Those observations underline a core issue: when a motivated murderer wants to cause a lot of damage, he plans accordingly. Be it a handgun, a revolver with a speed‐loader, or a self‐loading rifle, what really matters for sustaining a high rate of fire is having multiple magazines, not the capacity of those magazines.
To meaningfully limit practical fire rate, a magazine regulation would have to be incredibly restrictive. If magazines were limited to six shots, putting them on pace with revolvers, a motivated criminal with a bag full of spares could still keep up a high rate of fire. Going even further, perhaps limiting magazines to one or two rounds and outlawing revolvers, would cause a meaningful reduction in fire rate, reducing lethality in the incredibly rare mass shooting. But such draconian magazine restrictions would not only severely hinder effective self‐defense; they would also require intrusive, objectionable, and constitutionally dubious enforcement mechanisms to be effective. In a country with hundreds of millions of guns, which are vastly outnumbered by magazines, confiscating existing magazines would be nothing short of a civil liberties nightmare, with little to show in terms of public‐safety benefits. Such a prohibition would have to meet a heavy burden of proof to justify its tremendous practical and constitutional concerns.
Instead of discouraging criminal conduct using certain weapons and magazines, current magazine bans draw an arbitrary line that can ruin lives and tear families apart with little to no countervailing benefit. We need not engage in the theoretical to grasp the difficulties inherent in these laws, as court records are rife with harrowing scenarios caused by their implementation.
In March of 2010, mechanic and tinkerer Tien Duc Nguyen was arrested for possession of a box of parts and magazines he happily showed to investigators visiting his shop. Nguyen was charged and sentenced under an assault weapon and large‐capacity magazine statute. In an opinion that opens with a particularly strange warning to “[b]eware of the dangers of the Internet[,]” the California 4th District Court of Appeal upheld Nguyen’s six‐year sentence for “attempted assault weapon activity,” despite the fact that the parts Nguyen purchased were completely unregulated, unassembled, and could have been assembled into any manner of compliant firearms.
In 2002, Daniel G., a minor, was torn from his family and made a ward of the state for holding a weapon capable of accepting a “high‐capacity” magazine. A neighbor spotted Daniel and several other youths handing around a rifle and called the Los Angeles County sheriff’s department. When the deputies found the rifle, the youths were charged with possession of an assault weapon. Nobody was shot, robbed, or hurt, and no ownership of the rifle was established. Daniel’s crime was simply the curious handling of a popular rifle.
On December 5, 1996, 16‐year‐old Jorge M. was taken from his home and made a ward of the state for as long as three years because a rifle with a “banana mag” was left in his room. Despite no evidence that the minor had ever “played with” the rifle or its magazine, and despite the fact that all family members testified that the rifle belonged to his father, he was charged with possession of the rifle and placed in state custody for the remainder of his childhood.
These examples highlight the human cost of these poorly reasoned and ill‐conceived laws. Such laws are used with startling regularity to ruin lives absent any violent conduct. Given the number of “high‐capacity” magazines in private hands, the difficulty of policing grandfather exceptions in this context, and the stringency with which such laws are generally enforced, any highly restrictive magazine law would instantly make criminals of millions of people. Many people would be punished, and many families disrupted, for harmless conduct.
Whether or not one accepts the claim that widespread gun ownership deters crime, the fact remains that an unknowable but large number of would‐be victims of crimes use their guns in defense of themselves and their property every year. Estimates on total defensive gun uses range from 100,000 to 4.7 million per year. These estimates vary wildly because, by their nature, most incidents go unreported: people who have used guns defensively tend to fear repercussions and thus to not report such incidents. A ban on high‐capacity magazines is likely to reduce ownership more among law‐abiding people than among criminals (because lawabiding people tend to follow the law); thus, the use of such magazines would be disproportionately reduced in defensive uses.
The same factors that make a magazine potentially useful for offense make it useful in a defensive situation. Increased reserve capacity means more opportunities to hit the target, whether a potential victim or an assailant. According to a 2015 study by the International Journal of Police Science & Management, novice shooters have a 39 percent hit probability over typical engagement distances, compared to 48 percent for intermediate and 49 percent for expert shooters. That, combined with the fact that an assailant is rarely stopped by a single bullet, makes magazine capacity all the more important for effective defensive use of firearms.
This is especially true in situations involving concerted criminal action. For example, in 2015, two armed men (one with a gun, one with a fake gun) attempted to ambush a group leaving a Houston bar. The assailants attacked one member of the group, prompting a would‐be victim to draw his gun. The would‐be victim fired twice at the first robber and then 10 times at the second. The first robber was hit twice, and the second was hit seven times. Despite those hits, the second robber continued to run, only to be apprehended at a hospital some time later. Both survived.
