The Supreme Court spent years telling Second Amendment litigators it needed a genuine split of authority before it would take up a magazine ban case. As of March 5, 2026, it has one — and Paul Clement and Erin Murphy of Clement & Murphy, PLLC just made sure every justice and every law clerk on the Court knows it. Supplemental briefs filed in both Duncan v. Bonta, No. 25-198, and Gator’s Custom Guns, Inc. v. Washington, No. 25-153, deliver the same blunt message: the wait is over.
The Benson Decision Built the Split
Everything flows from last week’s panel ruling in Benson v. United States, No. 23-CF-0514 (D.C. Ct. App. March 5, 2026). In a thorough, 50-plus-page majority opinion authored by Associate Judge Joshua Deahl, the D.C. Court of Appeals — D.C.’s highest local court, the equivalent of a state supreme court — held that the District’s ban on standard-capacity magazines violates the Second Amendment. Judge Deahl’s majority was explicit: 11-plus-round magazines are “unquestionably arms presumptively covered by the Second Amendment,” they are “not only in common use, but in ubiquitous use for lawful purposes,” and there is “no history or tradition of blanket bans on arms in such common use.” Chief Judge Anna Blackburne-Rigsby dissented.
That opinion didn’t just disagree with the Ninth Circuit on the bottom line. As the supplemental briefs point out, Benson parted ways with the Ninth Circuit’s Duncan en banc decision “on every subsidiary issue relevant to the analysis” — common use, burden allocation, historical tradition. And it expressly rejected the D.C. Circuit’s contrary ruling in Hanson v. District of Columbia, 120 F.4th 223 (D.C. Cir. Oct. 29, 2024), which had upheld the identical D.C. law just months earlier.
That is a square, undeniable split. Not a circuit disagreement about methodology at the margins — a direct conflict on the ultimate constitutional question.
Two Petitions, One Argument: Now Is the Time
The Clement & Murphy supplemental brief in Duncan v. Bonta (filed on behalf of Virginia Duncan, with Chuck Michel of Michel & Associates, P.C. and the California Rifle & Pistol Association also on the case) opens by quoting California’s own prior response back at the state. California had urged patience, arguing the Court should wait for a “genuine conflict in the lower courts.” The brief’s response is surgical: “That wait is over.”
The brief also leans on the vehicle posture. Ocean State Tactical, LLC v. Rhode Island, No. 24-131, drew three votes for cert — Justices Thomas, Alito, and Gorsuch would have granted it — but the posture was interlocutory. Duncan is on final judgment after years of Ninth Circuit en banc proceedings. The Court has no procedural excuse to pass.
The stakes for Californians are concrete. If cert is denied after the Ninth Circuit resolved the case against plaintiffs on final judgment, the brief argues, “countless law-abiding Californians will become criminals overnight simply because they have chosen to exercise their Second Amendment rights.” Sympathetic facts make good law, and this is as sympathetic as it gets.
The parallel brief in Gator’s Custom Guns adds another layer. The Washington Supreme Court’s 7-2 ruling in State v. Gator’s Custom Guns, Inc., No. 102940-3 (Wash. May 14, 2025), didn’t just uphold Washington’s magazine ban under ESSB 5078 — it held the ban didn’t even implicate the Second Amendment. That is now squarely at odds with the D.C. Court of Appeals’ holding in Benson that the same-style ban violates the Second Amendment outright. The brief puts it plainly: “There is no longer any reason to delay.”
Kavanaugh’s Prediction and the Strategic Picture
Justice Brett Kavanaugh — who as a D.C. Circuit judge dissented in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”), arguing that semi-automatic rifle bans were unconstitutional under the text-history-tradition methodology — has said publicly he expected the Court to hear an AR-15 ban case “in the next term or two.” The current term is already blockbuster: Trump tariffs, Humphrey’s Executor, Federal Reserve authority. Yet the Court still granted cert in two Second Amendment cases. Rifle and magazine cases are coming.
My strategic preference is to take the semi-automatic rifle ban case first, get a clean win, and then GVR the magazine petitions back down. The rifle case is cleaner — easier for justices to grasp, with a more straightforward historical record. Magazines introduce a theoretical “split-the-baby” risk where the Court somehow strikes rifle bans while upholding magazine bans. I don’t rate that outcome as likely, but I don’t love that uncertainty. We should win both on the merits; it’s a sequencing question.
And this moment didn’t materialize on its own. It was Pam Bondi and Jeanine Pirro — U.S. Attorney for D.C. — whose DOJ filed a pro-Second Amendment brief in the Benson proceedings back in September 2025, arguing that standard-capacity magazines are constitutionally protected arms. That brief helped build the foundation for the panel majority opinion. We owe that credit where it’s due.
The Court Has Run Out of Excuses
The posture right now could not be better positioned for a cert grant. Duncan is final judgment, two courts of equivalent stature are now in direct conflict on the same constitutional question, and the briefs lay out exactly why a denial would conscript ordinary law-abiding Americans into criminal status overnight.
I have maintained all along — and I maintain it still — that there is essentially zero chance the Supreme Court, applying the Bruen text-history-tradition methodology, upholds a ban on AR-15-style semi-automatic rifles. On magazines, my confidence is nearly as high, with the minor caveat about sequential strategy. These briefs dramatically raise the odds that the Court grants cert in an AR-15 case and a magazine case in tandem. A favorable ruling in both would be the best-case scenario for the Second Amendment, and for the first time, I think we are genuinely close to getting there.
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.