“High Capacity” magazines are quite a heated topic of conversation these days. Some people argue that there is no such thing as high capacity magazines, they are all standard capacity. Others seek to ban future sales to the civilian market and some want to go even further and confiscate them. As we go into the 2020 legislative session here in Washington State, several bills in both the House and the Senate seek to ban magazines with a capacity greater than 10 rounds. (HB2240, SB6077, HB2241, SB6076 be sure to contact your representatives regarding these)
We are in the middle of an interesting case in California right now. In March of 2019, a Federal District Court ruled that California’s magazine bans were in-fact unconstitutional by applying the simple test of Heller. For a brief period, Californians were again able to purchase magazines that held more than 10 rounds before an injunction was granted as part of an appeal to the 9th Circuit Court. It will be interesting to see what the outcome of this case is. Documents related to this case are available to view here.
While we face our own battles here in Washington in 2020, I think it is prudent to look at this subject through the eyes of history.
One of the arguments that are heard most often is that our forefathers simply could not have envisioned the future of firearms technology and they would roll over and die if they saw what we’ve created today. First I must concede that when the Bill of Rights was added to the Constitution on December 15th, 1791, rifle technology was not what it is today. That being said, the facts that are to be laid out before you show quite clearly that high capacity magazines are very much constitutional and protected by the Second Amendment.
Looking at history, we first need to focus on James Madison, the man who introduced the Second Amendment to the Bill of Rights. He was elected to the Continental Congress in 1780 with the Constitutional Convention being held in 1787. In 1788 Madison wrote Federalist Paper No. 46 where he discusses the necessity of an armed citizenry. In 1791 the Bill of Rights was officially added to the US Constitution. In 1809 Madison took the presidential seat serving until 1817. Madison died in 1836.
If we consider the evolution of firearm technology from the time that the Bill of Rights was put into place in 1791 and where it was when Madison died in 1836, we see that technology had advanced a great deal. We went from having muzzleloaders, rifled muskets, and flintlocks to having breach loading weapons as well as multi-shot revolving cylinder pistols and rifles that used percussion caps. A huge leap in technology.
At this point in history our 16th president, Abraham Lincoln was 27 years old. Becoming president in 1861, Lincoln revered our forefathers and is even quoted in his First Inaugural Address as saying: “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember it or overthrow it.”
Clearly, this is a man who believes the Second Amendment is still alive and well. In 1862 the Gatling Gun was brought to market without a blink of an eye, and by 1865 it had been updated to use what today we call high-capacity magazines.
In 1872 a 240 round Broadwell drum magazine was introduced and in 1883 a new type of drum, the 104 round Accles drum magazine was introduced for the gun. This is while Ulysses S. Grant and Chester A. Arthur were presidents. Both men served in militias all the while the US Army had existed since 1775. Even Grover Cleveland, the President when Washington joined the union believed in the citizen’s militia using its force here in Seattle to quell anti-Chinese rioting in 1886. This is 3 years before our Washington became a state.
If over all of this time, there was no issue over the constitutionality of “high-capacity” magazines, then in 1889 when the Washington State Constitution was ratified, “high-capacity” magazines were without a doubt included as Constitutionally protected arms for the individual citizen to bear as it is not only their right but their duty to do so since we are the unorganized militia. This is seen in Article I Section 24 and in Article X Section 1 which is further expanded upon in Title 38 of the RCW.
SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
SECTION 1 WHO LIABLE TO MILITARY DUTY. All able-bodied male citizens of this state between the ages of eighteen (18) and forty-five (45) years except such as are exempt by laws of the United States or by the laws of this state, shall be liable to military duty.
RCW 38.04.010 General Definitions The term “organized militia” shall be the general term to include both state and national guard and whenever used applies equally to all such organizations.
RCW 38.04.030 Composition of the militiaThe militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganizedmilitia.
Don’t worry though, if you have contentious scruples against bearing arms, you cannot be compelled to fulfill this duty in a time of peace.
ARTICLE X SECTION 6 EXEMPTION FROM MILITARY DUTY. No person or persons, having conscientious scruples against bearing arms, shall be compelled to do militia duty in time of peace: Provided, such person or persons shall pay an equivalent for such exemption.