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Case Analysis Legal

Hanson v. D.C. (ammunition feeding device ban) – Updated

Byawa

Jul 24, 2023

B.L.U.F. Another District Judge gets it wrong because they are another rogue judge.

Somehow, I managed to analyze this case twice. The first was back in April. The quoting is better, the references/citations are better. The snark is about the same. I believe it suggests that I’m getting a little better at this.

The first thing we notice is that judge Rudolph Contreras uses the Ocean State Tactical v. Rhode Island to get his definitions. When a multiple-round device like an LCM is attached, a handgun becomes a ‘semiautomatic’ weapon, meaning that it is capable of rapidly firing several bullets, one right after another.—HANSON v. DISTRICT OF COLUMBIA, No. 1:22-cv-02256, slip op. at 2–3 (District Court, District of Columbia) quoting the judge in Ocean State Tactical.

He also plays the language game. The law talks about “ammunition feeding devices”. He switches to “magazine” and once there talks about them as simple boxes. This is precisely the issue that the recent briefing to the Supreme Court addressed. By using the term “ammunition feeding device” throughout their brief, they make a solid case for why it is an arm and not just a box.

The good news is that the plaintiffs (good guys) did establish standing. All the plaintiffs have licenses to carry in D.C. All of them declared that but for the regulation, they would carry ammunition feed devices capable of holding more than 10 rounds. And some of them attempted to register firearms and were denied because the feed devices were “too big”.

Here we start to see the thumb on the scale On December 1, 2022, the Court permitted three nonprofit organizations, Brady, Gifford Law Center to Prevent Gun Violence, and March for our Lives to jointly submit an amicus brief in support of the District.—id. at 4. I have yet to find a 2A case where these groups don’t have their grubby fingers in there, pounding the table and attempting emotional blackmail.

Playing Stupid

The Second Amendment to the United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” U.S. Const. Amend. II. Although short, this text is anything but simple. To understand and interpret this constitutional text, the Court looks to caselaw that is relevant to the specific question at hand. As it turns out, Plaintiffs are not the first to raise a Second Amendment challenge to the District’s LCM ban: a group of plaintiffs challenged the same law over a decade ago in Heller v. District of Columbia (“Heller II”), 670 F.3d 1244 (D.C. Cir. 2011), which ultimately upheld the ban. Heller II was decided in the wake of the Supreme Court’s seminal Second Amendment case, District of Columbia v. Heller (“Heller”), 554 U.S. 570 (2008). The Supreme Court’s decision in Bruen last year, however, soundly rejected how the Courts of Appeals interpreted and applied Heller, and so calls into question the outcome of Heller II. Thus, although Plaintiffs’ challenge to D.C.’s LCM ban is not entirely new, it demands renewed analysis under the framework Bruen provides.
—id.

Double emphasis added.

It is only complicated when you are looking for what is not there. “Shall not be infringed” means don’t infringe. What aren’t you supposed to infringe on? “The right to keep and bear arms”. Whose right is it? “The People”.

Is this a BLEEP gun control regulation? Yes? Then it is an infringement. FULL STOP. Game over.

When a court looks at the plain text of the Second Amendment and starts arguing semantics, you know it will be a shitty day for the Second Amendment. He knows, we know, and the state knows that the regulation is part of gun control regulations.

The judge isn’t doing shitty pull quotes, he is giving context and using more complete quotes:

  • Heller also cautioned that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
  • the Supreme Court stated that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
  • Thus, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”
  • And the Court did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
—id. at 5

This isn’t the pull three words from here, 2 words from there and glue them together with your own words to make them mean what you want to. He still pulls the magic words from Heller that every infringing bastard hangs his particular infringement on.