Unlike mass murderers, who usually spend weeks or months planning their crimes and anticipate the need for spare magazines, people who use guns defensively rarely carry spares. This decreases the efficacy of guns in defensive situations, making their effectiveness even more a function of the would‐be victim’s skill. A 5- or 10‐round magazine could severely limit the ability of crime victims to defend themselves, especially against multiple assailants. Firearms are effective for self‐defense because they are “the great equalizer,” but putting law‐abiding citizens at a disadvantage against criminals is likely to result in more victims. Effective self‐defense should not be available only to those who are skilled and physically capable.
Current restrictions on “high‐capacity” magazines are not only ineffective but dangerous. Standard magazines designed for the weapon in question are the most effective tools for lawful defense. It bears repeating that these restrictions would only affect the outcome of the incredibly rare shooting in which more than a few shots are fired.
A coherent approach to gun safety will have to take honest account of the various costs of proposed regulations, especially as they affect self‐defense. In a country with possibly a billion magazines in circulation, enforcing a ban against commonly owned magazines would be impossible without draconian police actions and the criminalization of peaceful behavior. Regarding truly high‐capacity magazines, the fact that they are more likely than standard magazines to cause malfunction makes them more useful as shooting‐range novelties than as equipment for mass shooters. Thus, a ban on those magazines would likely have little effect on gun violence. In sum, it is likely, on balance, that more severe magazine restrictions could do more harm than good.
As discussed below, “high‐capacity” is a relative term and therefore should not be regarded as having a definite meaning.
America’s gun debate has been plagued by confusion over vague terms. Therefore, it is important to clearly define the terms to be used herein. A “magazine” is a vehicle for carrying ammunition. It can be either integral to the gun or detachable. Integral magazines are used in old western rifles, in which reserve ammunition is held in a tube under the barrel (called a “tube magazine”), and in bolt‐action rifles, in which reserve ammunition is held under the bolt (as in the Mauser 98, a military rifle upon which most of today’s bolt‐action hunting rifles are based). Detachable magazines (“box magazines”) are used in most handguns and rifles, including the AR-15. A “self‐loader” is a type of firearm that does not have to be manually reloaded between shots (in contrast to “repeaters” such as bolt, lever, and pump‐action firearms, which need some sort of shooter action to put a new round into the chamber between shots). Self‐loaders siphon energy from either recoil or expanding gases in the barrel to eject the empty casing and load a fresh round. Self‐loaders are often called “semi‐automatic” and “automatic” firearms.
Jeffrey A. Roth and Christopher S. Koper, “Impacts of the 1994 Assault Weapons Ban,” March 1999, https://www.ncjrs.gov/pdffiles1/173405.pdf.
David Maccar, “Magazine Capacity Restrictions by State,” Range365, October 2017, https://www.range365.com/magazine-capacity-restrictions-by-state#page-8.
N.Y. Consolidated Laws Article 265: Firearms and Other Dangerous Weapons, https://www.atf.gov/resource-center/docs/guide/state-laws-and-published-ordinances-2010–2011-new-york/download#23.
For example, Massachusetts’s ban exempts magazines lawfully possessed before the September 1994 assault weapons ban, while New Jersey bans all such magazines, regardless of when they were made or owned. See Veronica Rose, “Laws on High Capacity Magazines,” January 2013, https://www.cga.ct.gov/2013/rpt/2013-R-0039.htm.
New York State Rifle and Pistol Association v. Cuomo, 38 (W.D.N.Y. Dec. 31, 2013). “Unlike the restrictions on assault weapons and large‐capacity magazines, the seven‐round limit cannot survive intermediate scrutiny.”
Duncan v. Becerra, 265 F. Supp. 3d 1106, 1120 (S.D. Cal. 2017).
Id., at 1135.
Md. Code Ann., Crim. Law §§ 4–303(a), 4–305(b). Maryland’s law consists of banning particular firearms by name or cosmetic features — paying particular mind to AR and AK patterns of weapons — but the real heavy lifting is done by its prohibition of weapons capable of carrying more than 10 rounds.
Kolbe v. Hogan, 138 S. Ct. 469 (2017).
