D.C.’s ban on 11+ magazines is unconstitutional

The D.C. Court of Appeals has struck down as unconstitutional the District’s ban on high capacity magazines for firearms.   

Specifically, the court found recently in Benson v. United States, 2026 D.C. App. LEXIS 80, that the prohibition against magazines capable of holding more than 10 rounds of ammunition – what the court refers to as 11+ magazines – violates the right to bear arms under the Second Amendment.

The finding, the court held, was the natural consequence of the U.S. Supreme Court decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and N.Y. State Rifle and Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). 

That is, whereas you might once have read the Second Amendment to protect only a collective right to keep and bear arms in connection with militias, the Court’s holdings in Heller and Bruen compel a different interpretation:  “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.”

In the longer term, D.C. will need to change its firearm laws to permit the licensing and carrying of 11+ magazines.  This, I have to say, is not a particularly comforting thought to anyone who is concerned about gun violence in the District.

In the near term, the holding has created quite a bit of confusion. 

The U.S. Attorney’s Office stopped charging the felony offense of possessing a large capacity ammunition feeding device (i.e., 11+ magazine) quite a while ago.  That decision was made in anticipation of the Benson opinion. 

So there are no open cases charging that offense to dismiss.

What have been affected are the pending carrying a pistol without a license (CPWL) in which the firearm in question involved an 11+ magazine. 

After all, if you cannot register an 11+ magazine, you cannot get a license to carry the firearm. 

This creates the weird dynamic in which only the defendants who violated the law with respect to 11+ magazines are having their cases dismissed.  More responsible defendants who abided by this part of the law are still facing criminal charges.

Many CPWL arrests are being “no-papered” (that is, not charged).  Cases in which charges have already been brought are being dismissed.

It remains to be seen what will happen to cases in which the defendant is still facing sentencing after pleading guilty to CPWL. 

Stay tuned . . .