DC Judge Contreras Holds Standard Capacity Magazines are "not in common use for Self Defense"

In the case of Hanson v. District of Columbia, in the District Court of the District of Columbia, on April 20, 2023, federal Judge Rudolf Contreras issued an opinion holding standard capacity magazines which hold more than ten rounds of ammunition are not protected under the rights which the Second Amendment was written to protect. Judge Contreras acknowledges magazines which hold more than ten rounds are in common use in the United States of America. Judge Contreras acknowledges magazines which hold more than ten rounds are arms as defined by the words of the Second Amendment.

Judge Rudolf Contreras goes to great lengths to determine magazines which hold more than ten rounds are *not * included under the rights  by the Second Amendment. The linguistic juggling to accomplish this difficult task is impressive, not to mention the stretching and twisting of logic.

From the opinion:

More importantly, Heller II recognized that whether LCMs are “in common use” is merely the beginning of the analysis. The full inquiry is “whether the prohibited weapons are ‘typically possessed . . . for lawful purposes.’” Heller II, 670 F.3d at 1260 (emphasis added) (quoting Heller, 554 U.S. at 625). On that critical question, Heller II expressed uncertainty: “based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense[.]” Id. at 1261 (emphasis added). That is the question this Court must now resolve.

The simple and straightforward understanding of whether magazines with a capacity of over ten rounds are typically in common use for lawful purposes is clear. There are tens or hundreds of millions of such magazines in the United States. If they were typically possessed for unlawful purposes, the crime committed with them would be astronomical. But crime with them is not astronomical. The mere fact of common possession equates to common use. Judge Contreras is working very hard to limit the term "common use" to only those uses specifically documented on the record, for self defense.  From the opinion:

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.

This is exactly the means-end type of argument which Bruen prohibits. The government is not allowed to decide whether a typical arm is useful for self-defense or not. If the arm is in common use for lawful purposes (not just self-defense), it is protected.

The other bizarre claim is arms which are useful for military purposes, such as use by a militia, are not protected under the Second Amendment. All scholars agree the Second Amendment protects arms which are to be used by a militia. The vast preponderance of scholarship is: one purpose of the Second Amendment is to preserve an armed population, which could bring their arms to service in a militia, when the need arises. Arguments which claim arms useful to a militia are explicitly excluded from protection by the Second Amendment are counterfactual to the text of the Amendment itself.

Opinion:

Judge Contreras may be working to clarify Bruen further, by prompting the Supreme Court to note magazines holding more than ten rounds are obviously useful in militias, for the common defense.  It seems unlikely. Judge Contreras is Heller II as precedent in the DC circuit, without considreing it to be overriden by the Bruen decision.

Judge Contreras fails to mention the opinion of  Judge Benitez in the Ninth Circuit.  Judge Benetiz considers AR15 rifles to be excellent militia arms. Militias, under the Second Amendment, are to be drawn from an armed population. Progressive judges and scholars have, for decades, declared the Second Amendment only protects use of arms in a militia. Now they declare military uses of arms are not protected by the Second Amendment. Progressive (leftist) ideology is never hindered by logic or facts. Only the political goals of the moment are considered important. Power over others is the singular consistent goal of progressive ideology.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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