On January 29, 2013, I attended a discussion between Alan Gura, the attorney who successfully argued the Heller v. D.C. and McDonald v. Chicago 2nd Amendment cases in the Supreme Court, and Cornell Law Professor Michael Dorf. Gura was invited by the Cornell Law Federalist Society and Second Amendment Club.
The discussion was fascinating, and I strongly urge you to view the complete 1 hour video which is posted on YouTube.
They touched on a number of issues, including the concept of defending oneself against “tyranny” as a justification at the time of enactment (they both agreed that historically it was a factor), and other aspects of 2nd Amendment law.
Towards the end of the program I asked about the recent NY gun law which outlaws possession of handguns which hold more than 7-round magazines, although current owners can keep the guns so long as they only put 7 bullets in the 10-round magazine.
Because of where the microphones were placed, my question is a little hard to hear. I asked about whether NY’s 7-round limit was constitutional given that it is lower than the 10-round magazines which widely are accepted as within the norm, even by many gun control advocates.
Gura answered:
“Well the 7-round limit to me is clearly unconstitutional, for the reasons mentioned, Americans have expectation to find in common use handguns that have more than 7-rounds, and so a 7-round limit is plainly unconstitutional.”
Related — “and then a roll of duct tape came out”
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Just sent this link to Kathy Marchione, my State Senator leading the fight.
Isn’t that the same law that forgot to exempt law enforcement from it’s provisions? Legislate in haste and be embarrassed in leisure is NY’s new motto, I guess?.
If I have my facts correct..
D.C. pretty much ignored Heller, as Chicago always ignores their gun control rulings..
Back to the game-
It seems that the new and improved argument for the Right to Bear Arms is the “Commonplace Clause”.
Lawyers…ugh.
As in, if the “arm” is commonplace, you cannot ban it;making the common citizenry instant felons.
Hence, the most common sidearm is the Glock-it’s magazine holds no less that 15 rounds, a ban on that side arm is therefor “UnConstitutional”.
As far as rifles, “commonplace” resides with the…
AR-15
In my book, the more you parse, the less you have.
The Right of the People shall not be Parsed…
I am going to listen to the entire segment but I wanted to point out Justice Scalia talked about restrictions on the 2nd amendment this past summer. I know some conservatives weren’t thrilled he conceded there were obvious restrictions on the right to bear arms but the left went overboard saying he thought hand held grenade launchers “that could shoot down aircraft” might be constitutional. He really didn’t say that at all, but instead said any restriction would need to be looked at quite carefully.
I have used this video in arguments with liberals quite effectively. One of the more common arguments from the left is whether there is a constitutional right to nuclear weapons. Seriously. Anyway my point is if you watch what he says in the interview he makes a point about restrictions on the right at the time the Constitution was drafted. Carrying a head axe to frighten your neighbors was a misdemeanor. As was mentioned in the video clip you posted here, carrying a large amount of ammunition walking down the street in New York City could be restricted if you follow the logic of the founders as well. Limiting a magazine to 7 rounds when most are made to hold 10 completely defies logic.
It is also worth noting the Gov Cuomo has taken a hit on his favorability since passing this law. Watch the Dems up for reelection in red states ponder the hit Cuomo has taken in blue NY. Scalia had a term for that, I think it was “frighting.”
Correct me if I’m wrong, but I believe Scalia also alluded to the “commonplace” argument-
Reading your post, I can’t help but to think of the Constitutional Law that bans yelling fire in a crowded theater.
Oh, wait-
That’s not a law, and “yelling fire in a crowded theater” was never a part of Schenck v. United States (Charles Schenck was the Secretary of the Socialist Party of America)
In fact Justice Holmes wrote in his opinion “..The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…”
What Justice Holmes wrote is called obiter dictum.
obiter dictum is Latin, meaning-
1. (Law) Law an observation by a judge on some point of law not directly in issue in the case before him and thus neither requiring his decision nor serving as a precedent, but nevertheless of persuasive authority
2. any comment, remark, or observation made in passing
My point is, it doesn’t matter what Scalia said. We establish too many Constitutional “laws” based on what people said, in passing–such as “separation of Church and State”, which are in fact not Constitutional laws.
