Eugene Volokh on the constitutionality of RKBA restrictions post Heller

This is a discussion on Eugene Volokh on the constitutionality of RKBA restrictions post Heller within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Eugene Volokh is a well known pro 2A law professor from UCLA. This morning he posts an interesting piece on his blog about why a ...

Page 1 of 2 12 LastLast
Results 1 to 15 of 26
Like Tree18Likes

Thread: Eugene Volokh on the constitutionality of RKBA restrictions post Heller

  1. #1
    Senior Member Array bklynboy's Avatar
    Join Date
    Jun 2006
    Location
    VA
    Posts
    567

    Eugene Volokh on the constitutionality of RKBA restrictions post Heller

    Eugene Volokh is a well known pro 2A law professor from UCLA. This morning he posts an interesting piece on his blog about why a 10 round magazine limit might pass constitutional muster post Heller. In the blog he also cites to one of his law review articles which is a terrific primer on the constitutional issues of post Heller RKBA restrictions. The Volokh Conspiracy » Large-Capacity Magazines

  2. Remove Ads

  3. #2
    Senior Moderator
    Array HotGuns's Avatar
    Join Date
    Dec 2004
    Location
    Arkansas
    Posts
    14,818
    I suspect that large-capacity magazine bans will have extremely little effect. So while a large-capacity magazine ban would impose only a very small burden on law-abiding citizens who want to defend themselves — which is why I think it would be constitutional — it would also provide, at best, only a very small extra amount of public safety (and might be a net zero or a negative if it interferes with law-abiding people’s self-defense in the very rare situations when more than 10 rounds are needed and the defender doesn’t have an extra magzine).
    He suspects? Is he too young to remember the useless and ineffective Brady Bill? It had no impact on anything, except to appease the fools in Congress that want your guns, your freedom,your money and your property.

    He thinks it would be constitutional.Whats "constitutional" about it? The Constitution states that the right to bear arms shall not be infringed. How is limiting the number of shots that one can carry not an infringement? When will the anti's be happy? With 10? When they got that, they wanted more. Numerous articles were written and refrenced (as this one did) about 10 being more than enough and the fact that for years cops only carried 6 in a revolver. A "small burden for an extra amount of public safety" It would seem that in his eyes, a small burden is OK. Sorry... I dont like Californians accepting small burdens on my behalf.

    No, this yahoo is no friend to the gun owner crowd at all. It is very apparent to me that he does not understand the issue of bearing arms at all.Sure, he might be a well known law proffessor from UCLA, but his attempt to appear as a friend to gun owners is questionable, in fact I think that he is a sheep in wolfs clothing.

    Nope, he appears to be pro-gun because he is from California, and those poor folks in California have been regulated to second class citizens, mostly because of the efforts of people like Mr. Volokh. With "friends" like this, who needs enemys?
    oneshot, peckman28 and zacii like this.
    The further a society drifts from the truth, the more it will hate those that speak it...- George Orwell

    AR. CHL Instr. 07/02 FFL
    Like custom guns and stuff? Check this out...
    http://bobbailey1959.wordpress.com/

  4. #3
    VIP Member Array dukalmighty's Avatar
    Join Date
    Feb 2008
    Location
    texas
    Posts
    15,170
    I have a feeling that today there are a lot more people that can see with the overwhelming crime rate that LEO's rarely stop or prevent a crime,but are there to arrest the perp,or investigate the crime scene looking for suspects.
    And as more people become gun owners for Self Defense they start understanding why having 12 or 15 or 30 rounds of ammo instantly available may be the only thing standing between you and death.
    "Outside of the killings, Washington has one of the lowest crime rates in the country,"
    --Mayor Marion Barry, Washington , DC .

  5. #4
    Distinguished Member Array Madcap_Magician's Avatar
    Join Date
    May 2009
    Location
    MN
    Posts
    1,732
    Quote Originally Posted by HotGuns View Post
    Nope, he appears to be pro-gun because he is from California, and those poor folks in California have been regulated to second class citizens, mostly because of the efforts of people like Mr. Volokh. With "friends" like this, who needs enemys?
    Did we read the same article?

