A 2A Debacle in D.C.: Defendant in Magazine Case Asks Court to Ignore DOJs Latest Filing

As we reported yesterday, U.S. Attorney for D.C. Jeanine Pirro is asking the D.C. Court of Appeals to conduct an en banc hearing in a case where a three-judge panel ruled the District’s ban on “large capacity” magazines unconstitutional; a move that puts her office in the same camp as anti-gun attorneys general and gun control groups from across the country. 

In her motion, Pirro actively defended the District’s gun registration requirements, arguing that the panel’s decision could also put an end to prosecutions for possessing an unregistered firearm or carrying without a license. Though Pirro herself has declined to prosecute violations of the magazine ban, her office seems to be okay with the court of appeals upholding the constitutionality of the ban if it means other gun control laws remain enforceable. 

Shortly after Pirro’s office filed her motion, the plaintiff in Benson v. United States filed a motion of his own; one urging the appellate court to disregard Pirro’s missive. 

Appellant Tyree Benson, through counsel, respectfully moves to strike the United States’ response to the District of Columbia’s petition for rehearing enbanc. The “response” is actually a petition for rehearing en banc and therefore is untimely under D.C. App. R. 40(d)(1). In the alternative, if this Court excuses the untimeliness of the United States’ request for rehearing en banc, it should afford appellant an opportunity to respond to the United States’ pleading, which was filed on the same day that appellant’s response to the District’s petition was due, and makes arguments that the District did not make in its petition.

Tyree Benson’s public defender Alice Wang argues that “just moments before” she was about to file Benson’s opposition to the District’s petition for an en banc review, “the United States filed a response arguing that rehearing en banc ‘is necessary to ‘maintain uniformity’ of the Court’s decisions and to resolve ‘a question of exceptional importance.’”

Wang reiterated her objection that the DOJ’s response is “effectively a petition for rehearing en banc,” and argued that the appellate court should treat it as such and strike it from the record for not being filed in a timely fashion. 

The public defender also notes that ordinarily, she would have 14 days to respond to a request for an en banc petition, but if the court accepts Pirro’s filing she would be unable to complete her response since she’s going to be on leave for most of that time period. Wang is asking the court to give her until May 6 to reply if they choose not to strike DOJ’s motion. That seems reasonable, but with the District urging the court to expedite its ruling on whether an en banc hearing will take place, there’s no guarantee that Wang’s request will be granted. 

Wang and her colleague Jaclyn Frankfurt also filed their brief in opposition to D.C.’s request for the rehearing yesterday, arguing that “mere disagreement with the division’s conclusion or reasoning is not a basis for en banc review.” 

The pair point out that while the panel concluded that Benson’s convictions for possessing an unregistered firearm, carrying a pistol without a license, and unlawful possession of ammunition were “infected” by the District’s unconstitutional ban on 11+ magazines, the panel “engaged in a straightforward application of this Court’s binding precedent in Magnus v. United States and Plummer v.United States and concluded “because this case does not present any of the rare situations that justify the resource-intensive and disfavored process of rehearing en banc, the District’s petition should be denied.”

Though Benson’s attorneys didn’t have the opportunity to specifically respond to Pirro’s filing; since the U.S. Attorney repeated the claim by D.C. that the panel’s decision imperils public safety by making it impossible to prosecute other gun laws when a “large capacity” magazine is implicated, the plaintiffs were able to address both DOJ’s and the District’s concerns. 

Judge Deahl addressed that claim in detail in his statement supporting the denial of expedited review. And the District has now revised the Metropolitan Police Department (MPD) firearm registration form to make clear that magazine capacity will no longer affect eligibility for registration, D.C. 28(k) Letter(Mar. 25, 2026), thus averting the “chaotic consequences” described in its petition.

In other words, Pirro’s office can still prosecute possession of unregistered firearms, carrying without a license, and illegal possession of ammunition if she wishes. The fact that those offenses are still a priority for Pirro’s office isn’t a concern for the public defenders, at least in Benson’s case, but they’re central to the complaints by Second Amendment advocates that Pirro’s stance puts her at odds with President Trump’s executive order on protecting the right to keep and bear arms. 

It is highly unusual for the plaintiffs in a case to argue that the federal government’s position should be ignored by the courts, but it’s also a rare occasion when a court agrees with the federal government about the unconstitutional nature of a law and the feds want that decision appealed and potentially overturned. I continue to believe that Pirro should be fired from the DOJ altogether for her wildly inconsistent views on the right to keep and bear arms, but given her staunch loyalty to the president, it’s not outside of the realm of possibility that she’ll be elevated instead. 

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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