Libs will tell you all day that what Obama says “in passing” is the new “law”. I won’t afford that to any man, Obama or Scalia.
Standard capacity pistol magazines are generally 15-18 rounds (Sig Sauers / Glocks). Standard AR-15 type magazines are 30 rounds. In California, only active and retired police are allowed standard capacity magazines. The rest of us have reduced capacity 10 round magazines. The exception for retired LEOs could be the basis for an Equal Protection case. Why would one citizen’s former occupation entitle him or her to a different treatment under the 2nd Amendment than that of other citizens?
Seven round limits for semi-automatic handguns would virtually make most of ’em illegal which in MNSHO would violate the, “…shall not be infringed,” part of the 2nd Amendment.
This would include my Glock and handy little Astra A-70 and when really thinking about it, they only legal weapon I could retain would by my ancient Winchester model 67.
Gotta admit though, the latter is probably the most accurate one of ’em all..
A point and a question:
Point: Let’s not forget these gun control efforts aren’t meant to resolve gun violence or withstand legal challenge down the road – the only goal is political, to appear to be Doing Something Good while the Newtown massacre is still emotionally exploitable.
Question: Concerning the 7 round per mag issue, I have been unable to find an answer to whether you can have one in the chamber above and beyond the limited 7 in the magazine. What with the ‘oops’ concerning law enforcement, these clowns aren’t much on details, which further underscores my above point -they don’t care, because it’s winning them support among their base, and later on, when these new laws are overturned, they’ll then have a boogeyman to play politics against.
It’s by design, Henry. There was a time laws were written to limit prosecutorial* over reach.
Now, they seem to be written to give prosecutors unlimited reach.
*spell check says that’s not a word. If it’s not, it should be. I “refudiate” spellcheck. I think….
United States v. Miller, 307 U.S. 174 (1939) makes it clear that 2nd amendment isn’t about hunting, as they declare a sawed-off shotgun out of it’s scope because it’s not a weapon a “well organized militia” would use.
They didn’t declare a sawed off shotgun was not a weapon suitable to a “well organized militia.”
What they said was that they had not been presented any evidence to the contrary and therefore allowed the conviction to stand (because Miller, being an otherwise ordinary run of the mill criminal, was on the lam and had skipped out on the SCOTUS hearing, thus having nothing presented in his own favor.)
Had Miller been a defendant truly interested in asserting a defense of his rights he might have brought examples of, or an argument justifying the use of a short barreled shotgun in combat (like the kind used in WWI for trench clearing.) In which it is conceivable that Miller might have turned out to be the case that overturned the NFA as an affront to the Second Amendment.
Miller: And the Court was wrong. They made an assumption absent any testimony contradicting the statements of the prosecution. Subsequent events, WW-2, Vietnam, demonstrate that there are many military uses for short-barreled shotguns.
I saw a tweet a couple of hours ago that mentioned the “7-round limit is plainly unconstitutional” and thought, “Yeah, and I thought Obamacare’s individual mandate was ‘plainly unconstitutional’.”
It’s nice to see that the assertion was made by someone with some credibility(!) and not just some wag on Twitter or worse, some “political analyst” on a cable news show.
‘the lam and had skipped out on the SCOTUS hearing’ Miller may have been deceased by the time the appeal came up.
This lil’ exercise in tryanny and stupid, hasty DO SOMETHING legislation will be overturned.
It already has cost Cuuuumo 15 points in polling reported today.
Separate the sheep from the goats.
Obviously you are not a wise Latina.
What’s to stop Holder from Fast & Furious II-US edition?
Ponder….
There already was.
An Indianapolis gun store was told by the BATFE to explain why so many of their sales ended up in the wrong hands; they responded with a letter from their lawyer explaining that they were ordered to make the sales by the BATFE…
http://www.jsonline.com/watchdog/watchdogreports/atfs-milwaukee-sting-operation-marred-by-mistakes-failures-mu8akpj-188952581.html
More messes in Milwaukee, we are so screwed.
The BATFE loses a fully automatic rifle – a true assault rifle and the Manchurian media ignores it.
Color me unsurprised.
Cops are cops because they’re good at it, but they nusually know squat about merchandizing and marketing. Shoulda hired an experienced strawperson to run it for ’em
One last note:
The Heller Decision was one vote (5-4) from ruling the 2nd Amendment, as we know it, as we have always know it, to be UnConsitutional.
