Once again the Supreme Court said absolutely nothing in today’s orders about the “assault weapon” and “large capacity” magazine ban cases that have been heard in conference more than a half-dozen times since December, even as more Second Amendment cases are queuing up for the justices to consider.
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The District of Columbia has a long standing tradition of restrictive gun laws. Those laws include a prohibition on magazines that hold over 10 rounds. The 10 round magazine law has been winding through the courts and in the wake of a decision from the D.C. Cricut Court of Appeals, petitioners are seeking certiorari at the United States Supreme Court. The writ was filed on February 26, 2025.
In the Hanson v. District of Columbia opinion at the circuit level, the court acknowledged that there are no historical analogues to the prohibition:
Hanson claims no historical tradition, including this one, can be relevant because weapons capable of holding or shooting more than ten rounds without reloading have existed since the Founding (true) and there is no historical tradition either of prohibiting them or of regulating the number of rounds a gun could hold (true). Therefore, he argues, the District’s magazine cap is unconstitutional.
After asserting that the claims in Hanson are true, the court made the following statement:
We agree there is no narrowly described tradition of banning weapons capable of holding or shooting more than ten rounds without reloading or, more generally, of regulating the number of rounds a gun may hold. The lack of such a tradition is to be expected, however, because firearms did not have the capacity to occasion a societal concern with mass shootings or other widespread homicidal criminality until dramatic technological changes vastly increased their capacity and the rapidity of firing; there simply is no relevantly similar historical analogue to a modern, semiautomatic handgun equipped with an ELCM.
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Whether or not those statements would constitute legislating from the bench or if they qualify as an act of judicial activism is going to have to be taken up by the High Court.
The petition to the Supreme Court states “a divided D.C. Circuit panel held that magazines capable of holding more than ten rounds of ammunition are arms ‘in common use’ for lawful purposes, but it nonetheless concluded that the District may categorically ban them because they are ‘particularly dangerous,’ analogous to Bowie knives and fully automatic machine guns.”
The Supreme Court has received this petition on the heels of the Cargill case – one that affirmed the statutory definition of a machine gun. The District is going to have a hard time explaining to a court that’s well versed on what a machine gun is, how a standard magazine is similarly dangerous, unusual, and further not in common use.
“Whether the Second Amendment to the United States Constitution allows a categorical ban on arms that are indisputably common throughout the United States and overwhelming [sic] used for lawful purposes (generally) and self-defense (specifically),” is a question petitioners Hanson et.al. asked in their filing.
The plaintiffs in Hanson were seeking both preliminary and permanent injunctions. The preliminary requests were for the plaintiffs to be able to still have in possession their magazines with capacities exceeding 10 rounds, up to 17.
“Throughout this litigation, Petitioners have requested a permanent injunction,” the filing explains. “And they consistently maintained that a correct application of Heller, standing alone, would compel the conclusion that the District’s Magazine Capacity Cap must be stricken.”
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Hanson was filed by Counsel of Record Edward M. Wenger, from Holtzman Vogel. Wenger argued the case in the D.C. Circuit Court of Appeals. The case is from George Lester Lyon, Jr. from Bergstrom Attorneys, who worked on the briefs with several of his co-counsels, as well as litigated the case at the district level.
The questions of magazine capacity and other hardware bans are beyond ripe for opinion from the High Court. Post-Bruen, the court issued grant, vacate, and remand orders on hardware related cases, some of which are already re-petitioning the court. While we’re waiting to hear with anticipation what the court’s going to do with similar cases that have been re-listed for conference several times, Hanson is another that’s knocking on their door.
