House high capacity magazine ban
Courtesy Magpul

While making repeated pleas for more gun control, President Joe Biden loves to crack jokes about law-abiding gun owners and their “need” for 50, 60 or 100 rounds of ammunition. He did it again from The White House Rose Garden while announcing the creation of his new federal gun control office.

“I’ll say it again… It’s time again to ban assault weapons and high-capacity magazines,” the president remarked. “If you need 80 shots in a magazine, you shouldn’t own a gun.”

The president repeated several false claims about the firearm industry and gun owners. Arguments about magazine capacity have zero to do with “needs” and everything to do with constitutional rights, however.

Currently, 14 states and the District of Columbia restrict magazine capacity, limiting the number of rounds of ammunition law-abiding citizens can carry. Two recent developments could change that and have significant implications for the rest of the country.

California Denied 

U.S. District Court for the Southern District of California Judge Roger Benitez struck down the Golden State’s ban on magazines with a capacity greater than 10 rounds in Duncan v. Bonta. The reversal won’t take immediate effect and California Attorney General Rob Bonta immediately filed a notice appeal and an emergency motion for a stay of Judge Benitez’s order – meaning the ban will likely stay in effect while the case remains pending.

“Large capacity magazines… have no place in our communities,” AG Bonta suggested.

The ruling was Judge Benitez’s second time striking down California’s magazine capacity ban – the first in 2017 – and in handing down his decision, the judge made the case that the ban is unconstitutional under the U.S. Supreme Court’s Bruen test.

“There is no American tradition of limiting ammunition capacity,” Judge Benitez wrote in his decision. “There have been, and there will be, times where many more than 10 rounds are needed to stop attackers. Yet, under this statute, the State says ‘too bad.’”

The judge isn’t wrong. In fact, it’s quite the opposite. Even before the U.S. Constitution was ratified, and the Second Amendment was added with the other Bill of Rights, 18th Century dictionaries defined “arms” – as in, the right to keep and bear arms – as “any musket and bayonet; sabre, holster pistols, carbine; and any array of side arms… and any accoutrements necessary for their operation.’”

The Founding Fathers understood ammunition was arguably the most necessary accoutrement for the successful operation of an arm and that included repeating arms that gun controllers love to leave out of their arguments that “the Second Amendment was written at a time of muskets.” This includes repeating firearms that were common – yes, expensive, but common – at the time as well, including a long list of repeating arms of that day.

California Gov. Gavin Newsom called Judge Benitez an “idealogue” and “an extremist, right-wing zealot with no regard to human life.” He’s also called for a Constitutional Convention of states under Article V of the Constitution to adopt a 28th Amendment that would severely restrict gun rights.

Duncan v. Bonta now goes to the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court previously granted, vacated, and remanded the case in the wake of Bruen, which means the Court is watching the case closely and is now one step closer to garnering the Supreme Court’s final decision, according to The Reload.

Eyes on Oregon

Just north of California, Harney County Circuit Court Judge Robert Raschio just heard closing arguments in the state court trial over Oregon’s controversial Ballot Measure 114 as violating Art. I, Section 27 of the Oregon constitution (“The people shall have the right to bear arms for the defence [sic] of themselves,..”). That initiative, which voters adopted with just 50.6 percent of the vote last November, has been deemed “the most restrictive antigun law in the country” by Oregon gun rights advocates.

Among other strict gun control provisions, Measure 114 similarly bans magazines with a capacity of holding more than 10 rounds of ammunition. In a related case in federal court, NSSF challenged Ballot Measure 114 as violating the Second Amendment to the U.S. Constitution. That case is now on appeal in the U.S. Court of Appeals for the Ninth Circuit.

Judge Raschio temporarily blocked the measure last December from going into effect until after the trial and his decision. Media reports from the trial suggest things are not going well for the state’s attorneys defending the new law.

Oregon Public Broadcasting – hardly considered a gun-friendly media source –reported, “Raschio had other charged exchanges, indicating his skepticism of many of the experts who defended the law’s provisions.”

One state witness, Dr. Michael Siegel, an epidemiologist at Tufts University, faced “intense scrutiny” regarding his research into the effectiveness of various firearms laws, including magazine bans. Siegel testified that since 2001, firearm homicides in Oregon increased 310 percent and that when large capacity magazines are used in mass shootings, casualties more than double, according to reports.

