Currently before the Ninth Circuit is an appeal in the case of Fyock v. Sunnyvale, a case which challenges a California’s city’s ban on magazines which hold more than 10 rounds. While the State of California outlaws the sale, import, or transfer of such magazines, the Sunnyvale ban goes further, by prohibiting possession of these magazines, with no provision for grandfathering. The District Court upheld the ban; part of the Court’s analysis stated that magazines did not exist at the time the Second Amendment was ratified. Last Friday, amicus briefs in support of appellant were filed, including a brief which I co-authored on the history of magazines and of magazine prohibition.

My co-author on the amicus brief was the DC law firm of Bradley Arant Boult Cummings, and the brief was filed on behalf of the Center for Constitutional Jurisprudence (which is part of the Claremont Institute), and Gun Owners of California. As the amicus brief states, the NRA contributed funds supporting the preparation of the brief.

The longest section of brief provides the history of magazines, with a particular focus on magazines holding more than 10 rounds. The first such magazine was invented in the late 16th century. Over the next two centuries, many inventors created guns with magazines holding more than 10 rounds. The consumer demand for such magazines is easy to understand: when a gun is out of ammunition, the user is in effect disarmed, and does not possess an operable firearm until the gun is reloaded. As Heller teaches, the Second Amendment protects the right to an operable firearm.

By the time of the Second Amendment, the state of the art for multishot guns was the Girandoni air rifle, with a 20 or 22 round magazine. Ballistically, it was superior to the powder guns of its time, and had been created for elite marksmen in the Austrian army. Lewis & Clark carried a Girandoni on their famous expedition.

By 1791, much progress had been made in firearms design and it was easy to foresee that future progress would include improvements in multishot guns. However, as of 1791, the very large majority of American firearms were single-shot, likely because of the expense of multishot guns, and also perhaps because of concerns about reliability. The first half of the 19th century saw the first widespread commercial success of multi-shot guns–namely the revolvers from companies such as Colt’s and Smith & Wesson, as well as multi-barrel handguns called “pepperboxes.” There were some pepperboxes which could fire more than 10 rounds, but most pepperboxes held 8 or less.

The commercial breakthrough for guns holding more than 10 rounds began in the late 1850s, with a collaboration between Daniel Wesson and Oliver Winchester, producing the Volcanic Rifle. This rifle used two innovations: the metallic cartridge (holding the primer, gunpowder, and bullet in a metallic case, just like modern ammunition) and the lever action mechanism for ejecting an empty case and loading a fresh cartridge. The Volcanic Rifle was improved to become the 16-shot Henry Rifle during the Civil War. The Henry was in turn refined into the Winchester Model 1866, which became a huge commercial success. So by the time the Fourteenth Amendment was ratified in 1868, rifles holding more than 10 rounds were common in America. The latter 19th century saw the proliferation of 11+ magazine rifles from companies such as Winchester, Colt’s, and other manufacturers.

The first decades of 20th century brought dozens of models of .22 caliber “boys rifles” with magazines of 11 or more, from companies such as Stevens, Savage, Winchester, and Remington.  The 1927 Auto-Ordnance rifles (still in production today) were another step forward. After World War II, the M1 carbine (15 round magazine) was purchased by the hundreds of thousands–many of them directly from the federal government at steeply discounted prices under the Civilian Marksmanship Program. The most popular rifle in American history, the AR-15, entered the market in 1963 with a standard magazine of 20. Springfield Armory’s M1A rifle (20 rounds) and the Ruger Mini-14 (optional 20 round manufacturer magazine) came on the scene in 1974. These rifles remain popular today. All of them faced competition from a variety of European manufacturers (e.g., SIG, FN-FAL), and from some smaller American companies.

Great commercial success for handguns with more than 10 rounds came more slowly. By 1868, there were plenty of models available, including pinfire revolvers, chain guns, and the harmonica gun. But these handguns were more popular in Europe and in the United States. The semi-automatic pistols invented in the 1890s by Luger and Mauser had optional magazines of more than 10. In the 1920s and 1930s, the Spanish companies Gabilondo and Arostegui, Eulogio had handguns with standard magazines of more than 10. But if we are looking for huge sales in the United States market for a handgun typically holding more than 10 rounds, that did not come until 1935, with the 13-round Browning Hi-Power. With refinements, that popular gun remains in production today.

