Friday, July 28, 2023

U.S. Supreme Court Primed to Address New Second Amendment Issue

(Joaquin Corbalan/

The Second Amendment ensures "the right of the people to keep and bear arms". Last year, the U.S. Supreme Court delineated who has the constitutional right to carry arms in public. This year, they may confirm the type of arms they can keep.

Gun rights groups have formally indicated their intention to challenge a federal judge's decision to support an Oregon law that prohibits the so-called "high-capacity" magazines, defined as those able to hold more than 10 rounds.

Judge Karin Immergut of U.S. District Court opined on July 14 that while the Constitution defends the right to self-defense, high capacity magazines "aren't regularly used for self-defense, hence are not safeguarded by the Second Amendment". Alan Gottlieb, the founding and executive VP of the Second Amendment Foundation, was taken aback by her judgment.

In a discussion with Newsmax, he commented that the judge was looking for reasons to uphold the law on magazine capacity, which in his view violates the Second Amendment. Amy Swearer, a senior legal fellow specializing in Second Amendment matters at the Heritage Foundation, argued that Judge Immergut misinterpreted Supreme Court precedents.

The key question, according to Swearer, should be whether there's a historical precedent for limiting magazine capacity. To her, the answer is a resounding no. Furthermore, she argued that even by the judge’s own metric — arms "commonly used in self-defense" — the state's 10-round limit would not pass.

Swearer has collected data illustrating scenarios where more than 10 rounds were fired in self-defense. Such cases often involved multiple attackers, extended gun battles, and situations where the perpetrators were using cover.

Gun owners claim that they primarily own high-capacity magazines for self-defense purposes, according to the 2021 National Firearms Survey. Therefore, Swearer maintains that these magazines should be covered under precedents such as McDonald v. Chicago and D.C. v. Heller, both of which upheld that the Second Amendment protects firearms "commonly used" for lawful purposes.

However, she pointed out that judges with an activist bent will always seek ways to circumvent Supreme Court rulings. The main challenge to their appeal, Gottlieb acknowledged, may be the jurisdiction. As the Ninth Circuit is traditionally the most liberal and activist circuit in the U.S. Court of Appeals system, they are not taking anything for granted.

Gottlieb anticipates that the ultimate decision on this matter will have to come from the U.S. Supreme Court. Last year, the court ruled that states cannot require citizens to prove a special need to get a concealed carry permit. This year, they might declare that so-called "assault weapons" and "large-capacity" magazines are permitted under the Second Amendment.

Despite President Biden's call on July 4 to ban assault weapons and high-capacity magazines again, the outcome might not be as he wishes.

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