The Corner

New York’s Magazine Ban: Unconstitutional?

New York’s new gun-control legislation significantly expands the definition of “assault weapon” and reduces the maximum capacity of ammunition magazines to seven rounds.

In rushing his proposal through the legislature, New York governor Andrew Cuomo “waived a constitutionally required three-day waiting period between the introduction of legislation and a vote,” allowing no time for hearings or even much debate. That may have been a big mistake — or a gift to pro-gun forces — since there is a strong possibility the restriction on magazine capacity is unconstitutional.

In §265.36 and §265.37, the new law makes it illegal to possess a magazine that holds more than seven rounds, including those legally purchased before the 1994 federal ban on high-capacity magazines or the new state law went into effect, declaring in part:

It shall be unlawful for a person to knowingly possess a large capacity ammunition feeding device manufactured before September thirteenth, nineteen hundred ninety-four, and if such person lawfully possessed such large capacity feeding device before the effective date of the chapter of the laws of two thousand thirteen which added this section, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.

An individual who has a reasonable belief that such device is of such a character that it may lawfully be possessed and who surrenders or lawfully disposes of such device within thirty days of being notified by law enforcement or county licensing officials that such possession is unlawful shall not be guilty of this offense. It shall be a rebuttable presumption that such person knows that such large capacity ammunition feeding device may not be lawfully possessed if he or she has been contacted by law enforcement or county licensing officials and informed that such device may not be lawfully possessed.

It shall be unlawful for a person to knowingly possess an ammunition feeding device that such person lawfully possessed before the effective date of the chapter of the laws of two thousand thirteen which added this section, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than ten rounds of ammunition, where such device contains more than seven rounds of ammunition.

Whether by clever design, simple ignorance, or haste-induced inattention, these provisions in effect have turned the most popular handguns bought for self-defense and recreational purposes — 9mm and .40 caliber semi-automatic pistols — into expensive paper weights, unusable for their intended and wholly lawful purposes. That’s because, with the exception of a small number of small 9mm “pocket pistols” and a slightly larger number of .40-caliber pistols — there are no seven-round magazines produced or available (magazines produced for semi-automatic pistols normally hold eight or more rounds). Thus, although the most popular handguns themselves remain legal under the New York law, the magazines that are necessary for them to work have been declared illegal.

Even though the New York law is not an outright ban of 9mm and .40-caliber handguns, it does make most of them inoperable, and thus would seem to fly in the face of the Supreme Court’s 2008 decision in Heller v. District of Columbia, in which the Court noted that “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Even more to the point, the Court also held that restrictions short of complete bans could also fail constitutional muster. Thus it ruled invalid the District’s requirement “that firearms in the home be rendered and kept inoperable at all times,” noting that doing so “makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” (The holding in Heller was applied to the states in McDonald v. City of Chicago.)

In signing his new law Governor Cuomo crowed, “I am proud to be a New Yorker because New York is doing something. We are fighting back.”

Yes, New York did something. Now it will be up to the courts to undo at least part of it.

— John S. Rosenberg, a lapsed historian, blogs at

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