A bit of disturbing news comes our way from the Left coast, where a second federal judge has declined to issue a temporary injunction against a Sunnyvale, California ban on weapons magazines holding more than ten rounds, essentially allowing the ban to go into effect while appeals run their course. Any such limits are dismaying to supporters of Second Amendment rights, given the obvious path from there to increasingly restrictive laws which eventually end with only single shot weapons being allowed. (It’s also worth noting that while Andrew Cuomo succeeded in getting one of the most odious gun grabbing laws in the nation upheld in New York, a seven round magazine limit in the law was later thrown out in court.)

But given recent rulings which support the individual citizen’s right to keep and bear arms, are these magazine capacity restrictions actually constitutional? One of the heavy hitters in the constitutional law field, Eugene Volokh, has taken a long look at the question and come up with some potentially depressing conclusions.

A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, California’s ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the court’s rationale was that “a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,” and I think that’s both correct and legally relevant.

Volokh then spends a number of paragraphs making all the same arguments I would make from a common sense perspective. These include the facts that mass shootings involving multiple high capacity magazines are so rare as a subset of all gun crimes as to be insignificant, as well as noting that most mass shooters bring multiple weapons anyway, and magazines can be changed out by a skillful shooter so quickly that it really doesn’t matter. These facts – and more – all lead one to conclude that there is little to no useful purpose served by imposing a capacity restriction, so why would a judge support it?

For the answer, Volokh turns to the precedent of other well known rights where the courts have found some restrictions to be constitutional, provided they don’t impose an unreasonable burden on the citizen exercising those rights. These include examples ranging from restrictions on free speech through volume limits to restrictions on abortions.

For instance, the government may limit the volume of music or constrain sound amplification generally, even though that would necessarily diminish to some extent the potential audience for such music or political advocacy. Substantial restraints on the ability to reach the public would be unconstitutional, but more minor ones — when they don’t discriminate based on the content of the speech — are generally constitutional.

Similarly, while the Court has concluded that the Constitution protects abortion rights, it has said that restrictions on such rights are unconstitutional only when they create a “substantial burden” on women who seek abortions. While there’s the obvious risk that restrictions that aren’t very burdensome will be followed by broader and broader one, courts solve this by saying that they’ll step in when the music volume restrictions or abortion restrictions become too burdensome, not by saying that all such restrictions are categorically unconstitutional.

In a bit of irony, it seems that Volokh is arguing that precisely the same reasons which make magazine limits essentially useless are the ones which may see courts allowing them to sneak through the constitutionality barrier. That is to say, if the restriction really doesn’t do anything to impede the ability of the shooter to use the weapon, (very few self defense scenarios find the victim firing more than three rounds) then a magazine capacity limit doesn’t impose an undue restriction on their rights.

My gut reaction is to disagree with this, but that’s probably more emotional than reason based. As much as I don’t like it – and hope that the courts go the other way – I can see where Volokh is going with this argument, and I fear that some judges may see it that way as well. Your thoughts?