Dick Heller is at it again. Proving himself, once more, to be a Second Amendment champion extraordinaire, Heller successfully challenged Washington, DC’s ammunition carry limitation. Heller’s attorneys cited the Supreme Court’s recent Bruen Decision, which reaffirmed that gun laws must be within the history and traditions of the Second Amendment when the amendment was adopted. Ironically, Bruen reached that conclusion by citing the 2008 Heller case.
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Heller and the Washington, DC Ammunition Limit
DC’s law limited licensed concealed carriers to no more than twice their firearm’s capacity, with an upper limit of 20 rounds. So, if your carry gun’s magazine holds 10 rounds, you could carry a total of 20, including what is in the gun. If you carry a six-shooter, as Heller does, you were limited to just 12.
This limit was enacted by Metropolitan Police Chief Robert J. Contee III with no official input from DC residents’ elected representatives, which would be the City Council and Mayor. The Chief’s power to set these limits came from DC Code Section 7-2509.11(2), which allows the Chief “To establish the type and amount of ammunition that may be carried concealed by a licensee” holding a DC concealed carry permit.
In October 2014, the Chief issued a Notice of Emergency and Proposed Rulemaking, limiting concealed carry ammunition to no more “than is required to render the pistol fully loaded, and in no event shall that amount be greater than ten (10) rounds of ammunition.” This was determined by the Chief alone with no additional comment or explanation.
The Chief issued a Notice of Second Emergency and Proposed Rulemaking on March 6, 2015. This second notice doubled the ammo allowance to twice that required to fully load the pistol with the upper limit set at 20 rounds. The Chief finalized this rule in July of 2015. Again, there was never any comment or explanation for the action.
“Arbitrary and Capricious”
Heller’s new case, filed in Bruen’s wake, notes that “the District of Columbia may not ban the keeping and bearing of arms for self-defense that are not unusually dangerous, deny individuals the right to carry arms in non-sensitive places, deprive individuals of the right to keep or carry arms in an arbitrary and capricious manner, or impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment and the historical tradition of firearms regulation in the United States.”
The defendants were the District of Columbia, in the person of Mayor Muriel Bowser, and Chief Contee.
Heller’s attorneys argued that the Chief’s enactment of the ammunition limits was indeed “arbitrary and capricious,” and therefore, unconstitutional. The limits also violate Bruen’s “history and traditions” requirement since no such limits existed in 1791.
DC Has No Answer to Heller
It was soon apparent that DC’s attorneys had no answer for Heller’s complaint. They asked for an extension to prepare their case, to which Heller’s attorneys agreed, but they also requested a preliminary injunction against the ammo rule. Still unable to answer Heller, on July 14, the defendants asked for an additional 90 days to research historical trends that might help their case.
Heller’s attorneys responded by saying the District had already had enough time, especially since they knew up front that the “history and traditions” aspect of Bruen was integral to Heller’s complaint. The judge agreed in part to the extension, giving DC until September 16 to make their case.
DC Admits Defeat
On September 14, two days before the deadline, Chief Contee notified the court that he was repealing the rule. The defendants never disputed Heller’s complaint in court, knowing they would lose.
Contee announced the Notice of Emergency and Proposed Rulemaking, repealing the ammunition limits, the same day. This was likely a shrewd move from DC’s point of view. Like New York City before them, the District of Columbia’s leadership rescinded their unconstitutional rule before it could be used as legal precedent.
I say DC’s “leadership” because big city police chiefs are political appointees. They usually do the mayor’s bidding. Despite his history with the Metropolitan Police Department, Contee is no different. Muriel Bowser is extremely anti-gun and doesn’t want another far-reaching decision like the first Heller Decision. Plus, the original complaint listed Bowser as a defendant. Ultimately, the Mayor likely ordered the rule’s repeal.
This event won’t serve as legal precedent because the judge did not render a decision. It does, however, demonstrate that arbitrary Second Amendment restrictions will be hard to justify under Heller, McDonald v. Chicago, Wrenn v. District of Columbia, and Bruen. More specifically, it shows that ammo and magazine limits are arbitrary and seemingly indefensible in the post-Bruen landscape.
I expect to see similar challenges moving forward. The fact that DC was unable to even attempt a legal defense is heartening. The case won’t cause other such restrictions to immediately fall, but just like 2008, Dick Heller has shown us the way.