BOSTON (CN) — The First Circuit struggled during oral argument Monday to figure out whether Rhode Island’s ban on gun magazines with more than 10 rounds is constitutional — a question that could imperil 13 other state laws that restrict such devices.
A lower court denied an injunction against Rhode Island’s ban on the grounds that magazines aren’t “arms” under the Second Amendment. But “I struggle with the notion” that magazines aren’t arms, said U.S. Circuit Judge Bruce Selya, a Reagan appointee. “The firearm isn’t operable otherwise. So I don’t understand why a magazine isn’t an essential component of a firearm and thus a firearm.”
But U.S. Circuit Judge Gustavo Gelpí, who was appointed by President Biden, pointed out that even if the law is upheld, Rhode Islanders can still legally defend themselves by carrying 15 guns with 10-round magazines each. “My experience is you can take them out and put them in very quickly,” he said. “And you can shoot one gun and have another in the other hand if you’re ambidextrous like in a cowboy movie.”
Rhode Island’s ban was designed to reduce mass-shooting fatalities. Large-capacity magazines, or LCMs, are associated with horrific mass shootings because they allow a shooter to fire many rounds without stopping to reload — since 1990, 78% of high-fatality mass shootings in the U.S. have involved LCMs, and since 2010 the figure is 86%.
In the 2017 Las Vegas shooting, the deadliest in U.S. history, the shooter used very high-capacity magazines and was able to fire 100 rounds in less than 11 seconds. By contrast, at the 2012 Sandy Hook school shootings, nine children were able to flee and two were able to hide when the shooter had to stop and reload.
The LCM issue is significant because limiting magazine size is one of the few methods of reducing mass-shooting fatalities for which there is evidence of its effectiveness. Although the sample size is limited, a study in Criminology and Public Policy found that states with LCM bans had 48% fewer mass-shooting incidents and 33% fewer fatalities. A separate study in the American Journal of Public Health found that states without a ban on LCMs had more than twice as many mass shootings.
“Growing evidence suggests that state-level restrictions on large-capacity magazines reduce mass shootings,” a third study found.
On the other hand, LCMs are immensely popular. According to the plaintiffs, Americans own some 115 million of them, and they account for fully half the magazines in the country.
LCMs are “overwhelmingly prevalent,” said Matthew Rowen of Clement & Murphy in Washington, D.C., who represents four Rhode Island gun owners and a retailer. And “48% of American gun owners — that’s 20% of American adults — have owned an assault weapon,” he added, noting that half a billion of them have been sold over the last century.
LCMs were banned nationwide from 1994 to 2004. Since then, statewide bans have been adopted in California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington state and the District of Columbia.
In July of this year a federal court in Oregon upheld that state’s LCM ban. But this is the first case to reach a federal appeals court since the Supreme Court’s Bruen decision last summer, which changed the test for evaluating cases under the Second Amendment and said that gun restrictions are valid only if they’re based on historical tradition.
As a result, the judges spent a lot of time analyzing the history of firearm regulation. “Let’s look at the 1790s. Could Congress have outlawed ramrods used to load muskets?” asked U.S. Circuit Judge William Kayatta, an Obama appointee.
“They couldn’t outlaw ramrods altogether, but if they knew that lead was dangerous back then, they could have passed a health and safety regulation and banned ramrods made of lead,” answered Sarah Rice of the Rhode Island attorney general’s office.
Kayatta and Rowen sparred over how different today’s assault weapons are from the ones manufactured in the 1920s and 1930s. Rowen insisted that “the tradition is almost no regulation,” noting that prior to the 1994 federal law only three states banned semi-automatic weapons and no one was ever prosecuted for owning one.
“What if a state legislature says, ‘We were wrong, and now we’re going back to what’s right?’” asked Gelpí. “That’s no good?”
“Correct,” Rowen answered. “The right doesn’t belong to state legislatures. You’d have to amend the Constitution.”
But Rice insisted that there was a long history of regulating repeating firearms going back to Winchester rifles after the Civil War, and noted that in the colonial era there were strict limits on how much gunpowder people could own.
Kayatta was skeptical. “How did there get to be millions and millions of these in people’s hands if there’s a long tradition of outlawing them?” he asked.
Rice answered that the question wasn’t addressed by the lower court because it ruled that magazines weren’t arms. “So shouldn’t we remand the case for the district court to make findings?” Kayatta asked. “We do this all the time in sentencing cases — let us know your thought process and the case will come back here anyway.”
“I’d normally say let’s remand to the district court,” Selya added.
But Gelpí observed that the case was on appeal from the denial of a preliminary injunction, so the court could uphold the denial and still hear a second appeal after a full trial.
Rowen, however, asked the court to simply decide the issue. He said the historical tradition was a legal question and suggested that no further relevant facts would be developed at trial, noting that last month the Ninth Circuit struck down a ban on butterfly knives under the Second Amendment after concluding that a remand for further factfinding would be pointless.
The Supreme Court recently agreed to decide the constitutionality of a law banning gun possession by people who are subject to a domestic abuse restraining order, in a case many observers consider an opportunity to clarify its decision in Bruen.
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