Tuesday, September 20, 2022

Dick Heller Win Against DC Ammunition Restrictions

Dick Heller in front of the Supreme Court of the United States

On June 30, 2022, the Heller Foundation, along with Dick Heller and Charles W. Nesby, filed an 42 U.S.C. § 1983 and § 1988 lawsuit against the District of Columbia. The claim is that 24 DCMR § 2343.1 of the District code is unconstitutional under the Second Amendment.  The section limits how much ammunition an individual may carry for the purposes of self defense in DC.

24 DCMR § 2343.1


A person issued a concealed carry license by the Chief, while carrying the pistol, shall not carry more ammunition than is required to fully load the pistol twice, and in no event shall that amount be greater than twenty (20) rounds of ammunition.

Before the case came to trial, the District of Columbia folded, repealed 24 DCMR § 2343.1, and asked for a stay while they negotiate a settlement with the Heller Foundation. From the Defendant's Notice of Repeal:

Defendants provide the attached Notice of Emergency and Proposed Rulemaking by the Metropolitan Police Department, promulgated on September 14, 2022. See Exhibit A ( Notice of Emergency and Proposed Rulemaking). It was effective immediately on signature and will be published in the September 23, 2022 edition of the D.C. Register.1 The Notice repeals the ammunition limit challenged here, 24 DCMR § 2343.1. Date: September 14, 2022

The Court granted a stay until October 17, 2022. During that time, the parties are to work on a negotiated settlement.  From the Joint motion to stay litigation:

Plaintiffs Dick Anthony Heller, Charles W. Nesby, and the Heller Foundation, and Defendants District of Columbia and Robert Conti, Chief of the Metropolitan Police Department (collectively, the Parties), jointly move to stay this litigation until October 17, 2022. The Parties are discussing settlement and need additional time to pursue a potential resolution that would avoid further litigation. To facilitate these efforts, the Parties request that the Court stay this matter until October 17, 2022, and order the Parties to submit a joint status report by October 17, 2022, updating the Court on the status of any settlement negotiations and whether a further stay of proceedings is warranted. A memorandum of points and authorities and the text of a proposed order are attached. Date: September 14, 2022

While this appears to be the end of the DC ban on how much ammunition may be carried for self defense, it seems likely the District of Columbia knew this case was a loser for them. They may have wished to prevent a court loss, which might have been used as precedent in future cases.

The District of Columbia still has a ban on magazines which hold more than 10 rounds of ammunition. It is D.C. Official Code § 7-2506.01:

 (b) No person in the District shall possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm. For the purposes of this subsection, the term “large capacity ammunition feeding device” means 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. The term “large capacity ammunition feeding device” shall not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.

The entire docket of the case can be accessed at the Court Listener Docket.

The ban on magazine capacity over 10 rounds is being litigated in several cases. It appears likely the ban will be struck down by the courts, as there is no history of widespread or national bans on magazine capacity before 1989, when California adopted a controversial ban on commonly owned rifles and magazines which held over 10 rounds.

Judge Roger T. Benitz stuck down the ban in 2019. The three judge panel in the Ninth Circuit agreed with Judge Benitez. Then the Ninth Circuit heard the case en banc, and reversed Judge Benitez and the three judge panel. The case was appealed to the Supreme Court. After Bruen, the Supreme Court reversed the Ninth Circuit en banc panel, and told them to hear the case again.

It is very likely magazine bans will be found unconstitutional for the entire United States, including the District of Columbia.

Dick Heller and the Heller Foundation continue to chip away at Second Amendment infringements. This incremental approach has been shown to be effective.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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