    Mr. Volokh specifically states that bans on high-capacity magazines are likely to have no effect. He is giving his opinion on the validity of the legal argument to ban them, not on the wisdom of doing so.
    torgo1968 likes this.
    Hakkaa päälle!

  6. #5
    Senior Member Array GeorgiaDawg's Avatar
    Join Date
    May 2012
    Location
    Colorado
    Posts
    1,153
    Sounds like he is saying a magazine round limit might be constitutional but ineffectual in stopping mass shootings due to the quickness of mag changes. I do think, however, that the focus he (and others) put on this is based on self defense against one or two (or a few more) aggressors, rather than against the government, who will most definitely be carrying at least twice as many rounds per magazine. I believe that civilians should be able to possess firearms that are at lest equivalent to military firearms for the purpose of keeping the government in check.

    He is right, though, that the ban on high-capacity magazines will only affect the "criminals" who choose to obey the law, which doesn't usually happen.
    BigStick likes this.
    "For by grace you have been saved through faith. And this is not your own doing; it is the gift of God, not a result of works, so that no one may boast." - Ephesians 2:8-9

    “The purpose of the law is not to prevent a future offense, but to punish the one actually committed” - Ayn Rand

  7. #6
    Senior Moderator
    Array HotGuns's Avatar
    Join Date
    Dec 2004
    Location
    Arkansas
    Posts
    14,818
    I think such bans might well be constitutional, for reasons given in my Implementing the Right to Keep and Bear Arms paper (p. 1489):
    Yeah we read the same article.

    What is constitutional about a ban on magazines? He admits to that it might be OK to ban large magazines because its just a "small burden" to people that have never used one illegally.

    That's the kind of compromise that sees us taking itty bitty steps backwards.
    shooterX and zacii like this.
    The further a society drifts from the truth, the more it will hate those that speak it...- George Orwell

    AR. CHL Instr. 07/02 FFL
    Like custom guns and stuff? Check this out...
    http://bobbailey1959.wordpress.com/

  8. #7
    VIP Member Array oakchas's Avatar
    Join Date
    Jun 2009
    Location
    Iowa
    Posts
    7,086
    Quote Originally Posted by HotGuns View Post
    .
    .
    .
    Nope, he appears to be pro-gun because he is from California, and those poor folks in California have been regulated to second class citizens, mostly because of the efforts of people like Mr. Volokh. With "friends" like this, who needs enemys?
    You saw it too... It's interesting how he minimizes the impact of a ban by saying it's likely to have little or no effect.

    Quote Originally Posted by SamRudolph View Post
    Did we read the same article?

    Mr. Volokh specifically states that bans on high-capacity magazines are likely to have no effect. He is giving his opinion on the validity of the legal argument to ban them, not on the wisdom of doing so.
    Yep... and from a constitutional standpoint, in accordance with Scalia's ruling for "some" limitations.. he's probably not wrong...

    Quote Originally Posted by HotGuns View Post
    Yeah we read the same article.

    What is constitutional about a ban on magazines? He admits to that it might be OK to ban large magazines because its just a "small burden" to people that have never used one illegally.

    That's the kind of compromise that sees us taking itty bitty steps backwards.
    I don't like itty bitty steps backwards... and because the honest truth in the opinion is that it would have little or no effect...why bother? Except to say that "Surely we can compromise on this one small detail, it does no harm..."

    Boiling Frogs. I don't want to be a frog..
    All that said....
    It could be worse.
    __________________________________________________
    "The History of our Revolution will be one continued Lye from one end to the other."
    John Adams

  9. #8
    Senior Member Array bklynboy's Avatar
    Join Date
    Jun 2006
    Location
    VA
    Posts
    567
    Hot Guns, you may believe that simply because the Second Amendment states in part that the right "shall not be infringed", any legislation bearing on what may be carried, where it may be carried and who may carry it are inherently unconstitutional, but that is not the case - SCOTUS has held that all of the so called fundamental rights may be limited even if on their face it would appear to a layman that they may not be capable of being limited. If we are to effectively support our rights, we can't stick our heads in the sand like ostriches and pretend that the law is what we wish it to be but need to recognize what it really is and how courts really adjudicate constitutional matters. Only then can we effectively litigate in support of our constitutional rights. I happen to disagree with Volkah about both magazine size limitations and "Assault Weapons" bans, but I recognize that his view of how the courts will likely analyze both issues is probably not too far off. Knowing this enables us to formulate an effective strategy to counter the Anti's arguments. Simply saying, "No, what part of absolute don't you understand" is not going to suffice for a winning strategy.

