Washington, D.C.'s ban on "high capacity' magazines has been on the books for more than ten years, and unfortunately it will remain in effect for at least "another term or two" (to borrow a phrase dfrom Justice Brett Kavanaugh's statement on when the Court might address a semi-auto ban). 

The ban is the subject of a lawsuit called Hanson v. D.C., which was discussed during the justice's weekly conference last Thursday. In a somewhat surprising move, the Court issued a denial of cert last Friday instead of waiting until today's orders list. It's yet another perplexing and vexing move from the Court, though the denial itself is less of a surprise given that the plaintiffs were appealing the denial of a preliminary injunction to halt enforcement of the magazine ban.

The Court has made it pretty clear going back to Bruen that it has no interest in taking these interlocutory cert petitions. Of course, we've also seen the Court unwilling to accept cases that have been heard on the merits and gone through the full appeals process too. I think it's fair to say that SCOTUS is keeping its collective powder dry on Second Amendment cases at the moment, even if the "why" is a matter of speculation and debate. 

The District of Columbia's government makes it illegal to possess or sell any ammunition-feeding device that holds more than 10 rounds, with only a narrow exception. The city's lawyers in court papers wrote that it has restricted the capacity of gun magazines "in some form for close to a century."

Washington-based U.S. District Judge Rudolph Contreras in 2023 ruled in favor of the city, finding that large-capacity magazines are not "typically possessed for self-defense," citing evidence showing that around two shots on average are fired in self-defense situations. The judge also found the city was likely to prevail in the case because it had demonstrated that its law is consistent with firearms regulation grounded in the "historical tradition" of the United States.

Contreras isn't the first judge to cite that study purporting to show that the "average" self-defense incident involves less than three rounds being fired. In ruling California's magazine ban unconstitutional, U.S. District Judge Roger Benitez wrote extensively about the issues with the research. 

 Without investigatory reports, the State’s expert turns to anecdotal statements, often from bystanders, reported in news media, and selectively studied. She indicates she conducted two studies. Based on these two studies of newspaper stories, she opines that it is statistically rare for a person to fire more than 10 rounds in self-defense and that only 2.2 shots are fired on average. Unfortunately, her opinion lacks classic indicia of reliability and her two studies cannot be reproduced and are not peer-reviewed. “Reliability and validity are two aspects of accuracy in measurement. In statistics ,reliability refers to reproducibility of results.” Her studies cannot be tested because she has not disclosed her data. Her studies have not been replicated. In fact, the formula used to select 200 news stories for the Factiva study is incomprehensible.

Bentize gave the junk science a thorough debunking that should be read in its entirety, but as he summed up the problem with the statistic:

In the end, Allen opines that an average of 2.2 shots are fired in self-defense gun scenarios and only .3% of such incidents involve more than 10 shots fired. Yet, even .3% is a lot in terms of actual times a citizen needs to fire his gun in self-defense. Using the estimate from the Centers for Disease Control mentioned earlier of 500,000 to 3,000,000 times per year nationally, and extrapolating the .3% where more than 10 shots were fired (per Allen’s report), would mean defensive gun uses of more than 10 shots happen between 1,500 and 9,000 times, every year (based on the CDC annual number of defensive gun uses cited on the website Allen cited and relied on). 

It's ridiculous that this "study" is still being cited approvingly by judges when Benitez has provided ample evidence about why it should be disregarded. Even beyond the study itself, the premise behind it is absurd. Most defensive gun uses take place without a single round being fired. Does that mean that banning loaded firearms, or prohibiting multi-shot weapons altogether would be constitutional? 

Magazines with a capacity of more than ten rounds are undoubtably in common use, and the vast majority of gun owners will use them for lawful purposes including, but not limited to, self-defense. This is an issue that the Supreme Court needs to address, and sooner rather than later. 

The good news is that the Duncan case cited above has now been fully decided on the merits in the Ninth Circuit Court of Appeals; where, to no one's surprise, the appellate court overruled Benitez and upheld the ban using many of the same specious arguments deployed to keep D.C.'s ban intact. A cert petition should be filed with the Court in a matter of days, and the justices will take up the case in conference after their summer break. 

That doesn't guarantee that Duncan will fare any better than Hanson, but at least there's another case in the pipeline, and the justices will have another opportunity to intervene and overturn these magazine bans in the not-too-distant future.