISTORY OF AMMUNITION CAPACITY BANS
An important factor in the consideration of the constitutionality of
firearms laws is whether they are traditional and longstanding. For
example, the Heller Court pointed out that “[f]ew laws in the history
of our Nation have come close to the severe restriction of the
District’s handgun ban.”
125
The handgun ban was contrasted with
“longstanding” guns controls, such as those prohibiting gun
possession by felons or the mentally ill.
126
Following Heller, the
Tenth Circuit has explained that Second Amendment cases must
consider “the rarity of state enactments in determining whether
they are constitutionally permissible.”
127
At the time the Second Amendment was adopted, there were no
laws restricting ammunition capacity. This was not because all
guns were single-shot. As detailed above, multi-shot guns predate
the Second Amendment by about two hundred years, and Lewis and
Clark carried a powerful twenty-two-round gun on their famous
expedition.
128
The first laws that restricted magazine capacity were enacted
during the prohibition era, nearly a century and a half after the
Second Amendment was adopted, and over half a century after the
adoption of the Fourteenth Amendment. In 1927, Michigan
prohibited “any machine gun or firearm which can be fired more
than sixteen times without reloading.”
129
Also in 1927, Rhode
Island banned “any weapon which shoots more than twelve shots
semi-automatically without re-loading.”
130
The Michigan ban was repealed in 1959.
131
That same year, the
125
District of Columbia v. Heller, 554 U.S. 570, 629 (2008).
126
Id. at 626, 629.
127
Kerr v. Hickenlooper, 744 F.3d 1156, 1178 (10th Cir. 2014).
128
See supra notes 2131 and accompanying text.
129
Act of June 2, 1927, No. 373, § 3, 1927 Mich. Public Acts 887, 888 (repealed 1959) (It
shall be unlawful within this state to manufacture, sell, offer for sale, or possess any machine
gun or firearm which can be fired more than sixteen times without reloading . . . .”). In 1931,
the provision was consolidated into section 224 of the Michigan Code.
130
Act of Apr. 22, 1927, ch. 1052, §§ 1, 4, 1927 R.I. Acts & Resolves 256, 25657 (amended
1959).
131
Under the 1959 revision: “Any person who shall manufacture, sell, offer for sale or
possess any machine gun or firearm which shoots or is designed to shoot automatically more
than 1 shot without manual reloading, by a single function of the trigger . . . shall be guilty of
a felony . . . .” Act of July 16, 1959, No. 175, sec. 1, § 224, 1959 Mich. Pub. Acts 249, 250.
Michigans current statute on machine guns contains very similar language. See MICH.
COMP. LAWS SERV. § 750.224 (LexisNexis 2014) (A person shall not manufacture, sell, offer
KOPEL 3/17/2015 11:41 AM
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Rhode Island law was changed to fourteen shots, and .22 caliber
rimfire guns were excluded.
132
The Rhode Island ammunition
capacity law was fully repealed in 1975.
133
The two statutes applied only to firearms, with Rhode Island only
for semiautomatics. Neither statute covered a magazine that was
not inserted in a firearm.
In 1933, Ohio began requiring a special permit for the possession
or sale of a semiautomatic firearm with an ammunition capacity of
greater than eighteen rounds.
134
In 1971, during a recodification of
the state criminal code, an exemption for .22 caliber was added, and
for other calibers the limit was raised to thirty-two or more
rounds.
135
Significantly, the Ohio statute was interpreted to not ban the sale
of any magazine or any gun, but to forbid the simultaneous
purchase of a magazine and a compatible gun.
136
(Of course
purchase was allowed if one has the special permit.)
137
With or
without the permit, one could buy a sixty-round magazine in
Ohio.
138
The licensing law was fully repealed in 2014.
139
for sale or possess . . . [a] machine gun or firearm that shoots or is designed to shoot
automatically more than 1 shot without manual reloading, by a single function of the
trigger.).
132
Firearms Act, ch. 75, secs. 11-47-2, -8, 1959 R.I. Acts & Resolves 260, 260, 263
(amended 1975).
133
This was accomplished by changing the Firearms Acts definition of Machine gun to
mirror the federal definition:
[A]ny weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the
trigger. The term shall also include the frame or receiver of any such weapon, any
combination of parts designed and intended for use in converting a weapon into a
machinegun, and any combination of parts from which a machinegun can be assembled
if such parts are in the possession or under the control of a person.
Firearms Act, ch. 278, sec. 1, § 11-47-2, 1975 R.I Pub. Laws 738, 73839, 742 (amended 1989).
Rhode Islands definition of machine gun was changed again in 1989. Act of July 10, 1989, ch.
542, sec. 7, § 11-47-2, 1989 R.I. Pub. Laws. 1371, 137576 (codified at R.I. GEN. LAWS ANN. §
11-47-2 (West 2014)).
134
Act of Apr. 8, 1933, No. 166, sec. 1, §§ 12819-3, -4, 1933 Ohio Laws 189, 189 (amended
1972).
135
Act of Dec. 22, 1972, No. 511, sec. 1, § 2923.11, 1972 Ohio Laws 1866, 1963; OHIO REV.
CODE ANN. § 2923.11 (LexisNexis 2014).
136
Ohio: Disclaimer, BUDSGUNSHOP.COM (July. 11, 2014), http://www.budsgunshop.com/cat
alog/feeds/state_reg/ohio_restrictions.pdf.
137
OHIO REV. CODE ANN. § 2923.17.
138
See, e.g., Surefire 60-Round High-Capacity Magazine MAG5-60, GANDER MTN., http://w
ww.gandermountain.com/modperl/product/details.cgi?pdesc=SureFire-60-Round-High-Capaci
ty-Magazine-MAG5-60&i=447625 (last visited Feb. 21, 2015) (allowing online customers to
arrange for pick-up of a SureFire 60-Round High-Capacity Magazine at any of nine Ohio
stores).
139
H.R. 234, 20132014 Leg., 130th Sess. § 2 (Ohio 2014) (enacted) (repealing relevant
definition statute, and taking effect Mar. 23, 2015).
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866 Albany Law Review [Vol. 78.2
The only longstanding statute banning magazines is found in the
District of Columbia. In 1932, Congress passed a District of
Columbia law prohibiting the possession of a firearm that “shoots
automatically or semiautomatically more than twelve shots without
reloading.”
140
In contrast, when Congress enacted the National
Firearms Act of 1934 to impose stringent regulations on machine
guns, it chose to impose no restrictions on magazines.
141
When the
District of Columbia achieved home rule in 1975,
142
the district
council did not choose to repeal the law but instead promptly
enacted the bans on handguns and on self-defense with any gun in
the home,
143
which were later ruled unconstitutional by the
Supreme Court in Heller.
144
The District of Columbia interpreted
the magazine law so that it outlawed all detachable magazines and
all semiautomatic handguns.
145
The District stands alone in its
historical restriction of magazines.
The only widespread restriction on magazine capacity came in
1994 when Congress enacted a ban on new magazines holding more
than ten rounds.
146
The law was in effect until 2004, at which point
Congress allowed it to sunset.