As relevant here, Heller II applied this two-step approach to the plaintiffs’ challenge to D.C.’s LCM ban. At the first step, the Circuit examined “whether the prohibited weapons are ‘typically possessed by law-abiding citizens for lawful purposes.’” Id. at 1260 (quoting Heller, 554 U.S. at 625). The Circuit found it was “clear enough in the record” that LCMs are in common use and recognized that “fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.” Id. at 1261. Still, the Circuit was not “certain” “based upon the record as it st[ood]” whether LCMs were in common use for lawful purposes—that is, “whether these weapons are commonly used or are useful specifically for self-defense or hunting” and thus “whether the prohibitions … meaningfully affect the right to keep and bear arms.” Id. Ultimately, the Circuit expressly declined to resolve the first step on the merits, instead assuming without deciding that the first step was satisfied. Id.
—id. at 6

This was the game played. In this paragraph, we see that in Heller II the court got all the way to the “in common use” test and then punted. There is nothing in Heller that limits lawful use to specifically for self-defense or hunting—Memorandum & Opinion – #28 in HANSON v. DISTRICT OF COLUMBIA (D.D.C., 1:22-cv-02256), No. 1:22-cv-02256 The D.C. Circuit court added that out of whole cloth. It wasn’t there, it isn’t there, it was never part of the Heller opinion.

Today they are trying even harder with the phrase “in common use for self-defense”. There is a good reason for that change in language.

Before Bruen the inferior courts did just what the D.C. Circuit court did in Heller II, the Circuit expressly declined to resolve the first step on the merits, instead assuming without deciding that the first step was satisfied.—id.

If the courts had actually decided that ammunition feeding devices were arms in common use for lawful purposes, that would have become case law. As case law, it could have been used in other cases to build up a body of caselaw which moves more and more arms under the protection of the Second Amendment.

By “assuming without deciding” the courts were able to bypass that risk. The courts then went on to level of scrutiny.

Before Bruen the courts often did the two-step shuffle. But they almost always “assumed” the first step in favor of the plaintiffs. The plaintiffs aren’t going to appeal when the court agrees with them. No superior court would hear that appeal. The state isn’t going to appeal that opinion because they don’t care.

The courts then moved to the second stage, picked a level of scrutiny which allowed them to find for the state.

This is sad, if they had done the first step right, today we could point to Heller II and say, “The Supreme Court said that the two-step analysis was one step too far. The first step was generally consistent with Heller. Heller II said that LCMs are arms in common use for lawful purposes, satisfying the first stage of Bruen“.

We can’t. The courts never gave us anything concrete to hang our current cases on. So we do the same battles over and over again.

Again, the court uses good citing Analogical reasoning “is neither a regulatory straightjacket nor a regulatory blank check.—id. at 8

The questions

Do the plaintiffs have standing?

Yes. The Court finds that at least one Plaintiff, Tyler Yzaguirre, has demonstrated a substantial likelihood of standing because he was denied registration for a firearm on the ground that its magazine had a 12-round capacity in violation of D.C.’s LCM ban.—id. at 10 The court then continues explaining that the plaintiffs didn’t do a good job of showing they had standing, but the state didn’t argue that they didn’t. The entire section on “Do they have standing?” is purely in the court’s hands.

Does the plain text of the Second Amendment cover the individual’s conduct?

Here, the judge goes off the rails: … the first question in this case is whether the Second Amendment covers LCM possession—id. which he answers with The Court holds that the answer to the first question is no.—id.

This court knows it is on shaky ground with this opinion. We know this because the judge immediately says Although that alone resolves the case for the District, the Court will nonetheless proceed to analyze the second question and hold that in the alternative, …—id. at 10–11

When a court knows that they got it right, they don’t go to the effort to provide “even if I got this part wrong, this other part is right”.

The Court will therefore follow the persuasive reasoning of ANJRPC, Kolbe, and Duncan in concluding that LCMs are “arms” within the meaning of the Second Amendment.—id. at 14.

Are they in common use for lawful purposes?

Ok, from that quote, I’m going to guess that the court thinks that they are not in use for lawful-purposes by law-abiding people.

Plaintiffs seize on this observation as if it alone decides the question of whether LCMs are covered by the Second Amendment. It does not. Heller II’s comment was dicta because the Circuit ultimately assumed, without deciding, that LCMs were covered by the Second Amendment.—id. at 15 As I stated above. All the cases where the Circuits said that something was assumed to be protected under the plain text of the Second Amendment don’t count.

