Currently before the Ninth Circuit is an appeal in the case of Fyock v. Sunnyvale,
a case which challenges a California’s city’s ban on magazines which
hold more than 10 rounds. While the State of California outlaws the
sale, import, or transfer of such magazines, the Sunnyvale ban goes
further, by prohibiting possession of these magazines, with no provision
for grandfathering. The District Court upheld the ban; part of the
Court’s analysis stated that magazines did not exist at the time the
Second Amendment was ratified. Last Friday, amicus briefs in support of
appellant were filed, including a brief which I co-authored on the history of magazines and of magazine prohibition.
My co-author on the amicus brief was the DC law firm of Bradley Arant Boult Cummings, and the brief was filed on behalf of the Center for Constitutional Jurisprudence (which is part of the Claremont Institute), and Gun Owners of California. As the amicus brief states, the NRA contributed funds supporting the preparation of the brief.
The longest section of brief provides the history of magazines, with a
particular focus on magazines holding more than 10 rounds. The first
such magazine was invented in the late 16th century. Over the next two
centuries, many inventors created guns with magazines holding more than
10 rounds. The consumer demand for such magazines is easy to understand:
when a gun is out of ammunition, the user is in effect disarmed, and
does not possess an operable firearm until the gun is reloaded. As Heller teaches, the Second Amendment protects the right to an operable firearm.
By the time of the Second Amendment, the state of the art for
multishot guns was the Girandoni air rifle, with a 20 or 22 round
magazine. Ballistically, it was superior to the powder guns of its time,
and had been created for elite marksmen in the Austrian army. Lewis
& Clark carried a Girandoni on their famous expedition.
By 1791, much progress had been made in firearms design and it was
easy to foresee that future progress would include improvements in
multishot guns. However, as of 1791, the very large majority of American
firearms were single-shot, likely because of the expense of multishot
guns, and also perhaps because of concerns about reliability. The first
half of the 19th century saw the first widespread commercial success of
multi-shot guns–namely the revolvers from companies such as Colt’s and
Smith & Wesson, as well as multi-barrel handguns called
“pepperboxes.” There were some pepperboxes which could fire more than 10
rounds, but most pepperboxes held 8 or less.
More Here at the Washington Post:
Okay. Sure. This is a good writup on the history of the gun magazine, and argues effectively against the SC's decision. But they're almost falling for a non sequitor, in the informal sense.
ReplyDeleteIt makes no difference if magazines did or did not exist. That's why there is no mention of current technology in the BOR or Constitution.
By that same arguement, the SC can argue that thermal imaging through a house doesn't violate the 4th Am. Or, that computer use regulation doesn't violate the 1st Am.
This whole arguement of "they didn't have it then" is bogus.