The United States has filed a Response to the District of Columbia's Petition for Rehearing En Banc in Benson v. United States, in which the D.C. Court of Appeals held the District's magazine ban to violate the Second Amendment. Applying Heller and Bruen, the court held that magazines "are unquestionably arms, they are in not only common but ubiquitous use for lawful purposes, and there is no history or tradition of blanket bans on arms in such common use…." The U.S. agrees with that, but argues that the ban should have been held unconstitutional as applied, not facially.
Mr. Benson possessed a 30-round magazine, but that number is statutorily irrelevant, as the District bans any magazine holding over 10 rounds. The court explained:
The 11+ magazine ban is facially unconstitutional because it is unconstitutional on its plain terms, not just in some idiosyncratic applications, and it is not readily susceptible to any judicial narrowing that avoids its constitutional infirmities. The fact that it captures some conduct that hypothetically could have been proscribed by a more narrow statute is beside the point. It might be that a ban on 30-round magazines, or on 100-round magazines, would pass constitutional muster. But in no sense does that mean that this law could be constitutionally applied to prosecute those who possess those larger magazines. Because this law does not require the government to prove those higher capacities, it has not drawn the line in a constitutionally permissible place.