147
The effects of this law were
studied extensively in a series of U.S. Department of Justice reports
authored by Doctor Christopher Koper and two others. The final
report, issued in 2004, concluded: “there has been no discernible
reduction in the lethality and injuriousness of gun violence, based
on indicators like the percentage of gun crimes resulting in death or
the share of gunfire incidents resulting in injury . . . .”
148
Further,
140
Act of July 8, 1932, Pub. L. No. 72-275, §§ 1, 8, 47 Stat. 650, 650, 652.
141
National Firearms Act, Pub. L. 73-474, 48 Stat. 1236 (1934).
142
D.C. Home Rule, COUNCIL D.C., http://dccouncil.us/pages/dc-home-rule (last visited Feb.
21, 2015).
143
See Firearms Control Regulations Act of 1975, No. 1-142, § 201, 23 D.C. Reg. 1091, 1097
(July 23, 1976).
144
See supra notes 1314, 1920 and accompanying text.
145
See VIVIAN S. CHU, DC GUN LAWS AND PROPOSED AMENDMENTS 56 (2011) (Prior to
Heller, the DC Codes definition of machine gun included any firearm, which shoots, is
designed to shoot or can be readily converted to shoot . . . semiautomatically, more than 12
shots without manual reloading. By virtue of this broad definition, any semiautomatic
weapon that could shoot more than 12 shots without manual reloading, whether pistol, rifle,
or shotgun, was deemed a machine gun, and prohibited from being registered. It appears
that under the Districts old definition, registration of a pistol was largely limited to
revolvers. (quoting D.C. Code § 7-2501.01(10) (LexisNexis 2008))).
146
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 110103(a)
(b), 108 Stat. 1796, 199899.
147
§ 110105, 108 Stat. at 2000.
148
CHRISTOPHER S. KOPER ET AL., AN UPDATED ASSESSMENT OF THE FEDERAL ASSAULT
WEAPONS BAN: IMPACTS ON GUN MARKETS AND GUN VIOLENCE, 19942003, at 96 (2004),
available at https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf.
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“the ban has not yet reduced the use of [such magazines] in
crime . . . .”
149
Doctor Koper noted also that state-level firearm bans
have not had an impact on crime.
150
In the modern era, only a few states have enacted magazine
restrictions, starting with New Jersey’s 1990 ban on magazines over
fifteen rounds.
151
That ban applies only to detachable box
magazines for semiautomatic firearms.
152
A couple years later,
Hawaii banned handgun magazines over twenty rounds, and later
reduced that to ten.
153
Maryland in 1994 banned the sale or
manufacture of magazines over twenty rounds; the ban did not
affect possession, loans, acquisition, or importation.
154
The
Maryland limit was reduced to ten in 2013.
155
In 1999 California banned the sale of magazines over ten rounds
but allowed grandfathered possession, and New York did the same
in 2000.
156
(Currently, large capacity magazine bans in Colorado,
Connecticut, and Massachusetts also have grandfather provisions,
while New Jersey, the District of Columbia, and Hawaii do not.)
157
In 2013 New York removed grandfathering and reduced the limit to
seven.
158
The seven-round limit was suspended shortly thereafter,
since there are no seven-round magazines available for many
guns.
159
Instead, the legislature forbade owners of ten-round
magazines to load more than seven rounds.
160
This restriction was
149
Id. at 2.
150
Id. at 81 n.95.
151
Act of May 30, 1990, ch. 32, §§ 2C:39-1(y), -3(j), 1990 N.J. Laws 217, 221, 235 (codified
at N.J. STAT. ANN. § 2C:39-1(y), -3(j) (West 2014)).
152
§ 2C:39-1(y). There is an exemption for certain competitive target shooters. Id. §
2C:39-3(j).
153
Act of June 29, 1992, ch. 286, sec. 3. § 134-8, 1992 Haw. Sess. Laws 740, 742 (codified at
HAW. REV. STAT. ANN. § 134-8 (LexisNexis 2014)).
154
Act of May 26, 1994, ch. 456, § 36H-5, 1994 Md. Laws 2119, 2165 (amended 2013).
155
See Firearm Safety Act of 2013, ch. 427, § 4-305, 2013 Md. Laws 4195, 4210 (codified at
MD. CODE. ANN., CRIM. LAW § 4-305 (LexisNexis 2014)).
156
See Act of July 19, 1999, ch. 129, sec. 3, § 12020(a)(2), (c)(25), 1999 Cal. Stat. 1781,
1785, 1793 (repealed 2012); Act of Aug. 8, 2000, ch. 189, sec. 11, § 265.02(8), 2000 N.Y. Laws
2788, 2793 (amended 2013).
157
Large Capacity Ammunition Magazines Policy Summary, L. CENTER TO PREVENT GUN
VIOLENCE (May 31, 2013), http://smartgunlaws.org/large-capacity-ammunition-magazines-pol
icy-summary/; see supra notes 158, 165 and accompanying text.
158
Act of Jan. 15, 2013, ch. 1, secs. 38, 46-a, §§ 265.00.23, 265.36, 2013 N.Y. Laws 1, 16, 19
(codified at N.Y. PENAL LAW § 265.36 (McKinney 2014)).
159
Freeman Klopott, Cuomos 7-Bullet Limit to Be Suspended Indefinitely, Skelos Says,
BLOOMBERG (Mar. 24, 2013), http://www.bloomberg.com/news/2013-03-25/cuomo-s-7-bullet-li
mit-to-be-suspended-indefinitely-skelos-says.html.
160
PENAL §§ 265.36.37; OFFICE OF DIV. COUNSEL, GUIDE TO THE NEW YORK SAFE ACT FOR
MEMBERS OF THE DIVISION OF STATE POLICE 7, 9 (2013), available at http://www.nypdcea.
org/pdfs/NYSP_Safe_Act_Field_Guide.pdf.
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declared to violate the Second Amendment in a federal district court
decision.
161
New York City outlaws rifle or shotgun magazines
holding more than five rounds.
162
Also in 2013, Colorado enacted a ban on magazines over fifteen
rounds,
163
and Connecticut did the same for magazines over ten.
164
Both statutes allowed current owners to retain possession.
165
Finally, one state has followed Ohio’s former approach of
magazine licensing, rather than prohibition. In 1994,
Massachusetts began requiring that possession and additional
acquisitions of magazines over ten rounds be allowed only for
citizens who have a “Class A” firearms license—which most
Massachusetts gun owners have.
166
IV. WHAT DOES THE HISTORY MEAN?
Given the history above, what does modern legal doctrine say
about the permissibility of outlawing magazines, as in the so-called
SAFE Act’s ban on possession of magazines of more than ten rounds
and loading more than seven rounds in a magazine, or New York
City’s ban on long gun magazines of more than five rounds? What
about bans in other states of more than ten rounds (Maryland,
Connecticut, the District of Columbia, California, and Hawaii for
handguns only) or more than fifteen rounds (New Jersey and
Colorado)?
This Part analyzes these questions in light of Second Amendment
161
N.Y. State Rifle & Pistol Assn v. Cuomo, 990 F. Supp. 2d 349, 37273 (W.D.N.Y. 2013).