    BTW, you may think that Volkah is no "friend" of RKBA, but in fact he filed Amicus briefs supporting the winning sides in Heller, McDonald and McColloch (the recent Maryland 'shall issue" case) as well as other cases. If I recall correctly, Scalia even cited him in the majority opinion in Heller.

  10. #9
    VIP Member Array oakchas's Avatar
    Join Date
    Jun 2009
    Location
    Iowa
    Posts
    7,086
    Quote Originally Posted by bklynboy View Post
    Hot Guns, you may believe that simply because the Second Amendment states in part that the right "shall not be infringed", any legislation bearing on what may be carried, where it may be carried and who may carry it are inherently unconstitutional, but that is not the case - SCOTUS has held that all of the so called fundamental rights may be limited even if on their face it would appear to a layman that they may not be capable of being limited. If we are to effectively support our rights, we can't stick our heads in the sand like ostriches and pretend that the law is what we wish it to be but need to recognize what it really is and how courts really adjudicate constitutional matters. Only then can we effectively litigate in support of our constitutional rights. I happen to disagree with Volkah about both magazine size limitations and "Assault Weapons" bans, but I recognize that his view of how the courts will likely analyze both issues is probably not too far off. Knowing this enables us to formulate an effective strategy to counter the Anti's arguments. Simply saying, "No, what part of absolute don't you understand" is not going to suffice for a winning strategy.

    BTW, you may think that Volkah is no "friend" of RKBA, but in fact he filed Amicus briefs supporting the winning sides in Heller, McDonald and McColloch (the recent Maryland 'shall issue" case) as well as other cases. If I recall correctly, Scalia even cited him in the majority opinion in Heller.
    Water seems to be getting a little hotter... ya think? Nah... can't be...
    All that said....
    It could be worse.
    __________________________________________________
    "The History of our Revolution will be one continued Lye from one end to the other."
    John Adams

  11. #10
    Senior Member Array bklynboy's Avatar
    Join Date
    Jun 2006
    Location
    VA
    Posts
    567
    Now that I've defended the guy's honor from ad hominem attacks, I just want to add that I disagree with the substance of Volkah's piece on the constitutionality of limiting magazine sizes. Heller held that you cannot simply eliminate a class of weapon that is needed for self defense and for which there is not ready substitute. If I am facing a an attacker with a 30 round magazine and I have 10, I am at a clear disadvantage. If I am facing multiple armed attackers while I have only 10 rounds I am at a disadvantage. On the other hand, a larger magazine does not result in a greater danger to the public safety. If I am intent on a mass killing of unarmed people, I can reload all day long without a problem with 10 rounders or 1/3 as often with a 30 rounder and the result will be the same. BTW, I think Volkah is incorrect that in Tuscon the shooter was captured when he changed mags. I think what happened was that that his glock had a misfeed and he was stopped while trying to clear it

  12. #11
    Senior Member Array bklynboy's Avatar
    Join Date
    Jun 2006
    Location
    VA
    Posts
    567
    Oakchas, Hot guns and I disagree on this, but I think I am being very civil. Am I wrong?

  13. #12
    Distinguished Member Array Madcap_Magician's Avatar
    Join Date
    May 2009
    Location
    MN
    Posts
    1,732
    I think the real problem here (that Volokh indirectly points out) is that Congress can pass law X with the goal of accomplishing Y, but as long as goal Y falls within the currently accepted Constitutional limits of Congress and law X is executed within those same limits, there is no third limiting factor that asks whether or not law X actually accomplishes goal Y.
    Hakkaa päälle!

