The U.S. Attorney’s Office for the District of Columbia, led by Jeanine Pirro, has filed a brief agreeing that the D.C. Court of Appeals should rehear Benson v. United States en banc — the landmark decision striking down D.C.’s ban on magazines holding more than ten rounds. At first glance, this looks like a betrayal. It is not, exactly. But the legal analysis the Pirro office deployed to get there is flatly wrong on a critical point of Second Amendment law, and that error deserves careful examination.
The Good News First
Credit where it is due: the Pirro office has stated unequivocally that D.C.’s large-capacity magazine ban is unconstitutional under the Second Amendment. The office has not been enforcing the ban for months and has no intention of doing so going forward. On the merits — the question of whether the government can criminalize possession of magazines holding more than ten rounds — the Trump DOJ is on the right side. That is a significant and welcome position from a sitting U.S. Attorney.
Where the U.S. Attorney’s Office Goes Off the Rails
The problem is the remedy. When the D.C. Court of Appeals’ three-judge panel struck down the magazine ban in its 2-1 ruling, it did not stop there. The court reasoned that because the magazine ban was unconstitutional, Tyree Benson could not have lawfully registered his firearm — registration in D.C. would have required compliance with an unconstitutional condition. The panel therefore vacated not only Benson’s magazine conviction but also his convictions for possessing an unregistered firearm and carrying without a license.
The U.S. Attorney contends this remedy was too broad. Their argument: the magazine ban’s unconstitutionality should not excuse Mr. Benson from the separate obligations to register his firearm and obtain a license. They want to continue prosecuting those offenses and are concerned about the practical consequences — reportedly over 300 pending cases involve similar charges, and unwinding them could release individuals convicted under plea agreements.
The policy concern is understandable. But the answer is not to distort Second Amendment doctrine. If someone is a dangerous criminal, prove it at trial rather than leaning on constitutionally suspect shortcut charges.
The Facial Challenge Error
The most troubling portion of the government’s brief concerns facial versus as-applied challenges. The U.S. Attorney argues that the panel improperly conducted a facial challenge, citing United States v. Rahimi for the proposition that a facial challenge requires showing “no set of circumstances exists under which the act would be valid.” Under this logic, if the D.C. Council could hypothetically have passed a narrower statute — say, banning only magazines over fifty rounds — then the existing statute survives because it has some constitutional applications.
This gets the analysis exactly backwards.
The correct approach starts with a review of the essential elements of the crime as written. D.C.’s law criminalizes possession of any magazine holding more than ten rounds. That is the only element the prosecution must prove beyond a reasonable doubt. The statute does not require proof that the defendant possessed a fifty-round drum rather than an eleven-round magazine. Because the statute as written sweeps in plainly protected conduct — possessing standard-capacity magazines in common use for lawful purposes — it fails on its face.
District of Columbia v. Heller itself demonstrates the point. The Supreme Court there struck down D.C.’s handgun ban on a facial basis. It did so even while acknowledging that other laws — bans on machine guns, felon-in-possession prohibitions under 18 U.S.C. 922(g), and gun bans in “sensitive places” such as the White House and prisons — would all remain valid. But the validity of those hypothetical laws did not save the D.C. handgun ban from being struck down by the Supreme Court. Unfortunately, the U.S. Attorney’s Office asks the D.C. court to imagine a statute that the D.C. Council never passed and then use that hypothetical law to rescue the law actually enacted by D.C. That is not how facial challenges work.
It is also worth noting that the Supreme Court itself views the Heller decision as a classic example of a facial challenge to a gun control law. In Los Angeles v. Patel, 576 U.S. 409 (2015), the Court said:
A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are “the most difficult … to mount successfully,” United States v. Salerno, 481 U.S. 739, 745 (1987), the Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution… . Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. ___ (2011) (First Amendment); District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment); Chicago v. Morales, 527 U.S. 41 (1999) (Due Process Clause of the Fourteenth Amendment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U.S. 71 (1992) (Foreign Commerce Clause).
The Bigger Picture
The silver lining is strategic context. Even if the en banc D.C. Court of Appeals were to narrow or reverse the panel’s ruling, the Third Circuit’s pending en banc decision in Cheeseman v. Platkin — challenging New Jersey’s assault weapons and magazine bans — may render the question academic. That case, recently argued before a full bench that includes newly confirmed Judge Jennifer Mascott, could produce the definitive circuit split needed to bring magazine and rifle ban cases before the Supreme Court this term. A Third Circuit ruling striking down New Jersey’s bans would create a conflict that the Court could not easily decline to resolve.
Still, the Pirro office’s brief is a missed opportunity. The Trump DOJ had a chance to let a clean Second Amendment victory stand and instead chose to relitigate the remedy using a facial-challenge analysis that contradicts settled law. The correct position was straightforward: decline to seek en banc rehearing and prosecute violent offenders through substantive criminal charges rather than registration technicalities. The Second Amendment community should take the win on the merits — but keep a watchful eye on the DOJ’s remedial instincts.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.