162
N.Y.C., N.Y., ADMIN. CODE § 10-306(b) (2015).
163
Act of Mar. 20, 2013, ch. 48, sec. 1, §§ 18-12-301(2)(a)(I), -302(1), 2013 Colo. Sess. Laws
144, 14445 (codified at COLO. REV. STAT. § 18-12-302(1) (2014)).
164
Act of April 4, 2013, P.A. 13-3, § 23, 2013 Conn. Acts 47, 66 (Reg. Sess.) (codified at
CONN. GEN. STAT. ANN. § 53-202w (West 2015)).
165
COLO. REV. STAT. § 18-12-302(2) (permitting a person to maintain possession of a
banned magazine if he/she owned it prior to the effective date of the law and maintained
“continuous possession” thereafter); CONN GEN. STAT. §§ 53-202w(e)(4), 53-202x(a)(1)
(permitting a person to maintain possession of a banned magazine if he/she possessed it prior
to the effective date of the law and declared it to the government).
166
MASS. GEN. LAWS ANN. ch. 140 §§ 121, 131(a) (West 2014) (allowing possession and
acquisition of magazines manufactured before Sept. 1994 by anyone with a Class A license);
Matt Carroll, Snapshot: Gun Licenses Per 1,000, 2012, BOSTON.COM, (Jan. 24, 2013),
http://www.boston.com/yourtown/specials/snapshot/massachusetts_snapshot_gun_licenses_20
12 (showing the prevalence of Class A licenses in Massachusetts). A 2014 bill enacted in
Massachusetts eliminated the lower category of Class B firearms licenses, so presumably all
licensed firearms owners in Massachusetts will be able to acquire magazines of more than ten
rounds, albeit only magazines manufactured before 1995. Act of Aug. 11, 2014, ch. 284, 2014
Mass. Acts, available at https://malegislature.gov/Laws/SessionLaws/Acts/
2014/Chapter284.
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precedents from the Heller Court and from subsequent cases that
have relied at least in part on history and tradition in judging
Second Amendment cases.
A. The Crucial Years: 17891791 and 18661868
For original meaning of the Second Amendment, the most
important times are when the Second Amendment was created and
when the Fourteenth Amendment was created, since a core purpose
of the latter amendment was to make the individual’s Second
Amendment right enforceable against state and local
government.
167
Congress sent the Second Amendment to the states
for ratification in 1789, and ratification was completed in 1791.
168
The Fourteenth Amendment was passed by Congress in 1866, and
ratification by the states was completed in 1868.
169
1. Magazines in 17891791 and 18661868
As of 1789 to 1791, multi-shot magazines had existed for two
centuries, and a variety of models had come and gone.
170
The state-
of-the-art gun between 1789 and 1791 was the twenty- or twenty-
two-shot Girandoni air rifle, powerful enough to take down an elk
with a single shot.
171
By the time that the Fourteenth Amendment was introduced in
Congress, firearms with magazines of over ten or fifteen rounds had
been around for decades.
172
The best of these was the sixteen-shot
Henry Rifle, introduced in 1861 with a fifteen-round magazine.
173
The Henry Rifle was commercially successful, but Winchester Model
1866, with its seventeen-round magazine, was massively
successful.
174
So by the time ratification of the Fourteenth
Amendment was completed in 1868, it was solidly established that
firearms with seventeen-round magazines were in common use.
167
See, e.g., Ezell v. City of Chi., 651 F.3d 684, 70203 (7th Cir. 2011).
168
JOHNSON, KOPEL, MOCSARY & OSHEA, supra note 90, at 218.
169
Id. at 299.
170
See supra Part II.B.
171
See supra notes 2731 and accompanying text.
172
See supra notes 3235 and accompanying text..
173
RICHARD C. RATTENBURY, A LEGACY IN ARMS: AMERICAN FIREARM MANUFACTURE,
DESIGN, AND ARTISTRY, 18001900, at 135 (2014); see supra note 49 and accompanying text.
174
CLIFFORD R. CADWELL, GUNS OF THE LINCOLN COUNTY WAR 50 (2009); RATTENBURY,
supra note 173, at 136; supra notes 5555 and accompanying text.
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2. Magazine Prohibitions in 17891791 and 18661868
From the colonial period to the dawn of American independence
on July 4, 1776, and through the ratification of the Fourteenth
Amendment, there were no prohibitions on magazines. Indeed, the
first magazine prohibition did not appear until the alcohol
prohibition era in 1927.
175
Thus, the historical evidence of the key
periods for original meaning strongly suggests that magazine bans
are unconstitutional.
B. “Typically Possessed by Law-Abiding Citizens for Lawful
Purposes” or “Dangerous and Unusual”?
The Supreme Court’s Heller decision distinguished two broad
types of arms. Some arms, such as handguns, are “typically
possessed by law-abiding citizens for lawful purposes.”
176
These
arms are also described by the Court as being “in common use.”
177
In contrast, some other arms are “dangerous and unusual.”
178
Examples provided by the Court were short-barreled shotguns or
machine guns.
179
The common, typical, arms possessed by law-
abiding citizens are protected by the Second Amendment; the
“dangerous and unusual” arms are not protected.
180
By definition,
“unusual” arms are not “in common use” or “typically possessed by
law-abiding citizens for lawful purposes.”
181
The Heller Court did not expressly mandate that historical
analysis be used when deciding whether an arm is typical or
common or “dangerous and unusual.” The Heller Court approvingly
quoted the 1939 Supreme Court decision United States v. Miller,
182
which had described the original meaning of the Second
Amendment as protecting individually-owned firearms that were
“in common use at the time.”
183
The Miller Court’s 1939 decision
did not extend Second Amendment protection to sawed-off
175
See supra notes 12930 and accompanying text; see also Act of June 2, 1927, No. 372, §
3, 1927 Mich. Public Acts 887, 88889 (repealed 1959) (regulating the possession of and
carrying of certain firearms that were capable of firing sixteen shots without reloading).
176
See id. at 625, 629 (majority opinion).
177
Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
178
Heller, 554 U.S. at 627.
179
See id. at 625, 627.
180
See id. at 627.
181
See id.
182
Id. (quoting Miller, 307 U.S. at 179).
183
Heller, 554 U.S. at 627 (quoting Miller, 307 U.S. at 179) (internal quotation marks
omitted).
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shotguns;
184
as Heller explained Miller, the Miller principle was that
sawed-off shotguns are dangerous and unusual.
185
To be precise, Miller did not formally rule that short shotguns are
not Second Amendment arms; the Court simply reversed and
remanded the district court’s decision granting criminal defendant
Miller’s motion to quash his indictment.
186
The Supreme Court said
that the suitability of sawed-off shotguns as Second Amendment
arms was not a fact that was subject to “judicial notice.”
187
Presumably the federal district court in Arkansas could have taken
up the remanded case and then received evidence regarding what
sawed-off shotguns are used for and how common they are. But
Miller and his co-defendant Frank Layton had disappeared long
before the case was decided by the Supreme Court.
