Second Amendment Roundup: D.C.'s Magazine Ban Argued Again in D.C. Circuit

It was déjà vu, but this time post-Bruen.

The District of Columbia's ban on firearm magazines that hold over ten rounds was the subject of oral argument in the D.C. Circuit on February 13. The case is Hanson v. District of Columbia, and the appeal concerns the district court's denial of a preliminary injunction against enforcement of the ban.  The circuit panel included Judges Patricia Millett ('13) and Justin Walker ('20), and Senior Judge Douglas Ginsburg ('86).

The argument should have turned on one, and only one, question: are the banned magazines commonly possessed by law-abiding citizens for lawful purposes? As Professor Mark W. Smith has explained, under District of Columbia v. Heller (2008) and N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), that is the only relevant question in an arms ban case. See Smith, "What Part of 'In Common Use' Don't You Understand?" Harvard JLPP (2023). That is because the common use test is the product of the text first and then history approach the Supreme Court has applied in this context. In Heller, the Court examined the Second Amendment's language to determine that as a matter of plain text "arms" includes (but is not limited to) all firearms. It then examined history to determine that only dangerous and unusual firearms can be banned. It follows that citizens have a fundamental right to possess firearms that are in common use today, because if they are in common use, they cannot be "dangerous and unusual."

The answer to the common use question in this case is a resounding and unequivocal yes — there are hundreds of millions such magazines lawfully owned for lawful purposes by Americans today.  By any measure, that's common possession. To be sure, magazines are not themselves firearms, but they are key components of all modern semiautomatic firearms, as they are the part of the firearm that holds and feeds the ammunition.  And the practical effect of the magazine ban is to prohibit an entire category of firearms; i.e., firearms that are capable of firing more than 11 rounds (one in the chamber, 10 in the magazine) without reloading.

Instead, the oral argument was a bit of déjà vu all over again. In Heller, the Supreme Court held that firearms "in common use" for "lawful purposes like self-defense" may not be banned.  After Heller, I was part of a team challenging D.C.'s ban on such magazines (as well as on semiautomatic rifles) in a case that came to be known as Heller II. In the D.C. Circuit, oral argument was conducted before Judge Douglas Ginsburg (yes, the same Judge Ginsburg) together with then-Judge Brett Kavanaugh and Judge Karen Henderson.

In a 2-1 opinion in Heller II (2011), Judge Ginsburg conceded that the subject magazines are in common use, but upheld the ban based on an interest-balancing, intermediate scrutiny analysis, despite Heller's express rejection of interest-balancing.  That was the first opinion to uphold a magazine ban following Heller. As I've shown elsewhere, most other appellate courts deciding such cases copied Heller II's approach, despite that approach being contrary to Heller. Indeed, then-Judge Kavanaugh dissented in Heller II to explain that the intermediate-scrutiny approach adopted by the court could not be squared with Heller.

Justice Kavanaugh's Heller II dissent was vindicated by the Supreme Court in Bruen, which made clear that Heller had rejected any levels of scrutiny analyses in Second Amendment cases. Bruen reiterated that the Second Amendment protects arms that are "in common use," as opposed to those that "are highly unusual in society at large." In doing so, the Court cited favorably to Justice Kavanaugh's Heller II dissent several times.

That's the context in which oral argument in Hanson was held. With intermediate scrutiny eliminated, the outcome of the case should be straightforward—the banned magazines are in common use for lawful purposes, and therefore they cannot be banned. While Judges Millett and Ginsburg asked several questions that appeared to challenge this result, it is inescapable under a proper application of Heller.

Plaintiffs' lawyer Edward Wenger was first up. Right away, Judge Millett jumped in with the observation that Bruen did away with intermediate scrutiny, but common use remained an issue. Was the court's observation in Heller II that magazines capable of holding more than 10 rounds are in common use binding on the court now?  The answer is yes—Bruen did nothing to undermine a holding that the banned magazines are in common use. Regardless, those magazines have only gotten even more numerous since Heller II was decided over a decade ago, so whether that aspect of the decision is binding is of little import.

Judge Ginsburg pointed out that while the court in Heller II stated that the banned magazines are in common use, it reserved decision on whether those magazines are commonly used for lawful purposes. While that technically is true, it ultimately does not matter. The government cannot prove that the tens of millions of Americans who own these magazines are criminals who possess them for unlawful purposes. The leading survey we have on use of magazines capable of holding more than ten rounds is the 2021 National Firearms Survey by Professor William English of Georgetown University. That survey found that approximately 39 million Americans have owned as many as 551 million magazines capable of holding over 10 rounds of ammunition. And they own them for a variety of lawful purposes, including recreational target shooting (64.3%), home defense (62.4%), hunting (47.0%), defense outside the home (41.7%), and competitive shooting sports (27.2%).

Judge Millett asked if "there's some level of magazine that could be prohibited as not in common use or not in common use for self-defense." (Again, "for self-defense" is not included in the test under Heller.) While theoretically that could be true, any such level would be well north of D.C.'s limit of 10 rounds. Again, tens of millions of Americans have owned hundreds of millions of these magazines.

