January 30, 2011

The Unintended (or Not) Consequences of Magazine Capacity "Restrictions"

The Arizona shooting has provoked predictable calls for various gun control schemes, each and every one a recycled proven failure, but the most clever and insidious is the banning of large (actually, regular) capacity magazines for semi-automatic firearms. Prior to the State of the Union Address, occasionally suspect Republican Peggy Noonan has recently suggested that President Obama fly this particularly odious flag, echoing Paul Helmke of the Brady Campaign’s call for the same restriction. As most now know, this was one of many topics he entirely avoided, wisely—for him. Before I continue, some useful links:

(1) My commentary on the SOTU can be found here.
(2) Bob’s informative posts with video on magazine changes can be found here and here.
(3) Bob’s post on the Columbine killers is available here.
(4) My article on Justice Breyer at PJM is available here.

In preparation for what they hope to be a new front in a never ending battle, anti-gun forces are engaging in the continual re-branding of gun control, a re-branding occasionally made necessary when the public becomes wise to the most recent re-branding of a decaying carcass. The most recent re-branding seems to be the substitution of “restriction” for “gun ban” or “gun control.” Fortunately, for most Americans, a ban by any other name would smell as badly (apologies to Shakespeare).

Paul Helmke, who is trying to shame President Obama into overtly supporting gun “restrictions,” said: “Providing access to high-capacity magazines is beyond the pale. Banning them is a matter of public safety. There is no Second Amendment or God-given right to be able to maim and kill your fellow Americans with military-style ammunition. When the high-capacity magazine restriction was in place until 2004, it was effective. If our nation can agree that machine guns, cop-killer bullets, and plastic guns ought to be banned, surely we can agree that high-volume magazines have no place in our society.”

Also recently piling on the magazine capacity limit bandwagon was the Washington Post. While such a ban might sound relatively harmless to some--VP Dick Cheney recently—and uncharacteristically--suggested that it might not be such a bad idea--it is not only foolish but dangerous. Here’s why:

(1) THE (NON) EFFECT ON PUBLIC SAFETY: Set aside the fact that criminals don’t obey any law. Set aside too the fact that even if all firearms could be magically disintegrated by appropriate legislation, the murderous would simply use other more time-tested methods of killing. It should not be forgotten that some 7000 were killed in a single day at the Battle of Hastings in 1066 using the available hand weapons, which did not include firearms. At the Civil War battle of Gettysburg in 1863, both sides suffered approximately 51,000 casualties in three days of fighting using primarily single shot, breech loading rifles and muzzle loading cannon quite crude by contemporary standards. Some 5000 horses were also killed. The problem, in 1066, 1863 and today is human nature, not the tools employed.

Helmke’s claim that the 1994-2004 Clinton Gun Ban’s 10-round magazine limit was “effective” is easily disproved nonsense. It’s hard to imagine what Helmke means by “effective,” unless he counts as effective inconveniencing and annoying the law abiding while not in any way hampering criminals. My co-blogger Bob Owen’s recent article (see the link at the beginning of this article) on the Columbine killers—who would want their names mentioned here—eloquently makes that point. There are two primary reasons the gun ban was allowed to sunset: Congressional Democrats learned through bitter experience that the issue was electoral suicide, and after a decade under the joys of Progressive gun ban fantasies, no evidence could be found, or even plausibly manufactured, to indicate that any part of the law--of which the magazine capacity limit was a crown jewel--had any meaningful, positive effect on reducing crime or in any way improving public safety.

Helmke engages in additional sophistry. “Military style ammunition” is not, in fact, what is commonly in widespread civilian use. True military ammunition can be dangerous for civilian use because of its over-penetrating properties. Machine guns have never been banned in America, merely tightly regulated, and incidents of their criminal misuse are essentially nonexistent. There is no such thing as a “cop-killer” bullet, nor have “plastic guns” ever existed. They are figments of the fevered gun banner imagination, outright lies, inventions out of whole cloth meant to play on the emotions and gullibility of an uninformed public. The public can hardly be said to agree on the necessity of banning things that don’t exist and have never been banned. Arguing for a limitation on magazine capacity with nonexistent and false examples is, to the informed and rational, less than convincing.

