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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CF-0514
TYREE BENSON, APPELLANT,
V.
UNITED STATES, APPELLEE,
and
DISTRICT OF COLUMBIA, INTERVENOR-APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2022-CF2-005996)
(Hon. Lynn Leibovitz, Trial Judge)
(Argued December 12, 2024 Decided March 5, 2026)
Sicilia C. Englert for appellant.
Chrisellen R. Kolb, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time, and Katherine M. Kelly, John P. Mannarino, and Kraig Ahalt, Assistant United States Attorneys, were on the brief, for appellee.
Caroline S. Van Zile, Solicitor General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, and Ashwin P. Phatak, Principal Deputy Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Marcella Coburn, Assistant Attorney General, were on the brief, for intervenorappellee.
2
Alice Wang, with whom Samia Fam was on the brief, for Public Defender Service, amicus curiae in support of appellant.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and DEAHL,
Associate Judges.
Opinion for the court by Associate Judge DEAHL.
Dissenting opinion by Chief Judge BLACKBURNE-RIGSBY at page 55.
DEAHL, Associate Judge: This appeal presents a Second Amendment
challenge to the District’s ban on firearm magazines capable of holding “more than
10 rounds of ammunition.” D.C. Code § 7-2506.01(b)-(c). Appellant Tyree Benson
argues that ban contravenes the Second Amendment so that his conviction for
violating it should be vacated. The United States, which prosecuted Benson in the
underlying case and defended the ban’s constitutionality in the initial round of
appellate briefing, now concedes that this ban violates the Second Amendment. The
District of Columbia, which is also a party to this appeal, 1 continues to defend the
constitutionality of its ban.
1
This court’s rules require that the District be provided notice of any appeal raising a challenge to “the constitutionality of an act of the Council of the District of Columbia,” like the present Second Amendment challenge to the District’s ban on 11+ magazines. D.C. App. R. 44(b). After receiving that notice, the District expressly sought to intervene “as an appellee” in this appeal. Both Benson and the United States consented to its party status, and this court granted its motion “to intervene as an appellee.” The District is thus a party, and has all the rights of a party, in this appeal. That includes the right to petition for rehearing, rehearing en banc, or certiorari in response to this opinion.
3
Magazines capable of holding more than 10 rounds of ammunition are
ubiquitous in our country, numbering in the hundreds of millions, accounting for
about half of the magazines in the hands of our citizenry, and they come standard
with the most popular firearms sold in America today. Because these magazines are
arms in common and ubiquitous use by law-abiding citizens across this country, we
agree with Benson and the United States that the District’s outright ban on them
violates the Second Amendment. See generally District of Columbia v. Heller, 554
U.S. 570 (2008); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
We therefore reverse Benson’s conviction for violating the District’s
magazine capacity ban. And because Benson could not have registered, procured a
license to carry, or lawfully possessed ammunition for his firearm given that it was
equipped with a magazine capable of holding more than 10 rounds, we likewise
reverse his convictions for possession of an unregistered firearm, carrying a pistol
without a license, and unlawful possession of ammunition. In light of our
disposition, we do not reach Benson’s independent Second Amendment challenges
to the District’s firearm registration and licensing schemes, nor do we reach his
Fourth Amendment challenge to his underlying search and seizure.
4
I. Factual Background
Tyree Benson was charged with multiple firearm offenses after police officers
found him in possession of an unregistered semiautomatic firearm equipped with a
30-round magazine. For the uninitiated, a detachable magazine is basically a
container that holds multiple rounds of ammunition and can be inserted into a gun’s
receiver to load ammunition into the gun. Once attached, a magazine typically feeds
the cartridges of ammunition that it holds into the gun as it fires. Benson was
indicted for (1) possession of a “large capacity ammunition feeding device,” D.C.
Code § 7-2506.01(b); (2) possession of an unregistered firearm, id. § 7-2502.01(a);
(3) carrying a pistol without a license, id. § 22-4504(a); and (4) unlawful possession
of ammunition, id. § 7-2506.01(a)(3).
Benson filed two pretrial motions relevant here, both of which were denied:
(1) a motion to suppress the firearm police officers found on him during a stop and
frisk, alleging his seizure and search violated the Fourth Amendment; and (2) a
motion to dismiss the indictment because the District’s firearm statutes violated the
Second Amendment in numerous respects. Namely, he argued that the “large
capacity” magazine ban and the District’s registration and licensure schemes were
unconstitutional. The trial court denied his suppression motion and declined to
5
dismiss the indictment, reasoning that the Supreme Court’s decision in Bruen “did
not invalidate [D.C.’s] gun laws.”
Benson was convicted at a bench trial on stipulated facts. He stipulated that:
(1) the recovered firearm was equipped with a magazine that had a 30-round
capacity; 2 (2) it was unregistered and contained ammunition; and (3) he did not have
a license to carry it outside the home. He was convicted on all four counts, received
suspended sentences and one year of probation, and was barred from ever possessing
a firearm in the future.
II. Analysis
Benson now appeals his convictions, renewing each of his Second and Fourth
Amendment challenges. We focus our analysis on Benson’s Second Amendment
challenge to the District’s ban on magazines capable of holding “more than 10
2
More precisely, the stipulations indicated that “the firearm recovered in this case had one round in the chamber and 30 rounds in the magazine,” and “the magazine inserted into the recovered firearm had a capacity of 31 rounds.” We read that to mean the magazine itself had a 30-round capacity while the firearm could independently hold an additional round in the chamber, as is typical, so “the magazine inserted into the firearm” had a combined capacity of 31 rounds.
6
rounds of ammunition,” which we call 11+ magazines. 3 D.C. Code
§ 7-2506.01(b)-(c).
Our analysis proceeds in four parts. First, we detail the relevant Second
Amendment framework, with a focus on the Supreme Court’s opinions in Heller,
Bruen, and United States v. Rahimi, 602 U.S. 680 (2024). Second, we apply that
framework to the parties’ three central disputes: (1) whether 11+ magazines are arms
protected by the Second Amendment; (2) the extent to which 11+ magazines are in
“common use” for lawful purposes, like self-defense; and (3) whether there is any
history and tradition of banning similar arms. To preview our answers to those
central questions, they are that 11+ 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, so that the District’s magazine
capacity ban violates the Second Amendment. Third, we reject the District’s
argument that Benson’s facial challenge to the District’s ban on 11+ magazines
should nonetheless fail because he in fact possessed a magazine holding 30 rounds.
3
The statute uses the term “large capacity ammunition feeding device,” and beyond magazines it covers belts, drums, feed strips, and any other device used to feed ammunition into a gun. D.C. Code § 7-2506.01(c). We are concerned here only with the ban on 11+ magazines—our holding does not affect the ban on belts, drums, feed strips, etc.—and we use that term rather than “large capacity” magazines to avoid any misleading suggestion that they are outside the norm or larger than your average magazine.
7
Fourth, and finally, we hold that the unconstitutionality of the District’s capacity ban
infects and requires reversal of each of Benson’s convictions.
We now address those four points in turn.
A. The Second Amendment Framework Under Heller, Bruen, and Rahimi
The Second Amendment states: “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.” U.S. Const. amend. II. The text of that constitutional command could
be sliced in two very different ways.
On one view, the amendment’s prefatory militia clause (“A well regulated
Militia, being necessary to the security of a free State”) restricts its operative clause
(“the right of the people to keep and bear Arms, shall not be infringed”). Under that
view, the amendment protects only a collective right to keep and bear arms that is
strictly tethered to its militia-related interests, and it protects only against federal
government disarmament of state militias. Under a competing view, the Second
Amendment’s prefatory militia clause simply identifies one reason for codifying its
operative clause but does not define or otherwise restrict the bounds of the right to
keep and bear arms. That is, protecting state militias from disarmament was a mere
8
animating force behind constitutionalizing an individual right to keep and bear arms,
but the right itself belongs to individuals, not any collective. 4
For decades, the first view was the dominant one subscribed to by a vast
majority of this nation’s courts. That is, this court and virtually all other appellate
courts held that the Second Amendment protects only a collective right to keep and
bear arms in connection with a militia. See Sandidge v. United States, 520 A.2d
1057, 1058 (D.C. 1987) (“We agree with numerous other courts that ‘the Second
Amendment guarantees a collective rather than an individual right.’” (quoting
4
To strip away the trappings about the desirability of guns and gun control in this country, consider two analogies mirroring the Second Amendment’s syntax: (1) “A well-educated electorate, being necessary to the preservation of a free society, the right of the people to keep and read books shall not be infringed,” and (2) “A robust military, being necessary for effective national defense, the right of the people to develop and possess weapons of mass destruction shall not be infringed.” The first analogy is designed to make you think the right is independent of its stated animating purpose, largely because your prior views are surely that the right to keep and read books is independent of whether you are a member of the electorate, and of whether any particular book advances civic education. Most people would conclude that the non-voter’s right to read Harry Potter is protected under this first analogy, if only because they think that is an individual right regardless of the prefatory language. The second analogy pushes you toward the opposite conclusion, that the right is restricted by the prefatory clause, because nobody in their right mind thinks individuals should be able to develop and possess their own weapons of mass destruction. That seems like a collective right for institutional actors operating within our national defense apparatus if only because, surely, that right must be so limited. That is all to say that there is a strong temptation to read the Second Amendment to align with one’s prior views about whether individuals should have a right to keep and bear arms, though on its face the awkwardly constructed amendment could fairly be read either way.
9
United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976))); Heller, 554 U.S. at 638
n.2 (Stevens, J., dissenting) (noting that “every Court of Appeals to consider the
question had understood . . . that the Second Amendment does not protect the right
to possess and use guns for purely private, civilian purposes” until the Fifth Circuit
held otherwise in 2001).
That changed in 2008 when the Supreme Court in Heller rejected the first
view and instead adopted the second, holding that the Second Amendment protects
an individual right to keep and bear arms. 554 U.S. at 592.
1. District of Columbia v. Heller
In Heller, the Supreme Court considered a challenge to the District’s general
prohibition on handgun possession, including on handguns within the home. Id. at
574. Heller struck that law down, recognizing that the Second Amendment protects
an individual right to keep and bear arms, explaining that “[t]he prefatory clause
does not suggest that preserving the militia was the only reason Americans valued
the ancient right” to keep and bear arms, so the prefatory clause should not be
understood as limiting the operative clause. Id. at 599. Instead, after exhaustively
surveying Founding-era authorities, Heller concluded that Americans “undoubtedly
thought” the right to keep and bear arms was “even more important for self-defense
and hunting” than it was for maintaining a militia. Id. So while the prefatory clause
10
was the stated reason for constitutionalizing the right to keep and bear arms, it did
not alter or qualify the bounds of the “ancient right of individuals to keep and bear
arms” for lawful purposes. Id. With that core and rather contentious debate settled
in favor of the Second Amendment protecting an individual right to keep and bear
arms, the task remained to define the contours of that individual right.
On that topic, Heller recognized that “the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms.” Id. at 582. That covers “any
thing that a man wears for his defence, or takes into his hands, or useth in wrath to
cast at or strike another.” Id. at 581 (quoting 1 Timothy Cunningham, A New and
Complete Law Dictionary (1771)). So long as something is a bearable arm, it is
covered—at least as a threshold matter—by the Second Amendment’s plain terms.
Id. at 581-82. The mere fact that something qualifies as an arm covered by the
Second Amendment’s terms does not mean it cannot be restricted or even banned
outright. “Like most rights, the right secured by the Second Amendment is not
unlimited,” and it does not confer “a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.” Id. at 626. But such
restrictions are permitted only to the extent they are rooted in “historical tradition,”
with a clear focus on Founding-era history. Id. at 627.
11
With those critical preliminaries out of the way, Heller turned its attention to
the District’s ban on handguns. It held that “handguns are the most popular weapon
chosen by Americans for self-defense,” and for that standalone reason the District’s
“complete prohibition” of them was “invalid.” Id. at 629. Heller repeated, again
and again, that the District’s ban on handguns was invalid because “it amount[ed] to
a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American
society for th[e] lawful purpose” of self-defense, id. at 628, and “banning from the
home the most preferred firearm in the nation to keep and use for protection of one’s
home and family would fail constitutional muster” no matter what level of scrutiny
applied. Id. at 628-29. There simply was no “historical tradition” of banning arms
that are in “common use . . . for lawful purposes like self-defense,” and such outright
bans can be squared with the Second Amendment only when they apply to
“dangerous and unusual weapons,” like short-barreled or “sawed-off” shotguns. Id.
at 624, 627 (discussing United States v. Miller, 307 U.S. 174 (1939)).
After Heller, the District reacted by permitting some handgun possession
within the home (subject to various restrictions), but it banned carrying handguns
outside the home entirely. See D.C. Code § 22-4504(a) (2009). After a federal trial
court struck that ban down, Palmer v. District of Columbia, 59 F. Supp. 3d 173
(D.D.C. 2014), the District pivoted to a licensing scheme which “confine[d] carrying
a handgun in public to those with a special need for self-defense.” Wrenn v. District
12
of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017). Although that restriction was also
struck down, id. at 668, most courts upheld similar restrictions on carrying handguns
outside of the home after applying intermediate scrutiny and concluding that the
restrictions bore “a substantial relationship to important governmental interests.”
Gould v. Morgan, 907 F.3d 659, 662 (1st Cir. 2018); see also Woollard v. Gallagher,
712 F.3d 865, 876 (4th Cir. 2013) (upholding under intermediate scrutiny a scheme
granting permits to carry outside the home only upon demonstrating a “good and
substantial reason” to do so); Bruen, 597 U.S. at 18-19 & n.4 (collecting cases).
These laws authorizing individuals to carry outside the home only when they could
show a special need for self-defense came under attack in Bruen, which we now turn
to.
2. New York State Rifle Association v. Bruen
In Bruen, the Supreme Court considered a Second Amendment challenge to
laws that prohibited individuals from carrying firearms outside the home, unless they
obtained a license to carry based on a “special need” for doing so. 597 U.S. at 11.
