Litigation Highlight: Federal Judge Upholds D.C. Law Banning Large-Capacity Magazines

On April 20, a federal judge in the District of Columbia denied a motion for a preliminary injunction of a Washington, D.C. law banning the possession, sale, and transfer of magazines capable of holding more than 10 rounds of ammunition in Hanson v. D.C.  The decision continues a trend of federal courts upholding large-capacity magazine, or LCM, bans under Bruen (we previously covered decisions from Oregon and Rhode Island reaching the same result).  These courts have, for the most part, applied Bruen at a relatively high level of generality and determined that historical laws regulating “dangerous” weapons more broadly evince a historical tradition supporting a modern ban on large-capacity magazines. 

In Hanson, the plaintiffs each possess D.C. concealed carry permits, regularly carry firearms, and allege that, “but for D.C. law banning LCM possession in D.C., [they] would use LCMs for self-defense.”  District Judge Rudolph Contreras first summarized the relevant legal background (including a 2011 D.C. Circuit decision upholding the D.C. ban in question pre-Bruen with a dissent from then-Judge Brett Kavanaugh, known as Heller II) and Bruen.  The judge then considered whether a ban on possession of LCMs implicates the Second Amendment.  Judge Contreras first determined that LCMs constitute “Arms,” and not mere “accoutrements,” because “the Second Amendment covers not just possession of a firearm, but the sorts of things that make a firearm operable.”  Here, the judge observed that accepting the government’s position that magazines are not “Arms” would make all magazines subject to a categorical ban. 

Next, Judge Contreras addressed whether LCMs are “typically possessed by law-abiding citizens for lawful purposes.”[1]  The judge rejected the plaintiffs’ argument that the mere number of LCMs that are privately owned automatically renders LCMs in common use for lawful purposes, emphasizing that part of the inquiry is how LCMs are used (not just whether they are commonly possessed).  Judge Contreras noted decisions from the Fourth and Ninth Circuits—both pre-Bruen—determining that LCMS are “most useful in military service,” and also cited to expert and scholarly sources for the proposition that LCMs (and some firearms) were initially developed for and used in military applications, and remain most useful in the military context.  Therefore, the judge concluded “that LCMs are not covered by the Second Amendment because they are most useful in military service.” 

Despite holding that the Second Amendment does not cover arms, such as LCMs, most useful for military applications, Judge Contreras continued on to examine whether—if covered as a definitional matter—LCMs are typically possessed and used for lawful purposes such as self-defense.  Here, the judge cited studies regarding the average number of shots fired in instances of defensive gun use that indicate, according to the judge, a 2.2 shots per incident figure that “has remained exceptionally stable over time.”  The judge also rejected the plaintiffs’ argument that an LCM might be “used” for self-defense purposes even if only 2-3 bullets from the magazine are fired.  Therefore, Judge Contreras concluded that LCMs are not only outside the scope of the Second Amendment because they are most useful in military service, but also “because they are not typically possessed for self-defense.” 

Judge Contreras proceeded to conduct Bruen’s historical analysis in the alternative, ultimately determining that, “[e]ven were LCMs covered by the scope of the Second Amendment, . . . D.C.’s ban is constitutional for the independent reason that the District has shown that it is consistent with this country’s historical tradition of firearm regulation.”  The judge first adopted the analysis in Oregon Firearms Federation vs. Brown (which we covered here) and found that LCMs implicate both dramatic technological change and unprecedented societal concern related to “their frequent use in mass shootings.”  The judge credited D.C.’s evidence that widespread commercial availability of LCMs is a distinctly modern phenomenon and that “such weapons [previously] amounted to little more than experimental curiosities” not possessed by any significant percentage of the population.  The opinion also concluded that large-scale mass shootings (and legislative and societal concern surrounding those events) are a modern phenomenon.  

Under the more nuanced analysis that applies when these factors are present, Judge Contreras found that state machine gun bans passed in the 1920s and 1930s, which often covered “semi-automatic weapons capable of shooting a certain number of bullets without reloading,” were historical analogues to D.C.’s law.  He held that these laws closely “resemble D.C.’s ban today” because they similarly placed only a light burden on self-defense and were justified by public safety concerns related to “the growth of gangster and criminal organizations.”  Judge Contreras wrote that his reliance on 20th century history was appropriate under Bruen—in his view, that history does “not contradict any earlier evidence . . . because semiautomatic and high-capacity weapons were not technologically feasible and commercially available in meaningful quantities until the early 1900s.”  

