(As appeared in the Union Leader newspaper 2/7/11 under the title "High-capacity magazine ban an unconstitutional taking of property")
By Evan F. Nappen, Esq., Pro-Gun New Hampshire General Counsel
[Posted Tuesday, February 8, 2011, at 3:40 p.m.] The predictable knee-jerk reaction to the Tucson atrocity from freedom takers like U.S. Rep. Carolyn
McCarthy, D-N.Y., was to put forward a bill to ban so-called "high-capacity"
magazines. Any magazine that holds more than 10 rounds is covered, and the ban
is not limited to semi-automatic firearms. Bolt actions, pump actions and lever
actions are all included.
This would easily encompass tens of millions of magazines,
many of which are simply an original part of the gun as made and sold. The bill
would ban new manufacture and make it unlawful for an honest citizen to ever
transfer a magazine that holds more than 10 rounds to another. This creates a
slew of consequences not readily apparent.
Because no provisions exist for lawful transfer or new
possession by inheritance, widows and heirs are turned into instant felons. No
provision is made for how to lawfully dispose of the prohibited magazine. It is
unlawful for widows and heirs to either keep the magazine or to get rid of it
A current possessor is forced to keep the magazine forever
because no provisions exist for lawful transfer. One cannot transfer it to
anyone. Transfer it and go to federal prison for up to 10 years.
Guns that have magazines of more than 10 rounds are destroyed
in value. They become expensive single shots unless replacement magazines
holding 10 rounds or less are available and purchased at the owner's expense.
For many rare and collectible guns, no such magazines even exist.
Guns that have historic or provenance value will have their
value destroyed because the original magazine can no longer be transferred with
the gun. It is plainly a "taking" under the 5th Amendment with no compensation
to the owner.
Guns that have fixed magazines of more than 10 rounds are
rendered entirely worthless because the magazine is an integral part of the
gun. For example, the 1860 Henry lever action rifle, the 1866 "yellow boy"
lever action rifle, the 1873 Winchester sporting lever action rifle, the 1883
Burgess lever action rifle, the 1884 Colt Lightning pump action rifle and 1876
Centennial lever action rifle, which are all made today by the A. Uberti
Firearms Company, would be banned because they all hold more than 10 rounds.
These rifles are magnificent reproductions of historic firearms.
Anyone who has invested in these fine historic reproduction
firearms must keep them forever and then put their heirs into a quandary.
Considering how long magazines holding over 10 rounds have
been around, McCarthy's bill is an absurdity. It will have no impact on stopping
a deranged person bent on mayhem, but it will harm tens of millions of honest
citizens and turn widows into felons.