On the "Historical Prohibitions Exception":
To sum up, then, while detachable firearm magazines have been common for a
century, government regulation of the size of a magazine is a recent phenomenon and still
unregulated in four-fifths of the states. The record is empty of the persuasive historical
evidence needed to place a magazine ban outside the ambit of the Second Amendment.
Thus, it can be seen that California?s prohibition on detachable ammunition magazines
larger than 10 rounds is a type of prohibition that has not been historically accommodated
by the Second Amendment.
Faced with a dearth of magazine capacity restrictions older than 1990, the Attorney
General pivots and tries a different route. He argues that the historical prohibition question
is not one of detachable magazine size, but instead is a question of firearm 'firing
capacity.' With this change of terms and shift of direction, the Attorney General contends
that firearm firing-capacity restrictions have been subject to longstanding regulation dating
back to the 1920s. Yet, even his new focus falters under a close look at the historical
record.
It is interesting to note that during the Nation?s founding era, states enacted
regulations for the formation and maintenance of citizen militias. Three such statutes are
described in United States v. Miller, 307 U.S. 174 (1939). Rather than restricting firing
capacity, they required firing capacity. These statutes required citizens to equip themselves
with arms and a minimum quantity of ammunition for those arms. None placed an upper
limit of 10-rounds, as ? 32310 does. Far from it. Each imposed a floor of at least 20-
rounds. Id. at 180-83 (Massachusetts law of 1649 required carrying ?twenty bullets,? while
New York 1786 law required ?a Box therein to contain no less than Twenty-four
Cartridges,? and Virginia law of 1785 required a cartridge box and ?four pounds of lead,
including twenty blind cartridges?). In 1776, Paul Revere?s Minutemen (a special group
of the Massachusetts militia) were required to have ready 30 bullets and gunpowder. These
early American citizen militia laws suggest that, contrary to the idea of a firing-capacity
upper limit on the number of rounds a citizen was permitted to keep with one?s arms, there
was an obligation that citizens would have at least 20 rounds available for immediate use.
Simply put, there were no upper limits; there were floors and the floors were well above
10 rounds.