188
Regardless, subsequent courts, including the court in Heller, read
Miller as affirmatively stating that sawed-off shotguns are not
protected by the Second Amendment.
189
Even though Heller’s “common or typical versus “dangerous
and unusual” dichotomy seems primarily concerned with
contemporary uses of a given type of arm, history can still be useful.
As detailed in Part II, magazines of more than ten rounds have been
very commonly possessed in the United States since 1862.
190
Common sense tells us that the small percentage of the population
who are violent gun criminals is not remotely large enough to
explain the massive market for magazines of more than ten rounds
that has existed since the mid-nineteenth century. We have more
than a century and a half of history showing such magazines to be
owned by many millions of law-abiding Americans.
191
Thus, a court which today ruled that such magazines are
“dangerous and unusual” would seem to have some burden of
explaining how such magazines, after a century and a half of being
184
Miller, 307 U.S. at 178.
185
Heller, 554 U.S. at 625.
186
Miller, 307 U.S. at 177, 183.
187
Id. at 178. Judicial notice is when courts rely on facts that are not in the record of the
case, but which are indisputably true. FED. R. EVID. 201. For example, they may be a subject
of common knowledge (e.g., that in Arkansas, the sun is never visible in the sky at midnight)
or can be ascertained from indisputable sources (e.g., that a particular section of the Code of
Federal Regulations contains certain language). See id.
188
Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U J.L. & LIBERTY
48, 6568 (2008). The Peculiar Story of United States v. Miller was cited by the Court in
Heller. Heller, 554 U.S. at 623.
189
Heller, 554 U.S. at 62122.
190
See supra Part II.
191
See supra Part II.
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“in common use” and “typically possessed by law-abiding citizens for
lawful purposes,” became “dangerous and unusual” in the twenty-
first century.
This is not possible. Today, magazines of more than ten rounds
are more common than ever before.
192
They comprise about forty-
seven percent of magazines currently possessed by Americans
today.
193
The AR-15 rifle (introduced in 1963) is the most popular
rifle in American history, with sales of several million;
194
its
standard magazines are twenty or thirty rounds.
195
C. “Longstanding” Controls Versus “Few Laws in the History of Our
Nation
Just as Heller distinguishes types of arms (common or typical
versus dangerous and unusual), Heller distinguishes types of arms-
control laws. One type of arms controls are “longstanding,” and
these are “presumptively lawful.”
196
Examples listed by Heller are
bans on gun possession “by felons and the mentally ill,” bans on
carrying guns “in sensitive places such as schools and government
buildings,” and “conditions and qualifications on the commercial
sale of arms.”
197
The Heller Court highlighted the unusual nature of the District of
Columbia anti-gun laws:
Few laws in the history of our Nation have come close to
the severe restriction of the District’s handgun ban. And
some of those few have been struck down. In Nunn v. State,
the Georgia Supreme Court struck down a prohibition on
carrying pistols openly (even though it upheld a prohibition
on carrying concealed weapons). In Andrews v. State, the
Tennessee Supreme Court likewise held that a statute that
forbade openly carrying a pistol “publicly or privately,
without regard to time or place, or circumstances,” violated
192
See Fyock v. City of Sunnyvale, No. C-13-5807-RMW, 2014 U.S. Dist. LEXIS 29722, at
*13 (N.D. Cal. Mar. 5, 2014) (agreeing with and incorporating affidavit from plaintiffs’ expert
that “whatever the actual number of such magazines in United States consumers' hands is, it
is in the tens-of-millions, even under the most conservative estimates.”).
193
Id. (Plaintiffs cite statistics showing that magazines having a capacity to accept more
than ten rounds make up approximately 47 percent of all magazines owned.).
194
PATRICK SWEENEY, THE GUN DIGEST BOOK OF THE AR-15, at 14 (2005); see Meghan
Lisson, Run on Guns: AR-15s Sales Soar, CNBC (Apr. 25, 2013), http://www.cnbc.com/id/1006
73826.
195
SWEENEY, supra note 194, at 99.
196
District of Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008).
197
Id. at 62627.
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the state constitutional provision (which the court equated
with the Second Amendment). That was so even though the
statute did not restrict the carrying of long guns.
198
What was the history that led the Court to declare the handgun
prohibition to be “unusual”—that is, to be the opposite of a
traditional gun control that was presumptively constitutional? The
District of Columbia handgun ban was enacted in 1975 and took
effect in 1976.
199
Chicago enacted a similar ban in 1982, and a half-
dozen Chicago suburbs followed suit during the 1980s.
200
In 1837,
the Georgia legislature had enacted a handgun ban, but that was
ruled unconstitutional on Second Amendment grounds by the
unanimous Georgia Supreme Court in 1846.
201
In 1982 and 2005,
San Francisco enacted handgun bans, but they were both ruled
unlawful because of their plain violation of the California state
preemption statute, which forbids localities to outlaw firearms
which are permitted under state law.
202
These are the facts under which the Supreme Court declared
handgun bans to be suspiciously rare in America’s history—at the
other end of the spectrum from the presumptively constitutional
“longstanding” controls.
The 1975 District of Columbia handgun ban was thirty-three
years old when the Supreme Court decided Heller in 2008. This
suggests that thirty-three years is not sufficient for a gun control to
be considered “longstanding.”
As detailed in Part III, the first of today’s magazine bans was
enacted by New Jersey in 1990, at fifteen rounds.
203
The first state-
level ten-round ban did not take effect until California passed such
198
Id. at 629 (citations omitted) (citing Nunn v. State, 1 Ga. 243, 251 (1846); Andrews v.
State, 50 Tenn. 165, 187 (1871)); see also Heller, 554 U.S. at 629 (“A statute which, under the
pretence of regulating, amounts to a destruction of the right, or which requires arms to be so
borne as to render them wholly useless for the purpose of defence, would be clearly
unconstitutional . . . .” (quoting State v. Reid, 1 Ala. 612, 61617 (1840)) (internal quotation
marks omitted)).
199
Edward D. Jones, III, The District of Columbias Firearms Control Regulations Act of
1975: The Toughest Handgun Control Law in the United StatesOr Is It?, 455 ANNALS AM.
ACAD. POL. & SOC. SCI. 138, 139 (1981).
200
See McDonald v. City of Chi., 561 U.S. 742, 749 (2010); Steve Chapman, Chicago’s
Pointless Handgun Ban: City Gun Ordinances Proved to Be a Failure, CHI. TRIB., Mar. 4,
2010, at C21.
201
Nunn, 1 Ga. at 246, 251. The Heller Court cited this case with approval. Heller, 554
U.S. at 612.
202
Fiscal v. City & Cnty. of S.F., 70 Cal. Rptr. 3d 324, 326, 34142 (Ct. App. 2008); Doe v.
City & Cnty. of S.F., 186 Cal Rptr. 380, 381 (Ct. App. 1982).
203
See supra note 15152 and accompanying text.
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a law in 2000.
204
These statutes, and other post-1990 magazine
bans, would not qualify as “longstanding.”
Previously, three states and the District of Columbia had enacted
some magazine restrictions during the alcohol prohibition era.
