A gun rights group has been forced to drop its challenge to a Colorado law that restricts large-capacity ammunition magazines after the National Shooting Sports Foundation, a firearms industry trade group, refused to allow its researcher to be deposed in the case.
The development is a setback for the National Association for Gun Rights, the organization that brought the lawsuit in 2022. And it’s at least the second time in the past eight months that groups challenging state magazine-capacity limits or assault weapons bans declined to allow scrutiny of research that they hoped to submit in court.
In a video posted to YouTube on August 12, NAGR’s executive director, Hannah Hill, called the NSSF’s decision an “absolutely insane development” that “involves some friendly fire within the gun rights world.” She explained that, based on discussions dating to January, NAGR believed that the trade group would let its researcher be questioned, which would allow an NSSF study to be submitted in the case. “Then at the last minute, after it was too late to go a different route and find somebody else to speak to this evidence, the NSSF refused to allow their research director to give the critical deposition,” Hill said. “That decision left our case dead in the water.”
The NSSF research dealt with a fundamental issue: whether magazines that exceed Colorado’s 15-round limit are in “common use.” In 2008, the Supreme Court held that firearms can’t be banned if they are in common use, but did not define the term.
Opponents of magazine limits and assault weapons bans contend that common use is effectively a measure of popularity, the sheer number of a given firearm in circulation. Supporters of such laws argue that the correct measure is the frequency with which people use the firearm to defend themselves, as the Supreme Court’s Second Amendment jurisprudence is centered on the right to self-defense.
Fourteen states limit magazine capacity and at least nine ban assault weapons. Even though supporters of these laws acknowledge that millions of larger-capacity magazines and assault weapons exist, those seeking to strike down bans still must produce numbers — the basis of their argument — and back them up.
Investigating America’s gun violence crisis
Reader donations help power our non-profit reporting.
In the Colorado case, NAGR, which has a reputation for tangling with other gun groups, had another witness who was supposed to testify to the ubiquity of magazines holding more than 15 rounds, but the judge in the case, a Biden appointee, excluded relevant portions of his testimony and ruled him unqualified. The judge noted that the witness, Mark Passamaneck, had based his findings in part on Facebook messages with an executive at a major magazine manufacturer. “Would you happen to have any reference for how many magazines over 15 rounds are owned by Americans? I am preparing legal declarations (as a retained expert by NAGR) for several cases,” Passamaneck wrote. The executive responded, “Super hard to say exactly, as I’m sure you know … but I think we use over 350 million as a conservative figure.”
In an interview, Passamaneck said the executive was a friend and major figure in the industry whose input he valued, but that he did not use the information as a basis for his findings, nor did he take the judge’s decision personally. “I am a forensic engineer; I am not a statistician,” Passamaneck said. “Is there validity in the judge striking that testimony? That’s for an attorney to answer, but my numbers were accurate and from real sources.”
NAGR’s Hill declined to comment. In the YouTube video, she said the NSSF study her group hoped to introduce was “currently the gold standard of evidence on commonality.” Released in April, the study estimates that 963 million magazines entered the commercial market between 1990 and 2021, and that roughly 717 million of them held 11 or more rounds.
Passamaneck said that, after the judge excluded his testimony, he contacted the NSSF’s research director, Salam Fatohi, and helped develop a plan to fast-track work that the trade group already had underway. He said the figures that were ultimately produced are “significant” and surely an undercount. “There are absolutely manufacturers who, for political reasons, refuse to give numbers to NSSF on this topic,” Passamaneck said.
At least one federal judge has rejected previous, widely used, NSSF research on magazines. In a challenge to Oregon’s magazine-capacity limit, Fatohi testified last summer that figures in an NSSF chart were derived from firearms production estimates and that he was unsure how many manufacturers had been consulted. (The figures were developed before Fatohi became research director.) U.S. District Court Judge Karin Immergut, a Trump appointee, ultimately upheld the law, ruling that “the NSSF Magazine Chart is entitled to little weight.”
The NSSF did not respond to requests for comment.
In addition to NSSF research, gun rights interests have relied on the work of William English, an assistant professor at Georgetown University, to challenge magazine restrictions and assault weapons bans. As The Trace reported in July, the Constitutional Defense Fund, a nonprofit that has funneled millions of dollars in dark money to support a nationwide operation aimed at striking down firearms restrictions, has supported English’s work.
Facing a suit that seeks to abolish Washington state’s assault weapons ban, the state last year subpoenaed English, whose work the plaintiffs had cited, hoping to learn more about how his research was developed. Rather than allow such an examination, the plaintiffs in January agreed to not rely on English’s work “in any respect” as they pursue their case.
David Faigman, an evidence specialist who is chancellor and dean of the University of California College of Law, San Francisco, said by email that there are strategic reasons for a party to not allow testimony from a friendly researcher. “Generally,” Faigman said, “it is a problem for litigators if they expect their experts to be excluded, because it creates a precedent that might lead other courts to exclude the same, or similarly situated, experts in other cases litigating the same issue.”
Also, if a party thinks that a judge will be unreceptive to the testimony, it may hold off so that the expert can be presented to a more sympathetic court. “The Federal Rules and most state rules require appellate courts to be deferential to a trial court’s evidentiary rulings,” said Faigman, who added that “appellate courts can only reverse an admissibility decision if the trial court has ‘abused its discretion.’ This is a hard standard to meet.”
Since the Supreme Court established a new test for determining the constitutionality of gun laws in 2022, firearms interests have quickened the pace of challenges to all kinds of restrictions, including magazine limits and assault weapons bans. So far, circuit courts have upheld such laws.
Andrew Willinger, executive director of the Duke Center for Firearms Law, said that, because of the political lean of certain regions, there are no magazine or assault weapons restrictions on the books in some circuits, making challenges impossible. As a result, he said, there is only a slim chance that circuits will split on the common use debate and prompt the Supreme Court to resolve the issue. However, a split is not required for the justices to step in.
Willinger said there is a challenge to Maryland’s ban on assault weapons in the 4th Circuit that is a strong candidate for Supreme Court review. “I think that would be pretty well teed up,” he said of the case, which involves a law firm and gun rights organizations supported by the Constitutional Defense Fund, the dark money passthrough.
Although the Maryland case may be favored to reach the court, NAGR has promised to bring another challenge to Colorado’s magazine limit, which became law after the 2012 Aurora theater shooting that left 12 people dead and 70 injured. The shooter used an AR-15-style rifle and a drum magazine capable of holding 100 rounds.
“This is only one battle,” said Hill, NAGR’s executive director. “We are in this for the long haul, and we are going to outlast both the gun-grabbers and the Benedict Arnolds alike. I’m not going to sugarcoat it: This is a major set-back and it stings like the dickens. But another lawsuit will be coming.”