Bruen expressly held what Heller made reasonably evident, that the Second
Amendment “protect[s] an individual’s right to carry a handgun for self-defense
outside the home.” Id. at 10. And Bruen held that New York’s licensing scheme
violated the Second Amendment. Id. at 11.
13
Bruen clarified how to approach the Second Amendment analysis that came
out of Heller, though unlike its predecessor, Bruen did not concern a ban on any
particular kind of arm; instead it addressed a regulation on where they could be
possessed. So far as firearm regulations go, there is first a threshold question of
whether the “Second Amendment’s plain text covers” the conduct at issue, in which
case the conduct is “presumptively protect[ed]” and the government bears the burden
of justifying its regulation. Id. at 17. Bruen made explicit that, at least as a threshold
matter, the Second Amendment’s protection for arms covers all “modern
instruments that facilitate armed self-defense.” Id. at 28 (emphasis added). If the
regulation implicates the Second Amendment at that threshold inquiry, then the
government must “justify its regulation by demonstrating that it is consistent with
the Nation’s historical tradition of firearm regulation,” and “[o]nly then may a court
conclude that the individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’” Id. at 24. That is to say, “the government must
affirmatively prove that its firearm regulation is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.” Id. at 19. That means,
in practice, that the government must show that there is “a well-established and
representative historical analogue” for its regulations, though it need not be a
“historical twin” or “a dead ringer for historical precursors.” Id. at 30.
14
In so holding, the Court forcefully rejected the “means-end scrutiny” that most
lower courts had applied to firearm regulations after Heller, and explained that such
regulations cannot be justified simply because they satisfy “strict or intermediate
scrutiny.” Id. at 22. That is, it is entirely beside the point whether the regulation is
“substantially related to the achievement of an important governmental interest,” as
intermediate scrutiny requires, or is “narrowly tailored to achieve a compelling
governmental interest,” as strict scrutiny demands. Id. at 18-19. The “means-end
scrutiny” step of the lower courts’ two-step approach to analyzing firearm
restrictions was “one step too many.” Id. at 19. Instead, what matters is whether
there is a history and tradition of regulating the arm at issue, and any modern
regulations can be justified only if they are sufficiently similar to historical
analogues both in “how” they regulate arms and “why” they do so. Id. at 29.
Bruen also echoed what Heller had to say about categorical bans on arms, as
opposed to mere regulations on who, when, and how people can carry them. The
Court repeated Heller’s core holding that any “historical tradition of prohibiting”
arms extended only to “dangerous and unusual weapons,” which it contrasted with
arms “that are ‘in common use at the time.’” Id. at 21. That is, while mere
regulations could be justified through sufficiently similar historical analogues, so far
as bans on entire categories of arms are concerned, the Court has already done the
historical inquiry for us: categorical bans on arms can be justified where the arms in
15
question are sufficiently dangerous and unusual, but outright bans on arms in
common use for lawful purposes are a non-starter under the Second Amendment.
Id.
3. United States v. Rahimi
That brings us to Rahimi, the Supreme Court’s only post-Bruen assessment of
what regulations qualify as sufficiently analogous to pass Bruen’s historical test. 5
Rahimi did not concern a ban on any particular arm, but a restriction on who could
possess firearms. It involved a federal statute that “prohibits an individual subject
to a domestic violence restraining order from possessing a firearm if that order
includes a finding that he ‘represents a credible threat to the physical safety’” of
another. 602 U.S. at 684-85. The Court had “no trouble” rejecting Rahimi’s
challenge to that statute because “our Nation’s tradition of firearm regulation
5
While we focus on this trio of its cases, the Supreme Court has notably issued other post-Heller decisions that offer insight into the Second Amendment’s contours. For instance, McDonald v. City of Chicago held that the Second Amendment “is fundamental to our scheme of ordered liberty” and so is incorporated against the states via the Fourteenth Amendment. 561 U.S. 742, 767 (2010); see also Caetano v. Massachusetts, 577 U.S. 411 (2016) (rejecting lower court’s reasons for concluding that “stun guns” are not protected by the Second Amendment and remanding for reconsideration). But the big three, and in order of importance for present purposes at least, are Heller, Bruen, and Rahimi.
16
distinguishes citizens who have been found to pose a credible threat to the physical
safety of others from those who have not.” Id. at 700.
The Court discerned that tradition of regulation from Founding-era “surety
and going armed laws,” which it summarized as providing that a “threatening
individual may be disarmed” when he “poses a clear threat of physical violence to
another.” Id. at 698. The Court found those laws analogous to the federal statute
both in terms of “how” they each burdened the right to bear arms (through
disarmament), and in terms of “why” they did so (because of a credible threat to
another). Id. The Court explained that these two questions, “[w]hy and how the
regulation burdens the right” to bear arms, “are central” to the Second Amendment
inquiry. Id. at 692 (citing Bruen, 597 U.S. at 29). Because our nation’s “tradition
of firearm regulation allows the Government to disarm individuals who present a
credible threat to the physical safety of others,” the federal statute at issue in Rahimi
complied with the Second Amendment. Id. at 700.
With these precedents in mind, we now turn to assessing whether the District’s
ban on 11+ magazines violates the Second Amendment.
17
B. There is no historical tradition of banning arms in
common and ubiquitous use, like 11+ magazines
The question before us is whether the District’s outright ban on 11+
magazines violates the Second Amendment. The parties engage in three subsidiary
debates that inform that big-picture question: (1) are 11+ magazines bearable arms?
(2) are 11+ magazines in “common use” for lawful purposes? and (3) is there a
historical tradition of banning arms in such common use? The answers to those
questions are yes, yes, and no, respectively, so that the District’s ban on 11+
magazines violates the Second Amendment. We now explain each of those answers
in turn.
1. Magazines of all capacities are arms
The threshold question is whether 11+ magazines are “bearable arms” covered
by the Second Amendment’s plain text. Bruen, 597 U.S. at 28 (quoting Heller, 554
U.S. at 582). That is, are they something that a person might “take[] into his hands”
to use “in wrath to cast at or strike another,” Heller, 554 U.S. at 581, or do they
otherwise “facilitate armed self-defense”? Bruen, 597 U.S. at 28. The answer to
each of those questions is “yes.” An 11+ magazine facilitates armed self-defense
18
because it is used to load a firearm, and it then feeds successive cartridges 6 into the
gun’s firing chamber as a person shoots—a particularly essential feature for semiautomatic guns—eliminating any need to manually reload the gun until the magazine
is spent and itself needs to be reloaded. Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.
Att’y Gen. N.J., 910 F.3d 106, 116 (3d Cir. 2018) (“Because magazines feed
ammunition into certain guns, and ammunition is necessary for such a gun to
function as intended, magazines are ‘arms’ within the meaning of the Second
Amendment.”). That can come in handy in fending off an attacker, particularly if
you need to fire a second shot. It is also helpful for getting some target practice in,
either for entertainment’s sake or to improve one’s marksmanship and ability to
defend themselves, without having to manually reload the weapon after each shot.
Magazines of all capacities are thus arms covered by the plain text of the Second
Amendment.
The District’s first response is that Benson has “forfeited any argument about
why [11+ magazines] constitute ‘bearable arms’” because his opening brief did not
6
A cartridge consists of a bullet, its casing, gunpowder, and a primer (which is what the gun’s firing pin strikes to ignite the gunpowder to trigger the blast that ejects the bullet). People often refer to cartridges as bullets, though that is not quite right—the bullet is just the small projectile that shoots out from the firearm, whereas with magazine-fed guns, the spent casing usually ejects out just a few feet from the shooter.
19
adequately address that question. That is a frivolous contention. By simply invoking
the Second Amendment a defendant is quite obviously claiming that his conduct is
covered by it. And Benson did far more than that here—he argued in the trial court
that “ammunition feeding devices qualify as ‘arms’ under the plain text of the
Second Amendment,” and he reiterated in his opening brief that 11+ magazines are
“in common use today for self-defense” and are “standard issue with the most
popular handguns used for self-defense by law enforcement and civilians alike,”
invoking the familiar arguments for why these 11+ magazines are arms protected by
the Second Amendment. The trial court’s ruling also took it as a given that
magazines are arms. So the fact that Benson did not, in his opening brief, more
exhaustively and preemptively rebut the District’s inventive take that magazines are
not arms did not forfeit anything. Benson did plenty to preserve his claim in the trial
court that 11+ magazines are arms protected by the Second Amendment, and to press
that same point on appeal.
The District next counters on the merits that 11+ magazines, by themselves,
are “practically harmless” and of “no use” without ammunition and a receiver (the
firearm’s core component), so that magazines themselves are not arms. That is not
a defensible approach to identifying what constitutes an arm—a gun is also
practically harmless and of no use without ammunition, but it is still obviously an
arm. The District’s position that magazines are not arms has a couple of glaring
20
flaws. First, it ignores Bruen’s clear explanation that arms include “instruments that
facilitate armed self-defense,” which magazines clearly do by reloading the gun and
enabling semi-automatic firing. 597 U.S. at 28. Second, the District’s view reduces
to the absurd proposition that legislatures can prohibit all of the core components of
firearms—the trigger, the hammer, the slide, the firing pin, the sights, etc.—because
none of them do much good without the others, and none of them is strictly necessary
to a functioning firearm. See Duncan v. Bonta, 133 F.4th 852, 897 (9th Cir. 2025)
(en banc) (Bumatay, J., dissenting), cert. pending, No. 25-198 (U.S. filed Aug. 15,
2025) (“[T]he Second Amendment’s protection of ‘Arms’ must extend to their
functional components,” or “the Second Amendment would be a shallow right—
easily infringed by indirect regulation.”); id. at 917 (Vandyke, J., dissenting)
(“[U]nder that logic, basically every part of a firearm is an ‘optional component’”
and thus “not protected under the Second Amendment.”).
The District persists that while some magazines might be arms, 11+
magazines are not because no firearm requires an 11+ magazine to operate. The en
banc Ninth Circuit recently endorsed that same view in Duncan. 133 F.4th at
867-68. The fatal flaw in this argument is that the relevant question is not whether
11+ magazines are strictly necessary for armed self-defense, but whether they
facilitate it, as magazines of any capacity do. Bruen, 597 U.S. at 28 (emphasis
added); see also Heller, 554 U.S. at 629 (“It is no answer . . . that it is permissible to
21
ban the possession of handguns so long as the possession of other firearms (i.e., long
guns) is allowed.”). On the District’s logic, states could ban two-round or even oneround magazines—there’s no reason a semiautomatic firearm cannot fire with an
empty or “dummy” magazine so long as there is a round in the chamber. 7 And bans
like that would permit states to effectively eliminate any semi-automatic firing
capacity and require manual reloading after each shot. In fact, under the District’s
view the state could just directly outlaw the semi-automatic firing mechanism
because, by itself, that is a harmless component of a firearm and it is not a necessary
feature of any gun. That would run contrary to Heller’s central command that states
cannot ban the most popular weapons chosen by law-abiding Americans for lawful
purposes. 554 U.S. at 581. For that matter, modern cartridges, see supra n.6, are
not necessary for firing a gun either. If the Second Amendment applied only to those
things that are strictly necessary for a gun’s operation, states could ban cartridges so
long as primitive musket balls remained a legal alternative ammunition.
7
A gun can fire even when its magazine is empty, and if need be you can typically load a cartridge directly into the chamber manually without the aid of a magazine. So on the District’s and Duncan’s reasoning, we do not see what precludes states from banning magazines with any capacity to hold live rounds, permitting only “dummy” magazines, and leaving users to manually reload after each shot.
22
The more sensible view is that magazines of all sizes, like other core
components of firearms, are arms that are covered by the Second Amendment’s plain
text as a threshold matter. “To hold otherwise would allow the government to
sidestep the Second Amendment with a regulation prohibiting possession at the
component level.” Hanson v. District of Columbia, 120 F.4th 223, 232 (D.C. Cir.
2024); see also id. (“A magazine is necessary to make meaningful an individual’s
right to carry a handgun for self-defense.”); Ass’n of N.J. Rifle & Pistol Clubs, 910
F.3d at 116 (similar). Any components integral to a firearm’s operation, like
magazines, fit comfortably within the Second Amendment’s protection of arms.
2. Magazines holding more than 10 rounds are in common and ubiquitous use
The next question is whether 11+ magazines are in common use for lawful
purposes. While the parties agree that this is a critical question, they disagree about
its precise import.
a. The relevance of the common use inquiry
In the District’s view, whether 11+ magazines are in common use informs
whether they are arms at all. That is, the District posits that the common use inquiry
informs a threshold question of whether the instrument at issue is a bearable arm and
receives any Second Amendment protection. Benson and his amicus counter that
23
whether an arm is in common use is irrelevant to the “threshold textual inquiry” of
whether the capacity ban “regulates arms-bearing conduct,” Rahimi, 602 U.S. at 691,
which reduces to whether the instrument regulated is one that a person might “useth
in wrath to cast at or strike another,” Heller, 554 U.S. at 581, or whether it generally
“facilitate[s] armed self-defense,” Bruen, 597 U.S. at 28, i.e., the inquiry we
conducted above in Part II.B.1. They argue instead that the common use inquiry
comes into play only in the next step of the inquiry, where under Bruen’s test we
consider whether there are sufficient historical analogues for banning arms in such
common use.
Like the parties, courts are divided on the import of the common use inquiry.
“There is no consensus on whether the common-use issue” is a threshold textual
inquiry, as the District asserts, or a historical inquiry pertaining to the permissibility
of outright bans, as Benson and his amicus assert. Hanson, 120 F.4th at 232 n.3
(quoting Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th Cir. 2023)); see also
Bianchi v. Brown, 111 F.4th 438, 501-02 (4th Cir. 2024) (Richardson, J., dissenting)
(cataloguing support for both approaches in the Supreme Court’s opinions, noting
that “Bruen is somewhat ambiguous on this point,” and concluding that “the
‘common use’ inquiry best fits at Bruen’s second,” historical inquiry “step”).
