Do magazine bans require the Supreme Court to ignore D.C. v. Heller?

Does banning a gun magazine undermine the U.S. Supreme Court? Only if court precedents matter. Photo: AP

WASHINGTON, May 31,2013 ― Could banning a gun magazine undermine the U.S. Supreme Court? Possibly. Why? That comes down to the court’s ruling in District of Columbia v. Heller

In Heller, the court’s ruling turned on the possession and use of modern handguns in lethal defense. The court ruled that the District of Columbia could not ban an entire class of arms that Americans use for self defense. In particular, the court affirmed the right to carry weapons “in common use at the time,” essentially guns you could buy at Walmart in most of the United States. The legal expression speaks to modern weapons in common use for lawful purposes. The court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

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For example, amongst the most common weapons in use at this time is a 9 mm semiautomatic pistol with a magazine capacity from 12 to 30 rounds, which is typically used with a jacketed hollow point bullet.

The court made clear that it understands the lethality of modern weapons in common use for lawful purposes. It knows full well the lethality and firepower of a 9 mm. The intent of the Second Amendment was in essence to protect the right to have this lethality in private hands. 

The fact that some abuse this right by using guns to commit crime is not sufficient cause to deny or even infringe on that right without three fourths of the states agreeing. Heller can possess these handguns and the level of lethality they provide.

This is where the magazine ban comes in. To ban magazines is to tell the court that, while the whole firearm is in common use for lawful purposes, its internal parts and working components are not.

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Tens, possibly hundreds of millions of magazines are by implication not commonly used for lawful purposes, while the firearms they go into are. Therefore the magazines can be banned while the guns they go into cannot. Heller cannot possess this level of modern, 21st century lethality after all. 

This is the argument. After all the smoke and mirrors with advertising such as “sensible”, “reasonable”, “public safety”, “police safety”, “existing alternatives”, ”balance” and anything else that sounds good, this is what is being peddled to the best jurists this nation has to offer. If they buy into it with these advertising slogans, it would undermine their own ruling in Heller. 

The gun ban movement is determined to undermine Heller.

The legal landscape is now littered with jurisdictions thumbing their noses at the Heller ruling in outright defiance. In spite of what the court said, D.C. is saying “no”. So is Chicago.  A number of state legislatures are saying “no”. All are saying “no” with a simple majority in their legislatures or city councils. 

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They reject the plain language of Heller that says that protection of the right to own modern arms and their lethality in existence at the time of the ruling was the intent of the ruling. They inform us in the name of “public safety” that there is some sort of “reasonable” technology and design limit from an earlier time before the 21st century, after which Supreme Court rulings protecting the Second Amendment no longer apply. Decent and honest people can no longer possess modern design and technological advances that have appeared since that arbitrary past time. Only the police can. Guns are banned that are functionally identical to guns that aren’t banned. And, a jurisdiction’s baby-step simple majority vote overrides the repeal requirements of the U.S. Constitution.

This poses a dilemma for the president’s justices on the court. They both testified under oath in their confirmation hearings they would honor precedent and their institution. Since joining the court, their behavior has led some to suggest they might possibly support a gun ban after all. Their dilemma now is whether to pursue arguments that stretch and twist the logic of the court’s prior decisions to unrecognizability. 

Which is more important to them: honoring their promise to uphold the Supreme Court precedents that defend the Constitution, or reinterpreting precedent to the point that it means whatever they want it to mean in the name of “public safety”? Opening that door destroys Heller and fatally undermines the Second Amendment, restricting it by simple majority votes, one baby-step at a time, out of existence. And they know it.

Time will tell.

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Lee Schoff

A retired hi-tech engineer who spent 37 years solving thorny  problems by identifying and addressing the vital few root causes that could help solve 80% of a problem, and ignoring and avoiding religious  wars over the trivial many that only contribute a few percent at most.

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