The D.C. Court of Appeals issued a landmark 2-1 ruling on March 5, 2026 in Benson v. United States, No. 23-CV-0541 (D.C. Ct. App. Mar. 5, 2026), striking down D.C.’s ban on firearm magazines capable of holding more than 10 rounds as unconstitutional under the Second Amendment. This is breaking news — not just because it’s a clean win, but because it creates the circuit split that could compel the Supreme Court to finally take up Duncan v. Bonta, No. 25-153, California’s magazine ban case currently sitting on the cert docket.
Why Every Previous Court Got It Wrong — and Why That’s Not Surprising
I have been hammering this point for years: every lower court that ruled on magazine bans sided against the Second Amendment — but that tells you almost nothing about constitutionality. Every single one of those cases arose in a reliably anti-gun jurisdiction. The Ninth Circuit upheld California’s ban. The Seventh Circuit out of Chicago upheld Illinois restrictions. The First Circuit out of Boston signed off on bans from Massachusetts and Rhode Island.
No magazine ban case has ever come out of the Fifth Circuit in Texas or the Eleventh Circuit in Florida — because those states have no such bans to challenge. So when opponents claim every court has ruled against the Second Amendment, they are describing a completely biased sample. Gun-owner-hostile courts have rubber-stamped laws from gun-owner-hostile legislatures. That is the entire data set. Until now.
The Trump DOJ Flipped the Case — and It Worked
I covered Jeanine Pirro’s brief as major breaking news when it landed, and some people asked me why a legal brief warranted that treatment. Benson v. United States is exactly why. The Trump administration’s Department of Justice — under Attorney General Pam Bondi, U.S. Attorney for D.C. Jeanine Pirro, and Assistant Attorney General Harmeet Dhillon, who heads the DOJ’s Second Amendment Section — filed a brief in this case explicitly conceding that D.C.’s magazine ban violates the Second Amendment. That brief reversed the position of the Biden DOJ, which had originally prosecuted Tyree Benson for possessing a 30-round magazine.
The court’s majority opinion, written by Judge Joshua Deahl, opens with the shift in posture front and center:
The United States, which prosecuted Benson in the underlying case and defended the ban’s constitutionality in the initial round of appellate briefing, now concedes that this ban violates the Second Amendment.
That sentence is the story. The Biden administration put Benson in criminal jeopardy for possessing a standard-capacity magazine. The Trump administration walked into court and said the prosecution was constitutionally indefensible. That takes institutional courage, and it produced a result.
The Bruen and Heller Analysis Is Exactly Right
The majority’s analysis tracks precisely what I argued in “What Part of ‘In Common Use’ Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases — Again,” Harvard Journal of Law & Public Policy, Vol. 41, Fall 2023. The court applies the Bruen framework — New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) — in exactly the sequence it demands.
First: is a magazine an “arm” under the Second Amendment’s plain text? Judge Deahl writes:
Bruen made explicit that at least as a threshold matter, the Second Amendment’s protection for arms covers all “modern instruments that facilitate armed self-defense.”
A magazine feeds rounds into the firing chamber, eliminating the need to manually reload. That facilitates armed self-defense. It is an arm. Step one, done.
Second: are magazines holding more than 10 rounds in common use? The court cites William English’s 2021 National Firearms Survey — roughly 39 million gun owners possess such magazines, with up to 542 million in private hands — and the National Shooting Sports Foundation’s Detachable Magazine Report: 1990–2021, documenting at least 717 million such magazines produced and distributed since 1990. The majority’s conclusion:
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.
They are in common use. Period.
The Burden-of-Proof Point Everyone Misses
Here is where my frustration boils over. The burden is on the government to prove that an arm is dangerous and unusual — not on the gun owner to prove it is in common use. D.C. offered nothing to carry that burden. When the burden is on you and you produce nothing, you lose. That should be the end of every magazine ban case in America.
D.C.’s Solicitor General can seek en banc review. Kostas Moros of the Second Amendment Foundation has noted on X that reversal is a real possibility — the court has vacancies, and a full-court rehearing could flip the outcome. But the Trump administration can seek immediate cert or move to fill those vacancies. The circuit split exists today, and the Supreme Court is staring at Duncan v. Bonta on the cert docket right now.
What Comes Next
Cheeseman v. Platkin and the consolidated Association of New Jersey Rifle and Pistol Clubs cases, Nos. 24-2415 and related (3d Cir.), are already argued en banc and awaiting a Third Circuit decision on New Jersey’s assault-weapons and magazine bans. My expectation is that we win there too. When that opinion drops, there will be circuit splits on both magazine bans and assault-weapons bans simultaneously — a pressure the Supreme Court will find very difficult to ignore.
The Trump DOJ’s willingness to flip sides in Benson and let Harmeet Dhillon’s Second Amendment Section operate aggressively is producing real constitutional wins. The administration is not perfect on the Second Amendment — but this is very good, and very good may be enough to put magazine bans before a Supreme Court that knows exactly how to read Heller and Bruen.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.