24
This apparent tension in the Supreme Court’s directives is best resolved by
recognizing that there are distinct common use inquiries relevant at each step of the
analysis. At the threshold inquiry, the Supreme Court has said that “the sorts of
weapons protected” by the Second Amendment are “those ‘in common use,’” Heller,
554 U.S. at 627 (citing Miller, 307 U.S. at 179), and that “the Second Amendment
protects the possession and use of weapons that are ‘in common use.’” Bruen, 597
U.S. at 21. We take that to mean that an instrument must be designed or at least
somewhat commonly used as a weapon to qualify as an arm covered by the Second
Amendment. So while you could bludgeon somebody with a taxidermied marmot,
or beat them with a non-stick frying pan, a ban on stuffed rodents and regulations on
Teflon cookware do not implicate the Second Amendment as a threshold matter
because those instruments are not designed or typically used as weapons. This
threshold inquiry is not an exacting one. If the instrument is the type of thing that
generally facilitates self-defense, Bruen, 597 U.S. at 28—which, as we have
explained, magazines of all sizes are—then it is in common enough use as an arm to
receive some Second Amendment protection.
At the next step of the analysis, when an instrument is in such common use
that it is no longer “unusual” and ranks among the most popular arms possessed by
law-abiding citizens—let’s call that ubiquitous use to disambiguate the distinct
meanings of “common use”—then by that virtue alone it cannot be banned outright
25
because there is no historical precedent for a ban on ubiquitous arms. Heller made
clear that any historical tradition of firearm bans in this country extends only to
“dangerous and unusual” weapons, like short-barreled shotguns and fully automatic
machineguns. 8 Heller, 554 U.S. at 625, 627 (emphasis added); see also United
States v. Bridges, 150 F.4th 517, 519 (6th Cir. 2025) (recognizing that machineguns
are arms under the Second Amendment but that a ban on them “is consistent with
our Nation’s historical tradition of prohibiting private possession of dangerous and
unusual weapons”); see also United States v. Mitchell, 734 F. Supp. 3d 702, 707-08
(N.D. Ohio 2024) (“After Heller, the Courts of Appeals have uniformly held
that machineguns are dangerous, unusual, and not in common use”). The only
“historical tradition” supporting “complete prohibitions” extends exclusively to bans
on “dangerous and unusual” weapons. Heller, 554 U.S. at 627, 629 (emphasis
added); Hanson, 120 F.4th at 271 (Walker, J., dissenting) (“Heller and its
progeny . . . have already held that the government cannot ban an arm in common
use for lawful purposes.”).
So if 11+ magazines are arms in common and ubiquitous use, the Second
Amendment inquiry is over: not only does the Second Amendment apply as a
8
Both short-barreled shotguns and fully automatic machineguns are selfevidently arms, contrary to the District’s suggestions, at the threshold Second Amendment inquiry.
26
threshold matter, but the District’s outright ban on 11+ magazines violates the
Second Amendment. Heller already made clear that the only historical tradition of
banning arms extended only to those arms that are dangerous and unusual, and
because arms in ubiquitous use are by definition not unusual, they cannot be banned
outright. Recall that Heller itself did not begin its analysis with the fact that
“handguns are the most popular weapon chosen by Americans for self-defense,” it
ended it there. 554 U.S. at 629. That alone was sufficient to hold that a complete
ban on them was “invalid.” Id.; see also id. at 628-29 (“[B]anning from the home
the most preferred firearm in the nation to keep and use for protection of one’s home
and family would fail constitutional muster” in all circumstances).
b. Magazines holding more than 10 rounds are in common and ubiquitous use
That brings us to the critical question of whether 11+ magazines are in
common and ubiquitous use. They are. These magazines facilitate armed selfdefense and law-abiding citizens possess hundreds of millions of them in this
country. See William English, 2021 National Firearms Survey: Updated Analysis
Including Types of Firearms Owned at 25 (May 13, 2022) (“Americans have owned
some 542 million rifle and handgun magazines that hold over 10 rounds.”); Nat’l
Shooting Sports Found., Detachable Magazine Report 1990-2021 at 3 (2024)
(estimating “717 million” 11+ magazines “entered the commercial market between
27
1990 and 2021”), https://perma.cc/R9VT-MR6V; see also Duncan, 133 F.4th at 892
(Bumatay, J., dissenting) (“‘[I]n the realm of firearms,’ these magazines ‘are
possibly the most commonly owned thing in America.” (quoting Duncan v. Bonta,
695 F. Supp. 3d 1206, 1214 (S.D. Cal. 2023))); id. at 892 (“They come standard with
the most popular firearms sold nationwide,” account for roughly “half” of the
magazines in America, and there are “more than a hundred million” of them in this
country by “the most conservative estimates”); Kolbe v. Hogan, 849 F.3d 114, 129
(4th Cir. 2017) (en banc) (“Most pistols are manufactured with magazines holding
ten to seventeen rounds.”). That should be the end of this inquiry. “There may well
be some capacity above which magazines are not in common use but . . . that
capacity surely is not ten.” Heller v. District of Columbia (“Heller II”), 670 F.3d
1244, 1261 (D.C. Cir. 2011).9
9
The District and our dissenting colleague critique some of these sources substantiating the ubiquity of 11+ magazines, but they conspicuously offer no contrary authority, nor will they brave even a bare assertion that there are fewer than hundreds of millions of 11+ magazines in the hands of law-abiding citizens in this country. Even still, the District critiques the study from Prof. William English that we have cited above as a “non-peer-reviewed survey [that] has been criticized as methodologically unreliable.” See William English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned (May 13, 2022). And to self-critique, we have also cited to one study above from the National Shooting Sports Fund, a firearms industry trade association which is nobody’s idea of a fair and neutral source on this topic. But the problem for the District and the dissent is that there is no contrary authority—not even from a horribly biased
28
The District raises several counterarguments, and highlights that each of the
five federal circuit courts of appeals to have confronted this issue in the years after
Bruen has upheld 11+ magazine bans like the District’s. See Duncan, 133 F.4th 852;
Hanson, 120 F.4th 223; Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38 (1st
Cir. 2024); Bevis, 85 F.4th at 1175; Nat’l Ass’n for Gun Rts. v. Lamont, 153 F.4th
213 (2d Cir. 2025). The District and those courts raise four core arguments for why
11+ magazines are not in common use in the relevant sense and thus may be
banned: 10 (1) that an arm does not need to be both dangerous and unusual to fall
outside the category of arms in common use that cannot be banned—bans instead
might be appropriate on any arm that is “unusually dangerous”; (2) the ownership
statistics we have just relied upon cannot be determinative of whether an arm is in
common use; (3) Heller could not logically have prohibited bans on arms in common
use because that would be “circular”; and (4) 11+ magazines are not in common use
source—that will say 11+ magazines are less than ubiquitous because it is a plain counterfactual. To conclude that they are anything other than common and ubiquitous, you would have to ignore every study out there. You would also likely have to avoid consorting with the third of Americans who personally own firearms, or the nearly half of Americans who live in a household with one. See Guns, Gallup, https://perma.cc/2PTC-AB8M (last visited March 1, 2026). Ask just about any one of them and they can tell you that twelve-, fifteen-, and seventeen-round magazines are the norm rather than any kind of outlier.
10
Two of the five circuits upholding 11+ magazine bans post-Bruen—the Ninth and the Seventh circuits—start from the wrong premise (see above) that 11+ magazines are not arms at all. The D.C. Circuit correctly held that they are arms, and the First and Second Circuits assumed (without holding) that they are.
29
because people rarely fire more than 2-3 rounds in self-defense. We consider those
arguments one by one.
First, the District argues that “unusual” does not mean what you think it
means—i.e., that things in ubiquitous use like 11+ magazines can still be “dangerous
and unusual” in the relevant Second Amendment sense. The District maintains that
“dangerous and unusual” is best understood as a “hendiadys,” similar to “cruel and
unusual” or “necessary and proper,” where two words combine to form a single
concept distinct from the meaning of its component parts. And in this case, that
concept refers to any arms that are “unusually dangerous,” no matter how ubiquitous
they are, or so the argument goes.
That is a tortured argument. We cannot ignore what Heller and Bruen actually
said, which is that an arm cannot be banned unless it is both “dangerous and
unusual.” Heller, 554 U.S. at 627 (emphasis added); Bruen, 597 U.S. at 47
(emphasis added); see also Caetano, 577 U.S. at 417 (Alito, J., concurring in the
judgment) (an arm must be “both dangerous and unusual” for a ban on it to comply
with the Second Amendment). The Supreme Court tends not to speak in code and
usually means what it says, so that a weapon is not “dangerous and unusual” if it is
“in common use today.” Bruen, 597 U.S. at 47 (quoting Heller, 554 U.S. at 627);
see also Hanson, 120 F.4th at 259-60 (Walker, J., dissenting) (same). If the Supreme
30
Court wanted to say “unusually dangerous,” it was quite capable of stringing the two
words together in just that way, but it went with “dangerous and unusual” weapons
instead; and to make itself especially clear, it juxtaposed “dangerous and unusual”
weapons with weapons “in common use,” making clear that it meant “unusual” in
its ordinary sense, to wit, uncommon. See Heller, 554 U.S. at 627; but see Lamont,
153 F.4th at 234 & n.19 (endorsing the view that “dangerous and unusual” is a
hendiadys for “unusually dangerous”); id. at 251-52 (Nathan, J., concurring)
(same). 11
11
Judge Nathan highlights that the sources Heller cites as supporting “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” sometimes use the disjunctive, “dangerous or unusual,” 153 F.4th at 250-51, so that they may support the view that sufficiently dangerous weapons can be banned even when they are in common use and, thus, not unusual at all. In fact, the first source Heller cited as support for that tradition was Blackstone, which used only the disjunctive “dangerous or unusual” at the very pages Heller cited to. Id. (describing proscriptions on the “‘offence of riding or going armed, with dangerous or unusual weapons’”) (quoting 4 William Blackstone, Commentaries *148-49). That led Judge Nathan to posit that Heller’s conjunctive test is perhaps based on a “possible misquote of Blackstone.” Id. at 251. That rather uncharitable reading of Heller is not a plausible one. Our takeaway is that after reviewing the body of historical authorities, Justice Scalia (Heller’s author) and the rest of the majority, rightly or wrongly, concluded that any historical tradition of banning weapons extended only to “dangerous and unusual” arms—that this conjunctive test better captured the history of arms bans—and they rather deliberately endorsed that view and not the disjunctive version of it that sometimes appeared in the same historical literature and seemingly would have led to a different result in Heller itself. Heller notably did refer to “dangerous or unusual weapons” elsewhere in the opinion, but only in describing one of the government’s arguments that it would go on to reject. 554 U.S. at 623.
31
Still, even if we assume that Justice Scalia uncharacteristically and without
warning used a “hendiadys” in a vital portion of his watershed Heller opinion to
mean something other than what he said, 12 “dangerous and unusual” cannot possibly
mean what the District asserts. If Heller meant to say that bans on “unusually
dangerous” weapons were in bounds, then there’s no telling why the Court did not
uphold the District’s handgun ban. Handguns are unusually dangerous as compared
to most other weapons like knives, clubs, swords, bows, and—given how easy they
are to conceal—even rifles or shotguns (at least if you take assault rifles like the
AR–15 out of the equation). Cf. Snope v. Brown, 605 U.S. ---, 145 S. Ct. 1534, 1534
(2025) (mem.) (Kavanaugh, J., respecting the denial of certiorari) (“Given that
millions of Americans own AR–15s and that a significant majority of the States
allow possession of those rifles, petitioners have a strong argument that AR–15s are
in ‘common use’” and that bans on them thus violate the Second Amendment). One
12
The scholar best known for advancing hendiadys as a way to read
conjunctive phrases in a manner distinct from their component parts often used Justice Scalia as a foil, precisely because of Justice Scalia’s general commitment to reading conjunctive requirements as demanding two distinct things, as you might expect of an ardent textualist (or even a faint-hearted one). See Samuel L. Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 707 (2016) (“The text of the Eighth Amendment is understood by some as prohibiting punishments that meet two requirements: they are ‘cruel’ and they are ‘unusual.’ That view has roots in some cases from the late nineteenth and early twentieth centuries, and it has more recently been advanced by Justice[] Scalia,” among others).
32
of the District’s core arguments in Heller was that even if the Second Amendment
protects an individual right to bear arms, its handgun ban was nonetheless justified
by how unusually dangerous handguns are. Br. for Petitioners, District of Columbia
v. Heller, 2008 WL 102223, at 50 (“[H]andguns are uniquely dangerous,” and “the
dangers to others, both in the home and outside of it, justify the handgun ban.”). The
Supreme Court did not cast any doubt on the premise of that argument—handguns
are of course extraordinarily dangerous—it simply deemed that point irrelevant,
because there is no historical tradition of banning arms that are overwhelmingly
possessed for lawful purposes.
Second, some circuit courts have held that 11+ magazines are not in common
use, despite their ubiquity, reasoning that an “ownership-statistics” approach to
assessing what arms are in common use is too “simplistic.” Duncan, 133 F.4th at
882; see also Bevis, 85 F.4th at 1198-99 (declining to base its analysis “on numbers
alone”). But that’s like saying a tape measure is too simple a tool for measuring the
width of a table, or that a thermometer is too crude for gauging the temperature
outside. When assessing whether an arm is in “common use” and “typically
possessed by law-abiding citizens for lawful purposes,” Heller, 554 U.S. at 624-25,
ownership statistics might not tell the whole story—they do not tell you if the arms
are held for lawful purposes—but they tell most of it, and they are right on point.
33
Just because a tool does not give you the measurement you had hoped for does not
mean it is broken or ill-suited to the task.
