Second Amendment groups take on Delaware mag ban in federal court

(AP Photo/Rich Pedroncelli)

Under a law approved by Delaware legislators last year, residents are no longer allowed to possess, purchase, or sell “large capacity” magazines; a term with no standard definition beyond “magazines anti-gunners want to ban”. In New York, for instance, “large capacity” means anything more than ten rounds, while under Illinois’ new ban on “large capacity” magazines any handgun magazine with a capacity greater than 15 is now illegal, while rifle magazines become “large capacity” when they can accept more than 12 rounds.


Delaware lawmakers chose to define “large capacity” as any ammunition magazine that can hold more than 17 rounds of ammunition, which turns many of the magazines already in the possession of gun owners in the state into prohibited items. Now that prohibition is the subject of a new federal lawsuit filed by the Second Amendment Foundation and Firearms Policy Coalition along with two individual plaintiffs. The case, known as Graham v. Jennings, seeks to overturn the law as a violation of the right to keep and bear arms, and seeks an immediate injunction to block the law from being enforced and to protect the rights of gun owners like Christopher Graham and his fellow plaintiff Own Stevens.

In the lawsuit filed on Thursday, plaintiffs’ attorney Bradley Lehman argues that the state’s ban violates both the Second and Fourteenth Amendment rights of residents by prohibiting components of arms that are in common use; something the Supreme Court has taken off the table in its previous Second Amendment-related decisions.

In order to justify a law that affects Plaintiffs’ Second Amendment rights, the government bears the affirmative burden of proving that the regulation is consistent with our nation’s history and tradition. As a matter of law, any statute or regulation that bans ownership of firearms in common use for lawful purposes like self-defense is inconsistent with this nation’s history and tradition, and thus violates the Second Amendment.

The magazines at issue in this case are standard components of the sorts of bearable arms in common use for lawful purposes that law-abiding Americans possess at home by the tens of millions. And they are, moreover, exactly what they would bring to service in militia duty should that be necessary.

The People have a constitutional right to make and make use of common firearms and their standard components for effective self-defense and not to be disarmed or arbitrarily limited by the enactment and enforcement of bans like the one at issue here.

Assuming ordinary citizens are not disqualified from exercising Second Amendment rights, the State must permit them to keep and bear the standard components of common firearms, now banned by Delaware, for lawful purposes.

The Second Amendment is an “unqualified command.” When a law — like Delaware’s Ban at issue here — prevents citizens from owning firearms that are in common use for lawful purposes, then the law violates the Second Amendment. It cannot be justified by reference to any countervailing governmental interest. Moreover, considerations of whether such a law puts a “serious,” “substantial,” or “onerous” (or any other qualifier) burden on the Second Amendment are immaterial.

The right to keep and bear common firearms guaranteed under the Bill of Rights cannot be subjected to laws and regulations that prohibit ordinary, law-abiding citizens from keeping and bearing common firearms—particularly when such schemes place these citizens under constant threat of criminal sanction for violating them.

The enshrinement of the right to keep and bear arms in the Second Amendment has necessarily taken such “policy choices off the table.” Yet, this is precisely how Delaware’s laws operate, arbitrarily limiting and disadvantaging law-abiding citizens in the exercise of their fundamental Second Amendment rights in Delaware.


Second Amendment Foundation founder and executive vice president Alan Gottlieb said in a statement that the Delaware law, “literally criminalizes one of the most common and important means by which Delaware citizens can exercise their right of self-defense,” adding that “in effect, SB 6 makes self-defense a potential criminal act, and that must not be allowed to stand.”

SAF Executive Director Adam Kraut also weighed in on the lawsuit, noting that “in todays’ environment with reduced police manpower, there is no guarantee that emergency calls to law enforcement will bring anything resembling a swift response. In the meantime, citizens must be able to rely on their fundamental rights, including the right to keep and bear arms for self-defense, and those rights must be protected.”

If Delaware follows the lead of states like New Jersey, California, and Rhode Island, expect the state to argue that ammunition magazines aren’t protected by the Second Amendment in the first place, but even if they are then the 17-round capacity should more than satisfy self-defense needs, citing studies that show the average number of rounds fired in a self-defense situation is somewhere between two and four. Of course, our Second Amendment rights aren’t about ensuring our ability to defend ourselves in “average” circumstances only, and given the lack of historical analogues for the kind of capacity restrictions that Delaware has put in place, the state has an uphill battle ahead as it tries to defend the indefensible.


The next step in Graham v. Jennings is the state’s response, and then we’ll hopefully see briefings and oral arguments on the request for an injunction not long after. Meanwhile, other magazine ban challenges continue around the country, including Duncan v. Bonta in California; a case that the Supreme Court granted, vacated, and remanded back to the Ninth Circuit following the Court’s release of the Bruen opinion last summer. The Ninth Circuit has kicked that case all the way down to the U.S. District court of U.S. District Judge Roger Benitez, however, despite the fact that he previously declared the ban violates the Second Amendment and isn’t likely to reverse his decision now that the law is even harder to justify under the test spelled out by SCOTUS.

As of Friday, Graham hasn’t been assigned a judge, but as long as the case is heard by one willing to give a fair reading of the text, history, and tradition of the right to keep and bear arms, I think they’ll have no choice but to find that the plaintiffs are likely to succeed on the merits because attempts to restrict the capacity of firearms is a modern development with no real analogue to be found in the Founding era or when the Fourteenth Amendment was ratified almost 80 years later, banning commonly-owned arms (or components) is protected by the Second Amendment, and Delaware’s law cannot be enforced against its citizens.


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