Criticisms of Eugene Volokh’s Framework, Part II

In part one I looked at Professor Volokh’s assertion that assault weapons bans could be constitutional, because they did not materially interfere with self-defense.  The next issue I will look at, in Professors Volokh’s Seocond Amendment framework, is that of magazine capacity.  Overall, I like Professor Volokh’s framework a lot, but here are some things to think about in regards to magazine capacity:

Large-capacity magazine bans are a closer question.   A gun with a larger than usual capacity magazine is in theory somewhat more lethal than a gun with a 10-round magazine (a common size for most semiautomatic handguns), but in practice nearly all shootings, including criminal ones, use many fewer rounds than that.

A common size in California, where anything that holds more is illegal.  In other states, where there are no such restrictions, larger magazines are the standard, rather than the exception.  Once the federal assault weapons ban disappeared, everywhere else in the country, magazine sizes went back to the way they were before the ban.  That’s what people overwhelmingly choose to buy.  Go into a gun store today, I doubt you’ll easily find a 10 round Glock magazine or a 10 round AR magazine.  They are still produced, and you can find them online, and in shops in border states, but mostly because demand still exists in states like New Jersey, California, and New York, which still limit magazine capacity.

And mass shootings, in which more rounds are fired, usually progress over the span of several minutes or more. Given that removing a magazine and inserting a new one takes only a few seconds, a mass murderer—especially one armed with a backup gun—would hardly be stymied by the magazine size limit. It’s thus hard to see large magazines as materially more dangerous than magazines of normal size.

I think that’s largely correct, so like with assault weapons, we get the dangerousness determination out of the way, and it’s in our favor.  But the reason the restriction has no effect on the attacker is because in most mass shooting situations, the attacker has command of the situation, and is not under any time pressure to perform his reloads.  The Virginia Tech killer reloaded several times during his spree, because for him it was fish in a barrel.  Someone defending themselves is presumably up against someone presenting a deadly threat.  At that point time, pressure and adrenaline come into play, and a quick magazine change might not be so easy, unless one is very well practiced on magazine changes.  Most people who have a gun for self-defense hardly practice them.

I agree with Professor Volokh that a larger magazine capacity does not make a gun materially more dangerous, but that’s not to say that being forced to change magazines in the middle of being attacked is a minor burden.  Stress does remarkable things to your ability to think, perform fine motor skills, and as the defender, you take every advantage you can get.  That’s why police overwhelmingly use larger magazines, and civilians, given the choice, overwhelmingly choose to carry them.

Still, these same reasons probably mean that the magazine size cap would not materially interfere with self-defense, if the cap is set at 10 or so rather than materially lower.  First, recall that until recently even police officers would routinely carry revolvers, which tended to hold only six rounds.  Those revolvers were generally seen as adequate for officers’ defensive needs, though of course there were times when more rounds are needed.

Police departments nearly universally abandoned the revolver for pistols holding 15 or more rounds as soon as they became available in the marketplace.  Suggesting that a few years go they were the standard I don’t think means much without discussing the reason why departments abandoned them as soon as there were viable alternatives.  If magazine capacity is such a minor burden on self-defense, why is it that no department is equipping its officers with reduced capacity sidearms?  Why in states that do not have magazine restrictions does the free market not generally support smaller magazines?

Second, the ability to switch magazines in seconds, which nearly all semiautomatic weapons possess, should suffice for the extremely rare instances when more rounds were needed (though to take advantage of this, the defender would have to make a habit of carrying both the gun and a spare magazine).

He’s correct about the rarity of the situation where you’ll need more than a few rounds, but I’m not sure why that matters.  Violent criminal attacks by one stranger against another are pretty rare to begin with, which is why some people suggest that folks shouldn’t be allowed to carry guns in public at all.  People choose to carry a firearm because they find the burden of doing so to be less than the burden of a very small possibility of being dead or seriously injured.  The Second Amendment would seem to interfere with the government trying to make that choice for its citizens.

But why should the Second Amendment allow the government to further intrude itself into the same calculus when it comes to what magazine you can equip yourself with?   True, situations requiring more than ten rounds are rare, but the burden of carrying my Glock 19 with 15 rounds in it (which it is designed for) as opposed to 10 is minuscule.  The sensible thing to do in that case is to carry it with the amount of rounds it was designed for.  Carrying an extra magazine is considerably more burdensome, so burdensome I actually find carrying a backup gun to be the easier option.  For women, having to carry an extra magazine or an extra gun is even more of a problem.  This is probably a far more problematic issue for women as it is for men, who generally have more room on their bodies for hiding things.

I don’t see why the Second Amendment would protect a citizen’s right to choose whether or not to carry a gun to defend against violent attack (pretty rare), then on the basis of no finding on the “dangerous or unusual” nature of a 15 round magazine, as opposed to a 10 round magazine, allow the government to regulate the kind magazine one could carry in that gun, especially on the flimsy argument that “Carrying an extra magazine is not much of a burden, and you don’t really need those extra rounds anyway.  But oh yeah, police defending themselves do need them, so better have an exception for them.”

UPDATE: Part III is here.