The Volokh Conspiracy
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Divided D.C. Circuit Panel Refuses to Enjoin D.C. Magazine Cap
The judges divide over whether a challenge to a law limiting the number of bullets in a magazine is likely to succeed. Is next stop the Supreme Court?
On Tuesday, in Hanson v. District of Columbia, a panel of the U.S. Court of Appeals for the D.C. Circuit divided over whether to grant an injunction against enforcement of D.C.'s magazine cap, which limits a magazine to ten bullets. Judge Millett and Senior Judge Ginsburg joined a per curiam opinion for the court. Judge Walker wrote a lengthy dissent.
Here is the introduction to the per curiam majority:
After the Supreme Court's landmark ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia revised its firearms laws to cap the capacity of firearm magazines at "10 rounds of ammunition." D.C. Code § 7-2506.01(b). Over a decade ago, applying the then-prevailing intermediate scrutiny standard of review, we held the magazine cap did not violate the right to bear arms secured by the Second Amendment to the Constitution of the United States, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264 (D.C. Cir. 2011). Since then, the Supreme Court has rejected "means-end scrutiny in the Second Amendment context," in favor of asking whether a challenged restriction is consistent with "the Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 19, 24 (2022).
Seeing a new opening, the Appellants have charged once more unto the breach. They argue the District's magazine cap is unconstitutional under the test set forth in Bruen and moved the district court for a preliminary injunction to prohibit enforcement of the magazine cap. The district court denied the motion. Because the Appellants have failed to make the "clear showing" required for a preliminary injunction on this early and undeveloped record, Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), we affirm the denial of their motion.
Judge Walker's dissent opens with a simple syllogism.
In District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes. Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them.
And here is how he concludes:
Mark Twain once told a story about an evening at church. He said that at first the sermon was so inspiring that he planned to put $400 into the collection plate: "I wanted to give that and borrow more to give." But then his opinion of the sermon tapered off: "My enthusiasm went down, down, down — $100 at a time, till finally when the plate came round I stole 10 cents out of it."
I agree with most of what the majority says in the first 18 pages of its clear, concise, and eloquent opinion. I agree that plus-ten magazines are likely "'Arms' within the meaning of the Second Amendment," "in common use" for the lawful purpose of "self-defense," and covered by "the Second Amendment's plain text." And I agree that a ban on plus-ten magazines is not analogous to regulations about the storage of gunpowder; or to restrictions on the time, place, and manner of carrying arms; or to state laws from the Prohibition Era directed at machine guns.
But then I part ways with the majority in two respects.
First, the majority reads Heller to leave open the question of whether the government can ever ban an arm in common use for lawful purposes. In contrast, I read Heller to answer that question. It held that "a complete prohibition of their use is invalid."
Second, even assuming that the validity of those bans is an open question, the majority gets the answer wrong. D.C. has failed to "demonstrate that [its] regulation is consistent with this Nation's historical tradition of firearm regulation."
The majority's contrary conclusion depends on two types of regulations. But neither of them is analogous. The first of them — a "handful" of laws enacted nearly a century after the Second Amendment's ratification in two outlier states and a territory — did not cover arms kept at home or carried while traveling; in addition, those laws are too little and too late to establish a historical tradition. As for the second purported analogue, it covered only "unusual" arms — not arms in common use for lawful purposes. So neither demonstrates a tradition of laws imposing a burden comparable to D.C.'s complete ban on commonly possessed plus-ten magazines.
Because D.C.'s law violates the right to keep and bear arms guaranteed by the Second Amendment, I would reverse the district court's decision and direct it to enter a permanent injunction.
I respectfully dissent.
Both opinions are lengthy, the dissent especially so (and it includes 233 footnotes).
The Court is likely to take another gun case in the near future, either concerning the sorts of weapons that may be prohibited or (as here) concerning limitations on magazine size. If the latter piques the Court's interest, perhaps this could be the vehicle -- if not in this preliminary posture, than on the merits.