205
The District of Columbia ban, with modifications, is still in effect.
206
The Michigan and Rhode Island bans were repealed long ago.
207
The Ohio special licensing statute allowed the free purchase of any
magazine, but required a permit to insert a magazine of thirty-two
rounds or more into a firearm; the permit requirement was repealed
in 2014.
208
It is indisputable in the modern United States that
magazines of up to thirty rounds for rifles and up to twenty rounds
for handguns are standard equipment for many popular firearms.
Several post-Heller lower courts have conducted in-depth
examinations of the history of particular gun control laws. The next
Part examines each of those cases and then applies their
methodology to the historical facts of bans on magazines of more
than five, seven, ten, and fifteen rounds.
D. Lower-Court Decisions Applying History
1. Ezell v. City of Chicago
After McDonald v. City of Chicago made it clear that the Second
Amendment applies to municipal governments, the Chicago City
Council relegalized handgun possession and outlawed all target
ranges within city limits.
209
Assessing the constitutionality of the
ban, the Seventh Circuit used a two-step test, similar to analysis
that is sometimes used in First Amendment cases: (1) Is the activity
or item within the scope of the Second Amendment, as historically
understood? If the answer is “no,” then the restrictive law does not
violate the Second Amendment.
210
(2) If the answer to the first
question is “yes,” then the court will apply some form of the
heightened scrutiny. The intensity of the scrutiny will depend on
how close the restriction comes to affecting the core right of armed
self-defense.
211
204
See supra note 156 and accompanying text.
205
See supra notes 12930, 134, 140 and accompanying text.
206
See supra notes 14045 and accompanying text.
207
See supra notes 131, 133 and accompanying text.
208
See supra notes 13539 and accompanying text.
209
Ezell v. City of Chi., 651 F.3d 684, 69091 (7th Cir. 2011).
210
Id. at 70203.
211
Id. at 703.
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So the Ezell court began the step-one analysis by considering
whether target practice was historically considered part of the
Second Amendment right.
212
Chicago had argued to the contrary,
listing some eighteenth- and nineteenth-century state statutes and
municipal ordinances restricting firearms discharge within city
limits.
213
The Seventh Circuit found almost all of the listed
ordinances to be irrelevant.
214
Many of them did not ban firearms
discharge but simply required a permit.
215
Others were plainly
concerned with fire prevention, an issue that would not be a
problem at a properly-designed modern range.
216
Thus:
Only twoa Baltimore statute from 1826 and an Ohio
statute from 1831flatly prohibited the discharge of
firearms based on concerns unrelated to fire suppression, in
contrast to the other regulatory laws we have mentioned.
This falls far short of establishing that target practice is
wholly outside the Second Amendment as it was understood
when incorporated as a limitation on the States.
217
So according to the Seventh Circuit, the historical example of
repressive laws in one state and one city are insufficient to support
the inference that the repressed activity is outside the scope of the
Second Amendment.
218
The historical basis of restrictions that
would affect magazines over fifteen rounds is nearly as thin: two
states with statutes enacted in 1927, and later repealed, plus the
District of Columbia’s 1932 law.
219
As for imposing a ban for guns
with magazines of more than ten rounds (or seven or five), there is
no historical basis.
Thus, under the Ezell analysis, bans on magazines infringe the
Second Amendment right as it was historically understood, and
such bans must be analyzed under heightened scrutiny.
2. United States v. Rene E.
In 2009, the First Circuit heard a Second Amendment challenge
212
Id. at 704.
213
Id. at 70506.
214
Id.
215
Id. at 705.
216
Id. at 706.
217
Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 632 (2008)); see also Heller,
554 U.S. at 632 ([W]e would not stake our interpretation of the Second Amendment upon a
single law . . . that contradicts the overwhelming weight of other evidence . . . .”).
218
See Ezell, 652 F.3d at 706.
219
See supra notes 131, 133, 140 and accompanying text.
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to a federal statute that restricted, but did not ban, handgun
possession by juveniles.
220
The federal statute was enacted in
1994,
221
and so of course was not “longstanding.”
222
The First
Circuit looked at the history of state laws restricting juvenile
handgun possession, to see if they were longstanding.
223
The First Circuit found state or local restrictions on handgun
transfers to juveniles and judicial decisions upholding such
restrictions from Georgia (1911 case), Tennessee (1878 case),
224
Pennsylvania (1881 case),
225
Indiana (1884 case),
226
Kentucky (1888
case),
227
Alabama (1858 case),
228
Illinois (1917 case upholding a
Chicago ordinance),
229
Kansas (1883 case allowing tort liability for
transfer), and Minnesota (1918 case allowing tort liability for
transfer).
230
Thus, the First Circuit was able to point to six state statutes, all
of them enacted well over a century previously.
231
They were
buttressed by one municipal ordinance and two cases allowing tort
liability, both of these being nearly a century old.
232
The history of magazine restrictions is considerably weaker than
that of the juvenile handgun statutes analyzed in Rene E. There
were six statutes on juveniles, all of which were enacted before
1890, and one of which predated the Civil War.
233
This is much
more than the pair of state statutes on magazines dating from the
late 1920s.
The Rene E. case does not attempt to quantify how many state
statutes are necessary for a gun control to be longstanding;
however, we can say that magazine restrictions fall well short of the
historical foundation that the First Circuit relied on to uphold
juvenile handgun restrictions.
While Rene E. and Ezell both used history, the particular way
that they used it was different. For Rene E., history was mixed in
220
18 U.S.C. § 922(x)(2)(3) (2013); United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009).
221
Rene E., 583 F.3d at 12.
222
Id.
223
Id. at 1415.
224
State v. Callicutt, 69 Tenn. 714, 71617 (1878).
225
McMillan v. Steele, 119 A. 721, 722 (Pa. 1923).
226
State v. Allen, 94 Ind. 441, 441 (1884).
227
Tankersly v. Commonwealth, 9 S.W. 702, 703 (Ky. 1888).
228
Coleman v. State, 32 Ala. 581, 58283 (1858).
229
Biffer v. Chicago, 116 N.E. 182, 184 (Ill. 1917).
230
Schmidt v. Capital Candy Co., 166 N.W. 502, 50304 (Minn. 1918).
231
United States v. Rene E., 583 F.3d 8, 1415 (1st Cir. 2009).
232
Id.
233
Id.
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with substantive analysis of the modern federal statute, which the
First Circuit praised for its “narrow scope” and “important
exceptions.”
234
For Ezell, history was just the first step. Ezell used history to
determine that the range ban was not presumptively lawful; once
that question was answered, Ezell proceeded to analyze the ban
under heightened scrutiny.
235
3. Heller II
a. Majority Opinion
In the 2008 case District of Columbia v. Heller, the Supreme
Court ruled that two District of Columbia ordinances violated the
Second Amendment: the handgun ban and the ban on the
requirement that any firearm in the home be kept locked or
disassembled and thus unusable for self-defense.
236
Further, the
District of Columbia required a permit to carry a gun anywhere
(even from room to room in one’s home)
237
and permits were never
granted; the Court ordered that plaintiff Dick Heller be granted a
permit.
