Des Moines Seeks to Infringe on Gun Owners’ Rights

Correction: Polk County is not pursuing a high capacity magazine ban, see Donald Boelken’s comment below. The article has been revised as a result, we apologize for the error. – Shane Vander Hart, Editor

The Des Moines City Council is considering a proposal to ban the possession of “high capacity” gun magazines.  Such bans would violate the Constitution and the Iowa preemption statute, lay a trap for law-abiding citizens, adversely affect self defense, and have no demonstrable effect on either mass shootings or other gun violence.   

While the Iowa proponents of a magazine ban have not yet declared the exact capacity which would make a magazine illegal, the Califormia ban forbids possession of magazines holding more than 10 rounds.  This was also the prohibited capacity under the large capacity magazine sale ban in effect nationally from 1994 to 2003.   This year, federal district court Judge Benitez struck down, as unconstitutional, the California possession ban. The decision held: 

Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California’s large-capacity magazine law.
. . .
[T]he U.S. Supreme Court provided a simple Second Amendment test in crystal clear language….The right to keep and bear arms is a right enjoyed by law-abiding citizens to have arms that are not unusual “in common use” “for lawful purposes like self-defense.”….  It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are “yes,” the test is over. The hardware is protected.

Millions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense. This is enough to decide that a magazine able to hold more than 10 rounds passes the Heller test and is protected by the Second Amendment. The simple test applies because a magazine is an essential mechanical part of a firearm. The size limit directly impairs one’s ability to defend one’s self.

Neither magazines, nor … ammunition … are specifically mentioned in the Second Amendment…. But without a right to keep and bear … ammunition and the magazines that hold ammunition, the Second Amendment right would be meaningless.
. . . 
California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.

Duncan v. Becerra (S.D. Cal., 2019)(emphasis added)

Iowa’s preemption statute prohibits the enactment of ordinances “regulating the ownership [or] possession, … of firearms when the ownership [or] possession … is otherwise lawful under the laws of this state.” Iowa Code section 724.28.  Since many firearms come with standard magazines with capacities exceeding10 round or higher limits, the proposed ordinance would illegally ban firearms which are legal under state law. 

Given the preemption statute, many current or new residents of Des Moines, or visitors, would be trapped by enforcement of a law which they could not reasonably expect to exist.  As long ago as 1994, the Department of Justice established that 18% of civilian-owned firearms and 21% of civilian-owned handguns were equipped with magazines holding more than 10 rounds.  Clearly, many gunowners would be victimized by this law.

What are the effect of magazine bans on violent crime?  A 2018 Rand study found “no qualifying studies showing that bans on the sale of … high-capacity magazines decreased [mass shootings and violent crime].”    This echoed the 2004 Justice Department study finding such a sale ban’s effect on gun violence would be “small at best and perhaps too small for reliable measurement.”  In Baltimore, a statewide 2013 sale ban has yielded an increase in their use by criminals.  In a 2013 survey of 15000 police officers by PoliceOne.com, ninety-seven and one half percent (97.5%) of police officers concluded that a ban on the sale and manufacture of firearms magazines holding more that 10 rounds of ammunition would have no effect on violent crime,

Judge Benetiz summed up the California possession ban’s effect: 

The A[ttorney]G[eneral]’s evidence demonstrates that mass shootings in California are rare, and its criminalization of large capacity magazine acquisition and possession has had no effect on reducing the number of shots a perpetrator can fire. The only effect … is to make criminals of  …. law-abiding citizens who want to have ready for their self-defense a firearm with more than 10 rounds.

Duncan v. Becerra (S.D. Cal., 2019)

Please note, this was the judge’s evaluation of evidence submitted in support of the ban.

While it is not possible to reiterate the judge’s total factual analysis, two points should be noted.  First, with respect to the speculation that mass shooters prefer large capacity magazines, Judge Benetiz found: 

[M]any mass shooters do not select large capacity magazines, at all. The two incidents involving mass shootings at public high schools in 2018 are good examples. Instead of a pistol or rifle and large-capacity magazines, a shotgun and a revolver were the firearms selected by the mass shooter during the 2018 incident at Santa Fe High School in Galveston, Texas.  Also rejecting large capacity magazines last year, the shooter in the Parkland, Florida, high school mass shooting carried 150 rounds in 10-round magazines.

Further undercutting the government’s fear is the opinion of expert Gary Kleck, who says that mass shooters who do choose a high capacity magazine are mistaken in thinking it will enable them to cause more harm.

“Right. They can do everything thatthat mass shooter might want to do if they had 10-round magazines rather than 30-round magazines. There’s a difference between hypothetical potential and the reality of mass shootings . . .”

Duncan v. Becerra (S.D. Cal., 2019).

Second, with respect to the speculation that the short delay in changing magazines will provide a “critical pause” in mass shootings that willl save lives, Judge Benetiz found:

The State argues that smaller magazines create a “critical pause” in the shooting of a mass killer. “The prohibition of LCMs helps create a “critical pause” that has been proven to give victims an opportunity to hide, escape, or disable a shooter.” . . . This may be the case for attackers. On the other hand, from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenth shot might be called a “lethal pause,” as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack. In other words, the
re-loading “pause” the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are disabled, or who have arthritis, or who are trying to hold a phone in their off-hand while attempting to call for police help. The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack.

Duncan v. Becerra (S.D. Cal., 2019)

Residents of Des Moines would be wise to contact their respective board or council members and respectfully request they vote against these illegal and unwise measures.