There has been, in recent years, a flurry of Second Amendment-related legal cases making their way through the courts, and one of the points addressed in these cases is the constitutionality, in mind of the Second Amendment, of bans on “high-capacity” magazines. While these bans make about as much sense as bans on bayonet lugs (which really was part of the 1994 federal assault weapons law) it’s still a sticking point for the would-be gun-banners out there.
One case, Duncan v. Becerra, challenged California’s magazine ban, and in that case, Judge Roger T. Benitez wrote:
The United States Supreme Court in District of Columbia v. Heller established a simple Second Amendment test: The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual ‘in common use’ ‘for lawful purposes like self-defense.’… It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ the test is over. The hardware is protected.
That “…not unusual ‘in common use'” bit is important. A study released in April by the National Shooting Sports Foundation (NSSF) examines precisely this issue. The Detachable Magazine Report, 1990-2021, has decisively debunked the claim that magazines holding over 10 rounds of ammunition are, somehow, “not usual in common use.”
Anti-gun advocates may have run out of evidentiary road on the claim that magazines able to hold more than ten rounds are not constitutionally protected. The National Shooting Sports Foundation (NSSF) has released a comprehensive Detachable Magazine Report, 1990-2021 that unequivocally debunks their claims. This study analyzes manufacturer and sales data on magazines and magazine capacity over an extended period of time starting in 1991 (“[n]o reliable data exists prior to 1990 to estimate historic detachable magazines that may still be available for sale or in working condition”).
The NSSF study concludes that the “national standard for magazine capacity for America’s gun owners is greater than 10 rounds.”
This is no surprise for anyone who has been an active shooter or collector in those years, especially given the rise of Tacticool among many shooters – personally, I retain my preference for good sixguns, Belgian Brownings, and pre-64 Winchesters, but everyone has their preferences – the pro-gun community is very good about celebrating diversity!
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Here are a couple of key findings:
- Overall, almost a billion (963 million) magazines “were produced and entered the commercial market between 1990 and 2021.” The study “does not claim all the magazines estimated in [it] are owned by Americans; these are both magazines estimated to be in circulation and made available for sale at some point from 1990 to 2021;”
- The overwhelming majority of these – approximately 74 percent, or 717 million magazines – have a capacity of eleven or more rounds, and almost half (about 46 percent) “are rifle magazines with 30+ round capacity.” More than half (about 55 percent) of total pistol magazines are detachable 11+ magazines. If the 717 million total was applied exclusively to Americans, it works out to over two “LCMs” per person based on the U.S. population in 2022, 333.3 million;
- The estimated number of pistol and rifle magazines in circulation with a capacity of 10 rounds or less is just 245,872,000;
- “The consumer market totals of rifle magazines show 30+ capacity magazines, over 413 million, are over thirty times the amount available than 10 and below capacity rifle magazines, about 13 million”; and
- Over 40 percent (43.3 percent) of firearm owners overall reported owning a detachable magazine with a capacity of 11 or more rounds. More generally, these “findings indicate that approximately 8.9 percent of the U.S. population owns a magazine holding 11 or more rounds.”
That sure reads like “in common use” to me.
There’s another angle to consider here. The Second Amendment (which, as the popular saying goes, ain’t about deer hunting) was drafted at a time when an army, led by an experienced general but composed in large part of farmers, shopkeepers, and other citizens, had just whipped troops from what was then the world’s greatest and most powerful empire. The “well-regulated” portion of that amendment, while being a subordinate clause (the “right of the people to keep and bear arms shall not be infringed” being the operative clause) means that the militia must be properly trained and equipped. In modern parlance, that means having essentially the same capacities as a soldier; we probably aren’t going to see the 1934 National Firearms Act repealed any time soon, but it seems clear that the “well-regulated” clause would imply that citizens should have similar equipment – including the 30-round magazine for the popular AR-15 platform, in which it is the standard, not a high capacity magazine.
With a bit of luck, one of these cases will be taken up by the Supreme Court, and we will finally be able to see this issue put to rest once and for all.
You can read the full original report by NSSF here.