Judge Raschio, however, was having none of it.

Tufts University professor Michael Siegel

“What just happened there is not scientific evidence. It’s not my view, it’s what the law requires … and I’m not going to allow that to be testimony of an expert because it isn’t scientific evidence,” he scolded Siegel.

In another sign Judge Raschio is likely to strike down Ballot Measure 114, he allowed testimony from the superintendent of the Oregon State Police and other law enforcement to be admitted, over objections by state attorneys. Judge Raschio read part of the testimony, saying . . .

Because police officers are defending themselves against the same criminals as citizens, their experience is highly relevant to the appropriate scope of self- defense… This is true even though police are often working together as a group, with even less need for higher capacity magazines than individual citizens attempting to defend themselves.

Judge Raschio is expected to hand down his decision within 60 days. Regardless of the outcome, the state court case is likely headed to the Oregon Supreme Court.

Together with developments in California and the previous interest in laws banning capacity limits of magazines shown by the Supreme Court, it’s likely there will be consequential developments soon that could benefit law-abiding Americans and their right defend themselves. That includes using a firearm and any accoutrements necessary for their operation – including magazines that hold more than 10 rounds.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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53 COMMENTS

      • DO you really think Benitez will drop it? All indications are that he will rule on the case and affirm the rights of firearm owners…

        • I think he means “drop” as in “drop the other shoe” not as in do nothing about the case or eliminate it. That seems to be is intent based on otehr reading ‘ve done on both of these cases.

      • Neat they get to either race us to a potential circuit court split decision or enjoy a district (assuming it’s district not circuit level at the moment) wide lifting of mag and potential awb restrictions.

  2. “If you need 80 shots in a magazine, you shouldn’t own a gun.”

    I don’t have an “80 shots” magazine. I have ’30 shots’ magazines so I can own a gun then, thanks Joe.

    But now I want an ’80 shots’ magazine just to piss you off, and guess what, I can still own a gun too.

    • “But now I want an ’80 shots’ magazine just to piss you off…”

      Better get them while you can. Benitez may have given them an out on this point:

      “Whether 50-round, 75-round, or 100-round drum magazines are constitutionally protected is a different question because they may be much less common and may be unusual.”

      We all need to pitch in and buy one or two, or more, to make them more commonly owned.

      • Drums have enough problems that I’d suggest making the large Surefire mags more common.

        Then you’re covered under common use and militia use because they’re reliable enough that SOF units use them.

        Cover both bases so you can’t get screwed on a single point like the SBS ruling back in the day.

        • Thought the Magpul drums were fairly reliable for the ARs. The surefire was fun with the M4 but tough to get just right with the burst fire. No idea if the full auto version or M16 would have been better.

        • Depends on the drum. Some seem to be quirky in my experience.

          Really though, I’m thinking more along the lines of the capacity to legally hem the anti-mag folks in. Bites at the apple with a ratchet effect.

      • “Better get them while you can. Benitez may have given them an out on this point:”

        not worried bout that, I don’t live in California.

      • I know its beside the point i havent ran across a drum that didn’t just throw the balance of a rifle way off IMO. Makes em unwieldy. Still fun to play with

  6. Given what has happened in Federal District Courts in WA and OR (refused to stay mag bans), and how the 9th District is likely to rule on Duncan v. Bonta, I’d say the Supreme Court will get another look at Magazine Capacity laws.

  8. It takes what, a second or 2 too change magazines in most rifles or handguns? Drop and swap 5 10, or 50 round mags make little if any difference to someone bent on mass murder.
    Hell, a pump shotgun with a pouch full of shells would be just as if not more dangerous in a mass casualty shooting.

    • I love the arguments, honestly. They’re an amazing display of how openly dishonest the antis are and how well emotional manipulation blinds people to facts and logic.

      According to the antis there’s no way that a teacher can attain proficiency with a handgun to a level that they don’t increase the danger of a mass shooting situation. No teacher is capable of this, we are led to believe.

      Yet, magazine restrictions mean that teachers and other people can go full Bruce Lee on the shooter during a mag change because, as we all know, Bruce Lee never trained a day in his life.

      Or a mag change allows for people to run away because all you need is a 25 foot head start to outrun a rifle bullet. See, when you limit mag sizes you also automatically turn every person near a mass shooter into the lovechild of Speedy Gonzalez and the Roadrunner. Itz ScIenCez!

