Can the state seize banned ammunition? [Journal Inquirer]

March 26, 2013

Article as it appeared in the Journal Inquirer

Journal Inquirer — A sticking point in negotiations as lawmakers craft a package of gun control measures is whether people who already own high-capacity magazines should be able to keep them. Legislative leaders from both parties appear to agree on banning future sales of magazines that hold more than 10 rounds. The issue is whether to “grandfather” the magazines for people who own them now or to give residents time to destroy them, turn them over to police, or sell them out state — or face a penalty.

Supporters of a retroactive ban say high-capacity magazines allow shooters to kill many victims without reloading and that banning them retroactively is allowed because it’s a public safety issue — drugs aren’t “grandfathered” when they’re banned, for example. Legislative leaders have been negotiating a package of gun control, mental health, and school security measures that can pass in a bipartisan vote in response to the Dec. 14 school shootings in Newtown. They missed their initial March 1 deadline, and face another Friday.

Middle ground?

Gun control advocates were upset to find that Democrats had yielded to Republican leaders who oppose making the magazine ban retroactive.

Connecticut Against Gun Violence sent a news release and a legal argument citing court decisions that have allowed the government to retroactively ban ownership of something.

“This is a police action for the public’s good. It’s not eminent domain,” Ron Pinciaro, the group’s executive director, said. Eminent domain requires the government to compensate residents for property seized for public use. But the law is different when government outlaws a product, Pinciaro said. Banning the magazines is important from an enforcement perspective, he said, because police would have no way of knowing whether a magazine was bought before or after a ban. “There are not sufficient identification marks — no serial numbers or that kind of thing — on the existing magazines,” Pinciaro said. Pinciaro said the Newtown shooting indicates that smaller-capacity magazines could slow down mass shooters and save lives. Newtown shooter Adam Lanza used 30-round magazines. “This guy shot 150 rounds in less than five minutes,” Pinciaro said. “If he had a 10-round magazine instead of a 30, he would have had to reload 15 times instead of five times.”

Gov. Dannel P. Malloy’s proposals include a retroactive ban on high-capacity magazines. But Malloy, a Democrat, would allow people to register and continue owning guns that become illegal in the future.

Michael P. Lawlor, Malloy’s undersecretary for criminal justice planning and policy, said AR-15-style rifles have become more popular since a federal assault weapon ban expired in 2004. They’re light and accurate, and can fire high-caliber bullets. The magazine is the limiting factor, he said. “They have the capability of shooting a lot of bullets in a short amount of time. The bigger the magazine, the more you can fire,” Lawlor said. “It’s really the magazine capacity that turns a traditional gun into one of these super-guns.” Lawlor said Malloy could have proposed banning the guns retroactively, but that it’s not necessary and more complicated. Magazines cost $15 or $20. Rifles such as the AR-15 can cost as much as $2,000. “The magazines are easier to talk about than the weapons themselves — they’re a lot less expensive,” Lawlor said.

But gun industry officials say a retroactive ban would violate the rights of gun owners. And it would make some handguns useless because no 10-round magazine for them exists.

An indirect ban

“If you start making it illegal to possess a magazine greater than 10 rounds, you are making many firearms basically paperweights,” Jake McGuigan, director of government relations at the National Shooting Sports Foundation, said. McGuigan said his group, which is based in Newtown and represents gun manufacturers, would challenge such a law. Guns and magazines aren’t like drugs that can be banned from possession, he said, they’re protected by the U.S. Constitution. “It’s legal today, yet tomorrow it’s illegal and you’re supposed to get rid of it?” he said. Other states that have passed similar legislation have allowed existing magazines to be grandfathered, McGuigan said. McGuigan also questioned how effective the ban would be. Most shootings involve three or four bullets, not 10, he said. And experienced shooters can reload quickly. “It’s an arbitrary number. No one can tell me why 10 rounds is a good number,” he said. Supporters of the ban say gun and magazine manufacturers could profit from the change — gun owners would have to buy new magazines or buy a part that could be inserted into the magazine to limit it to 10 rounds. But McGuigan said his group won’t support that. Manufacturers don’t want to be liable if a modified magazine malfunctions, causing injury to a person or damage to a gun, he said. Lawmakers are hesitant to ban the magazines retroactively.

Sen. Tony Guglielmo, R-Stafford, has been outspoken on the issue. “If the government takes something and if they don’t give compensation, it would be an unlawful taking,” he said. Guglielmo added that a retroactive ban would punish only those who follow the law and get rid of their magazines. “You’re targeting all those people who haven’t done anything in the past, aren’t doing anything now, and won’t do anything in the future,” he said. “This is a hobby.”

Rep. Peggy Sayers, D-Windsor Locks, said she also opposes a retroactive ban on magazines. “They should be allowed to keep them,” she said. Sayers was the only House member to vote against the state’s last assault weapon ban in 2001. She had promised constituents she would vote against an earlier version of the proposal, and didn’t want to call those people and wake them up when a compromise bill came out late at night, so she voted against it. Her constituents are still overwhelmingly telling her to oppose further gun restrictions, she said. And she wants the bill to focus on other issues. “Little has been done to address all the mental health issues. As a nurse, I would like to see us address that more than we have,” Sayers said.

The legislation is in response to the Dec. 14 shooting in which Lanza, 20, killed his mother in their Newtown home and took her guns to Sandy Hook Elementary School, where he shot and killed 26 people.