The Vermont State Supreme Court is currently hearing a challenge to the state’s ban on magazines that can hold more than ten rounds of ammunition for long guns and fifteen rounds of ammunition for handguns, and a group of 18 anti-gun attorneys general have filed a friend-of-the-court brief with the state’s high court in support of the ban. Maryland’s Attorney General, Brian Frosh, says the only reason why anybody would want to own a “large capacity” magazine is to hurt people.

“Large-capacity magazines have one purpose, to kill as many people as possible in the shortest amount of time with the least amount of effort by the shooter,” said Attorney General Frosh. “Restricting or banning these types of magazines is a common-sense approach to curbing this violence and, as federal courts have found over and over, does not violate the Constitution.”

Frosh is factually incorrect. The vast majority of Americans who own the magazines he wants to ban will never use them in the commission of a violent crime. They will use them, however, for training, competition, and self-defense. A thirty-round magazine for an AR-15 is in common use for a variety of lawful purposes, as is a 17-round handgun magazine. That alone meets the requirement for protection under the 2nd Amendment.  As U.S. Judge Robert Benitez pointed out in his decision that halted California’s ban:

Under the simple test of Heller, California’s § 32310 directly infringes Second Amendment rights. It directly infringes by broadly prohibiting common firearms and their common magazines holding more than 10 rounds, because they are not unusual and are commonly used by responsible, law-abiding citizens for lawful purposes such as self-defense. And “that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman v. City of Highland Park, 136 S. Ct. 447, 449 (2015) (Justices Thomas and Scalia dissenting from denial of certiorari) (commenting on what Heller’s test requires). Although it may be argued that a 100- round, or a 50-round, or possibly even a 30-round magazine may not pass the Heller hardware test, because they are “unusual,” the State has proffered no credible evidence that would support such a finding. Using the simple Heller test, a decision about firearm hardware regulations could end right here.

California is a long way from Vermont, however, and the words of a federal judge on the West Coast has no legal bearing on what the Vermont State Supreme Court says. The eighteen anti-gun AG’s are hoping the state’s high court sees it their way.

In the brief, the states argue that a ban on large-capacity magazines is a reasonable restriction that Vermont has the right to adopt because:

  • The right to bear arms does not prevent states from enacting common-sense gun safety measures:The brief explains that states are entitled to adopt reasonable restrictions on firearms to address the unique conditions within their borders and protect public safety. Restricting access to large-capacity magazines is a reasonable restriction because it would reduce firearm injuries and deaths while leaving many other options open for individuals who wish to exercise their right to self-defense.
  • States have a responsibility to prevent gun violence and protect public safety: The brief notes that states have primary responsibility for ensuring public safety. This includes a duty to reduce the likelihood that their citizens will fall victim to preventable firearm violence, and to minimize fatalities and injuries when that violence does occur. The brief notes that because there are local and regional differences that contribute to gun violence, deciding how best to protect the safety of state residents is a question better suited to legislatures than courts.
  • Regulating large-capacity magazines protects the public: The brief cites evidence that large-capacity magazines are especially attractive to mass shooters and criminals, posing increased risks to innocent civilians and law enforcement. Restricting large-capacity magazines means a mass shooter must reload or switch weapons, giving bystanders more opportunities to flee, take shelter, or intervene. At the same time, there is no proof that large-capacity magazines are necessary, or even commonly used for self-defense.

Those are some weak arguments, to be honest. The right to keep and bear arms prevents states from adopting laws that infringe upon the rights of American citizens. Simply calling a law “common sense” and claiming it’s therefore constitutional isn’t a serious legal argument at all.

Yes, states have the responsibility to protect public safety, but again, not at the expense of a constitutionally protected right. A state can’t decide it’s going to prohibit a free press because it believe that by doing so they can decrease depression and suicide, as well as better crack down on revenge porn and child pornography, for instance. Similarly, you can’t infringe on the constitutional right to keep and bear arms just because you believe it might be effective at protecting the public safety.

The third argument is the meatiest. Do magazine bans really protect the public? The brief by the attorneys general fails to even acknowledge what Judge Robert Benitez pointed out in the opening of his brief in the Duncan v. Becerra case dealing with California’s magazine ban: there are many times when a gun owner may need larger magazines to protect themselves.

As two masked and armed men broke in, Susan Gonzalez was shot in the chest. She made it back to her bedroom and found her husband’s .22 caliber pistol. Wasting the first rounds on warning shots, she then emptied the single pistol at one attacker. Unfortunately, now out of ammunition, she was shot again by the other armed attacker.

She was not able to re-load or use a second gun. Both she and her husband were shot twice. Forty-two bullets in all were fired. The gunman fled from the house—but returned. He put his gun to Susan Gonzalez’s head and demanded the keys to the couple’s truck.

Judge Benitez recognizes that there are times when a 17-round magazine will come in handy for self-defense, or even a 30-round rifle magazine. The anti-gun AG’s can’t do that, however, and that’s why their argument is fundamentally flawed. It rests on a false assertion that there’s no reason for anybody to legally own one of these magazines, which is demonstrably untrue. Let’s hope the Vermont State Supreme Court justices read Judge Benitez in addition to these eighteen attorneys general who would infringe upon your 2nd Amendment rights in the name of public safety.