238
The Council of the District of Columbia responded by repealing all
three of the unconstitutional ordinances and enacting the most
severe gun control system in the United States.
239
Dick Heller and
several other plaintiffs challenged the new ordinances in the case
known as Heller II.
240
Using the two-step test, the District of Columbia Circuit majority
first examined whether any of the challenged provisions were
“longstanding.”
241
If so, then the provision would be held as not
violating the Second Amendment right, with no further analysis
needed.
242
Regarding handgun registration, the majority identified statutes
from New York (1911), Illinois (1881), Georgia (1910), Oregon
234
Id. at 1116 ([T]his law, with its narrow scope and its exceptions, does not offend the
Second Amendment.). Exceptions include farm and ranch work as well as target shooting or
other activities under parental supervision. 18 U.S.C. § 922(x)(3)(A)(i)(ii) (2013).
235
Ezell v. City of Chi., 651 F.3d 684, 706 (7th Cir. 2011).
236
District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
237
Id. at 57475.
238
Id. at 635.
239
See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 124849 (D.C. Cir. 2011).
240
Id. at 1247.
241
Id. at 125253.
242
See id. at 1252.
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878 Albany Law Review [Vol. 78.2
(1917), and Michigan (1927).
243
In addition, some jurisdictions
required handgun buyers to provide information about themselves
to retailers, but did not require that the retailer deliver the
information to the government: California (1917), Territory of
Hawaii (1927), and the District of Columbia (1932).
244
So “[i]n sum,
the basic requirement to register a handgun is longstanding in
American law, accepted for a century in diverse states and cities
and now applicable to more than one fourth of the nation by
population.”
245
The requirement that the government be provided with some
basic information about persons acquiring handguns, in a manner
that was “self-evidently de minimis” was therefore constitutional.
246
Seven states, with laws originating between 1881 and 1927, were
apparently sufficiently numerous and “diverse” to qualify as
“longstanding.”
However, although de minimis registration of handguns was
longstanding, many of the new District of Columbia requirements
went beyond traditional de minimis systems.
247
Further, “[t]hese
early registration requirements, however, applied with only a few
exceptions solely to handgunsthat is, pistols and revolversand
not to long guns. Consequently, we hold the basic registration
requirements are constitutional only as applied to handguns. With
respect to long guns they are novel, not historic.”
248
So the case was
remanded to the district court for further fact-finding, since the
District of Columbia government had provided the court with
almost no information about whether the novel requirements
passed heightened scrutiny by being narrowly tailored.
249
The case had come to the District of Columbia Circuit following
cross motions for summary judgment.
250
While the circuit court
decided that the novel registration requirements needed a more
complete factual record, the panel also decided that the record
contained enough information for a ruling on the merits of the
Districts ban on various semiautomatic rifles, which the district
council labeled “assault weapons,” and on the District’s ban on
243
Id. at 125354.
244
See id. at 1254.
245
Id. The court listed seven states that today have handgun registration laws. Id. at n.*.
246
Id. at 125455.
247
Id. at 1255.
248
Id.
249
See id. at 1247.
250
See id.
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magazines holding more than ten rounds.
251
The District of Columbia Circuit majority stated “[w]e are not
aware of evidence that prohibitions on either semi-automatic rifles
or large-capacity magazines are longstanding and thereby deserving
of a presumption of validity.”
252
In a footnote, the majority cited the
1927 Michigan magazine statute and the 1932 District of Columbia
ordinance detailed in Part III of this article.
253
There is no reason to
think that the majority’s determination on this point would change
if the 1927 Rhode Island statute had also been cited.
Importantly, the majority did not suggest that the magazine bans
enacted in 1990 or thereafter had any relevance to whether
magazine bans are “longstanding.”
Accordingly, the majority proceeded to analyze the rifle and
magazine bans. The majority provided two paragraphs of
explanation of why the rifle ban passed intermediate scrutiny and
one paragraph on why the magazine ban did so.
254
Discussion of whether intermediate scrutiny was the correct
standard, or whether magazine bans pass intermediate scrutiny, is
beyond the scope of this article. However, it does seem to appear
that the District of Columbia Circuit would have acted more
prudently by remanding the case for fact-finding in the district
court. To support the ban, the panel majority could only point to
legislative testimony by a gun-prohibition lobbyist and by the
District of Columbia police chief, plus a Department of Justice
report on the 1994 to 2004 federal ban on such magazines.
255
Notably, the panel majority did not address the report’s finding that
a ten-year nationwide ban had led to no discernible reduction in
homicides, injuries, or the number of shots fired in crimes.
256
b. Dissent
A forceful dissent by Judge Brett Kavanaugh critiqued the
majority’s application of intermediate scrutiny.
257
He argued that
251
Id. at 1246, 1260, 1264.
252
Id. at 1260.
253
Id. at 1260 n.*.
254
Id. at 126264.
255
Id. at 126364.
256
KOPER EL AL., supra note 148, at 92.
257
Heller II, 670 F.3d at 1285 (Kavanaugh, J., dissenting) (“A ban on a class of arms is not
an incidental regulation. It is equivalent to a ban on a category of speech. Such restrictions
on core enumerated constitutional protections are not subjected to mere intermediate scrutiny
review. The majority opinion here is in uncharted territory in suggesting that intermediate
scrutiny can apply to an outright ban on possession of a class of weapons that have not
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880 Albany Law Review [Vol. 78.2
the majority’s approach was necessarily incorrect, because its logic
on banning semiautomatic rifles would allow a ban on all
semiautomatic handgunswhich constitute the vast majority of
handguns produced today.
258
More fundamentally, he argued that Heller does not tell courts to
use tiered scrutiny to assess gun control laws.
259
Rather, Heller
looks to history and tradition.
260
So gun controls that are well-
grounded in history and tradition are constitutional; gun control
laws which are not so grounded are unconstitutional.
261
Using the standard of history and tradition, Judge Kavanaugh
argued that the entire District of Columbia registration scheme was
unconstitutional.
262
Regarding de minimis handgun registration,
the statutes cited by the majority were mostly record-keeping
requirements for gun dealers, not centralized information collection
by the government.
263
The novel and much more onerous
requirements of the District of Columbia registration system for all
guns had no basis in history and tradition.
264
For all firearms, any
registration system beyond dealer record-keeping requirements was
unconstitutional.
265
Judge Kavanaugh examined the history of semiautomatic rifles
and found them to be in common use for over a century and thus
protected by the Second Amendment from prohibition.
266
He did not
have similar information on magazines and thus urged that the
magazine issue be remanded for fact-finding.
267
In light of the
evidence on magazines that has been presented subsequent to the
2011 Heller II decision, Judge Kavanaugh’s methodology
traditionally been banned.”).
258
Id. at 128586.
259
See id. at 1282.
260
Id. (Heller was resolved in favor of categoricalismwith the categories defined by text,
history, and traditionand against balancing tests such as strict or intermediate scrutiny or
reasonableness.).
261
See id.
262
Id. at 1286.
263
See id. at 129293.