(2) THE PRACTICAL ARGUMENT: Limiting magazine capacity, so the argument goes, would limit the number of victims that could be shot before a shooter had to change magazines, giving bystanders (unarmed, of course) the chance to attack and disarm the shooter. This is likewise nonsense. While it is true that with, say, a 30 round magazine, one can potentially fire thirty rounds in a shorter time than someone armed with two magazines of 15-round capacity, the difference is tactically negligible.

Semi-automatic pistol magazine changes done by the skilled take as little as one second. Even those with only average skills can change magazines in 3-6 seconds. The same is true for revolvers, which commonly hold only six rounds. With widely available and commonly used speed loaders (inexpensive plastic devices shaped like a revolver cylinder that allow all six cartridges to be simultaneously inserted into the cylinder), revolvers can be reloaded within 2-8 seconds, again, dependent upon the skill level of the operator. Bob has posted several revealing posts and videos that clearly illustrate this reality (see the links at the beginning of this article). The point is that the time required for magazine changes is practically insufficient to allow effective intervention by bystanders who would most likely find themselves running toward a shooter just as he finished inserting a fresh magazine and closed the slide--not a good place to be. And if Helmke and the rest of those who would ban all firearms had their way, all possible bystanders would be disarmed.

In Arizona, the shooter was reportedly overwhelmed not because of the time required for a magazine change. He did—according to some accounts--make a successful magazine change, but his weapon malfunctioned on the second magazine and he apparently lacked the skill to clear it. An alternate possibility is that he didn’t fully insert the second magazine and it dropped to the pavement--there are reports of a magazine on the ground and of a bystander seizing one of his magazines at some point--but it’s impossible to know for sure with currently available information. That, and the very close proximity of witnesses--he apparently walked into the middle of a crowd and started shooting--made it possible to disarm and restrain him without additional injuries. With proper training, all malfunctions to which semi-automatic pistols are susceptible can be cleared in one to four seconds. In short, those who overpowered the shooter--who would surely want his name to be mentioned here--were not only brave, but lucky.

However, a shooter can eliminate all of these problems by doing as the shooter at Virginia Tech--who would also like to have had his name mentioned--did by simply employing multiple loaded weapons. That killer used two handguns, a Glock 19 (as did the Arizona killer) in 9mm, and a Walther P22, a .22 caliber handgun with a 10 round magazine. Instantly available in those two handguns, without reloading, were 27 rounds. By simultaneously employing two handguns, one can fire 30 or more rounds even faster than a single handgun with a 30 round magazine.

Anti-gunners would not want it to be known that the killer could easily have done as much--or more--damage with an improvised bomb, by driving an SUV into the crowd, or through a variety of other methods it would be best not to publicize. Consider too that what gun banners call “large capacity magazines,” are usually those specifically designed for a given handgun and are, as such, magazines in common, every day use, in no way special or unusual. Such magazines are not considered “large capacity” by their manufacturers or by those who understand and own firearms. The AR-15, for example, perhaps the most ubiquitous semi-automatic, intermediate cartridge rifle in America, has a standard magazine of 30 rounds. Manufacturers do manufacture magazines of lesser capacity, but over the years, the 30 round magazine has become standard. “Large,” like beauty, is in the eye of the beholder.

While most incidents of civilian shootings involve relatively few rounds, there are certainly circumstances where a magazine capacity of more than 10 rounds can save, and has saved, innocent lives. Citizens, up to two millions times each year, use firearms to stop criminal attacks, usually without firing a shot. A group of criminals sizing up a woman in a parking garage late at night would surely take into account the 15 round magazine of her handgun as she drew her weapon. The practical--as opposed to theoretical--case for limiting magazine capacity simply does not exist.

(3) THE LEGAL ARGUMENT: One of the facts that must surely be most grating to Helmke and certain Congressional Democrats is the outcome of the Heller and McDonald cases. From 1994-2004, the state of 2nd Amendment jurisprudence was unsettled. The Supreme Court had never definitively ruled on the meaning and scope of the 2nd Amendment. Helmke, and those in tune with him, constantly declared that the 2nd Amendment did not confer an individual right to keep and bear arms. The Heller and McDonald cases conclusively established that the right to keep and bear arms is without question a fundamental, individual right that does apply to the states and that extends to firearms in common civilian use, which would surely include semi-automatic handguns, revolvers, and most semi-automatic rifles that resemble their military cousins such as the AR-15. These decisions have taken considerable wind out of the sails of anti-gunners, and all but the most virulently and irrationally anti-gun Congressmen have shown little interest in running headfirst into what is now far more clearly a constitutional and electoral buzz saw.

