Even as its formerly more liberty-loving neighbor, Virginia, goes down the tyrannical path of unconstitutional bans on firearms and magazines, residents of the nation’s capital last week gained a measure of relief from the District’s oppressive gun control regime.
The D.C. Court of Appeals (the District’s own highest court) ruled in a 2 to 1 panel opinion that the federal enclave’s ban on magazines with a capacity of greater than 10 rounds is facially invalid under the Second Amendment.
This sets the stage for a bizarre state of affairs nearly unimaginable when District of Columbia v. Heller was decided by the U.S. Supreme Court nearly 18 years ago, as Washingtonians could in at least one respect be freer to bear arms than Virginians.
The majority’s reasoning was notably straightforward, erudite, and consistent with Heller itself. Judge Joshua Deahl, a Trump appointee, wrote:
Magazines capable of holding more than 10 rounds of ammunition are ubiquitous in our country, numbering in the hundreds of millions, accounting for about half of the magazines in the hands of our citizenry, and they come standard with the most popular firearms sold in America today. Because these magazines are arms in common and ubiquitous use by law-abiding citizens across this country, we agree with Benson and the United States that the District’s outright ban on them violates the Second Amendment.
But the court went even further in the case of Tyree Benson v. United States, ruling,
And because Benson could not have registered, procured a license to carry, or lawfully possessed ammunition for his firearm given that it was equipped with a magazine capable of holding more than 10 rounds, we likewise reverse his convictions for possession of an unregistered firearm, carrying a pistol without a license, and unlawful possession of ammunition.
This reasoning, however, caused the majority to defer for another day judgment of whether D.C.’s firearm licensing and registration schemes likewise offended the right to keep and bear arms.
According to the majority’s brief recitation of facts, Mr. Benson was the subject of a stop and frisk, which he challenged on Fourth Amendment grounds. It was pursuant to this encounter that the police found him in possession of what the court called a “semiautomatic firearm equipped with a 30-round magazine.” The court ruled the Fourth Amendment challenge was moot, given that the Second Amendment holdings effectively nullified all of the convictions arising from the discovery of the evidence.
The majority opinion did not mention what, if any, evidence the District had concerning Mr. Benson’s intentions in carrying the gun. He was not charged with intent or attempt to commit any other crime. The majority also noted, “The District has not pointed to any independent basis that would have precluded Benson from registering and licensing his firearm—for instance, it does not suggest that Benson was disqualified from gun ownership by virtue of being a felon or mentally ill.” His original sentences in the trial court suspended any periods of incarceration and imposed one year of probation. Because the convictions made Benson a felon, however, he would have been prohibited indefinitely from ever receiving or possessing a firearm.
During the proceeding before the Court of Appeals, the United States, which had prosecuted the original case in trial court, eventually conceded the ban violated the Second Amendment. At that point, the District’s own bureaucracy sought to intervene in the case and to argue in favor of the ban’s validity. That request was granted after neither the U.S. nor Benson himself objected.
As we note elsewhere this week, President Trump’s Department of Justice (DOJ) not only concluded the District’s magazine ban was unconstitutional but its “assault weapons” ban as well. DOJ is in fact independently suing D.C. over the assault weapons ban. So go the strange legal twists and turns in a federally governed enclave that nevertheless has been granted a limited form of “home rule.”
Similarly, while the District of Columbia Court of Appeals is a federally created court, with judges appointed by the U.S. president, it is not considered to be within the other federal appellate circuits. Thus, it’s not clear if the court’s decision would be considered to create a split with those other circuits, five of which (and all to have issued final decisions on the matter) have upheld firearm magazine capacity limits. The D.C. court’s decision ably considers and rejects the reasoning from several of those opinions. Certainly, the decision can only add to the chance that the issue might, finally, garner enough interest in the U.S. Supreme Court for a case to be granted review. This would be particularly so if the District decided to appeal the case to the High Court directly.
Dissenting from the panel’s opinion was Chief Judge Anna Blackburne-Rigsby. Her opinion focused, among other things, on the assertion that even if some 11+ magazines could pass the common use test, the court had no reason to believe ‘the particularly lethal 30-round magazine, such as the one Mr. Benson possessed here” would as well.
To this, the majority pointed out that the basis of Benson’s conviction wasn’t that he had an unusually large magazine, it was that he had a magazine capable of holding more than 10 rounds. And since THAT threshold, which was all the government was required to prove, was clearly unconstitutional under the Second Amendment, it didn’t matter that a more narrowly tailored statute could, conceivably, have been drafted and perhaps survived constitutional scrutiny.
Whether the District will continue to fight for a magazine ban that the U.S. government itself is no longer interested in enforcing remains to be seen. It could also, taking a cue from the dissent, try amending the ban to specify a higher threshold.
Whatever happens, it appears fights over magazine bans are far from over in the lower courts.
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