In layman’s terms: The DC Appeals Court left the magazine capacity ban in place, which bans possession of any firearm magazines that hold more than 10 rounds.
On Tuesday, October 29, the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of a preliminary injunction against the district’s magazine ban – that is, they kept the magazine ban in place – adding yet another wildly unconstitutional, anti-Second Amendment ruling in direct opposition to Supreme Court precedent.
In a case known as Hanson v. District of Columbia, private citizens challenged the Firearms Registration Amendment Act of 2008, which arbitrarily makes it a felony to possess a magazine capable of holding more than 10 rounds in the District of Columbia.
The court’s hostility to the Second Amendment is evident even in the terminology they engage early in the decision:
Appellants wish to possess magazines containing up to 17 bullets, which for efficiency’s sake we will refer to as an extra-large capacity magazine (ELCM) to distinguish it from a permitted large capacity ten-round magazine.
(Any magazine that comes with a purpose-built firearm is commonly known as a “standard capacity magazine.” For the court to call standard magazines “large” or “extra large” is purely a partisan attempt to steer the optics.)
Rather amazingly, in the initial district court challenge, the court decided the following:
- ELCMs are “arms” within the meaning of the Second Amendment.
- Possession of an ELCM is not within the scope of the Second Amendment right.
- The magazine capacity restriction was Constitutional for the independent reason that the District has shown that it is consistent with this country’s historical tradition of firearm regulation.
The Appeals Court decision backed up the district court’s erroneous reasoning:
The court reasoned the District’s justification for the magazine cap — “mitigating the carnage of mass shootings in this country” — matched that for Prohibition-era “laws restricting possession of high-capacity weapons” because both aimed to reduce violence, and each had a similarly modest burden on the Second Amendment right to bear arms.
Tying a magazine capacity limitation to mass shootings is an incredible stretch that has no real legal underpinnings. However, that didn’t stop the Appeals Court from quickly arriving at the decision to uphold the ban:
Accordingly, the court concluded Hanson had not shown a likelihood of success on the merits and the district court denied his motion for a preliminary injunction. Hanson timely appealed. We now affirm the order of the district court.
What is even more bizarre about the ruling is that the Appeals Court managed to arrive at this correct conclusion:
Accordingly, because Hanson has shown it is likely that ELCMs are “arms” and are in common use for self-defense today, it appears on this record that “the Second Amendment’s plain text covers” and therefore presumptively protects the possession of ELCMs. See Bruen, 597 U.S. at 17. Hanson would have us stop here, as would our dissenting colleague, arguing that, under Bruen, to find an arm is in common use renders any restriction of that arm unconstitutional.
The majority then goes on to argue for many pages that the restriction is “consistent with this Nation’s historical tradition of firearm regulation.”
If there was one bright spot in the lengthy decision, it was Judge Walker’s dissenting opinion that summarized with simple logic and just a few words how the court should have ruled:
In other words:
Major Premise (explained at length above): Heller held that the government cannot ban arms in common use for lawful purposes.
Minor Premise (undisputed by the majority): Plus-ten magazines are arms in common use for lawful purposes.
Conclusion: The government cannot ban plus-ten magazines.
Although the ruling is disappointing, it may actually create a scenario where the Supreme Court agrees to hear an “assault weapons” ban case, according to Mark Smith, Constitutional scholar and host of Four Boxes Diner:
#2A My video about this decision is coming later, but note now: the majority relied on the exact argument that I predicated and rebutted in my Harvard Journal of Law & Public Policy argument about "in common use." The majority is clearly wrong. THE GOOD NEWS: The dissenting… https://t.co/rL2MeiTUG2
— Mark W. Smith/#2A Scholar (@fourboxesdiner) October 29, 2024
The majority is clearly wrong. THE GOOD NEWS: The dissenting Judge Walker cites multiple times to me and to my HarvardJLPP article. I am confident that the US Supreme Court will review carefully today’s decision as they consider whether to grant cert in Snope’s AR-15 ban case– and I think today’s decision will INCREASE the odds of a cert grant in Snope.
We will continue to cover this case.