  14. #13
    VIP Member Array oakchas's Avatar
    Join Date
    Jun 2009
    Location
    Iowa
    Posts
    7,086
    Quote Originally Posted by bklynboy View Post
    Oakchas, Hot guns and I disagree on this, but I think I am being very civil. Am I wrong?
    Absolutely not. (you're not wrong at all...)

    I'm glad you see that Volokh's opinion is a bit of a stretch... And all I'm saying is that I don't like those that seem to agree with the right... Like Volokh... but say it might be okay to limit the right in these ways... or those ways... The steady erosion of rights through complacency is not the ideal... and eventually could lead to the disappearance of the right altogether...

    It is that which I fear.
    All that said....
    It could be worse.
    __________________________________________________
    "The History of our Revolution will be one continued Lye from one end to the other."
    John Adams

  15. #14
    Senior Member Array GeorgiaDawg's Avatar
    Join Date
    May 2012
    Location
    Colorado
    Posts
    1,153
    The phrase "small burden" is subjective. It would be a "big burden" to lower the capacity from 30 to 3. It would be a small burden to lower from 30 to 25, and another small burden to lower from 25 to 20, and from 20 to 15, and from 15 to 10, and from 10 to 5 and from 5 to 3. The result would be the same, but it would just take a lot of small burdens rather than one big burden.
    "For by grace you have been saved through faith. And this is not your own doing; it is the gift of God, not a result of works, so that no one may boast." - Ephesians 2:8-9

    “The purpose of the law is not to prevent a future offense, but to punish the one actually committed” - Ayn Rand

  16. #15
    Senior Moderator
    Array HotGuns's Avatar
    Join Date
    Dec 2004
    Location
    Arkansas
    Posts
    14,818
    We have been compromising gun rights in the country for the last 150 years, and just exactly what has it gotten us?

    You want to talk about the slippery slope or the frog warming up in the pot, lets do it.

    Lets look at the state of Illinois, the only state left that will not allow its citizens to protect themselves with a gun. How about California with there completely senseless "assault weapons ban" and the fact that their citizens can not own or possess the same guns that most citizens can own. How about the New York City, where the only people that can posses guns are mobsters. Many of their cops cant even carry their guns home with them, they have to lock them up.

    How about most states that make you pay for a concealed weapons permit to legally carry a gun? How is that not an infringement? There are works in the U.S. Constitution that say, SHALL NOT BE INFRINGED.

    As for SCOTUS, just because they make a ruling does not make it correct. Read up on your history. AS for Heller, that decision left much to be desired. What might have been a victory for US citizens instead was watered down to the point that it was almost made insignificant due to compromises.

    I'm getting real tired of compromise and I am getting real tired of people saying that we should compromise any part of a right, to placate idiots and socialists and people that have to be told what to believe.

    How about making them compromise for a change? Since I was born 52 years ago, we haven't done anything but compromise,compromise, compromise, and for what? What is it getting us? We are in more debt as a nation than at any time in history . We have compromised on a balanced budget. We have compromised on border security and now we are firing border patrol agents for arresting illegal aliens and even jailing them for defending themselves. We are compromising Social Security, we are compromising our morals to those that have none, we are compromising our standards in public schools to the point that we are graduating students that cant read or write or cant even logically think because they have never been taught. We have compromised on Presidential standards and what has it gotten us?

    If you want to align yourself with mediocre people that love the word "compromise", go for it and make yourself happy.

    As for me, I am about compromised out and to me its become a word that I have come to hate. You want to compromise? Then go carry a magazine in your handgun with a 2 or 3 round capacity in it.

    Dont want to do that? Why not?
    The further a society drifts from the truth, the more it will hate those that speak it...- George Orwell

    AR. CHL Instr. 07/02 FFL
    Like custom guns and stuff? Check this out...
    http://bobbailey1959.wordpress.com/

Page 1 of 2 12 LastLast

Links

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

Search tags for this page

constitutionality of new york gun magazine restrictions

,

heller ang magaine size

,

heller decision magazine size

,

heller magazine limit 10 rounds

,

heller volokh

,

muster post heller

,

unconstitutionality of magazine capacities

,

volkah keep

,

volokh and heller

,

volokh conspiracy mag limits

,

volokh heller ucla

Click on a term to search for related topics.