The D.C. Court of Appeals handed Second Amendment advocates a decisive victory on March 5, 2026, in Benson v. United States, No. 23-CF-0541, ruling 2–1 that the District’s ban on magazines capable of holding more than 10 rounds is unconstitutional under the Second Amendment. I covered that win two days ago. What I want to discuss now is what has happened since — because the ripple effect has already reached the U.S. Supreme Court, and fast.
The First Brief Using Benson Lands at SCOTUS
Late Friday afternoon, lawyers for petitioner Kimberly Lafave filed a supplemental brief in Lafave v. County of Fairfax, No. 25-872, pending cert at the Supreme Court. The Fourth Circuit — a reliably anti-gun court — had upheld Fairfax County’s firearms ban covering tens of thousands of acres of county parks. That ruling is wrong on multiple levels, starting with the obvious historical absurdity: the Battle of Lexington and Concord in 1775, the opening of the American Revolution, was fought on Lexington Green — with guns, on a green. The founding generation didn’t ban firearms from public greens; that’s where militias trained.
The Lafave supplemental brief makes exactly the argument I’ve been predicting: the Benson decision deepens the existing circuit split and gives the Court another reason to grant cert. The brief explains:
“The District of Columbia Court of Appeals decision in Benson v. United States deepens the split of authority below. In Benson, the District of Columbia Court of Appeals held that the District’s ban on ammunition magazines capable of holding more than 10 rounds was an unconstitutional ban on an arm that is in common use for lawful purposes.”
Lafave is a sensitive-places case, not a magazine case — but the Benson court’s careful facial-challenge analysis applies directly, and smart lawyers are already deploying it.
The Facial-Challenge Point the Lower Courts Keep Getting Wrong
Here is where I need to slow down and explain something I’ve been hammering at for months, including in my presentation at the Federalist Society’s 2025 National Lawyers Convention in Washington, D.C., where Justices Amy Coney Barrett and Brett Kavanaugh also appeared. The issue is how courts analyze facial challenges to gun-control statutes, and many lower courts have been getting it systematically wrong.
A facial challenge means you argue there is no constitutional application of a law — not just that it was applied unconstitutionally to you. Some courts have been dodging those challenges by asking whether the legislature could have written a narrower law that would have passed constitutional muster. That’s the wrong question. Courts cannot rewrite a statute to save it from legislative overreach.
The Benson court got this exactly right, and the Lafave brief put it squarely before the Justices:
“In reaching its conclusion, the D.C. Court of Appeals in Benson warned that there are few areas of jurisprudence that are more difficult to decipher than when a litigant can successfully raise a facial challenge. To guide it through this difficult area, the court in Benson relied specifically on this Court’s facial holding in D.C. v. Heller, 554 U.S. 570 (2008). It noted that if Heller itself had applied the district’s notion of a facial challenge, it would have upheld the handgun ban at issue because, as Heller recognized, there are clearly some hypothetical handgun prohibitions — applying only to felons, the mentally ill, or only to fully automatic handguns — that would pass constitutional muster. Therefore, the D.C. Court of Appeals concluded: ‘It is not within the judicial function for us to draw the line in a new place. So the statute is unconstitutional in all of its applications and is facially invalid.’”
Exactly right. The correct analysis under Bruen, 597 U.S. 1 (2022), is to read the statute as written, identify its actual elements, and ask whether those elements survive text-and-history scrutiny. If they don’t, the law falls — wholesale.
Magazines Are Arms Under Bruen. Full Stop.
Some people still want to argue that magazines fall outside the Second Amendment’s protection. My read is that this argument collapses the moment you apply Bruen’s definition. Bruen defines “arms” as any instrument that facilitates armed self-defense. A magazine is an instrument. It facilitates armed self-defense by allowing the firearm to fire multiple rounds without manual reloading. Therefore, a magazine is an arm under the plain text of the Second Amendment, and any ban on one must survive the text-and-history test — which magazine bans categorically cannot.
The D.C. Court of Appeals applied that logic correctly in Benson. The Ninth Circuit en banc reached the opposite conclusion in Duncan v. Bonta, No. 25-198 (cert. petition pending), when it upheld California’s large-capacity magazine ban in a 7–4 decision on March 20, 2025. Gator’s Custom Guns, Inc. v. Washington, No. 25-153 (cert. petition pending), presents the same question from a different angle: Washington State’s ESSB 5078 bans the sale and manufacture of such magazines. Both cases have been repeatedly relisted for conference. My expectation is that supplemental briefs in both cases citing Benson arrive at the Court within days.
Credit Where It’s Due — and What Comes Next
I have been arguing for months that when Jeanine Pirro, as U.S. Attorney for the District of Columbia, filed that DOJ brief conceding the D.C. magazine ban violated the Second Amendment, it was major breaking news. Some folks disagreed. The Benson panel decision — and now its immediate use in the Supreme Court — proves the point. That brief was a brick. Benson is a brick. The supplemental filing in Lafave is a brick. Brick by brick, we build the wall protecting our rights.
The DOJ’s Second Amendment Section was instrumental in driving the Benson outcome. Policy and personnel translate directly into legal outcomes, and we are seeing that play out in real time.
The flood has just begun. Watch Lafave, Duncan v. Bonta, and Gator’s Custom Guns in the coming days. The Supreme Court is running out of reasons to keep looking away.
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.