The legal fight over Washington, D.C.’s ban on so-called “large-capacity” magazines is not over. In a new order filed April 22, the District of Columbia Court of Appeals granted rehearing en banc in Benson v. United States, vacated the panel’s March 5 opinion and judgment, and set the case for argument before the full court.
That means the earlier panel ruling is no longer controlling, at least for now. The full court will take a fresh look at one of the most important Second Amendment cases to come out of the District in years, and gun owners should be paying very close attention.
This development did not come out of nowhere. Earlier this month, AmmoLand reported that Jeanine Pirro’s U.S. Attorney’s Office said it was no longer defending the constitutionality of D.C.’s ban on magazines holding more than 10 rounds, had moved to vacate Benson’s conviction on that count, and was no longer prosecuting violations of that statute. But the government still wanted Benson’s other convictions tied to D.C.’s licensing, registration, and ammunition laws to remain in place.
According to the order, the new briefing must focus on two questions: first, whether D.C.’s ban on magazines capable of holding “more than 10 rounds of ammunition” violates the Second Amendment, either facially or as applied, and if so, which of Benson’s convictions must be reversed; and second, whether the District’s licensing and registration requirements violate the Second Amendment. The second question is whether D.C.’s licensing and registration requirements violate the Second Amendment.
That second question matters just as much as the first, and maybe more. Magazine bans get headlines because they are easy for people to understand. A government says your standard magazine is suddenly contraband, and the constitutional problem is obvious. But D.C.’s licensing and registration regime goes to the deeper issue: whether the government can force peaceable citizens to ask permission, submit paperwork, and clear bureaucratic hurdles before they can exercise a fundamental right at all.
As AmmoLand previously reported, the District filed its own petition for rehearing en banc after the March panel decision. The United States then filed a response arguing the panel went too far when it overturned Benson’s convictions for carrying a pistol without a license, possessing an unregistered firearm, and unlawful possession of ammunition. Benson’s counsel, in turn, argued that the government’s filing was really an untimely rehearing petition in disguise.
The full court has now swept past that interim fight and put the central constitutional questions squarely on the table. The order also resets the case procedurally. Benson’s opening brief is due within 30 days of the order, the appellees’ briefs are due 30 days after that, any reply is due 21 days later, and any amicus brief must be filed within seven days of the opening brief of the party it supports. The court also said the new briefs will supersede all prior briefs and must be specifically designed for the en banc court.
There is also a practical reason the government and the District wanted this rehearing. In the earlier filing covered by AmmoLand, the U.S. Attorney’s Office warned that the panel’s remedial analysis could affect roughly 300 pending gun prosecutions and potentially reach already closed convictions as well. In other words, the concern was not just Benson. The concern was what Benson might mean for the broader machinery of D.C.’s gun-control enforcement regime.
That is exactly why this case matters to ordinary gun owners far beyond Washington, D.C. This is not just about one man’s convictions. It is about whether courts are finally willing to confront the reality that magazine bans, registration mandates, and licensing schemes are all part of the same anti-gun architecture. One prohibits what millions of Americans commonly own. The others criminalize simple possession unless the citizen first satisfies the government’s preferred process.
For now, the bottom line is simple. The March 5 panel opinion is vacated. The full D.C. Court of Appeals will hear Benson en banc. And the court has explicitly told the parties to brief not only the magazine ban, but also whether D.C.’s licensing and registration requirements themselves can survive Second Amendment scrutiny.
That is big news. It means one of the country’s most hostile gun-control jurisdictions is now headed for a full-court showdown over whether it can keep treating the right to keep and bear arms like a government-managed privilege. Gun owners should watch what happens next, because the answer will not stay confined to the District for long.
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About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor to AmmoLand News and serves as part of the editorial team responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
“The second question is whether D.C.’s licensing and registration requirements violate the Second Amendment.”
Which other right enumerated in the Bill of Rights requires permission from the government (license) to exercise? None of them. Just because the #2A is the SECOND amendment doesn’t make it a second class right.
ALL gun laws are infringements.
Make no mistake in her heart Jeanine Pirro’s is a New York anti.
She loves controlling the little people.
Pirro is blinded by her New York perspective on individual natural rights. New York is a progressive utopia hostile to the very concept of natural rights. It shows in her actions.
Simply amazing how firearm cases that the state loses in liberal jurisdictions are always granted en banc review, isn’t it?
So is Harmeet Dillon and the DOJ civil rights division going to weigh in on this and say enough is enough? This is obviously going to give SCOTUS an excuse to kick the can in Duncan v. Becerra again. You know they’re jumping for joy right now, since they don’t have to grow a spine yet.
If these communist democrats can ban magazines over 10 rounds, what’s to stop them from banning all detachable magazines? Articles have mentioned that the gun banning groups, Brady, Everytown, Gifford, next move is to ban all magazine. capacity over 5 rounds. Who is the person in DC who started the ban on magazines over 10 rounds? What is their name, address and phone number? Let’s have protesters marching in front of their house! Using bullhorns and fireworks! Protect and support your right to keep and own all types of firearms, high capacity magazines, ammo and accessories! Tell these gun banning… Read more »
How about this awful case where Jeanine Pirro left an innocent man in jail (1990 – 2006) who was railroaded by police; she kept refusing to simply test his DNA against crime scene evidence. After Pirro left office the new District Attorney authorized the DNA Testing. The man was then exonerated as the DNA belonged to a criminal who was already in jail. Jeanine Pirro ultimately cost the Westchester Taxpayer’s a man’s freedom for 16 years in Maximum Security with all related expenses, medical care, etc., as well as a $41,600,000.00 Jury Award (later the Taxpayers, not Pirro paid $10,000,000.00).… Read more »
Substitute any other natural right for “keeping and bearing arms” and the answer to the question of whether or not permits and forms can be required for their exercise becomes obvious.
I’ll say this again: Government has no right/authority to know if, when, how, or where you are exercising any of your natural rights.