264
Id. at 1294.
265
See id.
266
See id. at 1287 (citing JOHNSON, KOPEL, MOCSARY & OSHEA, supra note 90, at 11).
267
Heller II, 670 F.3d at 1296 n.20 (Kavanaugh, J., dissenting) (“The D.C. ban on
magazines of more than 10 rounds requires analysis in the first instance by the District
Court. In order to apply Hellers test to this prohibition, we must know whether magazines
with more than 10 rounds have traditionally been banned and are not in common use. The
parties here did not brief that question in much detail. Evidence presented to the District
Court on the history and prevalence of magazines of more than 10 rounds would be helpful to
the proper disposition of that issue under the Heller test. Therefore, I would remand to the
District Court for analysis of that issue.”).
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straightforwardly leads to the conclusion that the District of
Columbia magazine ban is unconstitutional.
268
The Heller II
majority rightly recognized that magazine bans are not
“longstanding,”
269
and this article has demonstrated that magazines
of more than ten rounds have been a common part of the American
tradition of firearms ownership since before the ratification of the
Fourteenth Amendment in 1868.
4. Silvester v. Harris
Another decision carefully employing historical analysis is
Silvester v. Harris,
270
from the United States District Court for the
Eastern District of California.
A California statute requires that firearms purchasers wait ten
days before they can take their gun home from the store.
271
In
California, background checks on firearms buyers are sometimes
completed within minutes and sometimes can take a week or
longer.
272
Senior District Judge Anthony Ishii (appointed to the
federal court in 1997 by President Clinton)
273
ruled the waiting
period unconstitutional, to the extent that the waiting period lasted
longer than the time required to complete the background check on
a given buyer.
274
Like the Seventh Circuit in Ezell, Judge Ishii looked to 1791 and
1868 as the crucial periods.
275
California Attorney General Kamala Harris had directed the
court to a book arguing that between 1790 and 1840 many
Americans might have to travel for several days in order to buy a
gun, so there was a de facto waiting period between the time a
person decided to buy a gun and when a person could take
possession of the gun.
276
Judge Ishii held this irrelevant; the court’s
job was to consider the legality of government regulations that
268
See Lindsay Colvin, Note, History, Heller, and High-Capacity Magazines: What Is the
Proper Standard of Review for Second Amendment Challenges?, 41 FORDHAM URB. L.J. 1041,
107580 (2014).
269
Heller II, 670 F.3d at 1260.
270
Silvester v. Harris, No. 1:11CV2137 AWI SAB, 2014 U.S. Dist. LEXIS 118284 (E.D.
Cal. Aug. 25, 2014).
271
CAL. PENAL CODE §§ 26815(a), 27540(a) (West 2014).
272
Silvester, 2014 U.S. Dist. LEXIS 118284, at *82.
273
Chief District Court Judge Anthony W. Ishii, U.S. DIST. COURT: E. DIST. OF CAL., http://
www.caed.uscourts.gov/caed/staticOther/page_630.htm (last visited Feb. 21, 2015).
274
Silvester, 2014 U.S. Dist. LEXIS 118284, at *10102.
275
Compare id. at *30, with Ezell v. City of Chi., 651 F.3d 684, 70203 (7th Cir. 2011).
276
Silvester, 2014 U.S. Dist. LEXIS 118284, at *89.
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882 Albany Law Review [Vol. 78.2
might impede the exercise of a constitutional right and the book
provided no evidence that government-imposed waiting periods for
firearm purchases existed between 1790 and 1840.
277
Another book explained that the first waiting period law was
proposed in 1923a one-day waiting period for handguns.
278
The
law was adopted in California and eventually by eight other
states.
279
This too was irrelevant, ruled the court, because it had
nothing to do with 1791 or 1868.
280
The court explained that “[i]t is Defendant’s burden to show that
the 10day waiting period either falls outside the scope of Second
Amendment protections as historically understood or fits within one
of several categories of longstanding regulations that are
presumptively lawful.”
281
The complete absence of evidence of waiting periods in 1791 and
1868 eliminated the first possibility.
282
What about the question of
whether waiting periods were “longstanding regulations that are
presumptively lawful”? The answer to this question is not confined
to 1791 and 1868.
The court explained that “the concept of a ‘longstanding and
presumptively lawful regulation’ is that the regulation has long
been accepted and is rooted in history.”
283
California’s 1923 statute
did not come close. Besides that, the California wait was only one
day and only for retail handguns.
284
Not until 1975 was the number
of days extended to double digits and not until 1991 to long guns.
285
Consistent with the unusual nature of waiting periods, only ten
states and the District of Columbia today have a waiting period for
at least some firearms.
286
Thus, the court concluded that the plaintiffs’ challenge had
passed step one of the two-step test,
287
and the court proceeded to
apply heightened scrutiny.
288
The court stated that it did not have
to decide whether to use strict or intermediate scrutiny.
289
The
277
See id. at *910, *78.
278
Id. at *11.
279
Id.
280
Id. at *1112.
281
Id. at *75.
282
Id. at *7576.
283
Id. at *78 (citations omitted).
284
Id. at *79.
285
Id.
286
Id. at *30.
287
Id. at *7576.
288
Id. at *80.
289
Id.
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waiting period statute failed intermediate scrutiny, as applied to
persons who already possessed a firearm (based on state
registration data), and who passed the background check when
purchasing an additional firearm.
290
Therefore, a fortiori, the
statute would fail strict scrutiny. The court gave the state
legislature 180 days to revise the statute so as to eliminate the post-
background-check waiting period for persons who already have a
gun.
291
The plaintiffs had not challenged the waiting period as
applied to first-time gun buyers, nor as to persons who had not yet
passed the background check.
292
V. CONCLUSION
Rifle magazines holding more than ten or fifteen rounds have
been common in the United States since the mid-nineteenth
century.
293
Handgun magazines over ten rounds have been common
since 1935, and handgun magazines over fifteen have been common
since the mid-1960s.
294
Magazine prohibition has historically been rare. There is no
historical basis for a magazine limit of ten rounds or lower. As for
prohibitions with higher limits, there are only two examples, both of
them from 1927, the outer edge of what courts have considered to be
examples of state statutes that may be considered longstanding”:
Michigan (enacted 1927, repealed 1959), Rhode Island (enacted
1927, loosened 1959, repealed 1975).
295
Ohio formerly required a
special permit to actually insert a magazine above a certain size
into a firearm but never banned sales.
296
(The original limit was
eighteen rounds or more and later was thirty-two rounds or
more.)
297
As is often the case, the District of Columbia is the sui
generis outlier, with its 1932 restriction still in effect today, with
some modifications.
298
Of all the courts that have examined history when ruling on gun
control issues, no court has ever held that laws of two or three
states plus one city are sufficient to establish a gun law as being
290
Id. at *9091, 9697.
291
Id. at *10103.
292
See id. at *2325.
293
See supra notes 4364 and accompanying text.
294
See supra notes 10206 and accompanying text.
295
See supra notes 130, 13233 and accompanying text.
296
See supra notes 13639 and accompanying text.
