A panel of federal appellate judges appeared divided this week on whether a gun-control law in the District that bans large-capacity magazines should be blocked as an unconstitutional restriction on Second Amendment rights.

The U.S. Court of Appeals for the D.C. Circuit in 2011 upheld the District’s ban on large-capacity magazines, defined as those that can feed more than 10 rounds of ammunition to a firearm. A three-judge panel revisited the case for more than an hour Tuesday, hearing arguments after the District’s ban was challenged under the Supreme Court’s 2022 ruling in N.Y. State Rifle & Pistol Association, Inc. v. Bruen. The landmark decision narrowed the kinds of ways state and local governments can restrict gun ownership, upending bans on firearms and ammunition around the country.

Since 2008, the District has prohibited the possession or sale of firearm ammunition magazines that can carry more than 10 rounds. Violations are punishable by up to three years in prison and a $12,500 fine. Two months after the Supreme Court expanded the right to bear arms in the Bruen decision, a group of gun owners in the District filed a lawsuit arguing that local officials could no longer ban them from carrying large-capacity magazines.

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“The right to bear arms is to be ready for unusual situations,” Ed Wenger, an attorney for plaintiffs Andrew Hanson, Nathan Chaney, Eric Klun and Tyler Yzaguirre, argued before the appeals panel Tuesday.

Wenger, who said there was “an uptick in crime” in the District, argued that pausing to reload for a few seconds “could mean the difference between life and death” for someone who is using a weapon for self-defense.

What the District’s law defines as a “large-capacity magazine” is actually a popular magazine size across multiple U.S. states and is “overwhelmingly possessed by law-abiding citizens for lawful purposes,” Wenger said.

Judge Patricia A. Millett, an appointee of President Barack Obama, pressed Wenger to say how many cartridges a magazine could hold before a legislature could pass laws setting limits. “Ten and one in the chamber — 11 — that’s a lot,” Millett said, referring to the District’s law. “Would you agree that there’s a number of bullets that they can ban?”

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Millett said twice that a preliminary injunction blocking the large-capacity magazine ban, as the plaintiffs are seeking, would cause “irreparable harm” to the District.

Ashwin Phatak, the principal deputy solicitor general for the District, said studies showed that people using firearms in self-defense on average fired two or three shots. If the District raised the limit because people felt that larger magazines would make them safer from crime, “an arms race” would follow, Phatak said.

“They may want a machine gun for self-defense; they may want a grenade launcher for self-defense,” Phatak said. “They have not put forward any coherent theory why they need more than eleven rounds.”

Judge Justin R. Walker, an appointee of President Donald Trump, peppered Phatak with questions and at one point said his argument sounded like saying magazine limits could be raised only after “crime gets so bad that people have to shoot more than two bullets” in cases of self-defense.

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The Supreme Court majority in the Bruen decision said gun restrictions must be rooted in a “broad tradition” of historical precedents that applied across multiple states or jurisdictions during the Colonial era or were closely analogous to those early restrictions.

“I think the 10,000-foot test that comes out of Bruen is you can’t be an outlier, and your law seems like an outlier, right?” Walker told Phatak.

Judge Douglas H. Ginsburg, who was nominated by President Ronald Reagan, asked few questions of each side. The appeals panel is expected to issue a ruling on the preliminary injunction in the coming months.

U.S. District Judge Rudolph Contreras, who upheld the District’s ban on large-capacity magazines in April, and whose ruling is now being appealed, wrote in his opinion that the 10-round cap “enables law-abiding people in D.C. to possess magazines with ample ammunition to defend themselves.”

“The District’s magazine capacity limit (10) also prevents civilians from maintaining greater firepower than law enforcement,” Contreras added. “Law enforcement in the District routinely carry 15- and 17-round magazines.”

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