      The fact that normies don’t ask these questions merely shows how propaganda works and that it is effective when deployed in areas in which people have little to no knowledge. Combined with a “don’t do your own research because you wouldn’t understand without being an expert” you’ve got most people in a cul-de-sac.

        • They love to create a “decision dilemma” where you’re screwed either way and have to give them what they want.

          1. Mass shootings happen and they happen in schools.

          2. But teachers can’t be trusted to have guns so we’ll give you the choice between something that’s a lie and something that can’t work.

          3. Your only workable option is to agree with us to restrict/ban guns because there are no other workable options.

        • Probably why they don’t like my no, nope, and fuckoff responses to this subject. They can play heads I win tails you lose until you stop playing by their rules and subvert their authority at every turn……and laugh at them when they accuse you of doing everything they have done for a century.

        • Once you catch anyone playing this game the proper response is always “Fuck you, no”.

          The Lefties and Commies love this game. I’ve pointed out before, you can even sign up for mailing lists where they’ll teach you to play the game.

      • Combined with a “don’t do your own research because you wouldn’t understand without being an expert”

        I heard a lot of this during Covid as if I can’t go directly to the source and read the studies myself without a MSM/Fauci filter. You don’t have to be a doctor or a scientist to understand the research.

        • It is, however, useful to have a fair bit of background knowledge on the topic when reading scientific papers.

          For example: You see things like trypsinization being used in ways that, honestly, shouldn’t be published because the authors didn’t do the proper controls. Yet they are published.

          Yeah, you wanna wash the cells with trypsin to take them off a plate and then to show that what you’re detecting is intracellular because you dissolved the extracellular proteins that are tagged. Great. A proper cell wash would do that. OK, just add a control that proves that the trypsin didn’t enter the cell. Yet, that’s very, very rare.

          And why would you do that? Because trypsin’s capacity to enter the cell is based on concentration, one click off your target with a micropipette can be the difference between trypsin creating porosity and entering the cell or just dissolving your target extracellular proteins.

          If you just show me florescence microscopy +trypsin and -trypsin, fuck off.

          But you need to know how some of this shit works to know if what you’re reading is garbage or not.

          I don’t GAF what a paper says or what the majority of papers say, honestly. If your methods aren’t spot-on, your paper is trash.

    • but a Saiga twelvebore semiauto converted to full auto and moungint a 100 round mag full of three inch magnums would make a big mess of anywhere. I watched that crazy fake russian guy actually DO this as a finale to one of his vids. Had one such weapon in each hand, standing sort of, and sprayed prolly ten pounds of lead downrange in well under a minute, laughing his head off. Had me cracking up before the mags were half empty.

      Not practical, BUT if I had five platooons of zombies coming over the hill I’d pay a million bucks for one of those Saigas like he had and a bushel box of prepped hundred round drum mags. They might eventually take me out, but it would cost them dearly before that happened.

      • Fpsrussia I think, good for a smile at his antics and more reason to work at dismantling the No Fun Allowed act.

  9. Mandalay Bay Hotel in Los Vegas Nevada.

    However, given the engagement range of a quarter mile and probable use of .223 rounds rather than 5.56mm with lighter mass bullets (look up sales volumes), the residual velocity and projectile energies were comparable to 00 buckshot at maybe 50 yards. Even heavier weight 5.56mm rounds would have lost nearly half their muzzle energy at that range. It is interesting that no one in the gun community utilized Googlearth to measure the distance then ran the ballistics calculations on that shooting.

  10. It’s really amazing to hear. Atheists refer to judge Benitez as Saint Benitez.
    And I’m okay with that. And thank you to president Donald Trump for appointing conservative judges to the federal court system.

      • Precedent will spread eventually then it’s a matter of pushing for the state officials to follow the rules…….I think your state may have some experience with that actually (moreso than mine).

  11. Hope springs eternal. It’ll be years yet before even this small issue is worked back up to SCOTUS and even then it isn’t a sure thing with the churning turnover or the high court.

    Humpty Dumpty sometimes just can’t be put back together no matter how many horsies you have.

  12. You describe Oregon’s Measure 114 “…which voters adopted with just 50.6 percent of the vote…”

    Anti-gunners spent 94.42% of the money ($2,930,050.00 supporting vs. $173,205.00 opposed) to buy merely 50.65% of the votes (975,862 yes vs. 950,891 no). That’s typical of the lopsided funding in play to suppress civil rights.