Of the five best‐selling handguns of 2017, the full‐size offerings were the Glock 19 and the Kel‐Tec PMR-30, which come standard with a 15- and 30‐round magazine, respectively (Rich Duprey, “The 5 Best‐Selling Handguns of 2017,” The Motley Fool, December 2017, https://www.fool.com/investing/2017/12/17/the-5-best-selling-handguns-of-2017.aspx). Also popular with civilians and law enforcement are the Glock 17, the Springfield XD, the M&P-9, and the Walther PPQ. In the 9 mm chambering, each of those guns come standard with an 18-, 16-, 15-, and 17‐round magazine, respectively.
Patrick Cain, “Packing Heat: How Gun Law Loopholes Tripled Canada’s Rifle Magazine Limits,” Global News Canada, June 11, 2013, https://globalnews.ca/news/619165/packing-heat-how-gun-law-loopholes-tripled-canadas-rifle-magazine-limits/.
There is no firm figure for the number of magazines currently in circulation, but since most estimates indicate that there are more than 300 million firearms in the United States, it is reasonable to assume that there could be up to a billion magazines in circulation, since more magazines than firearms are produced.
This was the case for the Lee‐Metford rifle, the first magazine rifle adopted by Great Britain, which used an effective detachable magazine closely resembling the magazines used in modern AR‐pattern rifles. Because magazine geometry was so important to reliable service, these magazines were chained to the rifle, to be removed only in emergency situations. The Swiss also used detachable magazines in their Schmidt‐Rubin service rifles until 1953. In Swiss service, the magazine was tied to the rifle, and a soldier could be court‐martialed for swapping magazines.
See the Mec‐Gar website, https://mec-gar.com/.
With the complex geometry and metallurgy involved in a magazine’s construction as well as the friction inherent in a feeding mechanism (the rounds in the magazine push against the moving components of the action, potentially interrupting function), a magazine has to be just right to function well. For a deeper discussion of the subject, see Pat Cascio, “Aftermarket Gun Magazines — All Magazines Are Not Created Equal,” May 2016, http://www.alloutdoor.com/2016/05/16/market-gun-magazines/.
Commonly referred to as the “Federal Assault Weapons Ban of 1994,” the ban was a subsection of the Violent Crime Control and Law Enforcement Act of 1994 (Pub.L. 103–322, http://legisworks.org/GPO/STATUTE-108-Pg1796.pdf). It contained a provision proscribing semiautomatic weapons “capable of accepting a large capacity magazine.” Many state and local laws borrow from the 1994 ban with few changes, including, most recently, that of Deerfield, Illinois (see Ordinance No. O-18–06, http://www.deerfield.il.us/DocumentCenter/View/1506).
One example is the French MAS Mle 1944, which uses a proprietary 10‐round magazine. The rifle was fielded with only 10‐round magazines; however, a handful of experimental larger‐capacity magazines were made at some point. Thus, technically, the Mle 1944 is “capable of” accepting a larger magazine, although such magazines, for practical purposes, do not exist.
“Study Sheds New Light on Use of High‐Capacity Ammunition Magazines in Violent Crime,” The Trace, October 11, 2017, https://www.thetrace.org/rounds/high-capacity-ammunition-magazines-violent-crimes/.
District of Columbia v. Heller, 554 U.S. 570, 578 (2008). “‘Right of the People’ … unambiguously refer[s] to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
Duncan v. Becerra, 265 F. Supp. 3d 1106, 1114 (S.D. Cal. 2017).
District of Columbia v. Heller, 554 U.S. at 620.
Id. at 627.
Id. at 582.
Id. at 627.
See, for example, N.Y. Consolidated Laws Article 265: Firearms and Other Dangerous Weapons. https://www.atf.gov/resource-center/docs/guide/state-laws-and-published-ordinances-2010–2011-new-york/download#23.
Christopher S. Koper et. al., Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003, June 2004, https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=204431.
“Christopher Koper speaks on his evaluation of the Assault Weapons Ban for the US Department of Justice,” C-SPAN, January 14, 2013, https://www.c-span.org/video/?c4304369/christopher-koper-george-mason-university.
Gary Kleck, Point Blank: Guns and Violence in America (Piscataway, NJ: Aldine Transaction, 2005), p. 79.
There are no studies specifically examining reload speed, and the speed of a reload, of course, depends on the skill of the operator. Extremely skilled operators can change magazines in a fraction of a second (see “On the Range: Alternate Method for Mag Changes,” August 2013, https://www.youtube.com/watch?v=_cB68gavUJM). Generally speaking, reloading a modern firearm is simply a matter of pressing a button to release the empty magazine and then inserting a fresh one. See also Larry Celona, “NY Limits on Magazine Size Won’t Slow Determined Killers, Firearms Experts Say,” New York Post, January 17, 2013, https://nypost.com/2013/01/17/ny-limits-on-magazine-size-wont-slow-determined-killers-firearms-experts-say/.