I put this on the tip line, but I think it’s relevant here. Ted Cruz in Congressional hearings. Excellent presentation. http://www.youtube.com/watch?v=Wi6gZU01yF8
Pardon my shock, but “the Cornell Law Federalist Society and Second Amendment Club” — at Cornell?!?
An implied component of the right to keep and bear arms is the responsibility that comes with securing those arms. Some states recognize this when they they define proper storage. And a person (whether civilian or an officer) knows that if he is carrying a concealed weapon, he must attend to proper physical control at all times. This is why is is shocking to read when a member of elite security (like Secret Service) leave their duty weapon in the rest room.
Additionally, the responsible use of any weapon requires the ability to take responsibility for the consequences of subsequent injury or property damage. Governments have sovereign immunity from such claims, something a private person does not enjoy. No private person could afford the necessary security arrangements for a nuclear weapon, and they certainly could not afford to assume the liability for damages should the weapon ever be triggered.
While I do not see the Second as being limited to the type of weapon, the inability to invoke sovereign immunity makes weapons above a certain scale of destruction impossible for a private citizen to own when liability is taken into account.
Indeed, the only reason a corporation can afford to own a nuclear power plant is because government has legislated limits to their liability, in essence giving the nuclear power industry a subsidy by qualified sovereign immunity. When the full cost of this implied liability insurance premium is recognized, nuclear power costs a lot more than advertised.
To the Founders, a secure firearm was one that was within easy reach; propped against the door-frame, or hung on pegs above the door, or over the mantel. The Court found that DC’s “secure” regulations were an unconstitutional infringement upon the 2nd-Amendment Right to Keep and Bear Arms.
Nuclear weapons are a special case, in that even with sovereign immunity, in most developed nuclear powers, no single person can employ one.
If you can’t stop them in seven, then you should be a victim of murder, rape, or, generally, involuntary exploitation.
I wonder if the state’s security forces would agree to limit their arsenals.
I wonder if cartels, terrorists, and criminals will voluntarily self-moderate. Will our federal government refuse to supply them?
“…Will our federal government refuse to supply them?”
They haven’t so far!
[…] “Clearly Unconstitutional” I am glad to hear such a firm statement. There have been others in the Second Amendment legal community that have broached the topic of round limitations, and while I realize there’s a limit to how far the federal courts are likely willing to go on these topics, if a ten round limit is conceded as constitutional, why not a seven round limit? What qualifies a judge, or legislator, to make such assessments? I know a lot of folks have derided the “common use” language in Heller as being a circular argument when it comes to machine guns and other long-regulated items, but I think that misses the forest for the trees. […]
Watching the video right now. Speakers aren’t real good and if I put earbuds in the computer goes haywire after a while.
No idea why the computer hates them, however – Professor Jacobson – did you hire a drunken Mongolian to do the closed captioning?
OMG, sometimes it’s hilariously bad. Most times it’s not even close to the dialogue.
Gura for President is my motto with Emily Miller for Veep until Gura’s run is over. Then we put Emily in charge, although she’d probably not want the job. She’s much too smart.
[…] […]
If one begins by understanding that a criminal, by definition, and a lunatic, by mindset, has no concern about whatever law you pass, then consider the following…
If you, god forbid, had to use a gun to defend yourself, why would want to limit your chances of survival as much as possible by limiting your ammunition as much as possible?
Assuming you survive, what harm is done by having bullets left over?
[…] some pissed off folks. I was reading through the below link and some of you mayfind it interesting. https://legalinsurrection.com/2013/01/heller-case-attorney-ny-7-round-limit-clearly-unconstitutional/ Also there is a link below with the lawyer who argued theHeller case with the Supreme Court and the […]
[…] As mentioned here previously, Alan Gura, the attorney who successfully argued the Heller v. D.C. and McDonald v. Chicago 2nd Amendment cases in the Supreme Court, argues that the NY 7-round limit “is clearly unconstitutional.” […]
[…] may want to limit firearms magazines to ten rounds, and New York may have limited them to seven rounds, but Defense Distributed has developed a 30-round magazine design for AR-style rifles that can be […]