Gun owners in the nation’s capital will continue to face ammunition magazine capacity limits, a federal appeals court ruled Tuesday.
A divided three-judge panel for the DC Circuit Court of Appeals affirmed a lower court decision upholding DC’s ban on the possession and sale of what it called “extra-large capacity magazines” (ELCMs). The panel ruled the city’s ten-round limit for magazines fit within the nation’s historical tradition of regulating “particularly dangerous weapons” and those “capable of unprecedented lethality,” even though there weren’t similar bans when the Second Amendment was ratified.
“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,'” the majority wrote in an unsigned opinion in Hanson v. District of Columbia. “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.”
The ruling deals a significant blow to gun-rights advocates in their decades-long quest to undo DC’s restrictive gun laws. It comes as appeals courts across the country have routinely upheld similar bans in recent years despite the Supreme Court raising the bar modern gun laws have to clear to pass muster in 2022’s New York State Rifle and Pistol Association v. Bruen.
The District’s magazine ban, which it first adopted in 2008, survived a previous challenge in 2011’s Heller II decision. A quartet of gun owners sued the city over its ban once again in 2022 after the Supreme Court issued its decision in Bruen, arguing that the capital city’s ban ran afoul of the new history and tradition standard set by the High Court.
In reviewing the gun owners’ arguments, the DC Circuit panel agreed that magazines capable of holding more than ten rounds of ammunition counted as “arms” under the plain text of the Second Amendment.
“A magazine is necessary to make meaningful an individual’s right to carry a handgun for self-defense,” the majority wrote. “To hold otherwise would allow the government to sidestep the Second Amendment with a regulation prohibiting possession at the component level, ‘such as a firing pin.”
It also agreed ELCMs are “commonly used for self-defense,” key points of contention many other courts have disputed in upholding similar bans. The plaintiffs argued that the court’s analysis should stop there since the Supreme Court previously suggested that restrictions on arms in common use for self-defense are unconstitutional.
The majority, however, argued that such restrictions could be justified if the government identified a suitable historical analogue for its modern-day ban.
The city’s attorneys pointed to several potential analogues, including founding-era regulations on the storage of gunpowder and ammunition, concealed carry restrictions, and laws prohibiting discharging firearms within a city. However, the panel found those examples unpersuasive.
Instead, the majority pointed to 19th-century restrictions on Bowie knives, as well as prohibition-era regulations on machineguns and sawed-off shotguns, as examples that fit the bill. It conceded those examples didn’t establish a historical tradition of banning magazines capable of holding more than ten rounds or even regulating ammunition capacity at all. Still, it said that was ok because the Supreme Court blessed a more “nuanced approach” to “cases implicating unprecedented societal concerns or dramatic technological changes,” and the thrust of the restrictions was similar.
“Although these laws may target different crimes than does the magazine cap, they share the same basic purpose: To inhibit then unprecedentedly lethal criminal activity by restricting or banning weapons that are particularly susceptible to, and were widely used for, multiple homicides and mass injuries,” the panel concluded. “Because many of the preceding examples are also outright bans on an entire class of weapons, they impose a burden on the right to armed self-defense comparable to (if nor greater than) the burden imposed by the District’s magazine cap.”
Judge Justin Walker broke with his colleagues and wrote separately that he would have struck down the District’s magazine ban at the first step of the analysis.
“In District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes,” Walker, a Donald Trump appointee, wrote. “Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them.”
Judge Patricia Millett, a Barack Obama appointee, and Judge Douglas Ginsburg, a Ronald Reagan appointee, were in the majority.
Following the ruling, the case will likely return to the District Court to be tried on the merits. In the interim, its outcome could be affected by the fate of a recent Fourth Circuit decision upholding nearby Maryland’s assault weapons ban. The plaintiffs in that case, which deals with similar Second Amendment questions to magazine restrictions, have requested review from a Supreme Court that has already expressed some interest in taking the issue up.
The High Court could decide whether to take that case by the end of the year.
