A constitutional perspective on high-capacity magazines

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While due deference should be afforded to Chief Deputy DA Dan Rubinstein’s analysis of Colorado’s 15-round magazine capacity limit – “A constitutional perspective on high-capacity magazines”—readers familiar with our Supreme Court’s inconsistent rulings on the Second Amendment should recognize the fundamental flaws in his “perspective”.

First, while the Second Amendment expressly protects at least some citizens’ right to “keep and bear” at least some kinds of firearms (at least for self defense), it is entirely silent as to ammunition – perhaps because its authors had no knowledge of any firearms capable of discharging more than one round without cumbersome reloading. 

Second, because our courts have already upheld bans on machine guns and “cop killer” bullets, Rubenstein essentially “begs the question” by assuming that Colorado’s “high capacity magazine” ban somehow “restricts” the Second Amendment.

Third, because the Second Amendment is arguably not implicated at all, the three levels of “scrutiny” described by Rubenstein are irrelevant.  In Heller, the Court rejected D.C.’s denial of residents’ right to “keep and bear” handguns for self-defense, but also ruled that “the right secured by the Second Amendment is not unlimited” and does not preclude prohibitions on the carrying of “dangerous and unusual weapons”.

Fourth, if Colorado’s statute does not “restrict” a fundamental constitutional right (like Free Speech), only a “rational basis” is required to justify it.  Thus, the prohibition of “high capacity magazines” need only contribute to reducing a legislatively-perceived threat to public safety (as with machine guns and “cop killer” bullets), and need neither entirely solve a problem nor be “actually necessary to the problem in need of solving”.

Consequently, Rubenstein’s reliance on Brown (violent content of video games protected by Free Speech Clause of the First Amendment), is entirely misplaced.  To paraphrase the NRA’s familiar refrain:  “video games don’t kill people, bullets do”.

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