The Ninth Circuit in Duncan persisted in its attack on ownership statistics,
positing that reliance on them would mean that “any time an undefined number of
people owned an undefined number of” arms, those arms could not be banned. 133
F.4th at 883. That strawman of an argument is not at all what we mean. What we
mean is what Heller said: that arms that are utterly ubiquitous in this country, like
the hundreds of millions of 11+ magazines, cannot be banned. Just as handguns
cannot be banned because they are “the most preferred [type of] firearm in the
nation,” 307 U.S. at 628-29, the 11+ magazines that tend to accompany them are the
most preferred type of magazine and likewise cannot be banned.
Duncan further critiqued the “ownership-statistics approach” to discerning
common use because, under it, it seemed to the majority that machineguns could not
be banned because there are an “estimated . . . 176,000 machine guns” possessed by
civilians. Id. at 883. But there is no difficulty in reconciling a machinegun ban with
our holding today—11+ magazines are about one-thousand times more prevalent
than machineguns are in the hands of civilians. Maybe there will be a difficult linedrawing problem in determining where in between hundreds of thousands, and
hundreds of millions, an arm becomes so commonplace that an outright ban on it
34
becomes unconstitutional. But it is not hard to tell which side of any conceivable
line these 11+ magazines fall on. Under no view are 11+ magazines anything but in
common and ubiquitous use. Heller II, 670 F.3d at 1261. Besides, the Duncan
majority is in no position to cast aspersions when it comes to line-drawing problems.
It could not explain why its reasoning would not equally permit a ban on eight-,
five-, or two-round magazines, despite the dissenters’ direct challenges to explain
why its analysis would not permit such bans. See Duncan, 133 F.4th at 917
(Vandyke, J., dissenting) (“presumably,” under the majority’s rationale, “California
could also ban magazines holding five rounds. Maybe even two.”).
Third, the District argues that precluding prohibitions on firearms in common
use is “hopelessly circular,” because that would mean that once a firearm became
sufficiently popular, there is no clawing it back. Put another way, the District posits
that under the common use test, “gun manufacturers and retailers would only need
to race to make their products commonly possessed before any limitations could be
enacted to forever prohibit such limitations under the Second Amendment.” That
argument has some logical force to it, but it is no more forceful now than when the
District pressed it in Heller, and yet, the Supreme Court squarely rejected it and
adopted the common use test anyway. See Br. for Petitioners, District of Columbia
v. Heller, 2008 WL 102223, at 45 (“[T]he [common use] test leads to tragic results.
It suggests, for instance, that Congress could ban the private ownership of a
35
particularly dangerous weapon right after its invention, before it grows into common
use, yet not if its dangerousness becomes clear only after its use becomes
widespread.”). If the District wants to relitigate that fight, it needs to take it up with
our brothers and sisters up the road at 1 First Street. We are not in the business of
grading the Supreme Court’s homework, and whatever the wisdom of its Second
Amendment holdings, they remain binding on us.
In any event, the logical force of the District’s argument is limited in cases
like this one, where the District is an outlier in putting any capacity limits on
magazines. There are no magazine capacity limits federally nor are there any in the
vast majority of states. Duncan, 133 F.4th at 892 n.3 (Bumatay, J., dissenting)
(noting that “[o]nly twelve states and the District of Columbia ban the outright
possession of magazines with more than a certain number of rounds,” with 10 being
the low-water mark, but some states setting higher limits like 15 or 17). The
District’s critique would be more forceful if this were a uniform federal ban on some
class of arms that stood a chance of meaningfully diminishing the arm’s ubiquity—
the Supreme Court has not addressed anything like that since the 1930s in Miller,
and perhaps it will reassess its “common use” test if it crops up in the context of a
federal ban. But there is nothing circular about saying that individual states cannot
ban arms within their borders when they can be easily procured and brought into the
state from elsewhere by people who pay no mind to the law. One could literally jog
36
from the District to Virginia to procure a 30- or 50-round magazine, and one
perfectly coherent view is that law-abiding citizens everywhere should have access
to the same arms that are legal, widely owned, and generally available throughout
the rest of the country.
Fourth, and finally, the District argues that 11+ magazines are not in common
use because “it is extremely rare for an individual to fire more than ten rounds in
self-defense.” Or. Firearms Fed’n v. Kotek, 682 F. Supp. 3d 874, 920 (D. Or. 2023).
The District again addresses the wrong question. Heller was not concerned with
how often arms were actually fired in self-defense; it asked only whether they were
“typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. at 625
(emphasis added); see also Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1276
(N.D. Cal. 2014) (“[T]he standard is whether the prohibited magazines are ‘typically
possessed by law-abiding citizens for lawful purposes,’ not whether the magazines
are used for self-defense.” (quoting Heller, 554 U.S. at 625)); Duncan v. Bonta, 695
F. Supp. 3d 1206, 1225 (S.D. Cal. 2023) (“[T]o be protected, an arm needs only to
be regarded as typically possessed or carried, or commonly kept, by citizens to be
ready for use, if needed. The Supreme Court has not said that the actual firing of a
gun is any part of the test.”). Most firearms held in self-defense will never be fired
in self-defense at all—that cannot justify a ban on ammunition simply because it is
rare for law-abiding citizens to actually shoot some attacker, or because blanks might
37
suffice to scare most attackers off without live ammunition. Moreover, we have no
doubt that law-abiding citizens do regularly fire more than 10 rounds for lawful
purposes like target practice and marksmanship, and the Second Amendment’s
protections extend to those activities as well. See Heller, 554 U.S. at 599 (explaining
that “hunting” is another lawful purpose that the Second Amendment protects).
Because 11+ magazines are in common and ubiquitous use for lawful
purposes, the District’s outright ban on them violates the Second Amendment.
3. There is no historical tradition of banning arms in common and ubiquitous use
Our holdings resolving the first two disputes render this third one an
afterthought: there is no historical tradition of banning bearable arms in common
and ubiquitous use and Heller already held as much. And because 11+ magazines
are bearable arms in common and ubiquitous use, an outright ban on them violates
the Second Amendment.
Even assuming that we are free to second-guess Heller’s assessment after a
fresh review of historical analogues, 13 the District has not carried its burden of
13
Our dissenting colleague contends that we have not performed Bruen’s “required historical analysis” because we read Heller as instructing that outright bans on arms ubiquitously held in self-defense simply have no historical analogue.
38
identifying any historical analogue banning bearable arms that approach the ubiquity
of 11+ magazines, much less a historical tradition of similar bans. The District
highlights historical bans on “trap guns,” but those are not bearable arms at all, and
they were never particularly common. Trap guns, by design, fire without an
operator, typically via a tripwire triggered by an unsuspecting person (they are
boobytraps). To bear it is to render it something other than a trap gun. The District
next points to Founding-era “[r]estrictions on gunpowder storage,” which required
that gunpowder be divided into containers of not more than seven pounds to avoid
explosions that might cause mass casualties. 1784 Laws of N.Y. 627, ch. 28. But
those laws did not ban anything (they regulated only how gunpowder was stored) so
they are not relevantly similar in “how” they regulated conduct, despite the District’s
reliance on them as “an especially apt analogy.” But see Ocean State Tactical, 95
F.4th at 49 (endorsing the flawed analogy). And the District highlights that most
states regulated how Bowie knives could be carried and transported in the late
nineteenth century, but no state banned those knives outright, so again the District’s
analogy falls flat when it comes to the “how” of these historical regulations. See
Or, in Heller’s own words, because “handguns are the most popular weapon chosen by Americans for self-defense,” a “complete prohibition” of them is “invalid.” 554 U.S. at 629. Notwithstanding that point, we now conduct the additional historical analysis our colleague insists is required, and the result is the same—neither the District nor our dissenting colleague have pointed to any historical analogue for banning arms that come anywhere near the popularity of 11+ magazines.
39
Hanson, 120 F.4th at 272 (Walker, J., dissenting) (explaining that only “two states
(Texas and Arkansas) and a federal territory (Arizona) prohibited the open carry of
Bowie knives,” but none banned their possession outright).
“Why and how the regulation burdens the right” to bear arms “are central” to
the Second Amendment inquiry, Rahimi, 602 U.S. at 692 (citing Bruen, 597 U.S. at
29), and none of the District’s analogies get off the ground because two of them are
not bans at all—failing at the “how” step of the inquiry. 14 The only actual ban it can
point to is of unusual and non-bearable trap guns, so that ban is not analogous.
14
Contrary to our dissenting colleague’s repeated assertions, we do not hold that 11+ magazines “may never” be regulated or “cannot be regulated,” post at 56, 71, only that they cannot be banned outright. This critical distinction that our colleague elides is why nothing in our analysis is at odds with this court’s recent opinion in Picon v. United States, 343 A.3d 57 (D.C. 2025), cert. pending, No. 25-5713 (U.S. filed Sept. 23, 2025). In Picon, we upheld the District’s “age-based firearm registration and licensing statutes,” requiring individuals aged eighteen to twenty to receive parental permission before they could lawfully possess a firearm. Id. at 59-60. We reasoned that because “‘a person was an infant or a minor in the eyes of the law until the age of twenty-one’” at the Founding, and thus “generally could not purchase firearms,” modern regulations restricting when people under twenty-one years old could lawfully possess a firearm aligned with Founding-era history. Id. at 63-64 (quoting Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1117 (11th Cir. 2025) (en banc)). Today we cast no doubt on and have said nothing at odds with Picon; there is simply no similar historical support for outright bans across all age groups on the law-abiding public’s arms of choice, like 11+ magazines, no matter what narrower regulations might pass constitutional muster. There are unquestionably regulations on 11+ magazines that would comply with the Second Amendment, just as there are constitutionally permissible regulations on handguns.
40
Pulling back from those specific disanalogous examples, the District asks us
to recognize a more generic “historical tradition.” It invokes the “established
tradition of targeting dangerous and unusual weapons and accessories when they
have contributed to violence and other crime, while minimally burdening the right
to armed self-defense.” If that test sounds familiar, it is because it is
indistinguishable from the interests-balancing tests that the circuit courts routinely
applied after Heller, the Supreme Court then decisively repudiated in Bruen, and yet
a handful of circuits still cling to. See, e.g., Duncan, 133 F.4th at 913-14 (Bumatay,
J., dissenting) (describing the majority as engaged in “interest balancing . . .
masquerading as respect for the Second Amendment’s historical scope”). When
Bruen rejected such interest balancing as “one step too many” in the Second
Amendment inquiry, 597 U.S. at 19, it took “out of the hands of government . . . the
power to decide” what burdens on arms possession could be justified by overriding
interests, no matter how compelling they are, id. at 23 (quoting Heller, 554 U.S. at
634). And the Supreme Court left us with a fairly rigid historical test in place of any
balancing test, and whatever you think about it, that is the test we must apply. 15
15
The District and our dissenting colleague, like the various circuits upholding 11+ magazine bans, rely heavily on one sentence in Bruen to support their contrary view. Bruen says: “While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic
41
With all that said, we are not blind to the blight of gun violence in this country
and the horrors it visits on our citizenry. Our children, like many of yours, have
undergone that distinctly American ritual of active shooter drills since they were in
preschool. Some members of this division have lost close friends to gun violence.
And we sympathize with those who decry the Supreme Court’s rulings in Heller and
Bruen as fetishizing the right to bear arms, as treating the Constitution as a “suicide
pact,” and as refusing to let modern gun restrictions catch up with the ever-increasing
lethality of firearms. Cf. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (R.
Jackson, J., dissenting) (“[I]f the Court does not temper its doctrinaire logic with a
little practical wisdom, it will convert the constitutional Bill of Rights into a suicide
pact.”). We take no issue with the legislative judgment that banning 11+ magazines
does not meaningfully hamper self-defense. And we do not doubt the legislative
technological changes may require a more nuanced approach.” 597 U.S. at 27; see also, e.g., Duncan, 133 F.4th at 872-73 (explaining “that a more nuanced approach is appropriate here”); Ocean State Tactical, 95 F.4th at 44 (reasoning that a “lack of directly on-point tradition” does not doom 11+ magazine bans because “a more nuanced approach” is appropriate). We understand the Court in that sentence to be recognizing only that analogical reasoning can be difficult, or even fraught, so that a state seeking to ground its regulations in history need not produce a “dead ringer” or “historical twin”—a close cousin will do. 597 U.S. at 30. We do not understand Bruen, with that one sentence, to have upended the remainder of its analysis and to have thereby thrust us back into the means-end balancing test that the heart of its analysis squarely rejected, as the District and our dissenting colleague read it.
42
judgment that the burden on gunowners of being limited to 10-round magazines is
comparably slight when compared to the potential benefit of lowering death tolls.
But the Supreme Court has rejected that kind of interest-balancing test under
the Second Amendment, and we are bound to follow its precedents. Heller, 554 U.S.
at 636 (“[T]he enshrinement of constitutional rights necessarily takes certain policy
choices off the table.”). It is not our province to correct any course the Supreme
Court has set us on—only the Court is free to do that, barring the political will to
pass a constitutional amendment. Under Heller and Bruen, there simply is no
historical tradition of banning arms in common and ubiquitous use like 11+
magazines, so the District’s ban on them violates the Second Amendment.
C. Benson raises a justiciable facial challenge to the 11+ magazine ban
The District and our dissenting colleague argue that even if Benson were
correct that a ban on 11+ magazines is unconstitutional, he is in no position to litigate
that question because he in fact possessed a 30-round magazine. In the District’s
view, in light of that fact, we ought to limit ourselves to reviewing whether bans on
30-round magazines pass constitutional muster. The District’s argument comes in
two steps: (1) that any facial challenge to the District’s capacity ban must fail unless
a ban on magazines of any capacity—30+, 100+, 1,000+—would violate the Second
Amendment, because only then is there “no set of circumstances . . . under which
43
the [District’s] Act would be valid.” United States v. Salerno, 481 U.S. 739, 745
(1987). Because there’s obviously some number at which these magazines become
“dangerous and unusual” so that they can be banned, any facial challenge must fail
in the District’s view. And (2) that leaves Benson with only his as-applied challenge,
and as-applied to him, the capacity ban is fine because his 30-round magazine is
unusual enough that surely it can be banned, so either version of his argument fails.