It is not just the two decisions that worry gun-banners, but their non-enumerated, implications. Admittedly, the full scope of this fundamental right has not yet been absolutely delineated. Unquestionably, one may keep commonly available firearms, including handguns, in one’s home, and this surely includes the magazines, ammunition and related accessories in common, lawful use. Still in some flux is the issue of bearing firearms, though the twin decisions--to say nothing of common sense--imply that one cannot meaningfully exercise the right without the ability to carry firearms--not only in the home--in some substantive way. All but two states--Illinois and Wisconsin--allow some form of concealed carry, with 38 currently having “shall issue” systems where qualified applicants may not be denied a concealed carry permit. It is highly likely that Wisconsin, having recently elected a Republican majority legislature and Republican governor, will soon join the other 38.

The experience in all of these concealed carry states is consistent: Those who are willing to apply, go through rigorous vetting and training and pay substantial costs, are far more law-abiding than the general public. Their permits are suspended or revoked primarily for minor technical violations of the law such as accidentally carrying a handgun into a prohibited location. Such revocations commonly comprise only a hundredth or thousandth of a single percent of all licensees in those states.

Researchers such as economist Dr. John Lott and others have found that concealed carry states have uniformly experienced drops in violent crime, and anti-gun predictions of gunfights over shopping carts and at fender benders have failed to materialize. Even partisan anti-gun researchers have, after mighty labors, been able to say no more than that concealed carry has produced no measurable effect on crime. In this field of study, they are in the decided minority.

If the right to keep and bear arms is truly an individual right and the plain words of the 2nd Amendment retain their equally plain meaning, arms may certainly be bourn outside the confines of the home. The right to self-defense, and its necessity, cannot be said to begin and end at one’s front door. The positive American experience with concealed carry is ubiquitous and supports the rationality of concealed carry using commonly available weapons and their component parts--such as the magazines designed for them--and accessories. Restrictions may be imposed on the exercise of a fundamental right only if a compelling state interest can be clearly demonstrated, and it’s clear that no such interest adheres.

Ah, but the Constitution would prevent such restrictions? Ideally yes, but if Mr. Obama is able to appoint several Supreme Court justices, the ideological balance of the court would be swayed from those who wish to interpret the law as written, while considering the historical record which faithfully reflects the intentions of the Founders, to those who see the Constitution as a mere impediment to desirable Progressive policies. Justice Stephen Breyer, who typifies this liberty destructive mindset, was discussed in my recent PJM article (see the link at the beginning of this article).

(4) THE SLIPPERY SLOPE: Slippery slope arguments can be irrationally alarmist. Yet, considering the nature of those who wish to impose such restrictions, including their long records of deception, misdirection and hyperbole, this particular slippery slope is all too real. For those willing to take the time to conduct a bit of research, it’s easy to find the statements, oral and written, of gun banners, which reveal their unmistakable, ultimate goal of complete bans and even confiscation of all firearms. Senator Diane Feinstein (D-CA) for example, said on February 5, 1995, on 60 Minutes, "If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them . . . Mr. and Mrs. America, turn 'em all in, I would have done it.” In this statement, Feinstein committed the stereotypical DC Beltline gaffe: She accidentally told the truth, the truth most other anti-gunners are usually careful to keep under wraps.

Why allow 10 round magazines? Does this indicate that gun banners are comfortable with allowing lunatics to shoot 11 (10 +one round in the chamber) people before reloading? And if ten rounds is good, wouldn’t any other arbitrary, lower number, such as six or even one, be better? Gun banner strategy has always been incremental. Their internal documents, which from time to time surface, reveal that they have always intended to get whatever restrictions they could manage, by any means necessary, as transitional steps on the way to complete bans and confiscation. Those wondering about the consequences of honest citizens being deprived of firearms need conduct only a bit of research into the experience of the British and Australians--who have no 2nd Amendment or anything like it--to understand the deadly consequences of such policies.

Two recent anti-gun maneuvers, designed to circumvent Congress and the law, serve to illustrate the point. In July, 2010 the Center For Biological Diversity petitioned the EPA to ban all lead ammunition. Lead is an essential component in all bullets. Ban lead and you ban shooting; this is an old anti-gun tactic. Despite the fact that the EPA had no such power, and that ammunition was excluded--by law--from such attempts, the Obama EPA attempted an end run around the Constitution and the Congress. Fortunately, publicity and other pressure caused the EPA to back off--for the time being.

Also in 2010, BATFE Special Agent in charge of the Chicago Field Division Andrew Travers was nominated by President Obama to head the agency. Travers has a long anti-gun record, including the kind of blatant exaggeration and outright deception about weapons and their characteristics common in anti-gun advocacy organizations. With Travers as the head of the BATFE, substantial under-the-radar harm could, and almost certainly would, be done to the rights of Americans. Such attempts to circumvent the law and Congress by regulation are fast becoming a defining characteristic of the Obama Administration. As this is being written, the disposition of Travers’ appointment is unknown.

Ultimately the slippery slope to the elimination of individual freedom always begins with self-appointed elites assuming the power to determine what each individual “needs.” In the strictest sense, most people don’t need firearms. But then again, most people don’t need fire extinguishers either--until the unexpected moment that they do--and at that moment, they need one immediately, badly, and nothing else will do. So it is with firearms, in or out of the home.

Allowing the elite to begin by choosing how many rounds may be carried in magazines seems--to some--a small matter. After all, that doesn’t absolutely eliminate handguns. But it is a foot in the door, the door to the eventual elimination of a fundamental American right. If government has the power to allow citizens only 10 rounds why not five? If minimizing casualties at mass shootings is the goal, why not allow citizens only one magazine of five rounds? And if one magazine of five rounds is “effective,” why wouldn’t single shot handguns be even more “effective” for “public safety?” And after declaring such policy to be “effective,” why wouldn’t doing away with magazines entirely be best? And when guns able to fire single rounds are inevitably found to be ineffective anyway, who really needs them? After all, no one really needs a handgun, with the exception of criminals who will always be able to obtain whatever they think they need because they have a significant advantage over the law-abiding: As criminals, they don’t obey the law, any law.

So. A magazine limit “restriction” will have no effect on public safety. It will not deter or affect criminals. It makes life more dangerous for the law-abiding. It will not, in any reasonable, practical way, reduce the potential danger posed by lunatics who want to commit mass murder. It would arguably violate the Constitution as well as tramp on state’s rights. And it would certainly put America on the slippery slope to outright gun bans and confiscation, particularly if Mr. Obama was able to upset the ideological balance of the Supreme Court such that the 2nd Amendment was left in place, but rendered meaningless. Other than all of this, it’s a great idea.

When Americans give up the ability to choose what are no more than common, everyday firearm parts and accessories, it is a short path indeed to more and more “restriction” and less and less freedom. This is what the enemies of freedom intend. This is their reason for being, and they believe they have an opportunity, an opportunity which may last only another two years, to achieve as much as possible. Perhaps they’re right, but only if law abiding Americans who wish to continue to exercise the most fundamental right, the right to preserve their lives and the lives of those they love, and who also hope to preserve freedom against destructive change, are willing to give up that right, round by round and accessory by accessory, starting with handgun magazines.

Posted by MikeM at January 30, 2011 09:27 PM

A fine article. Thank you for writing it. I wish to contribute only a little nit-pickery
“Military style ammunition” is not, in fact, what is commonly in widespread civilian use.

30-06 FMJ, 7.62x51 FMJ and 7.62x39 FMJ, 5.56 FMJ and .45 ACP are all military ammunitions that are in widespread civilian use. Not to mention 9mm parabellum (for war?). In American firearms history, it has been a short trip between military and civilian use.

There is no such thing as a “cop-killer” bullet...
Alternatively, they are all cop killer bullets, but there are none specifically designed to perform better against cops than other people.

Posted by: Professor Hale at January 31, 2011 10:51 AM

Of course, pretty much any centerfire rifle ammunition will punch right through standard soft body armor used by police, even your great-granddad's old .30-30. The 'standard' used by the military for testing body armor is the WWII vintage .30-06 AP round.

And add the .45-70 Govt - quite popular for bear and moose - to the list of 'military' rounds in widespread civilian use. Plus 6.5x55, 7x57, 8x57, and 7.62x54R if you want to include foreign rounds of military origin.

And one minor historical correcton: the vast bulk of the rifles used at Gettysburg (and the Civil War as a whole) were muzzle loaders. One Union unit at Gettysburg still actually had muskets - whose ability to fire 'buck and ball' proved quite handy at the stone wall on day three. Breech loaders were mainly issued to the cavalry and sharpshooter units.

Posted by: Heartless Libertarian at January 31, 2011 02:01 PM

And to pile on- Civilians aren't restricted to FMJ, but commonly use SP or HP, together with heavier bullets and hotter loads than GI ammo.

Moreover, civilians can and do carry much, much more potent stuff than .45 or .308: the whole universe of Magnum-designated cartridges.

In other words, the Brady Bunch lies yet again. So what else is new?

Posted by: Bohemond at January 31, 2011 03:04 PM

I have a cross bow no amount of Kevlar can stop. Just saying...

Posted by: Odins Acolyte at January 31, 2011 06:36 PM

Va. data show drop in criminal firepower during assault gun ban

Sunday, January 23, 2011

The number of guns with high-capacity magazines seized by Virginia police dropped during a decade-long federal prohibition on assault weapons, but the rate has rebounded sharply since the ban was lifted in late 2004, according to a Washington Post analysis. ...

Last year in Virginia, guns with high-capacity magazines amounted to 22 percent of the weapons recovered and reported by police. In 2004, when the ban expired, the rate had reached a low of 10 percent. In each year since then, the rate has gone up.

Posted by: Jamie McCarthy at January 31, 2011 07:30 PM

Jamie: and your rather tautological point means...what?

Posted by: Bohemond at January 31, 2011 10:33 PM

You make an excellent point about the use of multiple firearms. Restricting the size of clips will just lead mass killers to carry more weapons. They can be concealed in something innocuous, like a golf bag or a guitar case. You could commit a massacre with the number of guns that could be concealed in a guitar case, trust me.

This is why commie banners like Jamie make no sense. Limiting guns to smaller clips will just lead to more homocides, as criminals adjust by packing dozens of firearms. Meanwhile, law abiding citizens who won't be likely to carry a golf bag or guitar case full of pistols, carbines and shotguns will be at a serious disadvantage when they attempt to return fire.

Posted by: AntonioB at January 31, 2011 11:24 PM

UPDATE: Thanks for the informative comments! Professor Hale, 'Parabellum" is indeed Latin for "for war." And Jamie McCarthy, I have read the article you cite. Its ultimate conclusion was that the magazine capacity restriction was just starting to work when the ten year long Clinton gun ban was allowed to sunset. This is of a piece with standard Progressive philosophy. No Progressive policy can ever be wrong, therefore any possible problem occurs because said Progressive policy hasn't been allowed to work its magic long enough, or it has not been as draconian as it might be. I'll list just a few of the problems with the article, and its premise:

(1) The article is vague on what would constitute a "high-capacity magazine." If one counts any magazine of greater capacity than the 10 rounds allowed under the ban, then there are literally millions of "high-capacity" magazines out there, virtually all the magazines designed as standard equipment for specific handguns, such as the 13-round Browning High Power, designed by John Browning in the early 1900's. Without an unambiguous definition which comports with reality rather than gun-banner wishes, any data related to this article is by definition of no value.

(2) From the early 1990s until now, American tastes in firearms have changed substantially. The semi-automatic pistol, rather than the revolver, has been, for some years, the handgun of choice for the American public, and there are far more of them in circulation than in 1994, and even since 2004. In fact, Mr. Obama has been the greatest gun salesman the firearm industry has ever had, substantially increasing the numbers of handguns in private hands since before 2008. A significant portion of these pistols likely accept standard--not extended--magazines holding more than 10 rounds, and it is therefore unsurprising that any given law enforcement agency is encountering more semi-automatic pistols with "high-capacity" magazines than ever before.