Next came the Plainfield Machine Company’s 1964 pistol version of the M1 Carbine (1964), and then the Beretta Model 92 (16 rounds), introduced in 1976 (a huge seller, also still in production today). The Browning Double Action (14 rounds) entered the market the next year, and less famous companies, such as Germany’s Heckler & Koch, also jumped in.

The history section of our brief ends in 1979, when Jimmy Carter was President, the Bee Gees bestrode the AM radio Top 40, Gaston Glock was manufacturing curtain rods in his garage, Americans were watching Love Boat on broadcast television, and people on the cutting edge of technology were adopting VisiCalc, the first spreadsheet program, run from huge floppy discs. Long before 1979, magazines of more than ten rounds had been well-established in the mainstream of American gun ownership. Indeed, they had been so established before almost everyone alive in 1979 had been born. The assertion by some 21st-century gun prohibition advocates that the only reason a person would want a magazine with more than 10 rounds is for mass murder is obviously false. Since 1866, tens of millions of law-abiding Americans have owned and used such magazines for lawful purposes.

While the pre-1979 history of magazines in the United States is long, the parallel history of magazine bans in much shorter. During Prohibition, Michigan in 1927 banned guns which fired more than 16 times without reloading, and Rhode Island enacted a 12-round limit that same year. Both statutes were later repealed. Only the District of Columbia’s 1932 ban (more than 10 rounds) has endured, and the District is no model for conscientious compliance with the Second Amendment.

Finally, the brief explains the use 11+ magazines for what Heller calls the “core lawful purpose of self-defense.” The District Court in Fyock erred, we argue, by attempting to count how often a trigger is pulled 11 or more times in self-defense. That approaches fails to follow the Supreme Court’s methodology in Heller. If you read the Heller opinion, you will not find a scintilla of evidence indicating that in the entire history of the United States, any person has ever fired a handgun in self-defense. What you will find in Heller is repeated statements about how common it is for Americans to “possess” or “use” a handgun for self-defense. According to research by Gary Kleck, even the most confrontational uses of handgun for self-defense (drawing the handgun against an attacker), usually do not involve pulling the trigger. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 Journal of Criminal Law & Criminology 150, 173 (1995) (“Only 24% of the gun defenders in the present study reported firing the gun”).

Whether a gun is used as a deterrent (simply by being present) or is used in the most common fashion a confrontation (drawn but not fired), or is used by pulling the trigger, the objective is always to stop the threat. In situations where the gun must be fired, not all shots hit an attacker. Of those that do, few are immediately incapacitating, unless they strike the heart or the central nervous system. Yet when the defender has sufficient reserve capacity, even multiple attackers may decide to desist from an attack. That is why American law enforcement officers ubiquitously carry handguns with more than ten rounds of ammunition, and often more than 15. It is also why their rifles typically have 20 or 30 round magazines, not 10.

If the firing of several shots has wounded one attacker, and has resulted in the other attacker putting up his hands, the defender needs to control the situation until the police arrive. That is why reserve capacity is so important for law enforcement and for citizens. Reloading is very difficult when the second hand is holding a cell phone. Even a two-handed reload will likely make the gun temporarily inoperable and cause the gun to move off target for at least a few seconds, giving the criminal(s) a new window of opportunity. Citizens do not carry police radios, and police response to a cell phone call about citizen in trouble is often slower than the response to a radio call about an officer in trouble. The reasons why magazines for greater than 10 rounds are the overwhelming choice for law enforcement officers for lawful defense of self and others apply a fortiori to citizens, who rightly  look to law enforcement officers as good models for gun safety practices.

All of the filings in the case are available here. These include amicus briefs from Pink Pistols (a LBGTQ rights organization), a large coalition of law enforcement organizations, and the National Shooting Sports Foundation (trade association).