A new industry study provides clear evidence that magazines capable of holding more than ten rounds are ubiquitous in the United States. Whether that finding affects magazine ban lawsuits moving forward is less clear.
The National Shooting Sports Foundation (NSSF) released its Detachable Magazine Report last week. Using more than 30 years of ATF research and manufacturer survey data, it estimated 963.7 million rifle and pistol magazines entered the commercial firearms market between 1990 and 2021. Of those, 717.9 million, or 74 percent, were found to have a capacity of 11 or more rounds.
“The data establishes that law-abiding gun owners overwhelming choose magazines that have a capacity to hold more than ten rounds for lawful purposes including self-defense, target shooting and hunting,” Larry Keane, NSSF’s General Counsel, said of the report.
The report’s findings, and Keane’s comments, take direct aim at the legal fight over bans on those magazines.
NSSF’s decision to group magazines into categories with ten rounds as the dividing line is intentional, with an eye toward the county’s most common “large capacity” magazine bans. Of the 14 states that currently ban magazines, 12 set the legal limit at ten rounds. Meanwhile, Keane’s emphasis on the “overwhelming” nature of gun owners’ use of those magazines “for lawful purposes” mirrors the Supreme Court’s own words detailing which arms the Second Amendment protects.
In its 2008 D.C. v. Heller decision, the Court’s majority determined that the Second Amendment’s plain text protects arms “typically possessed by law-abiding citizens for lawful purposes,” based on its reading of the 1939 case United States v. Miller.
“We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time,'” Justice Antonin Scalia wrote. “The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.”
“We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” he added. “That accords with the historical understanding of the scope of the right.”
With Heller being the last significant arms ban case the Court has decided, that guidance still informs how lower courts evaluate which modern weapons, including magazines, are protected by the Second Amendment.
Armed with new research suggesting America has more than twice as many “large capacity” magazines than people, gun-rights advocates will be hoping they can definitively prove that they are “in common use.”
However, that isn’t really what the sticking point has been in magazine ban lawsuits that have gone against them with near unanimity to date.
Rather than disputing whether Americans commonly own magazines capable of holding more than ten rounds, many of the judges who have upheld the bans instead focused on what it means for an arm to be “in common use” and which uses count as “lawful purposes.”
That question was central to Oregon, Washington, and Rhode Island rulings.
“This Court acknowledges that there may be lawful purposes other than self-defense for which an individual can use a firearm,” Judge Karin Immergut wrote in Oregon Firearms Federation v. Kotek. “While these uses may be lawful, they have never been explicitly recognized as being ‘the central component’ of the Second Amendment right; only self-defense enjoys that kind of unique focus within the Supreme Court’s caselaw. Accordingly, this Court finds that the Second Amendment protects an individual right to commonly used firearms for the central purpose of self-defense.”
Immergut ruled that gun-rights litigants would have to prove that self-defense encounters regularly call for more than ten shots for her to find they are “in common use” for that purpose.
“This Court finds that an individual’s subjective intent in purchasing a firearm or firearm accessory for self-defense, while relevant, also cannot be dispositive in assessing whether a firearm or firearm accessory is in common use for self-defense,” she wrote.
Because empirical research currently suggests that most civilian defensive gun uses require few, if any, shots, she ultimately ruled that “the Second Amendment does not protect [Large Capacity Magazines].”
This reading of what makes an arm “in common use” has not been the only factor in hardware ban rulings thus far. Other courts that have upheld magazine bans instead found the affected magazines have caused “unprecedented societal concerns” that allow for a looser approach to historical gun laws.
Additionally, at least one federal judge has directly rebuked this interpretation of the common use standard while striking down California’s magazine ban. The Supreme Court may do the same if it decides to take another hardware ban case in the future.
After all, Justice Scalia’s rationale for finding handguns to be “in common use” for lawful home defense in Heller did not rely on case studies of scores of defensive gun uses. He was instead satisfied with the subjective reasonings of individual gun owners who purchased them for that purpose.
“There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police,” he wrote. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
But until the High Court decides for itself whether the same is true for commonly owned magazines, empirical studies on magazine ownership likely won’t be the silver bullet for gun-rights advocates in the lower courts.
