The Volokh Conspiracy: The history of magazines holding 11 or more rounds: Amicus brief in 9th Circuit

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: