A constitutional perspective on high-capacity magazines

By Dan Rubinstein

The ban on high-capacity gun magazines, adopted by the Colorado Legislature this year and signed into law by the governor, faces some serious constitutional challenges.

Only time will tell if the nine minds whose opinion matters most — the justices of the U.S. Supreme Court — will agree with me, but from my seat it seems pretty clear the ban on high-capacity magazines is not “actually necessary” to the problem in need of solving and should be struck down.

It takes some background on the court and the Constitution to explain how I arrived at that conclusion.

In District of Columbia v. Heller, the Supreme Court found that the individual right to bear arms existed through the Second Amendment, but the court declined to adopt a standard to apply to determine when legislation that restricts that amendment violates the Constitution.

There are different levels of scrutiny the court uses to test a law’s constitutionality. The highest level is known as strict scrutiny. Under this standard, the government entity must demonstrate that the law or policy in question is necessary to achieve a compelling state interest. It must also show that it’s narrowly tailored to achieve the intended goal.

The majority in the Heller decision expressly rejected the lowest level of scrutiny. But the justices failed to decide whether the rights under the Second Amendment could be limited only when satisfying strict scrutiny or a lesser standard.

As enticing as it is to gun owners, I will concede that adopting strict scrutiny would create a litigation nightmare involving re-addressing every version of weapons restrictions (switchblades, blackjacks, sawed-off shotguns, possession in airports, courthouses and, well ... you get the point). That said, it may well be the right thing to do.

We limit constitutional rights to free speech in a variety of ways. Time, place and manner restrictions are acceptable under lesser scrutiny standards if they are content-neutral, are designed to serve a substantial governmental interest and do not unreasonably limit other means of communication. For example, we do things such as requiring permits to march down Main Street in protest.

However, if the government is going to regulate the content of the speech, it is subject to strict scrutiny. This is a very difficult burden for the government to overcome and restrictions usually fail. In the affirmative action case out of Texas last week, the court said that “the reviewing court must “ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” That’s right, it said no workable alternatives can exist that produce the same result.

Turning now to Colorado’s recent gun legislation, the court will have to decide if the ban on magazines that exceed 15 rounds fails the applicable test.

Given that the Supreme Court has not decided whether to apply strict scrutiny, this case may pave the way for such a decision that affects both our state and future federal legislation. In the interim, it will be up to the seven justices on the Colorado Supreme Court to give their best guess as to the direction we are headed on the Second Amendment.

A few cases are telling in that regard. First, if the U.S. Supreme Court ultimately adopts the strict scrutiny test, we are almost certain to place 30-round magazines happily back in the hands of our citizens, based on other cases.

In Brown v. Entertainment Merchants Association, the California Legislature sought to ban violent video games. The ban was struck down when the court stated that California failed to do what they were required because “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” The court rejected California’s assertion that it should be able to “make a predictive judgment that such a link exists.”

This strikes me as remarkably similar to Colorado’s ban on magazines larger than 15 rounds. There has been no identified connection between the ban on the magazines and a decrease in violence or deaths. The Legislature seemed to be making a predictive judgment that this would solve the problem.

Even if the Supreme Court ultimately adopts the lesser scrutiny standard, intermediate scrutiny, for the Second Amendment, the law “must serve an important governmental objective, and the means employed must be substantially related to the achievement of those objectives.”

I listened to much of legislative debate on the bill to ban high-capacity magazines, and it was clear that the testimony was devoid of any relationship between the legislation enacted and the objective sought to be achieved.

That makes it highly unlikely, to my mind, that the law will be upheld.

Dan Rubinstein is chief deputy disrict attorney for the 21st Judicial District, encompassing Mesa County.


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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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