The legal fight over the District of Columbia’s ban on so-called “large-capacity” magazines took another turn on April 6, when Tyree Benson asked the D.C. Court of Appeals to strike the United States’ latest filing in the case.
Earlier that day, the United States, through the U.S. Attorney’s Office for the District of Columbia under Jeanine Pirro, filed a response telling the court it is “no longer defending the constitutionality” of D.C.’s statute prohibiting possession of a large-capacity ammunition feeding device (PLCAFD). The government also said it had “moved to vacate Benson’s conviction” on that count and is “no longer prosecuting violations of that statute.”
But the government did not stop there. The U.S. Attorney’s Office urged rehearing en banc, arguing that the D.C. Court of Appeals panel went too far when it also overturned Benson’s convictions for carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition.
In its filing, the government said the panel “should not have struck down” those convictions and “erroneously concluded that the constitutional infirmity with the PLCAFD statute ‘infect[ed]’ Benson’s other firearms convictions.”
Now Benson is asking the court not to consider that filing at all. In a motion filed later the same day, Benson’s counsel argues that the government’s so-called “response” is really “a petition for rehearing en banc and therefore is untimely under D.C. App. R. 40(d)(1).” The motion states that the United States “did not file a petition for rehearing or rehearing en banc within the 14-day period” after the panel opinion and “nor did it move for an extension of time” to do so.
The District of Columbia filed its own petition for rehearing en banc on March 18. On March 23, the court ordered Benson to respond to the District’s petition by April 6 and invited the United States to file a response to the District’s petition by the same date. Benson now argues that the United States used that invitation to file something much broader than a response.
The motion points to the government’s argument that rehearing en banc “is necessary to ‘maintain uniformity’ of the Court’s decisions and to resolve ‘a question of exceptional importance,’” and contends that because the filing is “effectively a petition for rehearing en banc, it should be treated as such and stricken as untimely.”
The Justice Department has already stepped away from defending D.C.’s magazine ban. But it now argues the panel went too far in vacating Benson’s related firearm convictions.
The government says D.C. law does not actually bar registration of a firearm simply because it is outfitted with an 11-plus-round magazine. “As the D.C. firearm statutes make clear, possession of a large-capacity ammunition feeding device is not a ground for denying firearm registration,” the filing states. “Thus, there is no ‘infection.’” It also says, “The D.C. statutes provide no basis for denying registration to a firearm outfitted with an 11+ magazine.”
Pirro’s office also made clear why it wants the full court to revisit that question. Its filing warns that if the panel’s remedial analysis stands, it “will imperil approximately 300 pending CPWL prosecutions for conduct predating Benson.” It later says the ruling suggests “hundreds of pending gun cases involving pre-Benson firearms possession would have to be dismissed,” and adds that this is “before contemplating Benson’s potential effect on already-closed convictions.”
In addition, the government attacks the panel’s constitutional reasoning. The filing says the majority opinion “turned the distinction between facial and as-applied challenges on its head,” and argues that the statute should survive a facial challenge if it “is constitutional in some of its applications.”
On one hand, the federal government is no longer defending the constitutionality of D.C.’s magazine-ban statute and says it is no longer prosecuting violations of that law. On the other hand, it is still asking the full D.C. Court of Appeals to rehear the case in order to preserve Benson’s related licensing, registration, and ammunition convictions and to challenge the panel’s remedial and facial-challenge analysis.
Benson, for his part, is now asking the court to strike that filing altogether as an untimely rehearing petition, or at a minimum, give the defense additional time to respond.
The latest filing from the US Attoney’s office also raises a broader question for gun owners about Jeanine Pirro’s record on the Second Amendment.
In February, Pirro drew backlash after saying that anyone who brings a gun into Washington, D.C. could “count on going to jail,” remarks that AmmoLand’s earlier reporting said “raised serious questions” about enforcement priorities and constitutional rights. After that controversy, Pirro posted that she was a “proud supporter of the Second Amendment,” but the episode added to concerns about “a lack of authenticity” in claimed support for the right to keep and bear arms.
This new filing is likely to keep those doubts alive.
While Pirro’s office has now abandoned any defense of D.C.’s magazine-ban statute, it is still asking the court to preserve related gun convictions and limit the reach of the panel’s ruling.
Defending registration and licensing schemes might make sense to a law-and-order prosecutor concerned with conviction rates, but they make no sense to someone who truly understands and respects the Second Amendment.
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About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor to AmmoLand News and serves as part of the editorial team responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
