A Small Second Amendment Victory

By Kevin D. Williamson

Sunday, August 16, 2020

 

The Second Amendment has won a small victory in California, with the Ninth Circuit Court of Appeals striking down as unconstitutional the state’s ban on so-called high-capacity magazines — which, as the court pointed out, is in practice a ban on most of the handgun and rifle magazines sold in the United States, because California defines “high capacity” as eleven rounds.

 

“It makes unlawful magazines that are commonly used in handguns by law abiding citizens for self-defense,” Judge Kenneth Lee wrote in the majority opinion. “And it substantially burdens the core right of self-defense guaranteed to the people under the Second Amendment.” And, so: “It cannot stand.”

 

Well said.

 

Bans on high-capacity magazines are, like almost everything else in our politics today, largely symbolic.

 

The majority of the deaths from gunshot wounds in the United States are suicides. Three out of five of the Americans who die from gunshot wounds every year are suicides, not murders. (Another nonnegligible portion are accidents.) At the risk of being macabre in the unfortunately necessary course of pointing out the obvious, suicides tend to be single-shot affairs. The Americans who die in suicides are not being killed by the 20th round in the magazine — they are being killed by despair, by the same spiritual crisis that is at the foundation of so much misery in the United States today, from opioid addiction to the neglect and abuse of dependent children.

 

But we have been through this many times.

 

The television news and the movies are full of footage of gangsters firing machine guns at each other in the streets, and our progressive friends talk about how you can walk into a Walmart and buy a machine gun like it was a box of laundry detergent; in reality, the number of legally owned automatic weapons that have been used in murders in the United States since the Great Depression could be counted on one hand. Illegally acquired automatic weapons are rarely used in violent crimes, either, for reasons that would be obvious to anybody except the people who make the laws in California: They are very expensive, they are complicated to operate and maintain, most of them are difficult to conceal, etc.

 

Every few years, we have a public convulsion over some other exotic firearm.

 

A while back, it was .50-caliber rifles. I saw a nice one for sale a while back: It was 48 inches long, weighed 35 pounds, and cost just under $13,000. I have not been able to find a public report of one’s ever having been used in a murder. I can guess why. But we will fight over them, because we must fight over them.

 

Similarly, the so-called assault rifles are instruments of homicide only rarely — so rarely, in fact, that government records rarely break them out as their own category. In 2018, all rifles — from scary-looking black “assault rifles” to granddad’s deer rifle — accounted for fewer than 300 murders, according to the FBI. More Americans are beaten to death with fists or baseball bats than are shot to death with “assault rifles,” and five times as many are stabbed to death. Rifles did outpace asphyxiation and fire in the homicide rankings.

 

Most American criminals prefer ordinary handguns — they’re cheap, generally easy to operate, and can fit into a coat pocket or glovebox. The argument put forward against the exotic weapons — that limiting access to them would reduce crime — is in reality much more applicable to the ordinary weapons. Taking the .50-caliber sniper rifles and the extended Glock magazines off the streets would have almost no effect on American murder. But instituting a comprehensive national firearms ban probably would, assuming it was accompanied by a program of robust confiscation. Of course, that would be unconstitutional, and even the crazytalk Democrats of 2020 are not going to try to do any such thing.

 

My colleague Kyle Smith and I recently had a discussion about the film The American President with some friends of National Review. In that ponderous cinematic artifact of the 1990s, the progressive lobbyist played by Annette Benning mocks the centrist Democratic president for proposing a gun-control bill that would do nothing more than implement a “mandatory three-day waiting period before a five-year-old can buy an Uzi.” The reality of U.S. firearms regulation was and is somewhat different. But that kind of fantastical nonsense is still how the American Left talks about firearms. Nobody seems to have noticed that violent crime in these United States was collapsing right around the time The American President was in theaters, that it continued to be diminished for years — years during which firearms ownership, including the ownership of 20-round magazines and scary-looking black semiautomatic rifles, increased radically.

 

I am not convinced that there is a vector of causality connecting “more guns” with “less crime,” but that is how things went. Whatever the variables were that contributed to the great reduction of murder and other violent crimes in those years, closer political control of access to firearms was not one of them.

 

I get a great deal of email from angry young rightist knuckleheads demanding to know what it is that conservatives have conserved. The Second Amendment is one of those things. That did not happen by accident. We did not get lucky. The very conservative institution-building that Donald Trump and other right-wing populists sneer at is what gave us such instruments as the Federalist Society, which has trained up a generation of constitutionalist judges.

 

I also get a lot of email from angry young leftist knuckleheads demanding to know what my “plan” is — they love a plan, even if it is a plan to do something pointless and symbolic in selfish pursuit of emotional validation. There isn’t a practical and constitutional way to use firearms regulation to meaningfully reduce violent crime. But what about the majority of gunshot deaths, which are, in the narrowest sense, voluntary? There seems to be a reasonably broad consensus — broad enough to include both Bernie Sanders and the editors of National Review — that the American system of caring for people with mental-health problems is in need of reform. We might make a dent in a problem that accounts for, among other things, the majority of gunshot deaths.

 

Or, we could have another debate about how much more dangerous an eleven-round magazine is than a ten-round magazine.

 

That debate has been had at the Ninth Circuit. The Bill of Rights had a good day in court.