The District of Columbia is in full panic mode. Just two weeks after the DC Court of Appeals handed down a landmark 2–1 ruling in Benson v. United States, No. 23-CF-0541 — striking down DC’s ban on firearm magazines capable of holding more than 10 rounds — DC’s attorneys have filed a petition for en banc rehearing. They want the full court to convene, reverse the panel, and bury this win before it reaches the Supreme Court. I don’t think it’s going to work. And here’s why.
What the Panel Decided — and Why It Terrifies DC
The March 5, 2026 panel decision, authored by Associate Judge Joshua Deahl with a dissent from Chief Judge Anna Blackburne-Rigsby, held that DC’s large-capacity magazine (LCM) ban violates the Second Amendment. Applying District of Columbia v. Heller, 554 U.S. 570 (2008), the panel found magazines over 10 rounds are arms, in common use by tens of millions of Americans for lawful purposes, with no historical tradition supporting a blanket ban. Tyree Benson’s conviction for possessing a 30-round magazine was reversed.
The Trump DOJ — Pam Bondi and U.S. Attorney for DC Jeanine Pirro — had filed a brief in this case supporting the Second Amendment. The panel agreed. That is the win DC is now desperate to unwind.
What truly frightens DC is not the reversal itself — it is the circuit split. Before Benson, every appellate court to address magazine bans had upheld them: the First, Second, Fourth, Seventh, and Ninth Circuits, and the D.C. Circuit in Hanson v. District of Columbia, No. 23-7061 (D.C. Cir. Oct. 29, 2024). Now the DC Court of Appeals has gone the other way. That conflict invites the Supreme Court to step in and resolve the question for good. Anti-gunners know what happens when this Court takes a magazine-ban case.
The Manufactured “Consensus” DC Is Pointing To
DC’s en banc petition opens by claiming the panel decision “conflicts with six federal courts of appeals” and is a “first-of-a-kind decision.” Let’s think clearly about what that argument actually proves.
The only jurisdictions in America that enact magazine bans, AR-15 bans, and similar laws are deep-blue states. The federal judges in those circuits are recommended and confirmed with the backing of deep-blue senators — Chuck Schumer for the Second Circuit, for instance. There are no magazine-ban cases arising out of Texas, Louisiana, or Florida because those states don’t pass such laws. So the only courts that ever rule on these questions are courts packed with judges chosen by the very politicians who passed the laws in the first place. That is not a genuine consensus. That is a structural filter, and it has kept a circuit split from forming for decades — until now.
DC is essentially saying: look at all these courts that have upheld our position — while omitting that each of those courts sits in a jurisdiction that would never generate a pro-Second Amendment ruling. The DC Court of Appeals broke that artificial unanimity. That is a feature, not a bug.
DC’s Two-Tiered Legal Sleight of Hand
Two more problems with DC’s brief are worth flagging. First, look at its table of authorities. DC placed asterisks next to cases it “chiefly relies upon.” District of Columbia v. Heller — the controlling Supreme Court precedent on arms bans — does not get an asterisk. Instead, DC leans on Hanson v. District of Columbia, the D.C. Circuit’s October 2024 ruling. But Hanson was only a preliminary injunction ruling, not a final merits judgment. Treating an interlocutory procedural decision as a definitive constitutional holding tells you everything about how thin DC’s position really is.
Second, DC argues en banc is needed because the panel struck down a “nearly century-old statute.” My response: so what? In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court knocked out New York’s Sullivan Law — enacted in 1911, over 110 years old. If the Court can strike a century-old carry restriction, the age of DC’s magazine law is legally irrelevant.
The Heller Methodology DC Is Running From
The deeper game in DC’s brief is shifting the constitutional analysis away from where Heller puts it. I have written about this in the Harvard Journal of Law and Public Policy: anti-gunners desperately want to inject the “common use” test into Bruen’s Step One — the plain-text inquiry — where the burden falls on the Second Amendment claimant. Once the plain text is implicated, the burden shifts to the government to prove the arm is both dangerous and unusual. Magazines over 10 rounds are owned by hundreds of millions of Americans. There is a zero percent chance the government carries that burden.
DC’s petition frames the panel’s “ubiquitousness” analysis as a Step One question. It is not. Under Heller, ubiquity defeats the government’s Step Two burden to show the weapon is dangerous and unusual. DC wants to move that fight to where the claimant bears the load. The panel didn’t fall for it, and I doubt the Supreme Court would either.
What Comes Next
The en banc petition is now before the full DC Court of Appeals — roughly nine judges. I expect the Trump DOJ and Benson’s attorneys to oppose it. The DC Court of Appeals takes very few cases en banc, and those tend to be narrow criminal procedure questions, not sweeping constitutional issues.
If en banc is denied, DC faces a choice: petition the Supreme Court for certiorari, or accept the loss. Given the circuit split now on the table, there is a real argument SCOTUS should take this case. If it does, my read is we win. The only scenario where we don’t win is if the Court declines to take it at all — and the circuit split they have now created makes that harder to justify.
The history is still being written. I’ll keep you posted as this one develops.
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.