Unto The Breach

The United States Court of Appeals for the District of Columbia Circuit affirmed the denial of a preliminary injunction to a challenge to the District’s cap on firearms magazine capacity

After the Supreme Court’s landmark ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia revised its firearms laws to cap the capacity of firearm magazines at “10 rounds of ammunition.” D.C. Code § 7-2506.01(b). Over a decade ago, applying the then-prevailing intermediate scrutiny standard of review, we held the magazine cap did not violate the right to bear arms secured by the Second Amendment to the Constitution of the United States, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264 (D.C. Cir. 2011). Since then, the Supreme Court has rejected “means-end scrutiny in the Second Amendment context,” in favor of asking whether a challenged restriction is consistent with “the Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19, 24 (2022).

Seeing a new opening, the Appellants have charged once more unto the breach. They argue the District’s magazine cap is unconstitutional under the test set forth in Bruen and moved the district court for a preliminary injunction to prohibit enforcement of the magazine cap. The district court denied the motion. Because the Appellants have failed to make the “clear showing” required for a preliminary injunction on this early and undeveloped record, Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), we affirm the denial of their motion.

The court’s division consisted of Circuit Judges Millett and Walker (who dissented) and Senior Judge Ginsburg. (Mike Frisch)