We disagree with the District at the first step of its argument. 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. This statute draws that line in a constitutionally protected place,
between 10 and 11 rounds, and it is not susceptible to any judicial gloss that could
narrow the statute to a plainly legitimate sweep. It is thus facially unconstitutional
in all of its applications.
44
Before we walk through the relevant precedents, we first acknowledge that
there are few areas of jurisprudence that are more difficult to decipher than when a
litigant can successfully raise a facial challenge. While the Supreme Court has
sometimes described facial challenges as “disfavored,” Wash. State Grange v. Wash.
State Rep. Party, 552 U.S. 442, 450 (2008), it has at the same time noted that there
have been “several Terms in which ‘the Court adjudicated more facial challenges on
the merits than it did as-applied challenges.’” City of Los Angeles v. Patel, 576 U.S.
409, 415 (2015) (quoting Richard H. Fallon, Fact and Fiction About Facial
Challenges, 99 Cal. L. Rev. 915, 918 (2011)); see also Fallon, supra, at 917 (“[T]he
assumption that facial challenges are and ought to be rare . . . is false as an empirical
matter and highly dubious as a normative proposition. What is more,
misunderstanding on this point reflects more general myopia and confusion with
respect to facial challenges in the Supreme Court, perhaps most especially, but by
no means exclusively, among the Justices themselves.”).
This court’s most thorough effort to wade through this thicket—and, in our
view, the one that best aligns with the Supreme Court’s precedents and practices in
the area—came in Conley v. United States, 79 A.3d 279 (D.C. 2013). Conley
concerned a facial challenge to a statute criminalizing a person’s mere presence in
an automobile that they know contains a firearm whenever that firearm happens to
be unlawful. Id. at 274 (describing elements of offense). In other words, if you
45
knew a friend brought a gun with them into your car, you could be prosecuted if your
friend was not in lawful possession of that firearm, even if you had no clue that the
gun was unlawful and your friend assured you that it was perfectly legal. That lack
of any mens rea requirement was constitutionally problematic, and in Conley, we
struck down that statute as facially unconstitutional. Id. at 289. We did so despite
the fact that a person might very well know that the firearm in their car is unlawful,
so that the statute covered plenty of conduct that could have been properly
proscribed. That point was simply immaterial to the facial challenge before us.
We explained that in a facial challenge, “[w]e look only to whether the statute
properly proscribes criminal conduct; we do not examine whether appellant’s
conduct could have been criminalized under a hypothetical statute.” Id. at 277
(emphasis added) (citing Grange, 552 U.S. at 449-50); see also Patel, 576 U.S. at
418 (“[W]hen assessing whether a statute” is facially unconstitutional, “the Court
has considered only applications of the statute in which it actually authorizes or
prohibits conduct.”). Instead, “in a facial challenge, ‘the claimed constitutional
violation inheres in the terms of the statute, not its application.’” Id. (quoting Ezell
v. City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011)). So—and here’s the critical
part—whenever a criminal statute “[1] fails to require the government to prove
everything the Constitution requires it to prove for a criminal sanction to be imposed,
. . . [2] and the limits of the judicial function do not permit us to read the critical
46
missing elements into the statute” or to sever out the statute’s constitutionally infirm
parts, “then [3] appellant has carried his burden of showing that every application of
[the statute] is unconstitutional—even if a validly written statute could have reached
appellant’s particular conduct.” Id.
In short, Conley instructs that Benson’s facial challenge to the 11+ magazine
ban is proper and that we must assess that ban on its own terms, as we already did
in Part II.B above, not based on whether magazines could be banned at some capacity
via a constitutionally-compliant statute. Let’s walk through Conley’s test from the
paragraph above: (1) does the District’s 11+ magazine ban “fail[] to require the
government to prove everything the Constitution requires it to prove for a criminal
sanction to be imposed”? It does, because the government needs to prove only that
a defendant possessed an 11-round magazine, which as we have explained, is
constitutionally protected activity; (2) can we “read the critical missing elements
into the statute,” or can we “sever” out the constitutionally problematic portion of
it? Id. at 277, 281 (discussing severability). We can’t do either of those things. The
first involves legislative line-drawing where the only line the legislature drew is
between 10 and 11 rounds, and for us to read some other number into the statute
would exceed our judicial function and intrude into the legislative role. The second
severability option is off the table because there’s nothing to sever—if you sever out
47
the number 10 from the statute, the statute is meaningless. 16 That leaves only the
third part from above, Conley’s conclusion, that (3) Benson has therefore carried his
burden of showing that this statute is facially unconstitutional regardless of whether
“a validly written statute could have reached appellant’s particular conduct.” Id. at
277.
While Conley alone makes clear that Benson’s facial challenge is properly
assessed by adjudging the constitutionality of an 11+ magazine ban, and not whether
capacity limits can be set at some number, we further note that Conley is no outlier.
We have explained and applied its analysis multiple times since. See, e.g., Tilley v.
United States, 238 A.3d 961, 969-70 (D.C. 2020) (holding that “Sexual Psychopath
Act” was facially unconstitutional despite the fact that “a validly written statute
could have reached [appellant’s] conduct” because “the limits of the judicial
function do not permit us to read the critical missing elements into the statute”
16
Try it out for yourself. Here’s the relevant text: “No person in the District shall knowingly possess, sell, or transfer any . . . magazine . . . that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.” D.C. Code § 7-2506.01(b)-(c). You cannot render that statute constitutional by crossing out any words; you could hope to do that only by rewriting it to include some number higher than 10, which goes beyond any judicial function. One can sever out the statutory ban on other feedings devices with capacities for more than ten rounds, like belts, drums, and feed strips. Id. We have already done that by narrowing our focus to only magazines and leaving those related bans unaffected by today’s decision. Supra n.3.
48
(quoting Conley, 79 A.3d at 277)); Valdez v. United States, 320 A.3d 339, 383-84
(D.C. 2024) (reiterating that a statute is facially invalid if it “fails to require the
government to prove everything the Constitution requires it to prove for a criminal
sanction to be imposed,” “and the limits of the judicial function do not permit us to
read the critical missing elements into the statute,” but concluding that a statute
outlawing sodomy had a “plainly legitimate sweep” and so could be judicially
narrowed to bar only nonconsensual sodomy (quoting Conley, 79 A.3d at 277)).
As for Supreme Court precedent, consider Heller itself, which was a
successful facial challenge to the District’s handgun ban. 554 U.S. at 635; Patel,
576 U.S. at 415 (recognizing that Heller adjudicated a “facial challenge” under the
Second Amendment); Rhode v. Bonta, 145 F.4th 1090, 1118 (9th Cir. 2025) (“In
Heller, the Supreme Court considered a facial challenge to Washington, D.C.’s law
banning handgun possession.”); Br. for Petitioners, District of Columbia v. Heller,
2008 WL 102223, at 57 (describing “this facial challenge”). 17 If the District’s
17
The District points out that this court has previously said that “in Heller, the Court neither held nor implied that a law requiring a license to carry a pistol on its face violates the Second Amendment,” and that “Heller did not . . . invalidate any of the District’s individual gun control laws.” Brown v. United States, 979 A.2d 630, 639 (D.C. 2009)). That is true, so far as it goes. But to the extent that Brown opined that Heller was not a successful facial challenge at all—as the District seems to read Brown to say—the Supreme Court has since put any debate on that topic to rest. The Court in Patel accurately described Heller as one in which it adjudicated a facial challenge under the Second Amendment. 576 U.S. at 415.
49
approach to facial challenges under the Second Amendment were correct, the
Supreme Court should have spurned the facial challenge in Heller because, as Heller
recognized, there are clearly some hypothetical handgun prohibitions—applying
only to felons and/or the mentally ill, or only to fully automatic handguns—that
would pass constitutional muster. See Heller, 554 U.S. at 626 (“[N]othing in our
opinion should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill.”); id. at 624 (suggesting it would be
“startling” if bans on machineguns were unconstitutional). But the Court instead
sustained the facial challenge because our statutes’ sweeping application to
everybody and to all handguns made them facially unconstitutional in all
applications, despite there being some subset of handguns that could be prohibited
outright, and some subset of people that could be prohibited from possessing
handguns entirely.
Similarly, the fact that there is surely some subset of larger 11+ magazines
that could be properly outlawed through a more narrowly tailored statute does not
save the District from this facial challenge. The only thing the government is
required to prove to secure a conviction under this statute is that a person possessed
a magazine capable of holding more than ten rounds of ammunition. Because that
statute draws the line in a constitutionally prohibited place, and it is not within the
50
judicial function for us to draw that line in a new place, the statute is unconstitutional
in all of its applications and is facially invalid.
D. All of Benson’s convictions are infected by the Second Amendment violation
Finally, Benson could not have registered or procured a license to carry his
firearm because it was equipped with an 11+ magazine. See Metropolitan Police
Department, Application for Firearms Registration Certificate (requiring applicant
to state the “No. of Shots” for the firearm being registered); D.C. Code
§ 7-2509.02(a)(2) (requiring applicant for license to carry a pistol to prove that the
pistol is registered); Hanson, 120 F.4th at 230 (explaining how appellant “attempted
to register a firearm with a 12-round magazine in the District, but the Metropolitan
Police Department denied his application because of the” 11+ magazine ban). And
because he could not have registered his gun as constituted, he likewise could not
have lawfully possessed ammunition for it. D.C. Code § 7-2506.01(a)(3)
(precluding the general public from possessing ammunition unless they are “the
holder of a valid registration certificate for a firearm”).
The unconstitutionality of the District’s capacity ban thus infects Benson’s
convictions for unlawful possession of ammunition, possession of an unregistered
51
firearm, and carrying a pistol without a license. 18 Because “the District’s
unconstitutional ban” on 11+ magazines “made registration” of Benson’s handgun
“impossible,” which in turn made obtaining a license to carry the gun and possessing
ammunition attendant to it impossible for him to do lawfully, it was “impermissible
under the Second Amendment to convict [him]” of any of those offenses. Magnus
v. United States, 11 A.3d 237, 242-43 (D.C. 2011); see also Plummer v. United
States, 983 A.2d 232, 341-42 (D.C. 2009) (defendant “had standing to raise the
Second Amendment issue as a defense to the criminal charges against him by
moving to dismiss the indictment, even though he did not attempt to obtain a
18
Benson and his amicus, the Public Defender Service (PDS), first squarely made the argument that the unconstitutionality of the capacity ban infects each of the convictions at oral argument, and PDS later filed a supplemental pleading pressing the same point in more detail. The District responded in its own supplemental pleading, including by arguing that Benson forfeited this argument by failing to brief it initially. We disagree. Benson argued broadly in his opening brief that all of his convictions should be reversed, and none of the parties sought to disentangle in their briefs which convictions should fall if any particular subset of his constitutional challenges were successful. We consider that a shared oversight of the parties that should not be held against any one of them, given that they each clarified their positions at oral argument and have now had an opportunity to file supplemental pleadings on this question. See Jacobson v. Clack, 309 A.3d 571, 578 n.3 (D.C. 2024) (It is a “discretionary decision whether this court will ‘elect’ to address an argument first raised in a supplemental brief that a party has been given leave to file.” (quoting Blades v. United States, 200 A.3d 230, 236-37 (D.C. 2019))); Blades, 200 A.3d at 236-37 (electing to consider argument “raised for the first time in a supplemental brief” given the “importance” of the issue); Gathy v. United States, 754 A.2d 912, 916 (D.C. 2000) (exercising discretion to consider issue first raised in reply brief because appellee was permitted to file supplemental brief addressing the issue).
52
registration certificate and license for his handgun,” given the “absolute prohibition”
that precluded him from registering or licensing his handgun pre-Heller). 19
The District has not pointed to any independent basis that would have
precluded Benson from registering and licensing his firearm—for instance, it does
not suggest that Benson was disqualified from gun ownership by virtue of being a
felon or mentally ill. See Heller, 554 U.S. at 626; Herrington v. United States, 6
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. Additionally, even if Benson had engaged in that subterfuge and registered his firearm with a magazine of 10 or fewer rounds, it is not at all clear that the District would have treated Benson’s firearm as the one that he registered once it was equipped with a 30-round magazine, given the District’s seeming view in the registration process that the number of shots a firearm is capable of firing is a component of the firearm itself. The District has expressed no view about that. To the extent that depends on a statutory interpretation question of whether a registered firearm encompasses the magazine it is equipped with, the parties have not briefed that question, and we express no view about it. Finally, relying on Poulos v. New Hampshire, 345 U.S. 395 (1953), the United States argues that it was incumbent on Benson to at least try and register his firearm, and bring any challenge to the capacity ban and registration requirements by challenging the denial of his registration application. The United States made that same argument in Plummer, and after carefully considering Poulos’s analysis, this court rejected it in this same context. 983 A.2d at 340-42. We do likewise, and view Plummer as controlling on the point.
53
A.3d 1237, 1245 n.24 (D.C. 2010) (reversing conviction for unlawful possession of
ammunition where appellant could not have lawfully possessed ammunition owing
to the District’s unconstitutional handgun ban, and the government did not make “a
prima facie showing that the defendant was disqualified from exercising his Second
Amendment rights” in any other way). So we reverse each of his convictions. 20
III. Conclusion
For these reasons, we reverse and vacate Benson’s convictions for possession
of a “large capacity ammunition feeding device,” possession of an unregistered
firearm, carrying a pistol without a license, and unlawful possession of ammunition.