Responding to the correct assertion that D.C. bears the burden under Bruen to show that the banned magazines are not in common use, Judge Millett commented that it is the plaintiffs who wish to change the status quo and that doing so would inflict irreparable harm on the District. It is true that the plaintiffs are challenging the status quo, but under Bruen the District has the burden to show that its law is consistent with the Second Amendment. And since it is not, there is no harm to the District from being precluded from enforcing an unconstitutional law. Instead, the irreparable harm in the case is being inflicted on the plaintiffs and the other residents of the District of Columbia who are being deprived on their fundamental right to keep and bear arms.

In any event, there is no plausible scenario in which the tens of millions of Americans who have owned magazines that are banned by D.C. are predominantly criminals. Indeed, given that there are hundreds of millions of these magazines, it is clear that only the tiniest percentage of them will ever be used in crime. As Judge Walker commented, this line of questioning seems to promote "a dim view of the American public." It simply cannot be the case that the tens of millions of Americans who choose these magazines are not using them for lawful purposes.

Next up was Ashwin Phatak, counsel for the District. Phatak argued that because there are 700,000 registered machine guns in the United States, the common use inquiry "can't just be a numerosity analysis." But Phatak's numbers are too high, because according to ATF data there are only about 176,000 registered machine guns owned by civilians in the country. See Hollis v. Lynch (5th Cir. 2016). The remaining machine guns are owned by state and local law enforcement or by licensed firearm manufacturers.  Regardless, whether the true number is 176,000 or 700,000, that is a far cry from the "500 million high-capacity magazines" cited by Judge Walker as a comparison.

Phatak looked for historical precedent in three states that during the Depression era restricted semiautomatic rifles with certain magazine capacities.  Of course, as Judge Walker pointed out, per Bruen, "three is not enough." And even if it were 30 it wouldn't matter: the question under Heller is whether the banned magazines are in common use today, not 100 years ago.

Phatak hypothesized that "if the National Firearms Act had been passed in 1954," and "far more machine guns had circulated," the plaintiffs would be arguing Second Amendment protection through common use. But as Judge Walker explained, "If it's dangerous, unusual, we would expect our legislators to step in and ban them before they become dangerous and usual." And the flip side of that is that if the American people determine that an arm is valuable for lawful purposes, we would not expect bans to persist across the country over a substantial period of time.

Judge Millett attempted to come to the rescue: "Manufacturers put out higher magazines, I need a higher magazine. It's like, new iPhone comes out, I got to have a new iPhone, new magazine comes out, I got to have a new magazine." Same for machine guns and grenade launchers.  Phatak's response: "I totally agree, Judge Millett."

But consumers don't buy types of weapons just because they are legal and available on the market. Machine guns were a commercial failure before being restricted in the NFA in 1934.  Grenade launchers weren't restricted until the 1968 amendments to the NFA, under which they are still lawful on registration with ATF and payment of the $200 tax.  How many consumers have them? And the reality that neither marketers nor advertising budgets can dictate to consumers is not limited to the marketplace for firearms. Our history is littered with failed consumer products, from the Ford Edsel to New Coke to Google Glass to countless Hollywood big budget busts.

Phatak rejected a standard of "what people feel they need," arguing that Heller looked at "the actual characteristics of handguns that make them useful for self-defense," such as "they can be held with one hand while you call the police." But the portion of Heller Phatak referenced here actually is devastating to his position. That is because immediately after discussing reasons why citizens may prefer handguns, Heller concluded that, "whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition on their use is invalid." The focus of the Heller analysis is on what law-abiding Americans choose; judges and legislators are not authorized to second-guess those choices.

More softball questions from Judge Millett: "When did manufacturers start selling magazines over 10 with the semi-automatic handguns?" Phatak: Not "until at least the 1980s."  Wrong – e.g., the Browning Hi-Power with its 13-round magazine was introduced commercially in 1935. And in any event, it does not matter – they are in common use for lawful purposes today.

Phatak referenced statistics showing that the average number of shots fired in self-defense is two, and argued that "nobody needs the firepower where they can fire 11 rounds." But again, what is appropriate for self-defense is for the American people to decide, and they have decided that more ammunition capacity is better. And in any event, the most frequent number of shots fired in defensive gun uses actually is zero, since typically only brandishing a gun is required to deter a criminal attack. Does that mean the government could limit citizens to guns that fire blanks? Of course not.

The bottom line is that once it is evident that an item is a bearable arm, the government has the burden to show that it is not in common use.  If it cannot do so, the arm may not be banned.  That's the Heller-Bruen rule for arms-ban cases.

Judge Ginsburg is a capable and experienced jurist.  It was brought out clearly in Hanson that the common use test provided by Heller is straightforward and easy to apply. One hopes and expects that he will faithfully apply that test. But if we get another 2-1 déjà vu on D.C.'s magazine ban in Hanson, the Supreme Court ultimately will have to reverse Judge Ginsburg yet again.