The parties unsurprisingly stake divergent positions. Plaintiffs maintain that LCMs “are overwhelmingly used for lawful purposes” such as self-defense. Pls.’ Mem. of P. & A. in Reply to Opp’n to Appl. for Prelim. Inj. (“Pls.’ Reply”) at 12, ECF No. 24.6 The District disagrees; it argues that LCMs are not in common use for self-defense for two reasons. First, it claims that LCMs’ military characteristics make them a poor fit for self-defense and take them outside the scope of the Second Amendment. Second, the District claims that law-abiding individuals do not use LCMs for self-defense because incidents where a civilian actually expends more than ten bullets in self-defense are “vanishingly rare.” Defs.’ Opp’n at 18. The Court agrees with the District on both arguments.
—id. at 16

Did you see the sleight of hand? We went from “in common use for lawful purposes” to “in common use for self-defense”, with “self-defense” defined as “shots fired”.

Most Useful in Military Service

Games abound.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
—District of Columbia v. Heller, 467 U.S. 837, 2817 (2008)

This is the only time that “most useful in military service” is mentioned in Heller

Here is how the court quoted it: Heller specifically contemplated that “weapons that are most useful in military service” fall outside of Second Amendment protection.—Memorandum & Opinion – #28 in HANSON v. DISTRICT OF COLUMBIA (D.D.C., 1:22-cv-02256), No. 1:22-cv-02256, slip op. at 16. The court didn’t get that from Heller though. Instead, they pulled the quote from —Duncan v. Bonta, 19 F. 4th 1087, 1106 (9th Cir. 2021) The Fourth Circuit concluded that, “[w]hatever their other potential uses … large-capacity magazines … are unquestionably most useful in military service.” quoting Kolbe

A plain reading of the text of Heller shows that they are not claiming that “most useful for military purposes” is outside the protection of the Second Amendment.

California asserts that the Second Amendment doesn’t extend to weapons “most useful in military service.” Heller did not establish such an exception. In fact, Heller said the opposite: the Amendment’s prefatory clause reference to the “conception of the militia” means that the right protects “the sorts of lawful weapons that [citizens] possessed at home [to bring] to militia duty.” 554 U.S. at 627, 128 S.Ct. 2783. Justice Alito squarely dispensed with California’s argument in Caetano, stating that the Court has “recognized that militia members traditionally reported for duty carrying the sorts of lawful weapons that they possessed at home, and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.” 577 U.S. at 419, 136 S.Ct. 1027 (Alito, J., concurring) (simplified).
—id. n. 22

BUMATAY, Circuit Judge, with whom IKUTA, and R. NELSON, Circuit Judges, join, dissenting

The dissents in Duncan v. Bonta are quite spectacular. I’m going to have to read them. I believe that Duncan is back at the 9th. Circuit after a GVR from the Supreme Court.

Conclusion

The gist is that this judge wanted to find for the state. He did it by finding that ammunition feeding devices are not covered arms under the protection of the Second Amendment. According to the court, they can’t be in common use for lawful purposes because the Military finds them more useful than civilians.

Bibliography

District of Columbia v. Heller, 467 U.S. 837 (2008)
Duncan v. Bonta, 19 F. 4th 1087 (9th Cir. 2021)
HANSON v. DISTRICT OF COLUMBIA, No. 1:22-cv-02256 (District Court, District of Columbia)

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2 thoughts on “Hanson v. D.C. (ammunition feeding device ban) – Updated”

  1. Can only shake my head so much at the amount of gaming and non-sense that is at play here. Your highlighted section for “but wait it actually isn’t clear” about made me spit my tea is disgust closely followed by confusion and anger at the mental gymnastics required to get to the final opinion. These people are so twisty they could eat a nail and give you a corkscrew a day later.

    Reply

    1. That’s some rather disturbing imagery.
      .
      Besides which, I don’t know there’s enough hot water and disinfectant to make me willing to use it.

      Reply

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