Last week a court decision (well, actually a decision on a motion for preliminary and permanent injunction) was handed down in the case of Andrew Hanson, et al., v District of Columbia. Mr. Hanson was challenging the District of Columbia’s ban on standard capacity magazines. If this sounds similar to the case we have been watching in Duncan v Bonta, you are perceptive. It is essentially the same statute being challenged.
Hanson is being heard by Obama appointee, Judge Rudolph Contreras, and he clearly does not share the same reverence for the Constitution as Judge Benitez does. What is interesting though (and what might prove his undoing) is that he has essentially written a template argument for State actors to make in their efforts to prove a gun control statute… any gun control statute… is still perfectly fine and Constitutional in a post-Bruen environment.
Judge Contreras also lays out a logical flow of legal consistency that is not only fatally flawed but, ironically, might finally rid ourselves of a particularly noxious opinion (Kolbe v Maryland) when his decision is finally brought up on appeal.
There is much to discuss here… so let’s begin:
What is Hanson about and how did we get here?
So… as I mentioned above, Mr. Hanson sued D.C. claiming its Magazine Control Act (which bans the possession of standard capacity magazines) violates his civil rights. He filed a motion with the Court to issue a preliminary and permanent injunction. The Court ruled on the motion (incorrectly) after performing a “Bruen” test to determine the Constitutional validity of the statute.
NYRSRPA v Bruen
Okay… so by now you probably know what Bruen is, but here’s a refresher: Under the recently decided Bruen test, the Court first determines if the proscribed conduct (in this case possessing standard capacity magazines) implicates the Second Amendment. The burden of proving that falls on plaintiffs challenging the law. If they overcome that hurdle the burden then shifts to the State for part two of the analysis. To show the law is in fact Constitutional they must show the law is consistent, or analogous, to the history, text, and traditions of firearms regulations that were present at the time of the ratification (1792). If they are not able to make that argument, then the law is unconstitutional.
So… Mr. Hanson argued magazines are in fact covered by the Second Amendment. D.C. countered they are not. They are merely “accoutrements”. (Fortunately, the judge found this argument by D.C. unpersuasive.) He did, however, come up with a bizarre analysis of why the Second Amendment does not apply here, and I suspect lays down the foundational argument for other attorneys arguing that gun control laws are perfectly acceptable.
Judge Contreras bases his argument on a combined and fatally flawed analysis of “common use” and “military applications”. For this we need to look at some precursor cases starting back in 1939.
U.S. v Miller
In 1939 Mr. Miller was arrested for brining a sawed-off shotgun across state lines in violation of the NFA (National Firearms Act). He argued the act itself was unconstitutional and violated his Second Amendment rights. The Supreme Court disagreed. They wrote that the Second Amendment only protects weapons uniquely usable for militia service. (Essentially, they must have a “military value”.) The court found that sawed-off shotguns have no military application. (We can disagree on this statement with the Court, but let’s stay with it for a minute.)
Okay… so from 1939 until 2008 we knew weapons having a “militia, or military application value” are protected by the Second Amendment. Cool… then we get Heller.
Heller v District of Columbia
Heller focused on the flat-out prohibition of having any handgun in your home if you lived in D.C. The court opined that in determining if the Second Amendment applied to a weapon, the weapon must be in “common use”. More importantly, it clarified Miller. It said the weapon must be in “common use” (ie: use for lawful purposes). It said that “common use” arms are, by definition, viable tools for use in the militia.
(This incidentally is how the Court was able to thread the needle on the argument of why the Second Amendment does not apply to nuclear bombs or missiles… while they may have a viable militia purpose, they are not in “common use”.)
It was the entirety of the phrase though: “common use for lawful purposes SUCH AS self-defense” (emphasis added) that has created the sloppy legal decisions going forward, specifically in Kolbe.
Kolbe v Maryland
Kolbe was a challenge to the State’s “assault weapons laws”. Kolbe challenged the Constitutional validity of a ban on “black, scary rifles” and the Court said it is perfectly fine. They reasoned Heller stated the Second Amendment only applies to weapons NOT SUITED TO MILITA SERVICE!
That is expressly NOT what Heller said! It simply limited the scope of the Second Amendment to weapons that are suitable for militia service AND are in common use (for lawful purposes). This is why Kolbe has often been called an “outlier case”… a pleasantly respectful way of saying the Court completely blew it.
Back to Bruen
So, in Hanson, Judge Contreras makes the argument that Kolbe is not an outlier case. He thinks they got it perfectly correct. He completely ignores Miller and states the Second Amendment only applies to weapons expressly not suited to militia service, and he believes standard capacity magazines only have military applications. More importantly, he seems uniquely focused on the second part of the “common use” doctrine “for lawful purposes such as self-defense”. His fundamental flaw is that he completely ignores the two words “such as”. In his world he believes the ONLY lawful purpose of non-militia appropriate firearms is for self-defense. More importantly, he believes self-defense is the direct kinetic act of putting holes in an attacker.
There is a variety of lawful uses for firearms (and magazines) that has absolutely nothing to do with self-defense, competition shooting, plinking, hunting, wildlife management, education, training, are just a few. All of these are “lawful uses” and all see the presence of standard capacity magazines in common use.
Additionally, the act of self-defense is a continual one. A firearm is “in use” when it is readied for the potential use against an attacker. Every CCW holder who carries a gun is engaged in Second Amendment protected conduct specifically because the weapon is “in use”. The fact it is hidden in a holster bears nothing on the fact it is “in use”.
Because Judge Contreras found self-defense shootings where more than ten rounds are expelled by a victim are very rare, he found they were not in “common use”, completely ignoring the “use” on a daily basis of standard capacity magazines at ranges and afield across America.
So, in his opinion, since the magazines are not in “common use” and since they only have a “militia” value… the Second Amendment does not apply to them.
I am sure that AG Bonta is looking at this case and salivating. I am also sure that St. Benitez will issue a ruling soon that completely shreds Judge Contreras’ reasoning. What happens at the appellate level remains to be seen, but I would not be surprised to see these cases make their way back to the Supremes.
Then… hopefully the illogical reasoning of Judge Contreras and the idiocy of Kolbe can finally be put in the ash bin of history where they belong.