    • Also it was seen as *so* extreme that we probably wouldn’t have to worry about it actually passing, so opposition to it was half hearted at best. Then the SoS gave it a title and summary that not only obscured the worst parts but implied that background checks were optional for buying a gun…

  13. TTAG is into shadow banning, or outright banning?

    Lamp of Diogenes made a post this morning, and I responded. All of my responses went into moderation and haven’t been released. Lamp’s original post is now missing.

      • Except that Lamp was raging against the moderation system, and I was agreeing. So far today, the post just above is the only one released. Everything that I attempt to post goes into moderation — even this one.

    • More likely just a bug. The site seems to be held together with tape and string. Comments weren’t working at all for me for a few days.

  14. Glanced through the case as posted on X, and the dissent notes by VanDyke, really hit the nail on the head.

    A quick copy and paste of a few of the sections really calls out the rest of the judges on the 9th..

    “The agreement was made to call this case but drop the en
    banc calls in two other cases—including a death penalty case. Priorities.
    A lot about this is deeply troubling. First and foremost, we have rules for
    a reason. We operate under them every day. They should apply equally and
    consistently, unless and until we change those rules in the normal course.

    There is no exception for “cases that some of the judges on our court really, really care about.” That would be capricious and erode external and internal confidence in
    our court. If we lack the temerity to codify a “Second Amendment exception” in
    our en banc rules, we should have refrained from employing it behind the double
    veil of “internal court matters” in which only some members of the court participated.

    Second, because we have clear, settled, court-wide rules, a discrete group
    of panel and off-panel judges interested in en banc rehearing shouldn’t have been
    permitted to circumvent those rules on their own. We have a process for
    suspending the rules, upon a vote of the entire court. See 9th Cir. General Order
    12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off
    the books by a handful of judges. Which makes it even worse.”

    And, he also makes an observation that most of the people in the ‘gun community’ already well realize..

    “How are we to uphold the rule of law, and
    reassure the public we are doing so, when we disregard our own rules and make
    questionable decisions like this behind closed doors?”

  15. ““Large capacity magazines… have no place in our communities,” – Except that these tyrants always have a carve-out for law enforcement.

  16. if I recall correctly, the Aurora Theater shooter used a 90 round MWG magazine. They are finicky, so he had jams before he could empty it and wasn’t competent enough to clear it efficiently. It may have been worse if he brought 3 30 round conventional magazines.

    • Aurora was the classic gun free zone shooting – right down to the post-massacre editorials claiming that had any of the active military that were there been armed, “the casualty count in that dark and smoky theater would have been even higher.”

      Unbelievable scum, the liberal msm are, and the blood of the disarmed martyrs from that night will hopefully make their futures miserable.

      Then the survivors sued, lost, had to pay the theater’s court cost…

      Active military, martyred by a hipster freak that was enabled by leftwing law, then bankrupted by leftwing courts. and leftwing media celebrated…

      One of the most disgusting events in modern American history, in my opinion. Can’t believe the horrific details have been largely forgotten.

      • quote: had any of the active military that were there been armed, “the casualty count in that dark and smoky theater would have been even higher.”

        Today’s sorry excuse of a military, maybe so. But the MEN we had at that point in time certainly would have been shooting back, and dustted the creep/perp within a few seconds SAVING most of the lives lost that night.

  17. Bruen describes exactly why it is important to re-elect Donald Trump in 2024. It was Donald Trump who placed 2nd-friendly judges on the courts. Like his “Mean tweets” and general affect or not, wasting votes on any of the Seven Dwarfs at this time plays into the hands of our enemies.

    • Mitch McConnell deserves more credit there, and possibly the Clintons for stifling Democrats’ response in order to assure “inevitable” Hillary a pick. Trump picked 3 names off the Federalist Society list just as any other Republican president could have. Possible he deserves credit for stopping DOJ from investigating other sexual assault claims against Kavanaugh, but likely we’ll never know.

  18. But not in Washington. A Biden appointed Federal judge used the usual flawed anti gun arguments to keep their magazine ban in place.

  19. got a love how they are always saying no one needs (truly)high cap mags 60-100 but never mention that they are actually banning factory mags. I couldn’t even buy a 10 rnd mag for my pistol until a few months ago.

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