Despite numerous recent victories won by Second Amendment advocates in the continuing struggle against anti-gun forces, there remains much to be done.
This was clearly demonstrated on Tuesday when a split D.C. Circuit Court of Appeals upheld a lower court decision allowing the District’s ban on standard capacity gun magazines to stand. Of course, defenders of the controversial edict called those holding more than ten rounds “extra-large capacity magazines” (ELCMs).
The federal appeals court bought the city’s stance that the sweeping ban somehow did not violate the U.S. Supreme Court’s Bruen decision and its stipulation that gun control laws are based on the nation’s history and tradition of regulations.
The 2-1 majority agreed that firearms with these magazines are transformed into “particularly dangerous weapons” that are “capable of unprecedented lethality.”
The panel ignored the obvious fact that such bans were not in place in the Founding Era.
To be sure, Hanson v. District of Columbia is a setback for defenders of Second Amendment freedoms. But the judges swept aside constitutional concerns and declared in the majority opinion that these popular magazines present an unusual danger.
The majority wrote, “Because ELCMs implicate unprecedented societal concerns and dramatic technological changes, the lack of a ‘precise match’ does not preclude finding at this preliminary juncture an historical tradition ‘analogous enough to pass constitutional muster.”
The judges added, “Therefore, we hold Hanson is not sufficiently likely to succeed on the merits of his claim to warrant the entry of a preliminary injunction against enforcement of the magazine cap.”
Judge Justin R. Walker dissented, noting his and the plaintiffs’ belief that the simple fact that these magazines are in common use means their prohibition violates the Second Amendment.
Walker wrote, “There is no history and tradition of banning arms in common use for lawful purposes. D.C.’s ban on commonly used plus-ten magazines conflicts with Heller’s holding that the government cannot ban an arm in common use for lawful purposes. That alone decides this case.”
The dissenting jurist concluded that there was also a void in the nation’s historical tradition of a precedent for such a ban, which precludes such a prohibition.
For the record, the National Shooting Sports Foundation (NSSF) reports that three-quarters of all gun magazines owned by American sportsmen fit this dubious “high-capacity” description. This presents clear proof that these accessories are indeed “common.”
The D.C. decision follows a recent New Jersey District Court ruling that the state’s magazine ban was constitutional. This is despite the same court’s determination that the ban on so-called “assault weapons” ran afoul of the Second Amendment.
A similar ruling was handed down last year in Illinois.
The attempt by Washington D.C. and nearly 20 states to persuade the court that there is historical precedent for the magazine ban met with mixed results. Judges were not swayed by arguments equating bans in place in the Founding Era on firing weapons after dark or within a city as well as restrictions on gunpowder storage.
However, the panel was convinced by Prohibition-era laws prohibiting the Thompson submachine gun. These 1930s laws responded to a wave of organized crime violence, though the weapons themselves differ significantly from modern sporting rifles.
The courts have repeatedly upheld the ban on machine guns. That is a far cry from today’s semi-automatic weapons, which require a separate and distinct trigger pull for every round fired.
Attorney George Lyon Jr. represented the gun owners who were plaintiffs in the lawsuit. He termed the ruling “disappointing” but predicted that the U.S. Supreme Court would ultimately decide the controversy.
Lyon particularly lambasted the judges’ interpretation of Bowie knife restrictions as being relevant in a case involving gun magazines.
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