New Gun Issue Is Ripe
for the U.S. Supreme Court
(Joaquin Corbalan/Dreamstime.com)
By Michael Dorstewitz. July 28, 2023
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The Second Amendment guarantees "the right of the people to keep and bear arms," and while last year the U.S. Supreme Court ruled who may constitutionally bear arms in public; next year it may reaffirm what arms they may keep.
Gun rights organizations filed a notice to appeal a federal judge's opinion upholding an Oregon law banning so-called "large-capacity" magazines, those capable of holding more than 10 rounds of ammunition.
On July 14 U.S. District Judge Karin Immergut held that while the Constitution protects an individual right to self-defense, large capacity magazines "are not commonly used for self-defense, and are therefore not protected by the Second Amendment."
Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, one of the groups that filed a notice of appeal, thought her decision was stunning.
"She went out of her way to find an excuse to say that the law does not violate the Second Amendment when it comes to magazines," he told Newsmax.
And Immergu misapplied Supreme Court case law, according to Amy Swearer, Heritage Foundation senior legal fellow specializing in Second Amendment issues.
She told Newsmax that ultimately, "the test would come down to 'do we have a history of limiting magazine capacity?' And I think the answer is very clearly, no!"
Swearer added that if one were to even use the judge's flawed test — weapons that are "commonly used in self-defense" — the state's 10-round magazine limit would still fail.
"I just published a Heritage legal memo on this specific reality. We went through our defensive use database and pulled out as many as we could, of instances where it's very clear that someone fired more than 10 rounds in self-defense."
Swearer observed that examples where law-abiding citizens required more than 10 rounds to defend themselves include instances involving "multiple assailants, some sort of sustained gun fights, and people hiding behind cover."
She concluded, "It's necessary, it's absolutely vital, and can mean the difference between life and death." And it has.
In one example a Coleman, Michigan resident was confronted by six men who broke into his home. The homeowner shot and seriously injured one, and the police apprehended the other five.
Then there's the Philadelphia woman who discovered four men upon arrival at her residence, and shot two before they all fled.
Both examples occurred in the early morning hours of the same day — July 16.
Swearer added that "the 2021 National Firearms Survey actually asked this question of not only how many people own these ("high-capacity") magazines, but why. And overwhelmingly, they said for some manner of self-defense."
Accordingly, she believes that magazines with a capacity greater than 10 rounds would fall under Supreme Court cases such as McDonald v. Chicago, 561 U.S. 742 (2010), and D.C. v. Heller, 554 U.S. 570 (2008).
They both reaffirmed the principle that the Second Amendment protects the private ownership of firearms "in common use" for lawful purposes.
Swearer observed, however, that an activist judiciary will always try to find ways to get around Supreme Court case law.
"You have courts, you have judges where it just doesn't matter what specific language you put in, it doesn't matter how clear the Supreme Court is, they're going to continually try to find ways to undermine these decisions."
She added, "there are still very clearly ways in which judges are going to do that — they're going to manipulate the language . . . they're going to manipulate the standard. And that's what we're seeing here."
Gottlieb admitted that one snag to their appeal might be the jurisdiction.
"We're in the Ninth Circuit, so we're taking nothing for granted," he said.
The Ninth Judicial Circuit has historically been the most liberal and activist circuit in the U.S. Court of Appeals system.
Accordingly, "this is a decision that is going to have to be decided in the United States Supreme Court, but the court will probably decide the issue on another case.
He added, "they have a whole cafeteria plate to choose from . . . We found similar cases in multiple circuits."
They all centered on the same question — what weapons are considered "in common use" and therefore protected under the Second Amendment, "but on two main things," Gottlieb said. "On the magazine ban over 10 rounds, and so-called 'assault weapons.'"
He added that "it's my guess they're going to decide both at the same time."
Last year the high court ruled that that states cannot require citizens to demonstrate a special need in order to be issued a concealed carry permit. Next year it may rule that so-called "assault weapons" and "large-capacity" magazines are permitted under the Second Amendment.
On July 4 President Biden predicted, "It is within our power to once again ban assault weapons and high-capacity magazines"
He should prepare to be disappointed.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to Newsmax. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.