A legal Thought Exercise

Reader Archer was letting his mind wonder:

— Archer.

The first step in analyzing a Second Amendment Challenge is to determine if the proposed conduct implicates the Second Amendment.

For conduct to be implicated, the object must be an arm and the conduct must be “keep and bear”.

If it is an arm and the conduct has anything to do with “keep and bear” then the conduct is presumptively protected under the Second Amendment.

We define the conduct, “I wish to keep and bear ammunition feed devices that have an arbitrary capacity.” The state wants to limit that capacity to ten or less.

Before Bruen the court would presume that this conduct was protected. They would then move to the second stage of the analysis: How much does this infringe the core right of armed self-defense?

Since you can use smaller magazines, different guns, and the state has presented evidence that self-defense events involving civilians rarely use more than three rounds, the infringement is trivial.

The state has also presented compelling “evidence” that big ass magazines allow for more harm when used in mass shooting events.

The court balances how much raping is being done to you verse how much the state really really wants to infringe. The courts almost always came down in favor of the State.

Today, we don’t get that presumption of protected conduct. Instead, we have to prove the conduct does implicate the Second Amendment.

When dealing with a gun ban, Heller controls. If it is a ban and the object is in “common use for lawful purposes, today”, then it is protected under the Second Amendment.

Therefore, the state wants to make the object “not an arm” or they wish to make it “dangerous and unusual”. The state is arguing from both sides in the LCM bans.

On the one hand, they argue it is not an arm. Since it is just a box and there are many differently shaped boxes of different sizes, you don’t need to have this particular size and shape. Further, they argue that a magazine is not an arm because it doesn’t really do anything. It is exactly like a cartridge box, or the box of ammo you buy from the LGS.

Since it is not an “arm” it is not protected under the Second Amendment.

If it is not an arm, it can be banned.

Because the state knows this is a weak argument, they move to the second step, “Even if it is an arm, which it isn’t, it isn’t in common use for self-defense”.

The state is acknowledging that magazines are in common use as defined by Heller and made concrete in Caetano. Heller said possessed. Caetano said that “hundreds of thousands in lawful possession” made it common.

The state knows that if a court rules, correctly, “dangerous and unusual,” then they lose. They can’t make an argument about “dangerous” that has any bearing because it is common. It doesn’t matter if it is the deadliest weapon ever invented by man, if it is in common use for lawful purposes, then it is protected under the Second Amendment.

But back to Archer’s idea. If you only fire 3 shots out of a LCM, then you didn’t really have an LCM because use is …

It doesn’t work.

Having gone through the magic above, the court decides to go rogue. They rule that the LCM is NOT a protected arm. Either they say it isn’t an arm or they say it isn’t in common use, it doesn’t matter, they have allowed the ban to go into effect.

At that point, the state makes it illegal to have an ammunition feed device which holds more than 10 rounds.

The law doesn’t say anything about use, it is mere possession.

The cops show up at your self-defense event. They slap you on the back and congratulate you on surviving the encounter. They take your fire arm, drop the mag and count the rounds in the mag.

You only fired 3 rounds, just like the statistics say you should, there are 5 rounds left in the magazine, this means you had less than 8 rounds in the magazine. Your golden!

Nope. The law isn’t like New York’s (old?) law. The LCM ban said you had to down load your magazines. You could still have your 15 round Glock mag, but you could only put 7 rounds in it, or some such nonsense. In this ban, it is a ban on the possession of LCMs.

So you tell the cop you only fired 3 rounds. He and the CSI folks see three holes in the perp and no others. The witnesses agree that it was only three rounds, and there are only three casings on the ground. Your golden!

Nope, the law does ban using more than 10 rounds, it bans possessing a magazine capable of holding more than 10 rounds.

To wrap this up, consider the cops searching your home with a warrant. They locate a tarball of heroin. It doesn’t matter if you used it, it doesn’t matter if it is pure or cut a thousand times. The mere possession of that tarball is the crime.