Jonathan Ferguson, “Myths & Misconceptions: the M1 ‘ping,’” Ares Armament Research Services, December 31, 2016, http://armamentresearch.com/myths-misconceptions-the-m1-ping/.
“[T]he Virginia Tech shooter used handguns and 17 magazines — mostly of 10‐round (but also some 15‐round). Two of the highest profile mass shootings in recent history and [sic] shooters used 10‐round magazines; they just brought a lot of them. These magazines would not have been affected at all by the proposed ban.” Matt MacBradaigh, “Gun Control Facts: Why a ‘High Capacity’ Magazine Ban Would Not Prevent Mass Shootings,” Mic, January 2013, https://mic.com/articles/24263/gun-control-facts-why-a-high-capacity-magazine-ban-would-not-prevent-mass-shootings#.UeMA2bJqD.
Paula Chin, “A Texas Massacre,” People, November 1991, http://people.com/archive/a-texas-massacre-vol-36-no-17/.
“Congresswoman’s responses after Arizona shooting called encouraging,” CNN, January 9, 2011, https://archive.is/20120717021022/http://articles.cnn.com/2011–01-09/justice/arizona.shooting_1_arizona-congresswoman-gabrielle-giffords-people-shot-doctors.
It is also worth noting that the Columbine massacre took place during the federal assault weapons ban and employed the use of compliant magazines. “[O]ne of the Columbine shooters used a Hi‐Point 995 carbine, which uses 10 round magazines. He just carried 13 of them.” MacBradaigh, supra note 35.
Mairead McArdle, “Report: Parkland Shooter Did Not Use High‐Capacity Magazines,” National Review, March 1 2018, https://www.nationalreview.com/2018/03/report-parkland-shooter-did-not-use-high-capacity-magazines/.
“These after‐market extended magazines have a tendency to jam[.]” Susan Candiotti, “Colorado Shooter’s Rifle Jammed during Rampage,” CNN, July 22, 2012, http://www.cnn.com/2012/07/22/us/colorado-shooting-investigation/index.html.
In Newtown, the shooter employed an aftermarket polymer magazine, which eventually caused a feed malfunction. See Corinne Lestch, “Slain Newtown Boy Jesse Lewis, 6, Yelled ‘Run!’ When Adam Lanza’s Gun Jammed, Allowing Six Classmates to Run to Safety,” New York Daily News, October 19, 2013, http://www.nydailynews.com/news/national/slain-newton-boy-yelled-classmates-run-6-escaped-article-1.1490325.
Kleck, supra note 32 at 78.
See “Sherriff’s Demo of How Magazine Size Makes Very Little Difference,” February 2013, https://www.youtube.com/watch?v=MCSySuemiHU.
People v. Nguyen, 212 Cal. App. 4th 1311 (2013).
In re Daniel G., 120 Cal. App. 4th 824 (Cal. Ct. App. 2004).
In re Jorge M., 23 Cal. 4th 866 (Cal. 2000).
Otis Duncan, “Gun Use Surveys: In Numbers We Trust?,” The Criminologist, January 2000, http://www.asc41.com/Criminologist/2000/January-February%202000.htm; Philip J. Cook, “Defensive Gun Uses: New Evidence from a National Survey,” Journal of Quantitative Criminology 14, no. 2 (1998).
Kleck, supra note 32 at 184.
William J. Lewinski et al., “The Real Risks during Deadly Police Shootouts: Accuracy of the Naïve Shooter,” International Journal of Police Science & Management 17, no. 2 (2015): 117–27, http://www.forcescience.org/articles/naiveshooter.pdf.
A. K. Mandal and S. S. Oparah, “Unusually Low Mortality of Penetrating Wounds of the Chest,” Journal of Thoracic and Cardiovascular Surgery 97, no. 1 (1989): 119–25; Dr. Jim Kornberg, “The Myth of the Single Shot Kill,” True West Magazine, July 17, 2010, https://truewestmagazine.com/the-myth-of-the-single-shot-kill/.
G. Halek, “Houston Concealed Carriers Unload on Armed Muggers,” Concealed Nation, December 21, 2015, http://concealednation.org/2015/12/ccw-in-action-houston-concealed-carriers-unload-on-armed-muggers-why-we-travel-in-packs/.
J. Michael Mostwick, “A Good Idea Shot Down: Taking Guns Away from the Mentally Ill Won’t Eliminate Mass Shootings,” Mayo Clinic Proceedings, November 2013, http://www.mayoclinicproceedings.org/article/S0025-6196(13)00823–9/pdf.