Despite agreeing that ammunition magazines are “arms”, and that magazines that can hold more than ten rounds are in common use for self-defense, the D.C. Circuit Court of Appeals has denied injunctive relief to a group of gun owners challenging the district’s magazine ban.
In a 2-1 decision, the appellate panel rejected most of the historical analogues offered by the District in defense of its mag ban. The panel said it was “silly” to point to colonial-era regulations on gunpowder storage, and reasoned that the “time, manner, and place” restrictions D.C. presented were not analogous enough to the magazine restriction to be cited as evidence.
But the panel did accept D.C.’s argument that “historical restrictions on particularly dangerous weapons and on the related category of weapons particularly capable of unprecedented lethality constitute a relevantly similar tradition”.
Attorneys for D.C. argued that 19th-century restrictions on Bowie knives were analogous to the District’s limitations on magazine size, and though the majority on the panel were careful to note that their “identification of a relevant historical tradition is based upon the regulation of weapons that are particularly capable of unprecedented lethality and not, as the dissent would have it, upon the regulation of Bowie knives specifically,” they still used those restrictions to conclude that “extra large capacity magazines” (a term I haven’t seen used by the courts before) can be banned because the District’s law is a response to an “unprecedented societal concern”: mass shootings.
There were no remotely comparable arms in common use even when the Fourteenth Amendment was ratified. As a result, modern firearms equipped with ELCMs have enabled mass shootings to a degree impossible with Founding or Reconstruction era weapons. … Because ELCMs implicate unprecedented societal concerns and dramatic technological changes, the lack of a “precise match” does not preclude finding at this preliminary juncture an historical tradition “analogous enough to pass constitutional muster.” Therefore, we hold Hanson is not sufficiently likely to succeed on the merits of his claim to warrant the entry of a preliminary injunction against enforcement of the magazine cap.
In a lengthy dissent, Judge Justin Walker explained why the majority got it wrong. Walker started by pointing out that in District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes. “Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them,” he stated.
Walker backed up that premise by extensively quoting from the Heller decision. He pointed out that there are four big holdings from the Supreme Court in Heller. First, that there is, in general, an individual right to keep and bear arms. Second, exceptions to that right depend on the history and tradition of gun regulations. Third, there is no history and tradition of banning arms in common use for lawful purposes.
From there, Heller reached its fourth and final holding: Because handguns are in common use today, law-abiding citizens have a Second Amendment right to keep them in their homes for self-defense. It didn’t matter whether D.C.residents could already keep other guns — it only mattered that handguns are in common use. Nor did it matter whether handguns were once unusual — it only mattered that they are common now. Heller explained time and again that this fourth holding (a right to handguns) depended on its third holding (a right to possess arms “in common use” for lawful purposes):
– “It is enough to note, as we have observed, that theAmerican people have considered the handgun to be thequintessential self-defense weapon.”
– “The handgun ban amounts to a prohibition of an entireclass of ‘arms’ that is overwhelmingly chosen byAmerican society for that lawful purpose.”
– Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
– Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.”
Magazines that can hold more than ten rounds of ammunition are arguably the preferred choice of gun owners across the country. The National Shooting Sports Foundation reported earlier this year that of the estimated 963,772,000 detachable magazines in existence in the U.S., “at least 717,900,000 have a capacity exceeding 10 rounds”.
These magazines are in common use for a variety of lawful purposes, including, but not limited to, self-defense. Based on the reasoning of the majority on the appellate panel, if these magazines could be prohibited because of an unprecedented societal concern over mass shootings, then why wouldn’t a ban on the handguns and rifles they’re used with also be permissible? Yet the Supreme Court has explicitly stated that bans on handguns violate the Second Amendment, even though they are the weapon of choice for mass shooters and garden variety criminals.
The majority’s opinion simply doesn’t jibe with what SCOTUS has held going back to Heller (and arguably, what it said in Miller back in the 1930s). Judge Walker did an excellent job of pointing out the errors with his colleagues’ arguments and providing a road map for the district court judge to find in the plaintiff’s favor as the case moves towards a trial. The plaintiffs could also appeal the D.C. Circuit Court’s rejection of their request for an injunction to the Supreme Court, but the justices haven’t been all that keen on intervening before Second Amendment cases have been fully decided on the merits in the lower courts, so I’m not at all confident that they’d address D.C.’s magazine ban at this stage of the litigation.
For now, anyway, the District’s magazine ban will remain in place and enforceable… and will be just as successful in reducing violence as the District’s other gun control laws, like banning lawful concealed carry on public transit. The District’s violent criminals don’t give a damn about violating a magazine ban. It’s the law-abiding, responsible gun owners who are paying the price for the District’s unreasonable, ahistorical, and unconstitutional restrictions.