20
The United States has conceded that we should vacate Benson’s conviction for possessing an 11+ magazine, though it maintains that the remainder of his convictions should be affirmed. The District alone argues that the United States’ concession moots out Benson’s constitutional challenge to the capacity ban, but that’s wrong for at least three reasons. First, as we have explained, the constitutional infirmity with the capacity ban infects all of Benson’s convictions, so the constitutional validity of the District’s ban on 11+ magazines has downstream effects for convictions the United States still defends. Second, the District has provided no indication that it intends to suspend enforcement of the 11+ magazine ban. So it appears that local police officers will continue to enforce the ban via arrests and confiscations, with the United States simply refusing to prosecute those cases, leaving this issue capable of repetition yet evading review—an exception to the mootness doctrine. Third, we have no fair assurance that the United States will not resume prosecuting these offenses if, for instance, there is a change in administration. See In re Bright Ideas Co., 284 A.3d 1037, 1042 (D.C. 2022) (“A party claiming mootness because of its voluntary cessation of conduct faces ‘the heavy burden’ of demonstrating that its challenged activity will not resume.” (quoting Mbakpuo v. Ekeanyanwu, 738 A.2d 776, 783 (D.C. 1999))).
54
Given our disposition, we do not address Benson’s Second Amendment challenges
to the District’s registration and licensure schemes, nor do we address his Fourth
Amendment challenge.
So ordered.
55
BLACKBURNE-RIGSBY, Chief Judge, dissenting:
The majority’s opinion is inconsistent with Supreme Court precedent 1 as well
as with all of the state 2 and federal 3 courts of appeal that have upheld challenges to
1
See District of Columbia v. Heller, 554 U.S. 570 (2008); New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022); United States v. Rahimi, 602 U.S. 680 (2024).
2
See State v. Bibbs, 579 P.3d 110, 112 (Haw. Ct. App. 2025) (holding that Hawaii’s prohibition on the possession of large-capacity magazines (LCMs) does not violate the Second Amendment), as corrected (Nov. 18, 2025), cert. denied, No. SCWC-XX-XXXXXXX, 2026 WL 253193, at *1 (Haw. Jan. 30, 2026); Picon v. United States, 343 A.3d 57, 63 (D.C. 2025) (holding that the District’s LCM ban does not violate the Second Amendment as applied to people between the ages of eighteen and twenty-one), pet. for cert. filed, No. 25-5713 (U.S. Sept. 24, 2025); State v. Gator’s Custom Guns, Inc., 568 P.3d 278, 280 (Wash. 2025) (holding that Washington’s LCM ban does not violate the Second Amendment), as amended (May 14, 2025), pet. for cert. filed, No. 25-153 (U.S. Aug. 6, 2025); Caulkins v. Pritzker, 228 N.E.3d 181, 191 (Ill. 2023) (rejecting the appellant’s argument that the Illinois’ LCM ban was unconstitutional because of waiver), cert. denied, 144 S. Ct. 567 (2024).
3
See Nat. Ass. for Gun Rights v. Lamont, 153 F.4th 221, 222 (2d Cir. 2025) (rejecting the appellant’s argument that Connecticut’s LCM ban is unconstitutional), pet. for cert. filed sub nom., Grant v. Higgins, No. 25-566 (U.S. Nov. 7, 2025); Duncan v. Bonta, 133 F.4th 852, 860 (9th Cir. 2025) (concluding that California’s LCM ban comports with the Second Amendment), pet. for cert. filed, No. 25-198 (U.S. Aug. 15, 2025); Capen v. Campbell, 134 F.4th 660, 663 (1st Cir. 2025) (rejecting the appellant’s argument that Massachusetts’ LCM ban is
unconstitutional); Hanson v. District of Columbia, 120 F.4th 223, 231 (D.C. Cir. 2024) (rejecting the appellant’s argument that the District’s LCM ban is unconstitutional); Bianchi v. Brown, 111 F.4th 438, 461-62 (4th Cir. 2024) (rejecting the appellant’s argument that Maryland’s LCM ban is unconstitutional); Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland Sec., 108 F.4th 194, 207
56
states’ LCM bans. Therefore, I respectfully dissent.
I disagree with the majority’s opinion on each prong of its analysis under the
two-step framework established in Bruen for addressing Second Amendment
challenges to gun laws. Under the first prong of Bruen, the majority declares that
LCMs are in common and ubiquitous use and therefore cannot be regulated or
banned because that would constitute an infringement upon Second Amendment
rights. The majority bases its common usage analysis on ownership statistics that
show only that magazines holding 11, 15, or 17 rounds of ammunition are in
common use. The majority, however, fails to contend with the reality that these
statistics do not support the conclusion that the particularly lethal 30-round
magazine, such as the one Mr. Benson possessed here, is in common use for
(3d Cir. 2024) (J. Roth, concurring) (rejecting the appellant’s argument that Delaware’s LCM ban is unconstitutional), cert. denied sub nom., Gray v. Jennings, 145 S. Ct. 1049 (2025); Bevis v. City of Naperville, Ill., 85 F.4th 1175, 1182, 1197-98 (7th Cir. 2023) (rejecting the appellant’s argument that Illinois’ LCM ban is unconstitutional); Mem. Op. & Ord., Rocky Mountain Gun Owners v. Town of Superior, Colo., No. 22-CV-02680-NYW-TPO, Dkt. No. 96 (D. Colo. Sept. 30, 2024) (denying the plaintiffs’ motion for summary judgment on claim that Colorado’s LCM ban was unconstitutional); Mem. Op., Cheeseman v. Platkin, No. 22-04360-PGS-JBD, Dkt. No. 80 (D. N.J. July 30, 2024) (concluding that New Jersey’s LCM ban is constitutional), appeal docketed sub nom., Assoc. NJ Rifle & Pistol Clubs I v. New Jersey, No. 24-2450 (3rd Cir. Aug. 9, 2024); Vt. Fed’n of Sportsmen’s Clubs v. Birmingham, 741 F. Supp. 3d 172, 216 (D. Vt. 2024) (rejecting the appellant’s argument that Vermont’s LCM ban is constitutional), appeal docketed, No. 24-2026 (2d Cir. July 31, 2024) (oral argument scheduled for the week of April 27, 2026).
57
self-defense. It simply is not.
Under the second prong of the Bruen test, the government must establish that
the “how and why” of the LCM ban is consistent with this nation’s historical
tradition of firearm regulation. The majority incorrectly characterizes the District’s
historical analogues as a second-guess of Bruen, and therefore hastily rejects them.
Rather, like the D.C. Circuit concluded in Hanson, the District’s proffered historical
analogies to the regulation of weapons that are particularly capable of unprecedented
lethality share a “why” with the District’s LCM ban because the ban “addresses the
same or similar problem.” Picon, 343 A.3d at 62. There is also similarity between
“how” the regulation of unprecedently lethal weapons and the District’s LCM ban
burden a person’s Second Amendment right because both restrict the public’s usage.
See id. By failing to adhere to the Supreme Court’s guidance that “cases implicating
unprecedented societal concerns or dramatic technological changes may require a
more nuanced approach,” Bruen, 597 U.S. at 27 (emphasis added), the majority
undermines the District’s ability to ensure public safety and regulate 30-round
LCMs, which have been used for dangerous and unlawful purposes, including mass
shootings.
The majority utilizes a novel approach to invalidate the District’s LCM ban.
The majority’s opinion conflicts with the legal framework for both facial and as58
applied constitutional challenges. Under our precedents, we can declare the LCM
ban facially invalid and unconstitutional only if Mr. Benson establishes that there
are no lawful circumstances to which the LCM ban would apply. But even accepting
that standard handgun magazines typically holding 11, 15, or 17 rounds of
ammunition are in common use, there is no similar support for 30+ round magazines.
Likewise, Mr. Benson’s as-applied challenge, for which we consider the particular
factual circumstances of his gun possession, fails too. He cannot successfully show
that the LCM ban, as applied to his possession of a gun with 30 rounds in its
magazine, violates the Second Amendment, because there is no statistical support
for concluding that such a lethal weapon is in common use for lawful purposes.
I. Legal Background
“Like most rights, the right secured by the Second Amendment is not
unlimited.” Picon, 343 A.3d at 61 (quoting Heller, 554 U.S. at 626). “From
Blackstone through the 19th-century cases, commentators and courts [have]
routinely” considered the proper contours of that right. Id. (citation modified). This
appeal continues in this historical tradition and—as illustrated herein—the issues
involved in any Second Amendment challenge that we confront are not easy.
Nevertheless, in Heller, the Supreme Court instructed that the right to arm oneself
“was not a right to keep and carry any weapon whatsoever in any manner whatsoever
59
and for whatever purpose.” 554 U.S. at 626 (emphasis added). Recent Supreme
Court cases, such as Bruen and Rahimi, have redefined the principles that guide us
in achieving the appropriate balance between individual liberty and public safety.
Bruen adopted Heller’s “methodological approach to the Second
Amendment,” Bruen, 597 U.S at 19-22, by establishing “a two-part test” for
constitutional challenges to gun-related legislation. Picon, 343 A.3d at 62. “First,
courts must determine whether a defendant is ‘part of “the people” whom the Second
Amendment protects’ and whether ‘the plain text of the Second Amendment
protects’ the defendant’s ‘course of conduct.’” Id. (quoting Bruen, 597 U.S at
31-32). “Second, if the challenger is entitled to protection under the Second
Amendment, the government bears the burden to show that the challenged regulation
‘is consistent with this Nation’s historical tradition of firearm regulation.’” Id.
(quoting Bruen, 597 U.S at 34).
Constitutional challenges to the District’s LCM ban have twice failed. The
first challenge was rejected just a little more than a year ago by the D.C. Circuit
Court of Appeals in Hanson. In Hanson, the D.C. Circuit affirmed the district
court’s denial of the appellant’s motion for a preliminary injunction because he
failed to make the “clear showing” that the LCM ban was unconstitutional. 120
F.4th at 230. In subjecting the District’s LCM ban to Bruen’s two-part test, a
60
majority of the D.C. Circuit panel in Hanson rejected the argument that
“under Bruen, to find an arm is in common use renders any restriction of that arm
unconstitutional.” Id. at 233. Yet the majority in this case adopts Hanson’s
dissenting judge’s view of the common use test as the centerpiece of their analysis
here. The majority in Hanson followed Bruen’s example of conducting “an
extended analysis of the Government’s proposed historical analogues.” Id. at 234.
The Hanson majority further noted Bruen’s explicit instruction that courts “apply
the nuanced approach” in doing so. Id. at 235 (quoting Bruen, 597 U.S. at 27)
(“While the historical analogies here and in Heller are relatively simple to draw,
other cases implicating unprecedented societal concerns or dramatic technological
changes may require a more nuanced approach.”). 4
The D.C. Circuit determined that the District’s historical analogy for its LCM
ban “comports with the principles of the Second Amendment” because “they share
the same basic purpose: To inhibit then unprecedentedly lethal criminal activity by
restricting or banning weapons that are particularly susceptible to, and were widely
4
The majority dismisses the Supreme Court’s “nuanced approach” language in Bruen as mere commentary meaning only that analogical reasoning can be difficult. The majority’s ease at downplaying the court’s express instructions is specious, given its own criticisms of the District for allegedly doing the same, based on the majority’s view that “[t]he Supreme Court tends not to speak in code and usually means what it says[.]”
61
used for, multiple homicides and mass injuries.” Id. at 240. The D.C. Circuit
accordingly held that “at this interlocutory juncture, the District has met its burden
to show its magazine cap is consistent with the Nation’s historical tradition of
firearm regulation . . . .” Id.
Courts nationwide have upheld LCM bans based on a similar rationale, and
the Supreme Court has not intervened in these cases, yet. 5 Oddly, the majority here
repeatedly cites to the dissenting opinion in Hanson but never explicitly justifies
reaching a decision here, which is contrary to Hanson’s majority’s holding.
This court rejected the second constitutional challenge to the District’s LCM
ban in Picon. Applying Bruen’s two-part test, a division of this court held that the
LCM ban as applied to persons under twenty-one was “consistent with the principles
that underpin our regulatory tradition” and was “‘analogous enough’ to historical
restrictions ‘to pass constitutional muster.’” Picon, 343 A.3d at 67 (quoting Rahimi,
602 U.S. at 691-92 and Bruen, 597 U.S. at 30). Picon holds that “the District’s
firearm laws are consistent with our regulatory tradition in why and how they burden
5
See, e.g., id., cert. denied 145 S. Ct. 2778 (2025); Bianchi, 111 F.4th at 471 (“Throughout this history lies a strong tradition of regulating those weapons that were invented for offensive purposes and were ultimately proven to pose exceptional dangers to innocent civilians.”), cert. denied sub nom. Snope v. Brown, 145 S. Ct. 1534 (2025). Of note, however, there are four cases, Picon, Duncan, Lamont, and Gator’s Custom Guns, Inc., involving LCM bans with pending petitions for certiorari currently under the Court’s consideration.
62
the right of those under twenty-one to keep and bear arms.” Id. at 66 (citation
modified). Importantly, Picon did not truncate Bruen’s two-step analysis by
deeming the LCM ban unconstitutional simply because it applies to an arm in
common use for lawful purposes. Nor did we ignore the District’s historical
analogues or suggest that analyzing them was optional. 6
Hanson and Picon made clear that the Second Amendment does not bar the
District from protecting its citizenry from increasingly-lethal weaponry, if consistent
with Founding-era history and tradition.
Contrary to the majority’s assertion that “the District is an outlier in putting
any capacity limits on magazines,” the reality is that, of the fifteen jurisdictions that
regulate LCMs, eleven (including the District) regulate LCMs to prohibit possession
of no more than ten rounds of ammunition. United States v. McIntosh, 124 F.4th
6
The majority claims that there is no tension between their decision and Picon because it accepts Picon’s reliance on the historical analogue for age-based prohibitions on arms at the founding. But the majority’s pronouncement that it’s sources for the popularity of LCMs “should be the end of this inquiry” before even turning to the historical analogs runs counter to the two-step framework provided by Bruen and greatly undermines its own claim that the majority’s opinion supports an inference that “[t]here are unquestionably regulations on 11+ magazines that would comply with the Second Amendment.” The majority, rather, dangerously paves the way for popularity contests to decide issues of public safety.