(3) The article was likewise vague on the reporting protocols and data analysis methods of the Washington Post "analysis." Were all Virginia law enforcement agencies a part of the data base, or only metropolitan agencies? What are "weapons recovered?" Without knowing this and more, no reasonable conclusions can be drawn. In addition, advocating for a national policy based on data from only one state--if we assume that all of the data was complete, professionally gathered and analyzed, that the sample was of sufficient size, and that the study was of sufficient duration, and sufficient controls for factors that might skew that data were employed--is likewise deeply flawed and cannot be taken as competent science. Indeed, it cannot be taken seriously. If the police in one Virginia jurisdiction, for example, "recovered" a number of weapons stolen from a firearms shipment, or stolen from a collector, such single incidents could very well irretrievably skew the database. The numbers are likewise important. Did the police "recover" (whatever that means) 100 such guns from 1994-2004 and 140 thereafter? This might produce seemingly impressive statistics, but hardly an impressive or meaningful number in the real world.

(4) The article falls prey to several logical fallacies, but the most obvious is mistaking correlation with causation. Virginia police are recovering more guns with "high-capacity" magazines after 2004. The magazine limitation law sunset in 2004, therefore the sunsetting of the law caused the police to recover more such weapons. By the same line of faulty reasoning, it is an indisputable fact that most people die in bed, hence, mattresses are lethal.

I'm sorry, but such simplistic "analysis" is neither scientifically valid, nor logically convincing. Federal laws have surely been written based on less, but they should not be.

Posted by: mikemc at February 1, 2011 01:32 AM

I'm often very disheartened by the tenor of these arguments simply because they seem to only engage in peripheral details rather than dealing with very basic questions. It's presented here as if there are people out here with the sole intention of addressing gun violence as a means of restricting your freedom, or liberty, or your idea of both of these. This seems to be the only real argument on offer. Guns are exemplars of freedom.

I think it really is far more simple than angry at what you think are false arguments or at best "restrictive" arguments (as I'm not sure you think the arguments are false regarding killing capacities--you just seem to want to employ ways to negate their import), but it would be best to acknowledge the basics here.

1. Guns are a weapon with a single purpose: to kill or at least incapacitate another creature.

2. You want to be able to be a potential "killer" using this weapon.

3. Others do not want to kill and do not want to be killed.

4. They do not want a gun in order to kill or incapacitate.

I would make no arguments for even the existence of guns. I don't fear the "criminal". I fear the gun in anyone's hands. A gun fired creates culpability that I find unjustifiable.

I don't care to be called names for this stance. I do want to talk about some of your positions and their basic motivations. To talk about these things might open up some understanding. Talking instead about how "they" want to "regulate" your "capacities" is only a template for the argument that simply calls "up" "down" and "down" "up"--an argument designed for argument's sake.

My basic position is that people without guns...people with no inculcated zealous drive to engage in "oppositional" aggression...will not maim and murder readily.

I would not argue that there are no bad actors out there who would no doubt kill without compunction; rather I can only state that I am not one of these and it is always my hope that you too are not one.

Posted by: Doug at February 1, 2011 08:01 AM


You appear to be a decent person. I am sure you would be a great neighbor and responsible citizen. But you seem to understand neither the typical law regarding self-defense nor much of human nature.

1. Guns are a weapon with a single purpose: to kill or at least incapacitate another creature.

2. You want to be able to be a potential "killer" using this weapon.

Instead of incapacitate, rather say "Stop". While hunting's goal is to kill, the goal of self-defense (for animals or humans) is to stop. If one intentionally kills after having stopped a human attacker, then you are criminally liable.

Rather I can only state that I am not one of these and it is always my hope that you too are not one.

As has been said many times, "Hope is not a strategy". In other words, while I certainly hope you are not an attacker, it would be foolish for me to base my life and the lives of those close to me on that unverified assumption.

I have had need for a self-defense sidearm enough times so that I am under no illusions regarding the essential goodness of human nature.

Posted by: iconoclast at February 1, 2011 01:14 PM

I'm sorry... is this satire? A joke?

You and any reader who stands behind this uninterrupted stream of "logic" served as "fact" has simply got to be kidding.

I can't even be bothered to argue this, because it has to be a gag post. Has to be. Not falling for it. Nice try. Good one, you almost got me.

Posted by: Greg at February 1, 2011 04:46 PM

Sorry, Doug, the Second Amendment trumps every one of your arguments.

No, sorry, I didn't mean "trump," I mean invalidates. Continue to fear your fellow citizens all you want, your pathologies are not sound basis for public policy.

Posted by: Steve Skubinna at February 1, 2011 08:01 PM