The District of Columbia Court of Appeals just granted DC’s petition for rehearing en banc in the Benson v. United States case, which now vacates the most important Second Amendment victory over a “large capacity magazine” ban in modern history. That alone is bad news. What makes it worse is that the Trump Administration’s U.S. Attorney’s Office for DC under Jeanine Pirro actually supported DC’s request for en banc review.
An En Banc Grant That Erased a Huge 2A Victory
Last month, a three-judge panel of the District of Columbia Court of Appeals held 2-1 that the District’s prohibition on magazines holding more than ten rounds violates the Second Amendment. The District of Columbia Court of Appeals is the local high court for the District, the functional equivalent of a state supreme court. It is not to be confused with the federal U.S. Court of Appeals for the D.C. Circuit. This distinction is worth noting because the DC Court of Appeals’ decision triggered a “split of authority” though not technically a federal “circuit split.”
The three-judge panel reached the correct conclusion that DC’s magazine ban was unconstitutional. Firearm magazines are definitionally “arms” falling within the plain text of the Second Amendment because, as the Supreme Court said in Bruen, any “instrument that facilitates armed self defense” is an arm. By banning magazines holding over 10 rounds, DC’s gun control law implicates the plain text of the Constitution, which shifts the burden to the government to justify its law. To meet its burden here, DC had to demonstrate that magazines holding over 10 rounds are “dangerous and unusual”, which is the only historical tradition of firearms regulation identified by the Supreme Court in Heller that would allow government to ban a category of arms consistent with the Second Amendment. Because magazines holding over 10 rounds are undeniably used by tens of millions of law-abiding Americans, DC could not meet its burden, and its law was found to be unconstitutional.
The panel went on to state that because Mr. Benson was unable to register his firearm (that was capable of accepting magazines holding over 10 rounds) with DC’s local government, his other convictions for possession of unregistered firearms and possessing firearms without a license also had to be tossed.
DC then petitioned for rehearing en banc asking the entire DC Court of Appeals to reconsider the panel opinion. The US Attorney’s Office agreed that en banc review on certain aspects of the case made sense. Thus, with the support of the Trump Administration, the DC Court of Appeals granted rehearing en banc. Once granted, the entire panel decision, including the favorable Second Amendment ruling, was automatically vacated thus eliminating the split of constitutional authority over the magazine ban law.
Jeanine Pirro’s Office Fumble Demonstrates the Need for a 2A Czar
Here is where my frustration boils over. When the D.C. Court of Appeals asked the parties for their positions on rehearing, the U.S. Attorney’s Office for the District of Columbia, now run by Jeanine Pirro, told the court yes, rehearing en banc should occur. Pirro’s office argued that although the panel was correct that the magazine ban is unconstitutional, the full court should nevertheless rehear the case to clean up the registration and licensing issues. Pirro’s office wanted to preserve Mr. Benson’s other convictions for possessing an unregistered firearm and carrying a pistol without a license.
This was an unforced error of the first order. By blessing rehearing, Pirro’s office offered the District support to vacate a Second Amendment victory that benefits roughly one hundred million American gun owners. While most American gun owners don’t live in DC and are not subject to its ban, by becoming the first final-except-for-SCOTUS court to strike down a magazine ban, the DC Court of Appeals’ decision was a critical step forward in getting the Supreme Court to take one of the “mag ban” cases and settle the constitutionality of magazine bans once and for all. Trading a national magazine-ban precedent for a couple hundred local registration prosecutions is not a close call. It’s a terrible mistake not only from the perspective of establishing and protecting favorable Second Amendment rulings but also politically where the Trump Administration’s support for rehearing creates the public impression that the Administration is not solidly pro-2A.
This is precisely why I have been arguing for a functional Second Amendment czar inside DOJ: a senior official with explicit presidential authority to vet every Second Amendment-adjacent filing before it is filed in court. (Note: this authority should also cover decisions by John Sauer’s Solicitor General’s office, but that’s a story for another day). Career prosecutors are paid to win convictions. But the pursuit of another courtroom “W” has to be balanced against other priorities like strengthening the Second Amendment rights for over 100 million American gun owners.
Why the Original Panel Was Right
On the merits, the en banc DC court should reach the same answer the panel did at least when it comes to the question of whether magazines holding over 10 rounds can be banned. Under the Heller-Bruen methodology, step one asks whether the plain text of the Second Amendment covers the conduct being regulated. Bruen expressly defined “arms” to include any instrument that facilitates armed self-defense. A magazine plainly qualifies since it helps facilitate armed self defense. No one in a gun fight ever said “I wish I had fewer rounds,” and magazines holding over 10 rounds provide more life-defending firepower. Moreover, banning magazines over ten rounds is, functionally, a ban on an entire category of firearms, i.e., firearms capable of firing over ten rounds without a manual reload.
That shifts the burden to the government to justify the modern gun law using historical gun laws. Heller set forth the only available longstanding history-based exception for any ban on bearable arms: arms that are “dangerous and unusual.” Magazines holding more than ten rounds are owned in the hundreds of millions. By definition they are not unusual, which means they cannot be “dangerous and unusual.” End of analysis. DC loses.
The DC gun registration ban that DC and Jeanine Pirro is trying to preserve is just as weak. As then-Judge Brett Kavanaugh explained in 2011 while on the DC Circuit, there is no founding-era historical tradition supporting gun or gun-owner registration laws. See Heller v. DC, 670 F.3d 1244 (D.C. Cir. 2011). Historically, it was understood by all, especially our Founders, that registering firearms constituted a meaningful step toward gun confiscation, which the Founders greatly feared. Even today, gun registration remains an extreme outlier legal scheme that is limited to only a few insanely anti-gun jurisdictions.
Team Trump Needs a 2A Czar Now
The damage from the decision to rehear en banc the Benson case is real, but hopefully not catastrophic. I remain confident that the US Court of Appeals for the Third Circuit will rule favorably on the Second Amendment questions in the Cheeseman and ANJRPC v. Platkin cases, which will produce a genuine federal circuit split. But this error by the U.S. Attorney’s Office for DC must be the last time a U.S. Attorney’s office fumbles away an easy touchdown. A Second Amendment Czar would protect a fundamental constitutional right.
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.