The District of Columbia Court of Appeals handed down a landmark ruling on March 5, 2026, in Benson v. United States, No. 23-CF-0541 — a 2-1 panel decision declaring DC’s large-capacity magazine ban, D.C. Code § 7-2506.01(b), facially unconstitutional under the Second Amendment. The anti-gun crowd is in full panic mode, and their emergency filing proves they understand what this ruling means.
What the Benson Majority Actually Said
The majority, authored by Judge Joshua A. Deahl and joined by Judge Catharine F. Easterly, walks through the Bruen methodology exactly as any serious Second Amendment scholar would predict. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), established that an “arm” includes any instrument that facilitates armed self-defense. A magazine enables a firearm to fire multiple rounds without manual reloading — plainly an instrument that facilitates self-defense. Under the plain text of the Second Amendment, that ends the first inquiry.
The burden then shifts to the government to show the item is “dangerous and unusual.” The court found what any honest observer already knew: hundreds of millions of magazines capable of holding more than ten rounds are in civilian hands. An item commonly owned by law-abiding Americans for lawful purposes cannot be “unusual.” The government could not carry its burden, and the ban fell. Chief Judge Anna Blackburne-Rigsby dissented.
This is the playbook I have been hammering at Four Boxes Diner for years — because it is what correct Bruen analysis produces.
The Split of Authority That Has DC Terrified
Some commentators rushed to dismiss this ruling, arguing it creates no formal circuit split because the DC Court of Appeals is a local court. That framing misses the point. The DC Court of Appeals is DC’s highest local tribunal — functionally equivalent to a state supreme court. When it issues a ruling directly contrary to what federal circuit courts have held on the same constitutional question, a genuine split of authority exists.
The conflict is stark. The United States Court of Appeals for the D.C. Circuit — an entirely separate federal court — upheld DC’s magazine ban in Hanson v. Smith, 120 F.4th 223 (D.C. Cir. 2024). The Ninth Circuit upheld California’s ban in Duncan v. Bonta, No. 23-55805 (9th Cir. Mar. 20, 2025). The First Circuit did the same for Rhode Island in Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st Cir. 2024) — a ruling where Justices Thomas, Alito, and Gorsuch would have granted cert after fifteen re-lists. The Seventh Circuit is still sitting on Barnett v. Raoul, the Illinois challenge to the Protect Illinois Communities Act, with en banc oral argument already heard.
The Supreme Court abhors conflicting constitutional answers from high-level courts. My read is that this split materially raises the odds of a cert grant — and if SCOTUS takes a magazine case, we win.
The Emergency Filing and What It Reveals
DC’s response tells you everything. The District filed an emergency motion under D.C. App. R. 27 to suspend the precedential status of the panel opinion and stay issuance of the mandate pending an en banc petition. The language is extraordinary — DC’s lawyers warned of “uncertainty and chaos” and a “blast radius” affecting not just the magazine ban but related charges for unlicensed and unregistered firearms.
I have no inside knowledge here, but that filing does not read like something a local DC legal office assembled overnight on its own. The vocabulary has a certain organized quality. My suspicion is that someone in the national anti-gun movement made some phone calls.
What makes the law-enforcement argument particularly hollow is this: U.S. Attorney for DC Jeanine Pirro filed a September 9, 2025 brief in this very case arguing the magazine ban violates the Second Amendment. Her office has already signaled it will not prosecute these cases. If the primary federal prosecutor in DC is not enforcing the law, DC’s claim that the ruling is disrupting law enforcement is hard to take seriously.
The En Banc Question and the Political Reality
DC is asking for full en banc review by all seven active judges. I am not convinced they get it. Looking at this court’s history, en banc grants over the past decade number perhaps a dozen to fifteen — mostly narrow procedural questions involving jury selection, kidnapping statutes, and Home Rule Act issues. Second Amendment constitutional questions are not a staple of this court’s en banc docket.
There is also a political dimension worth acknowledging. Do the judges on the DC Court of Appeals want to pick a direct fight with the Trump DOJ, Jeanine Pirro’s office, and a Republican Congress that has real leverage over DC’s governance structure? That is not a small consideration.
There are currently two vacancies on the DC Court of Appeals. Filling them could matter, but the Home Rule Act — Pub. L. No. 93-198 (Dec. 24, 1973) — requires the President to select from a list submitted by the District of Columbia Judicial Nomination Commission, with Senate confirmation to follow. Rapid appointments before en banc proceedings conclude are probably not realistic, but it is the kind of play I would be thinking about.
Why This Matters for the Supreme Court
Benson is the first appellate-level decision in the country to strike down a large-capacity magazine prohibition as facially unconstitutional. Every other court to address these bans has upheld them. That lone dissent from the prevailing consensus is exactly the kind of split the Supreme Court uses as a trigger to resolve a constitutional question once and for all.
If SCOTUS takes a magazine case — and I believe the odds just rose considerably — the Bruen framework nearly compels a ruling in our favor. Hundreds of millions of these magazines in civilian hands. No historical tradition supporting their prohibition. The government cannot carry that burden. The panic in DC’s emergency filing is the clearest signal yet that the other side understands how this ultimately ends.
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.