U.S. Supports Rehearing in D.C. Magazine Ban Case

The United States has filed a Response to the District of Columbia’s Petition for Rehearing En Banc in Benson v. United States, in which the D.C. Court of Appeals held the District’s magazine ban to violate the Second Amendment.  Applying Heller and Bruen, the court held that magazines “are unquestionably arms, they are in not only common but ubiquitous use for lawful purposes, and there is no history or tradition of blanket bans on arms in such common use….”  The U.S. agrees with that, but argues that the ban should have been held unconstitutional as applied, not facially.

Mr. Benson possessed a 30-round magazine, but that number is statutorily irrelevant, as the District bans any magazine holding over 10 rounds.  The court explained:

The 11+ magazine ban is facially unconstitutional because it is unconstitutional on its plain terms, not just in some idiosyncratic applications, and it is not readily susceptible to any judicial narrowing that avoids its constitutional infirmities. The fact that it captures some conduct that hypothetically could have been proscribed by a more narrow statute is beside the point. It might be that a ban on 30-round magazines, or on 100-round magazines, would pass constitutional muster. But in no sense does that mean that this law could be constitutionally applied to prosecute those who possess those larger magazines. Because this law does not require the government to prove those higher capacities, it has not drawn the line in a constitutionally permissible place.

The United States objects based on the theory that the statute is not unconstitutional in all applications, such as a ban on a 100-round magazine might be.  It states: “In other words, because the statute had some unconstitutional applications—namely, banning (say) 12-round magazines— the entire statute has to fall. That analysis gets the Rahimi inquiry backwards: the statute should survive if it ‘is constitutional in some of its applications.'”  (Emphasis added.)  But what the U.S. calls “the statute” is not this statute.  The actual statute here includes no constitutionally-permissible application.  By contrast, in Rahmi itself, the law was not unconstitutional in all applications because the defendant himself was found to represent “a credible threat to the physical safety” of an intimate partner or child, the exact terms of the law.

The Supreme Court in Heller held the D.C. handgun ban to be unconstitutional in all applications, even though fully-automatic handguns or possession by a felon could be banned under some other laws.  Bruen held New York’s carry ban unconstitutional in all applications to be violative of the Second Amendment, even though carrying of handguns could be banned in courts under separate laws.

As the U.S. brief points out, some appellate courts have held that the ban on felon possession, 18 U.S.C. § 922(g)(1), may be unconstitutional as applied, but none have held it unconstitutional in all applications.  But no one disputes that some felony crimes – take murder for example – are fully justified by Founding-era analogues.  That example just doesn’t work with D.C.’s magazine ban, because it specifies no constitutional application.

The U.S. disagrees with Benson‘s further holding that the magazine ban “infected” the convictions for the defendant’s failure to register and to obtain a carry license for the firearm, negating those convictions as well.  The Benson court based that conclusion on the following findings: the registration application required the applicant to state the “No. of Shots” for the firearm being registered); the D.C. Code requires an applicant for a license to carry a pistol to prove that the pistol is registered; and Hanson v. D.C. (D.C. Cir. 2024) verified that the police would not register a firearm with an over-ten-round magazine.  Without being registered, ammunition could not be possessed for the firearm.

But that was not all.  The Benson court made clear that it had been factually unchallenged that Benson could not have registered or licensed his firearm as follows (footnote 19):

The District does not dispute that Benson could not have registered his firearm with its 11+ magazine, but suggests that Benson could have outfitted his receiver with a magazine holding 10 or fewer rounds, and then registered it. Maybe so, but we do not think it was incumbent on Benson to engage in that subterfuge where he in fact intended to possess a firearm with an 11+ magazine. We have concluded Benson had a constitutional right to possess the 11+ magazine that his firearm was actually equipped with, and it was impossible for Benson to register a firearm with such a magazine, which is enough for us to conclude that his other convictions are infected by the unconstitutionality of the magazine-capacity ban.

The U.S. brief disputes what the court found based on the evidence and arguments by the parties in the case by pointing out that the D.C. Code does not explicitly deny registration based on an 11+ magazine.  It adds that the police “could confiscate the prohibited large-capacity magazine while registering the firearm itself,” ignoring that the police would have arrested him for the violation.  Finally, the police have removed the requirement to state the “No. of Shots” purportedly “to eliminate any ambiguity on this point,” or more likely to buttress the District’s arguments in this case.  But that question was on the application when Benson was arrested.

According to the U.S. brief, Benson “has triggered significant public safety concerns,” as “we continue to prosecute defendants who carry pistols without a license or who possess unregistered firearms—even when those pistols and firearms have large-capacity magazines inserted into them. Now, Benson‘s reasoning suggests that hundreds of pending gun cases involving pre-Benson firearms possession would have to be dismissed.”

But what’s the “public safety concern” with possession of a firearm that’s not registered?  No state nationwide requires registration of every firearm.  In Heller II (D.C. Cir. 2011), D.C. tried to justify registration partly on the basis that it “permits officers to charge individuals with a crime if an individual is in possession of an unregistered firearm,” including when there’s nothing else to charge the person with.  In discovery, D.C.’s officer in charge of registration admitted that the system failed to solve any crime.  Dissenting, then-Judge Bret Kavanaugh wrote:

D.C.’s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.

While the courts have not questioned the government’s power to require a license to carry, the Benson court found that such license would not be issued unless the firearm was registered.  The registration and licensing requirements were thus “infected” as a matter of law, regardless of policy arguments about “public safety” and pending prosecutions.

Aside from the above issues, to its credit the U.S. brief states: “The United States moved to vacate Benson’s conviction for possession of a large-capacity ammunition feeding device, and we are no longer prosecuting violations of that statute.”  That’s a positive step for the Department of Justice that is consistent with its other litigation in support of Second Amendment rights, not the least of which is the complaint the Civil Rights Division filed in U.S. v. D.C. challenging the District’s ban on semiautomatic firearms.

Moreover, in August 2025, D.C. U.S. Attorney Jeanine Pirro announced that, according to a memo from the Department of Justice and the Office of Solicitor General, the District’s ban on carrying rifles and shotguns conflicted with Heller and Bruen, thus precluding prosecution of persons for possession of a registered rifle or shotgun.  Prosecution of felons for such possession, of course, would continue.

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On April 2, the Honorable Roger T. Benitez retired from the Southern District of California.  In Duncan v. Bonta (S.D. Cal. 2023), Judge Benitez issue one of the most comprehensive Second Amendment opinions ever, declaring California’s ban on magazines holding over ten rounds unconstitutional.  The Ninth Circuit en banc reversed.  The cert petition is pending before the Supreme Court, where it has now been relisted at least nine times, most recently for the conference of April 2.  Keep your fingers crossed.