A U.S. District Judge in Washington, D.C. has declined to grant an injunction against the city’s ban on “large capacity” magazines, ruling that while magazines in general are “arms” protected by the Second Amendment, LCMs fall outside of the scope of the amendment because they’re a “poor fit” for self-defense purposes.

The challenge to the District’s magazine ban, known as Hanson v. D.C., involves four legal gun owners from D.C. who all say that they would possess and carry “large capacity” magazines in their firearms if they weren’t banned by law. The District’s prohibition comes complete with a potential three-year prison sentence, though it’s unclear how often that sentence is handed down in practice, especially with D.C. prosecutors routinely deciding to decline charges in many illegal gun possession cases.

Even though the D.C. Attorney General’s office is taking a mostly hands-off approach to illegal gun (and magazine) possession, the ban remains on the books and was defended in court by D.C. officials, who maintain that magazines aren’t “arms” at all, but accessories that aren’t protected by the Second Amendment. U.S. District Judge Rudolph Contreras, an Obama appointee, rejected that argument in his opinion, but agreed with the District on its fallback argument that LCM’s are most suitable for military purposes and are not used in self-defense because “because incidents where a civilian actually expends more than ten bullets in self-defense are “vanishingly rare.” From the opinion (citations omitted):

Heller specifically contemplated that “weapons that are most useful in military service” fall outside of Second Amendment protection.

Plaintiffs counter that “the Supreme Court’s precedents do not withhold protection from arms merely because they are useful in militia service.” Pls.’ Reply at 15. That may be true, but it is beside the point. Heller established that weapons that are “most useful in military service” are excluded from Second Amendment protection. “Most” is a superlative. A weapon may have some useful purposes in both civilian and military contexts, but if it is most useful in military service, it is not protected by the Second Amendment.

I’ve gotta say, that’s giving a lot of weight to Scalia’s phrase about “weapons that are most useful in military service”, especially since Contreras contradicted himself by pointing to the benefits of LCM’s for civilian law enforcement.

The judge simultaneously says that magazines over 10 rounds are "most useful in military service" and also that the ban "keeps the advantage police have over armed civilians who may be suspects or engaged in criminal activity." https://t.co/TajMhtFoAI

— Rob Romano (@2Aupdates) April 20, 2023

Contreras also quoted the Ninth Circuit’s claims that because studies have shown that the average defensive gun use involves far fewer than 10 rounds being fired, “the added benefit of a large-capacity magazine—being able to fire more than ten bullets in rapid succession—has [virtually n]ever been realized in self defense.” Since it’s supposedly rare to need more than three rounds in a defensive gun use situation, Contreras says it’s perfectly okay for the District to ban magazines that can hold more than ten rounds, but failed to provide a real argument why the District couldn’t impose a ban on ten rounds (or less) going forward.

Plaintiffs protest that the District’s reasoning would allow it to “justify a ban on all firearms able to fire more than two or three shots” because “on average, only 2.2 shots are fired by defenders.”

But no such ban exists anywhere in the country, and the Court doubts that the District will see this as an invitation to go down Plaintiffs’ slippery slope. Recall that the studies show that two bullets is merely the average amount of bullets fired in self-defense situations; thus, a law that restricts magazine capacity to say, five or six bullets, might meaningfully hinder the common and lawful usage of magazines for self-defense. In any event, this is not a case that requires the Court to delineate the constitutional limits of a hypothetical restriction. It suffices to say that the District’s LCM ban, which limits magazine capacity to ten bullets, enables law-abiding people in D.C. to possess magazines with ample ammunition to defend themselves

In other words, there’s nothing stopping the District from imposing a ban on magazines that can accept more than three, four, or five rounds. Contreras might doubt the District or another anti-gun locale would adopt such a restriction, but he’s given them the green light to do so.

As far as Contreras is concerned, that’s the end of the discussion. “Large capacity” magazines aren’t protected by the Second Amendment, so the District’s ban can remain in place. But the judge went a step further and also weighed in on the supposed historical analogues justifying the ban, pointing to U.S. District Court Judge Karin Immergut’s decision upholding Oregon’s magazine ban imposed by Measure 114 that found “large capacity” magazines “implicate unprecedented societal concerns” like mass shootings.

Turning to historical analogues, Oregon Firearms Federation observed that “in the 1800s, states often regulated certain types of weapon, such as Bowie knives, blunt weapons, slungshots, and trap guns because they were dangerous weapons commonly used for criminal behavior and not for self-defense.”

The court also found a historical tradition of banning private military organizations as evidence that “demonstrates the government’s concern with the danger associated with assembling the amount of firepower capable of threatening public safety—which, given firearm technology in the 1800s, could only arise collectively.”

The court found that Oregon’s LCM ban was “comparably justified” with these historical regulations because just as the historical regulations were rooted in public safety concerns, the LCM ban “consider[ed] the public safety concerns of today” in “the rise in mass shooting incidents and the connection between mass shooting incidents and large-capacity magazines.” And Oregon’s ban placed a “comparable burden” as the historical regulations on the right to self-defense: the burden was “minimal,” the court explained, because “in over seven hundred self-defense incidents, less than one half of a percent involved more than ten shots.”

Using “public safety concerns” as a backstop to uphold the constitutionality of any or all gun control laws is just another attempt by lower courts to get around the interest-balancing test deployed in the wake of the Heller decision; an approach SCOTUS squarely rejected in Bruen last year.

No matter how Contreras tries to dismiss or downplay the fact that “large capacity” magazines are owned by tens of millions of Americans for a variety of lawful purposes, the reality is that these arms are in common use for lawful purposes. Today’s decision is incredibly disappointing, but I have a feeling that the Supreme Court is going to reach a very different conclusion when a magazine ban case reaches the justices.