63
199, 210 n.8 (3d Cir. 2024). 7 The majority’s decision is at odds with Hanson, Picon,
and all of the state and federal courts that have rejected constitutional challenges to
LCM bans.
II. Discussion
A. Bruen Did Not Moot Our Historical Analysis
The majority claims that “[t]he only ‘historical tradition” supporting
‘complete prohibitions’ extends exclusively to bans on ‘dangerous and unusual’
weapons.” So, here, after concluding that 11+ round LCMs are arms in “common
use for self-defense,” the majority declares that no further analysis is required. But
no other court agrees that Bruen supports truncating the Second Amendment
analysis without consideration of historical analogues. Nevertheless, contrary to
courts nationwide, the majority elects to invalidate the District’s LCM ban. The
majority gives an overly broad interpretation of Bruen’s “common use” test to equate
the popularity of dangerous weapons with their constitutionality.
7
Of the four states with higher capacity limits Illinois, 720 ILCS 5/24-1.10, and Vermont, 13 V.S.A. § 4021, “restrict long guns to 10 rounds and handguns to 15 rounds.” McIntosh, 124 F.4th at 210 n.8. Colorado’s ban has “a 15-round numeric threshold[.]” Id. (citing Colo. Rev. Stat. § 18-12-301(2)(a)(I)). Finally, Delaware “defines ‘large-capacity’ as being able to hold ‘more than 17 rounds of ammunition[.]’” Id. (quoting Del. Code. Ann. tit. 11, § 1468(2)).
64
1. Bruen’s Application of Heller’s Methodological Approach Requires that
We Evaluate the District’s Historical Analogues
At issue in Bruen was a Second Amendment challenge to a New York state
law that entirely banned gun possession without a license, either in the home or
otherwise. 579 U.S. at 1. To address this challenge, the Supreme Court adopted
Heller’s methodological approach to the Second Amendment. Id. at 19. In Heller,
which involved a District law that banned handgun possession in the home, the
Supreme Court described “the right protected by the Second Amendment as bearing
arms for a lawful purpose” and said, “that the people must look for their protection
against any violation by their fellow-citizens of the rights it recognizes to the States’
police power.” 554 U.S. at 573, 620 (citation modified). Bruen then followed
Heller’s example of “relying on the historical understanding of the [Second]
Amendment to demark the limits on the exercise of that right.” 579 U.S. at 21
(citation modified). Bruen further illustrated how courts should approach this
analysis. First, Bruen instructs that “the historical tradition of prohibiting the
carrying of dangerous and unusual weapons” “fairly supported” concluding “that the
Second Amendment protects the possession and use of weapons that are in common
use at that time.” Id. (citation modified). The Court also explained that its analysis
was not meant to be “exhaustive . . . of the full scope of the Second Amendment.”
Id. (citation modified).
65
Bruen next demonstrated the second analytical inquiry in a Second
Amendment challenge: a court must “assess the lawfulness . . . by scrutinizing
whether it comported with history and tradition.” Id. at 22 (citation modified). The
court looked to Heller, which “focused on the historically unprecedented nature of
the District’s ban” and reasoned that “few laws in the history of our Nation have
come close to [that] severe restriction.” Id. (citation modified). Bruen explains that
the Court reached its decision in Heller only after evaluating the historical analogues
put forth by the dissenting Justices and concluding that all failed to match the “how
and why” for the challenged law. Id. at 29. The Court provided that “how and why”
the challenged law burdens the Second Amendment right were “two metrics” for
analyzing the “features that render regulations relevantly similar under the Second
Amendment[.]” Id. (citation modified). The Court accordingly “addressed each
purported analogue and concluded that they were either irrelevant or did not
remotely burden the right of self-defense as much as an absolute ban on handguns.”
Id. at 22 (citation modified). Following Heller’s example, the Court in Bruen
considered New York’s proffered historical analogues, but found no historical
tradition for a complete ban on handgun possession. Id. at 38-39. When the case
returned to the D.C. Circuit, the D.C. Circuit noted the popularity of 10-round
magazines but notably also acknowledged that there “may well be some capacity
above which magazines are not in common use . . . .” Heller v. District of Columbia
66
(Heller II), 670 F.3d 1244, 1261 (D.C. Cir. 2011) (emphasis added).
The majority contends that Heller supports the notion that there is no need for
“a fresh review of historical analogues” or that doing so is a second-guess of Heller’s
assessment. I disagree. Unlike the handgun bans challenged in Heller and Bruen,
we are concerned with a ban on LCMs. Nothing in Heller supports the majority’s
view that there can be no historical justification for banning popular arms, and no
other court has interpreted Heller in that way. 8
2. Courts Have Unanimously Followed Bruen’s Example When
Considering the Constitutionality of LCM bans
No court considering the constitutionality of any state’s LCM ban has adopted
the majority’s simplistic application of Bruen. Instead, courts have engaged in a
nuanced review of the historical analogues as illustrated by Bruen’s application of
Heller. There is a pattern of courts considering historical analogues across cases
even despite disagreements about the appropriateness of the “why and how” of the
government’s proffered historical analogues. Indeed, every federal appellate court
8
One prevailing view in numerous federal courts of appeals, see, e.g., Del. State Sportsmen’s Ass’n, Inc., 108 F.4th at 216, and argued by the District here is that the “common use” question pertains to only the threshold question of the Second Amendment’s applicability. See generally Bruen, 597 U.S. at 47 (“Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those ‘in common use at the time,’ as opposed to those that ‘are highly unusual in society at large.’”).
67
to evaluate an LCM ban has performed the required historical analysis.
As an example, “using the tools of history and tradition required by the
analytical framework set forth by the Supreme Court” in Heller and Bruen, the
Second Circuit upheld the LCM ban Connecticut passed in the wake of the mass
shooting in Sandy Hook where the gunman used “an AR-15-style semiautomatic
rifle, with 30-round magazines in taped reloads to reduce reload time.” Lamont, 153
F.4th at 221-22, 233 (citation modified). In upholding the Massachusetts LCM ban,
the First Circuit expressed that “on both the how and the why metrics of Bruen and
Rahimi’s analogical inquiry, . . . (as it pertains to assault weapons like the AR-15) is
part of the historical tradition that delimits the outer bounds of the right to keep and
bear arms.” Capen, 134 F.4th at 674 (citation modified); see also Hanson, 120 F.4th
at 234 (deciding that “the District’s magazine cap” is “relevantly similar to a
tradition of regulating firearms”); Bianchi, 111 F.4th at 462 (citation modified)
(“Under Bruen, we must engage in reasoning by analogy to determine whether a
historical regulation is a proper analogue for a distinctly modern firearm
regulation.”); Del. State Sportsmen’s Ass’n, Inc., 108 F.4th at 217 (citation modified)
(“Even assuming that the assault weapons and LCMs at issue fall within the ambit
of Arms protected by the Second Amendment, [there is] no doubt that Delaware’s
laws are consistent with the nation’s historical traditional of firearm regulation.”);
Bevis, 85 F.4th at 1182 (“Using the tools of history and tradition to which the
68
Supreme Court directed us in Heller and Bruen, we conclude that the state and the
affected subdivisions have a strong likelihood of success in the pending litigation.”).
State courts agree that a historical analysis is required by Bruen and have all
upheld their respective LCM bans. See Bibbs, 2025 WL 2694417, at *8 (Hawaii);
Picon, 343 A.3d at 63 (D.C.); Gator’s Custom Guns, Inc., 568 P.3d at 283
(Washington); Caulkins, 228 N.E.3d at 191 (Illinois). Likewise, even the dissent in
Duncan—which the majority cites favorably countless times—considers and rejects
the state’s proffered historical analogues. 133 F.4th at 893 (Bumatay, J., dissenting)
(citation modified) (“Neither the text of the Second Amendment nor our country’s
historical tradition of firearm regulation supports California’s magazine ban.”). At
no point does Judge Bumatay suggest that a historical analysis was optional, as the
majority appears to do here.
3. Equating the Popularity of Arms with their Constitutionality is
Dangerous
a) The Majority Opinion Contravenes Precedent
Equating the popularity of unprecedently lethal weapons with their
constitutionality threatens public safety and deviates from the legal framework of
Bruen. The majority contends that many of the District’s arguments are foreclosed
by Heller. But Heller does not foreclose anything “unless . . . the judicial mind has
been applied to and passed upon the precise question.” United States v. Debruhl, 38
69
A.3d 293, 298 (D.C. 2012) (emphasis added). As Heller involved the District’s ban
on possessing guns in the home, the application of Bruen’s two-part analysis to
different laws like the LCM ban was not before the court in Bruen or Heller. The
majority is too hasty in rejecting the LCM ban and the District’s specific arguments
in support of it, which are better characterized as “questions which merely lurk[ed]
in the record,” in Heller, as they have “neither [been] brought to the attention of the
court nor ruled upon.” Id. (citation modified). Accordingly, the District’s arguments
“are not to be considered as having been so decided as to constitute precedents.” Id.
Bruen emphasized that “cases implicating unprecedented societal concerns or
dramatic technological changes may require a more nuanced approach.” 597 U.S.
at 27 (emphasis added). Heller (as carried forward by Bruen) never purported to be
the final word on Second Amendment historical tradition, as the Court said it was
“not undertak[ing] an exhaustive historical analysis . . . of the full scope of the
Second Amendment.” Bruen, 597 U.S. at 31 (citation modified).
The majority additionally does not follow the Court’s example in Rahimi,
where it explained that its “recent Second Amendment cases” “were not meant to
suggest a law trapped in amber,” or frozen in time with the court’s Heller decision.
602 U.S. at 691. But the majority here would do just that by leaving no room for
courts to meaningfully consider the “unprecedented societal concerns” like mass
70
shootings, which prompted many states to pass their LCM bans. Bruen, 597 U.S. at
27.
Further, the majority’s approach would “trap[]” the District “in amber” by
rejecting its historical examples because their how and why’s for the LCM ban are
not an exact match with the analogues. Rahimi, 602 U.S. at 691. For instance, the
majority rejects the District’s analogue to historical regulations of Bowie knives
because the regulation was not an outright ban. But Rahimi provides that “when a
challenged regulation does not precisely match its historical precursors, ‘it still may
be analogous enough to pass constitutional muster.’” Id. at 692 (quoting Bruen, 597
U.S. at 30). “The law must comport with the principles underlying the Second
Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id. (quoting
Bruen, 597 U.S. at 30). As described by the majority in Duncan:
When criminals took advantage of technological advances
in weapons, legislatures acted to restrict an especially
dangerous use of those weapons: Bowie knives were
designed to—and did—cause significant harm in fights,
with little self-defense value, so legislatures banned their
carry outside the home; the slungshot proved incredibly
useful to criminals but of minimal value in self-defense, so
legislatures banned their carry outside the home; and
pistols became easy for criminals to conceal, to the
detriment of public safety, so legislatures banned their
concealed carry.
133 F.4th at 876; see also Hanson, 120 F.4th at 240 (accepting the District’s
71
historical analogy to the “broader regulation of weapons that are particularly capable
of unprecedented lethality,” including the regulation of Bowie knives and the ban on
sawed-off shotguns).
In sum, because the “Second Amendment permits more than just those
regulations identical to ones that could be found in 1791,” “holding otherwise” here
is “as mistaken as applying the protections of the right only to muskets and sabers.”
Rahimi, 602 U.S. at 691-92 (citation modified). Instead, as in Hanson, we should
hold that the LCM ban is analogous enough to the historical regulation of weapons
that are particularly capable of unprecedented lethality. 120 F.4th at 237.
b) The Majority’s Common Ownership Statistics are Flawed
Relatedly, the majority elects to embrace ownership statistics to support its
conclusion that LCMs are in common use. See e.g., Duncan, 133 F.4th at 883. The
majority characterizes concerns expressed by the Duncan majority about the use of
ownership statistics as a “strawman of an argument.” The District argues that “gun
manufacturers and retailers would only need to race to make their products
commonly possessed before any limitations could be enacted to forever prohibit
such limitations under the Second Amendment..” I agree with the Duncan majority
and the District that the predictable result of the majority’s view of when to engage
in the historical tradition inquiry is that the government may never regulate what is
popular. While admitting that the District’s “argument has some logical force to it,”
72
the majority ultimately dismisses the District’s concern after characterizing its
position as having been “squarely rejected” in Heller. I disagree. The majority
overstates the preclusive impact of Heller on the LCM ban.
Grappling with the foundational differences in consumer surveys is important
for the proper application of Bruen’s common use inquiry.9 Critically,
distinguishing between handguns and rifles and their standard ammunition shows
that 30+ round magazines are not in common use. First, compared to rifles,
handguns are “by far the most common type” of gun owned by gunowners that own
9
Courts must be duly skeptical of potentially shallow, scientific-sounding statistics. See Nick Thieme, Statistics in Court, 15-5 Significance 14, at 15 (Oct. 2018). The majority strikes down the LCM ban without establishing that the surveys it relies upon are supported by a proper foundation. The majority concedes the lack of foundation for its statistical authority, admitting that one of the opinion’s cited statistics “is nobody’s idea of a fair and neutral source on this topic.” The wellaccepted foundational requirements for deciding whether a consumer survey is consistent with professional survey research include:
whether (1) the ‘universe’ was properly defined, (2) a
representative sample of that universe was selected, (3) the
questions to be asked of interviewees were framed in a
clear, precise and nonleading manner, (4) sound interview
procedures were followed by competent interviewers who
had no knowledge of the litigation or the purpose for
which the survey was conducted, (5) the data gathered was
accurately reported, (6) the data was analyzed in
accordance with accepted statistical principles and (7) the
objectivity of the entire process was ensured.
Dyson, Inc. v. Bissell Homecare, Inc., 951 F. Supp. 2d 1009, 1017 (N.D. Ill. 2013) (collecting cases).
