For roughly two-score years, the District of Columbia has done its level best to rid firearms entirely from within its borders by imposing some of the most egregious—and unconstitutional—restrictions in the Nation. In 1976, the District banned the possession of nearly all handguns by first making it a crime to possess a firearm without registering it, and then prohibiting the registration of handguns. Eventually, the U.S. Supreme Court struck down this prohibition on the basis that it violated the core right of self-defense enshrined in the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

Having been rebuffed by Heller, the District got creative. It combined one restriction—that “no persons or organization in the District shall possess or control any firearm, unless the persons or organization holds a valid registration certificate for the firearm,” D.C. Code § 7-2502.02(a)(4)—with another that forbade handgun registration for use other than “self-defense within that person’s home,” Id. § 7-2502.02(a)(4). In so doing, the District effectively attempted to ban the carrying of all firearms outside the home. This provision, however, was held unconstitutional in Palmer v. District of Columbia, 59 F. Supp. 3d 173, 184 (D.D.C. 2014).

Undeterred, the District then passed a regulation limiting the concealed carry of handguns outside the home to those who could convince the Metropolitan Police Chief that he or she had a “good reason to fear injury to [his or her] person or property” or “any other proper reason for carrying a pistol.” D.C. Code § 22-4506(a)-(b). This “may issue” rule, predictably, resulted in the issuance of very few (only 123) concealed-carry licenses in the District. This Court rightly struck that provision in Wrenn v. District of Columbia, 864 F.3d 650, 668 (D.C. Cir. 2017), because it infringed the Second Amendment.

Despite consistent reprimands by this Court and others, the District persists. Unable to (1) ban all handguns, (2) ban all handguns outside the home, or (3) exercise unbridled discretion over who may carry handguns outside the home, the District now attempts to regulate the types of arms that can be possessed by prohibiting the possession of extraordinarily common arms possessed and used for lawful purposes. Here, the District has banned the sale, possession, or transfer of any so-called “large capacity ammunition feeding device,” (“Magazine Capacity Cap”), which it defines as “a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.” D.C. Code § 7-2506.01(b) (“Plus-Ten Magazines”). Violations are a felony and can result in three-years’ imprisonment or a $12,500.00 fine. Id. §§ 7-2507.06(a)(4); 22-3571.01(b)(6).

As the district court recognized, most “semi-automatic firearms,” including the Nation’s more popular self-defense handguns, “use detachable box magazines,” which are “vehicle[s] for carrying ammunition.” App. at _ [ECF No. 28 at 2]. And this Court has already once noted that “fully 18 percent of all firearms”—not just semi-automatic handguns—“owned by civilians in 1994 were equipped with Plus-Ten Magazines holding more than ten rounds, and approximately 4.7 million more of such magazines were imported into the United States between 1995 and 2000.” Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1261 (D.C. Cir. 2011). Current estimates place the number of Plus-Ten Magazines in circulation in the United States at more than 500 million. See William English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned at 2, 20, 24-25 (May 13, 2022).

Indeed, of the top-selling semi-automatic pistols last year, all but one are sold with magazines that hold between twelve and eighteen rounds. Gun Genius, one of the larger online gun and ammunition e-commerce platforms in the world, released a comprehensive list of the best-selling firearms of 2022. Five handguns were listed among the top ten best-selling firearms. Four out of those five—the Sig Sauer P320, Sig Sauer P365, Smith & Wesson M&P 9, and Glock 19—come standard issue with Plus-Ten Magazines from the factory. All four models are marketed for lawful self-defense.

Notably, Sig Sauer, Smith & Wesson, and Glock list all four models under “home defense,” and all four models are consistently ranked among the best firearms for that purpose. National Interest called the Glock 19 the “perfect choice” for “home or personal defense.” Firearms News said that although typical self-defense scenarios will not require more than five to seven rounds, increased domestic and global uncertainty makes the Sig Sauer P365’s extended (twelve-round) magazine capacity a “huge selling point.” Reviews for handguns across every website and periodical are nearly identical in what they aspire to accomplish: effectiveness and reliability for self-defense. Increasingly, Plus-Ten Magazines have become a crucial aspect of what citizens look for in self-defense arms

In other words, the District has set an arbitrary cap on the number of rounds an individual may carry in his or her self-defense pistol, even though many (if not the vast majority of) self-defense pistols are sold to law-abiding citizens for lawful purposes with magazines that exceed the District’s arbitrary Magazine Capacity Cap.
—Andrew Hanson v. DC, No. 23-7061 (Court of Appeals for the D.C. Circuit)

Instead, the district court erroneously added an additional step to its analysis. Specifically, it formulated its analysis as follows: “[T]he first question in this case is whether the Second Amendment covers … possession” of Plus-Ten Magazines, and, “[i]f yes, the second question is whether the District’s” Magazine Capacity Cap “is relevantly similar to a historical analogue.” App. at _ [ECF No. 28 at 10]. Although the first element of the district court’s analysis is broadly consistent with the Supreme Court’s guidance, the second element is not because Heller and Bruen unambiguously state that commonly owned arms receive Second Amendment protection. This is because the Supreme Court has already conducted the historical analysis as to which arms receive protection, and it concluded that commonly possessed arms are protected while those that are “highly unusual in society at large” are not. Heller, 554 U.S. at 627-28.
—id.