Fresh on the heels of its lawsuit challenging Denver, Colorado’s ban on “assault weapons,” the Department of Justice has now filed a new complaint in federal court taking on the state’s ban on “large capacity” magazines.
As Bearing Arms reported on Tuesday, Colorado Attorney General Phil Weiser was recently sent a demand letter from DOJ’s Civil Rights Division warning of litigation if the state continued to enforce its prohibition on the sale, transfer, and in many cases, the possession of ammunition magazines that can hold more than 15 rounds. Now the DOJ has followed up on that threat by filing suit in U.S. District Court seeking to halt enforcement of the state law on Second Amendment grounds.
In a statement, Assistant Attorney General Harmeet K. Dhillon called the ban “political virtue signaling at the expense of Americans’ constitutional right to keep and bear arms,” and vowed that the Civil Rights Division’s Second Amendment Section will “continue to defend law-abiding Americans’ rights against unconstitutional restrictions on their right to possess arms which are owned by tens of millions of their fellow citizens.”
From the complaint:
Law-abiding Americans own and use for lawful purposes literally hundreds of millions of magazines such as those banned by the State. A detachable magazine is an integral part of most semi-automatic firearms, including the AR-15 rifle. As such, they are covered by the Second Amendment’s right to keep and bear arms. The State’s magazine ban is a ban on an arm in common use for lawful by law-abiding citizens. Therefore, the Magazine Ban violates the Second Amendment, and the United States brings this action to vindicate the rights of Colorado citizens whose rights have been—and are continuing to be—violated by Defendants.
Some courts, including the Ninth Circuit, have reached the bizarre conclusion that magazines aren’t arms at all, and therefore have no protections whatsoever under the Second Amendment. Under that legal theory, Colorado could cap magazine capacity at just a single round, or even ban detachable magazines altogether, without infringing on the right to keep and bear arms.
As the DOJ’s brief notes, however, “semi-automatic pistols and rifles cannot function as designed without a magazine,” and the vast majority of those rifles and pistols are designed to be used with detachable magazines. The complaint also points out that in previous litigation, the state of Colorado has stipulated that “in the State of Colorado alone, the number of magazines like those banned by the State is in the millions,” which means they are in common use.
While Colorado’s magazine ban was upheld by the state Supreme Court in 2020, the Tenth Circuit Court of Appeals has never weighed in on the constitutionality of the ban. The Colorado Supreme Court also examined whether the statute was in conflict with the state constitution, not the Second Amendment, and concluded that the magazine ban was “a reasonable exercise of the state’s police power.”
Under the Supreme Court’s text, history, and tradition test, Colorado will have to demonstrate that the magazine ban accords with the national tradition of gun regulation… at least if the Tenth Circuit doesn’t adopt the dodge that magazines aren’t “arms” covered by the Second Amendment. Given that it’s virtually impossible to any longstanding or widespread laws limiting the capacity of a firearm until the late 20th century, Colorado could also try to argue that the magazine ban is a response to a societal concern that didn’t exist in 1791 or 1868; namely, mass shootings.
Mass violence is hardly an unprecedented societal concern, however, and once again the historical record is devoid of legislative efforts aimed at reducing those acts by requiring weapons to be modified or prohibiting certain features that increased the rate of fire compared to a muzzleloading musket. Indeed, one of the common threads in the advancement of firearms technology has been increasing both the capacity of a firearm and the speed at which it can be fired and reloaded.
There were no real efforts to ban the sale and possession of Sharps rifles in the 1850s, for example, even though they were widely used by abolitionists in the internecine battles between pro- and anti-slavery forces in Bleeding Kansas over the course of that decade. Those rifles represented a sea change compared the muskets of the Founding era, given that they were capable of firing up to twelve shots in 60 seconds. Some in the federal government tried to investigate how those firearms were making their way to Kansas Territory and even interdict those arms before they could arrive, but there were no attempts to make breech-loading rifles illegal.
Magazine bans have only been in place since the late 1980s, and only in a handful of states. These prohibitions should have been struck down by the Supreme Court long ago, but the DOJ’s lawsuit taking on Colorado’s ban will hopefully nudge the justices to take up a magazine ban case sooner rather than later.
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