73
a single gun. Kim Parker, et al., America’s Complex Relationship With Guns, Pew
Rsch. Ctr. (June 22, 2017), https://perma.cc/EF3B-9WUP. Thus, showing that
handguns are in common use does not support concluding that 30+ round magazine
clips of ammunition are in common use. Rather, the statistics show that handguns
use magazines with a lesser capacity than rifles. Mike Navitsky, Navigating the
Differences Between Rifles and Pistols (Differences), Bastion, (Jan. 25, 2024),
https://perma.cc/DB78-JW6K. Specifically, while “standard capacity magazines are
very popular in the recreational shooting community,” Cong. Sportsmen Found.,
Standard Capacity Magazines, https://perma.cc/MBN9-VVUH, “the most popular
sizes range up to 17 rounds.” Navitsky, Differences; see also Duncan v. Bonta, 695
F. Supp. 3d 1206, 1214 (S.D. Cal. 2023) (“For handguns, the most popular sizes
range up to 17 rounds; the most popular size for rifles is 30 rounds.”), rev’d and
remanded, 133 F.4th at 852. Therefore, a handgun is not commonly or ubiquitously
equipped with a 30+ round magazine, like the one Mr. Benson possessed.
The differences in popular handgun sizes is also relevant to the common use
inquiry because it impacts our analysis of whether possession of a 30+ round
magazine is consistent with bearing arms for a lawful purpose. For instance,
“magazine capacities of full-size handguns can be upwards of 20-rounds,” and are
less commonly used for self-defense. McKenzie Hanson, Handgun Sizes Explained,
74
The Broad Side, (Aug. 25, 2023), https://perma.cc/C8PM-J7B3. 10 But compact
handguns are more ideal for concealed carry, easier to shoot, and their “magazine
capacities can be similar to that of full-size pistols, but can also be found in 10-15-round capacities.” Id. 11 A 30+ round magazine is not as commonly used with a
handgun; rather, an extended magazine clip is almost always required to
accommodate 30 rounds of ammunition, rendering it more lethal and much less
“common” for use in self-defense. See Scott Nixon, A Guide to Pistol Sizes: FullSized to Compact Options, Acad. Sports and Outdoors, (Dec. 26, 2024),
https://perma.cc/AAW7-VYQ6 (showing the standard magazine capacity of
handguns as less than 20 rounds).
Moreover, handgun statistics do not support the proposition that LCMs are in
common use. A handgun is equipped with a classic magazine and is therefore more
10
See id. (portraying a “standard or full-Size handgun”)
11
See id. (portraying a “compact handgun”)
75
practical for concealed carry and home defense, whereas a handgun with an
extension clip accommodating 30 rounds will not fit in most holsters. See id.
(“[L]arger handguns often have extended grip lengths that are usually not easily
concealable . . . .). 12 Therefore the majority relies on statistics that, at best, evidence
only the common usage of 11, 15, or 17 round magazines for standard handguns.
Because the majority does not grapple with the differences between handguns’ and
rifles’ differences in popularity, shape of respective ammunition, and design
constraints, and, most importantly, use in self-defense, the majority incorrectly
concludes that all LCMs are in common use under the first prong of Bruen.
B. The District’s LCM Ban Withstands a Facial Constitutional Challenge
In United States v. Salerno, the Supreme Court provided that a successful
facial challenge, i.e., “the most difficult challenge to mount successfully,” requires
12
See Sig Sauer, P250, P320 9MM 30RD Extended Magazine, (portraying a handgun fashioned with an extension for compatibility with a 30-round magazine), https://perma.cc/2VHA-CHD9, (last visited Feb. 19, 2026).
76
a proponent to establish that the law applies exclusively to protected conduct: “the
challenger must establish that no set of circumstances exists under which the Act
would be valid.” 481 U.S. 739 (1987) (emphasis added). Accordingly, here, because
the LCM ban applies to the possession of a clip holding more than ten rounds of
ammunition, it applies to the possession of 30+ round magazines. Even accepting
the majority’s stance that the Second Amendment protects the possession of some
magazines because they are popular—this argument only stretches so far as none of
the majority’s cited sources support the conclusion that 30+ round magazines are in
common use for a lawful purpose.
In fact, to the contrary, all of the majority’s evidence for its conclusion that
LCMs are ubiquitous suggests that 30+ round magazines are not common for
handguns, but are instead dangerous and unusual for self-defense purposes.
Specifically, one of the majority’s sources provides no statistics about the
commonality of 30+ round magazines. See William English, 2021 National
Firearms Survey: Updated Analysis Including Types of Firearms Owned, at 25 (May
13, 2022), https://perma.cc/7W8R-PJFB. Another shows that more than half of the
population possesses 11+ round handgun magazines, but less than half of the
population possesses 30+ round rifle magazines. Nat’l Shooting Sports Found.,
Detachable Magazine Report 1990-2021, at 3 (2024), https://perma.cc/FS7AYKXT.
77
Moreover, the majority decides that 11+ round magazines are in common use
based on authority showing that “most pistols are manufactured with magazines
holding ten to seventeen rounds.” Kolbe v. Hogan, 849 F.3d 114, 129 (4th Cir. 2017)
(emphases added) (citation modified), abrogated by Bruen. In Heller II, the D.C.
Circuit noted the popularity of 10-round magazines and acknowledged that there
“may well be some capacity above which magazines are not in common use[.]” 670
F.3d at 1261 (citation modified). In my view, 30+ round magazines exceed that
capacity and are not in common use for a lawful purpose.
Finally, the majority cites Duncan, 695 F. Supp. 3d at 1214, which was
vacated by the en banc Ninth Circuit, for the proposition that “the most popular size
for rifles is 30 rounds.” Even if this authority were good law, at best, it only offers
support to the majority’s popularity approach for rifles, and so it remains that Mr.
Benson cannot establish that the District’s LCM ban applies to protected conduct in
all factual applications, including the handgun equipped with a 30-round magazine
Mr. Benson possessed in this case. Moreover, even the most popular rifle comes
with a standard 10-round magazine, further evidencing the unusualness of 30+ round
magazines. See Cassandra McBride, Most Popular Guns in the U.S., Ammo.com
(Sept. 29, 2025), https://perma.cc/5LFP-SJSX (naming the Ruger 10/22, a semiautomatic rifle, the nation’s most popular gun for 2025); Ruger.com, 10/22,
https://perma.cc/8HYQ-MAPC (providing that the firearm comes standard with a 10
78
round magazine capacity) (last visited Feb. 12, 2026). 13
Mr. Benson cannot satisfy his burden of showing under Bruen that possessing
a 30+ round magazine is conduct protected by the Second Amendment. It is not.
The LCM ban applies to prohibited conduct and so it “is still validly applicable to .
. . activity within its scope that is not constitutionally protected.” Valdez v. United
States, 320 A.3d 339, 383 (D.C. 2024) (applying Conley v. United States, 79 A.3d
270 (D.C. 2013)) (holding that “the sodomy statute is still validly applicable to
nonconsensual conduct and other activity within its scope that is not constitutionally
protected”); see Capen, 134 F.4th at 674-75 (“The validity of one application means
that the Massachusetts Ban is not facially invalid.”); Caulkins, 228 N.E.3d at 18 (“A
facial challenge requires a showing that the statute is unconstitutional under any set
of facts[.]”). Said differently, 30+ round magazines are not commonly used for
lawful purposes and therefore are not entitled to Second Amendment protections.
We should therefore hold that the LCM ban is not facially unconstitutional.
See id. (showing the most popular rifle equipped with its standard 10-round
13
magazine).
79
The factual scenario of the LCM ban applying to the possession of a 30+ round
magazine is not an “idiosyncratic application” of the LCM ban as the majority
contends. Rather, the District is correct that the LCM ban is constitutionally valid
because it applies to an infinite number of ammunition magazines that are not
commonly possessed for legal purposes. 14 Indeed, the reasonableness of the
District’s analogy is evidenced by the application of the LCM ban to Mr. Benson’s
stipulated possession of a 30-round magazine. Further still, the LCM ban validly
applies to the possession of a handgun equipped with a 40-round magazine. 15 No
one has argued that such a magazine is common and ubiquitous or used for the lawful
purpose of self-defense. As there are countless scenarios where the LCM ban applies
to uncommon or unlawful possession, it is not facially unconstitutional.
14
To be clear, I engage with the stipulated facts of Mr. Benson’s offense only to illustrate the reasonable applications of the LCM ban. However, as distinguished from his as-applied challenge, Mr. Benson’s conduct does not control the outcome of the analysis of the facial constitutionality of the LCM ban.
15
Rifle Supply, ETS 40 Round 9mm Magazine (portraying a 40-round
magazine), https://perma.cc/Y99T-2XSQ (last visited Feb. 19, 2026).
80
Conley supports the argument that the District’s LCM ban applies to
constitutionally unprotected conduct. In Conley, we addressed a statute that
penalized a person for being present “in a motor vehicle if the person knows that the
vehicle contains a firearm.” 79 A.3d at 272. We declared the statute in violation of
“the requirement of notice embodied in due process,” which “‘places some limits’
on the application of these tenets when a law criminalizes ‘conduct that is wholly
passive . . . unlike the commission of acts, or the failure to act under circumstances
that should alert the doer to the consequences of his deed.’” Id. at 282 (quoting
Lambert v. California, 355 U.S. 225, 228 (1957)). We held that the statute was
facially unconstitutional because, as written, it “purports to allow the government,
in every case, to obtain a conviction by proving only what cannot by itself be a
crime.” Id. at 289 (emphasis added).
Applied here, the LCM ban is distinguishable from the law we invalidated in
Conley because there are applications where the District’s LCM ban applies to nonconstitutionally protected conduct. The majority, however, reasons that the
District’s position that the law has valid applications contradicts Conley’s
pronouncement that “we do not examine whether appellant’s conduct could have
been criminalized under a hypothetical statute.” Id. at 277. The majority further
rationalizes that Conley’s instruction that “the claimed constitutional violation
inheres in the terms of the statute” means that we cannot consider specific
81
applications of the LCM ban to the possession of 30+ round magazines for instance.
See id. This is incorrect.
First, Conley quotes Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 450 (2008) for its “hypothetical statute” language.
Looking closely at Washington State Grange shows that the Court was simply
instructing that it is not controlling whether the law could be implemented in lawful
ways or operates differently in practice than on its face—not that a plaintiff can
sidestep Salerno’s requirement to show that “no set of circumstances” would render
the law valid. 552 U.S. at 449-50 (detailing how “the State has had no opportunity
to implement I–872, and its courts have had no occasion to construe the law in the
context of actual disputes arising from the electoral context”).
Second, Conley’s assertion that “the claimed constitutional violation inheres
in the terms of the statute” comes from Ezell v. City of Chicago, 651 F.3d 684 (7th
Cir. 2011). Yet a review of the full context of Ezell shows that the court was simply
describing how, in a facial challenge, a “plaintiff’s personal situation becomes
irrelevant.” Id. at 697. 16 Ezell confirms that Mr. Benson must show that the LCM
16
In full, Ezell states:
In a facial challenge like this one, the claimed
82
ban is invalid in all applications as it provides that “a successful facial attack means
the statute is wholly invalid and cannot be applied to anyone. Chicago’s law, if
unconstitutional, is unconstitutional without regard to its application—or in all its
applications, as Salerno requires.” Id. at 698-99.
We may therefore consider all reasonable applications of the LCM ban in
assessing Mr. Benson’s facial challenge. And, because considering all reasonable
applications of the LCM ban shows that there are countless lawful applications of
the LCM ban to the possession of a handgun equipped with an extension containing
30+ magazine rounds that are particularly lethal and uncommon, the LCM ban is
therefore facially constitutional.
That leaves Mr. Benson’s as-applied challenge. “An as-applied challenge
requires that the application of the statute, by its own terms, infringe constitutional
freedoms in the circumstances of the particular case.” Dubose v. United States, 213
A.3d 599, 604 (D.C. 2019) (citation modified). “In other words, an as-applied
challenge is a claim that a statute is unconstitutional on the facts of a particular case
constitutional violation inheres in the terms of the statute,
not its application. The remedy is necessarily directed at
the statute itself and must be injunctive and declaratory; a
successful facial attack means the statute is wholly invalid
and cannot be applied to anyone.
651 F.3d at 698 (emphases added).
83
or in its application to a particular party.” Id. (citation modified).
Here, Mr. Benson has failed to show that the LCM ban is unconstitutional as
applied to the circumstances of his gun possession. Instead, Mr. Benson’s stipulated
possession of a gun with 30 rounds of ammunition in its magazine is not guaranteed
any Second Amendment protection because there is no evidence that such a lethal
weapon is in common use for lawful purposes. In sum, we should conclude that the
District’s LCM ban, as applied to Mr. Benson, did not infringe on his Second
Amendment right to lawfully possess a handgun with a 30-round magazine. Mr.
Benson’s as-applied challenge, consequently, should fail.
III. Conclusion
For the foregoing reasons, I would uphold the District’s LCM ban and affirm
each of Mr. Benson’s convictions. The LCM ban is analogous to our nation’s
historical tradition of regulating weapons that are particularly capable of
unprecedented lethality and are not in common use. Additionally, Mr. Benson
cannot show that the LCM ban is unconstitutional in all applications. Not only is
the majority’s opinion at odds with this court’s decision in Picon, and the D.C.
Circuit’s decision in Hanson, both of which upheld the District’s LCM ban, but the
majority’s opinion contravenes every other state and federal court to consider LCM
bans. The District’s LCM ban should survive Mr. Benson’s facial challenge to its
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constitutionality because there are numerous circumstances to which the LCM ban
lawfully applies. Mr. Benson’s possession of a 30-round LCM is one such example.
An extended ammunition clip capable of holding 30+ rounds is dangerous and is not
commonly used for a lawful purpose such as self-defense. The District’s LCM ban
is constitutional and should be upheld. Therefore, I respectfully dissent.