The opinion in Hanson finds in favor of the District at three separate points within the Bruen test: the judge holds that LCMs are not the type of “Arms” protected by the Second Amendment because they are most useful in the military, that LCMs are not typically possessed by law-abiding citizens for lawful purposes (a judicially-created coverage standard), and that the LCM ban is supported by historical tradition.  I think Judge Contreras' approach to "common use" is correct at a high level—the standard requires some evidentiary submission regarding how weapons are actually used, rather than simply absolute ownership statistics.  Yet it’s not clear to me how the judge’s conclusion about military usefulness alone supports the exclusion of LCMs on that basis.  Hanson relies heavily on the finding “that LCMs are best suited for military and law enforcement use”—but the fact that LCMs may have been initially created for and marketed to the military does not necessarily mean that they are only, or most, useful in the military context today.  This would seem to be largely in the eye of the beholder, and it is unremarkable that a weapon or accessory that was originally developed for and used predominantly by the military (due to cost, availability, or for other reasons) later finds its way into widespread civilian use.  The fact that a firearm or magazine was originally used predominantly by military personnel, however, should not automatically place it entirely outside the scope of the Second Amendment—that makes little sense and would potentially sanction much broader prohibitions on commonly-used firearms.  In other words, Hanson places too much emphasis on the historical origins of LCMs when the correct inquiry is to determine whether they share functional characteristics with “purely” military weapons like M-16s and other fully automatic weapons—and the answer there may well be “no.”

Hanson is also notable for relying primarily on 20th century laws at the second, historical-tradition, step of the Bruen analysis.  If one accepts that a more nuanced inquiry should be used in challenges to LCMs or assault weapons bans because these weapons represent “dramatic technological changes” or implicate “unprecedented societal concerns” (I think that’s likely correct, but certainly debatable), Bruen is best understood as requiring a more flexible historical-analogical inquiry rather than an inquiry that relies on laws enacted closer in time to the present day.  While there is some logical appeal to relying on Prohibition-era bans that covered very similar weapons or accessories (those laws are a tighter analogue), Bruen suggests that a majority of Justices are skeptical of using such recent history to interpret a constitutional provision ratified in 1791.  This skepticism is likely to be amplified in challenges to laws passed by the federal government or D.C., where the Founding Era (not 1868) is more likely the correct historical reference point.  Therefore, I think the analysis in Hanson probably misses the mark by focusing too heavily on 20th-century laws.

A recent decision from the District of Delaware upholding that state’s LCM ban (as well as an assault weapons ban) similarly concluded that LCMs implicate dramatic technological changes and unprecedented societal concerns.  The March 27 decision in Delaware State Sportsmen’s Association, however, first catalogued historical regulation of Bowie knives, billy clubs, and revolver pistols (as well as the Prohibition-era bans invoked by Hanson) before finding the Delaware law consistent with historical tradition.  I think the analysis in Delaware State Sportsmen’s Association is required by Bruen: courts can't jump ahead to 20th-century history even if the case implicates technological or societal changes; rather, they first need to consider earlier history and gauge its consistency with laws that first appeared in the 1900s.  That said, the relevance of 20th-century history is ultimately a major interpretive uncertainty lurking within the Bruen test on which lower courts are likely to disagree.  The footnote explaining the Supreme Court’s decision to disregard New York’s 20th-century evidence in that case limits its application to instances where newer evidence “contradicts earlier evidence.”  Yet, in her short concurrence, Justice Barrett seems unsure about relying on any recent evidence because she questions how this evidence fits doctrinally into any originalist undertaking focused on Founding-Era public understanding.  As Professors Larry Solum and Randy Barnett observe, Bruen’s rejection of 20th-century evidence is one powerful sign that “the majority opinion was indeed an affirmation of the originalism of Heller.”  But how later-in-time evidence fits into the “more nuanced” approach referenced by the Court is left unclear. 

[1] Bruen refers to “modern instruments that facilitate armed self-defense.”  Hanson does not analyze whether this formulation is shorthand for weapons “typically or commonly used” for self-defense, or potentially broadens the scope of the Second Amendment in some way.