297
See supra notes 13435 and accompanying text.
298
See supra notes 14045 and accompanying text.
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884 Albany Law Review [Vol. 78.2
“longstanding” or part of American history and tradition. To the
contrary, ammunition capacity limits are far outside the norm of the
traditional exercise and regulation of Second Amendment rights.
Not until California in 1999 did any state set a magazine limit as
low as ten.
299
What does this mean for modern legal analysis? Under judicial
methods which hew closely to history and tradition, the historical
absence (of limits of ten or less) or the extreme rarity (limits of
fifteen or less) would be sufficient for any such modern limit to be
ruled unconstitutional. Owning such magazines is very long-
established manner in which the right to arms has historically been
exercised in America.
Other courts perform a two-step test. Challengers to magazine
limit laws should always pass step one, since magazine limits are
not “longstanding.”
As for step tworeview under some form of heightened
scrutinythe Supreme Court taught in Heller that when the
“severe restriction” of a “ban” has support from “[f]ew laws in the
history of our Nation,” the law’s constitutionality is very doubtful.
This was true for the prohibition of handguns, and it is also true for
the prohibition of magazines holding more than five, seven, ten, or
fifteen rounds.
299
See supra note 156 and accompanying text.
... All were later repealed, and all were less onerous than the California or New Jersey bans. 119 The first American law against repeating firearms was enacted by Florida in 1893 after incidents in which armed black men had deterred lynch mobs. The new law required a license and an exorbitant bond to carry a "Winchester rifle or other repeating rifle." ...
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The District of Columbia's Firearms Control Regulations Act of 1975 went into effect on 24 September 1976. It was the outgrowth of three more restrictive legislative proposals that had been introduced in 1975 and had two legislative objectives: (1) to reduce the potential of firearms- related crimes and (2) to monitor more effectively firearms' trafficking. In July 1980, the U.S. Conference of Mayors' study reported its evaluation of the effectiveness of this act and stated that the act significantly reduced firearm and handgun crime. This report met largely with opposition. This article, in addition to relating the provisions and legislative history of the Firearms Control Regulations Act, analyses the defi ciencies in the Conference of Mayors' research methods and assumptions and also discusses any beneficial effects and weaknesses of the act. However, it can only be concluded that further research on firearms control effectiveness in the District of Columbia is clearly needed to develop demon strably effective public policies against criminal misuse of handguns.
The 1995 edition of this annually-published guide was relied on by the court in Kirkland v. District of Columbia, 70 F.3d 629, 635 n.3 (D.C. Cir. 1995). 61 The original Colt held up to fifteen rounds in calibers of
  • Jerry Lee
Jerry Lee ed., 2013). The 1995 edition of this annually-published guide was relied on by the court in Kirkland v. District of Columbia, 70 F.3d 629, 635 n.3 (D.C. Cir. 1995). 61 The original Colt held up to fifteen rounds in calibers of.32–.20,.38–.40, and.44–.40.
Uberti currently produces a modern replica of the Colt Lightning, medium frame model, of which 89,000 were produced between 1884 and 1902
  • Flayderman 's Guide
  • B Supra Note
  • Jr Demeritt
FLAYDERMAN'S GUIDE, supra note 32, at 122. Uberti currently produces a modern replica of the Colt Lightning, medium frame model, of which 89,000 were produced between 1884 and 1902. Id. 62 Id. at 694. 63 DWIGHT B. DEMERITT, JR., MAINE MADE GUNS & THEIR MAKERS 293–95 (rev. ed. 1997);
Inc., No. CV 85-8459 MRP) (discussing how the inclusion of the defendant's guns in the Gun Digest established that defendant had sufficient minimum contacts with the state to satisfy personal jurisdiction)
  • Austria 's Steyr
Austria's Steyr. The following courts have relied on one of the annual issues of GUN DIGEST: Sturm, Ruger & Co. v. Arcadia Mach. & Tool, Inc., No. CV 85-8459 MRP, 1988 U.S. Dist. LEXIS 16451, at *3–4 (C.D. Cal. Nov. 4, 1988); A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1364 (Ariz. 1995) (discussing how the inclusion of the defendant's guns in the Gun Digest established that defendant had sufficient minimum contacts with the state to satisfy personal jurisdiction);
378 A.2d 197, 202 n.2 (Md. Ct. Spec. App. 1977); Citizens for a Safer Cmty
  • Couplin V State
Couplin v. State, 378 A.2d 197, 202 n.2 (Md. Ct. Spec. App. 1977); Citizens for a Safer Cmty. v. City of Rochester, 627 N.Y.S.2d 193, 203 n.5 (Sup. Ct. 1994). 111 JULIAN E. ZELIZER, JIMMY CARTER 3 (2010).
VISICALC (1981) (advising how to properly use the VisiCalc system and providing practice exercises on the system)
  • Bruce J Taylor
  • The
  • Of
BRUCE J. TAYLOR, THE POWER OF: VISICALC (1981) (advising how to properly use the VisiCalc system and providing practice exercises on the system).
The Care, Feeding and Reliability of Semi-Automatic Pistols (last visited Feb 117 See, e.g., Tim Lau, AR15/M16 Magazine Drop Test: Plastic Vs
  • David See
  • Tong
116 See generally David Tong, The Care, Feeding and Reliability of Semi-Automatic Pistols, CHUCKHAWKS.COM, http://www.chuckhawks.com/care_reliability_autopistols.htm (last visited Feb. 21, 2015). 117 See, e.g., Tim Lau, AR15/M16 Magazine Drop Test: Plastic Vs. Aluminum, MODERN SERVICE WEAPONS, (Dec. 9, 2012), http://modernserviceweapons.com/?p=1072 (comparing the performance of plastic and aluminum magazines).
155 See Firearm Safety Act of 2013, ch. 427, § 4-305
155 See Firearm Safety Act of 2013, ch. 427, § 4-305, 2013 Md. Laws 4195, 4210 (codified at MD. CODE. ANN., CRIM. LAW § 4-305 (LexisNexis 2014)).
ch. 189, sec 157 Large Capacity Ammunition Magazines Policy Summary http://smartgunlaws.org/large-capacity-ammunition-magazines-pol icy-summary/; see supra notes 158, 165 and accompanying text. 158 Act of
156 See Act of July 19, 1999, ch. 129, sec. 3, § 12020(a)(2), (c)(25), 1999 Cal. Stat. 1781, 1785, 1793 (repealed 2012); Act of Aug. 8, 2000, ch. 189, sec. 11, § 265.02(8), 2000 N.Y. Laws 2788, 2793 (amended 2013). 157 Large Capacity Ammunition Magazines Policy Summary, L. CENTER TO PREVENT GUN VIOLENCE (May 31, 2013), http://smartgunlaws.org/large-capacity-ammunition-magazines-pol icy-summary/; see supra notes 158, 165 and accompanying text. 158 Act of Jan. 15, 2013, ch. 1, secs. 38, 46-a, § § 265.00.23, 265.36, 2013 N.Y. Laws 1, 16, 19 (codified at N.Y. PENAL LAW § 265.36 (McKinney 2014)).