Jeanine Pirro’s Second Amendment Two-Step

Washingtonians just notched a landmark Second Amendment victory as the D.C. Court of Appeals held the District’s 10-round limit on magazine sizes unconstitutional. Why is U.S. Attorney Jeanine Pirro — who insists that she is “a proud supporter of the Second Amendment” and who may be in the running to be the next Attorney General ...

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Washingtonians just notched a landmark Second Amendment victory as the D.C. Court of Appeals held the District’s 10-round limit on magazine sizes unconstitutional. Why is U.S. Attorney Jeanine Pirro — who insists that she is “a proud supporter of the Second Amendment” and who may be in the running to be the next Attorney General — asking the court to second-guess itself?

After decades of struggling under one of the strictest gun-control schemes in the country, residents of the nation’s capital might have expected to breathe a sigh of relief when President Donald Trump was reelected. After all, he boasts of “standing up for” the right to keep and bear arms, and his Department of Justice is taking some bold steps in that direction — including filing a lawsuit against D.C.’s ban on many semiautomatic weapons.

The Department should also be joining locals in celebrating the recent court decision in Benson v. District of Columbia. The case began when Tyree Benson was arrested for possessing a gun with a detachable, 30-round magazine. That was illegal because Benson had not registered the gun or obtained a carry license. But Benson had a compelling defense: the District would not have let him register the gun because it bans magazines that can hold more than 10 rounds — and that restriction is itself unconstitutional under the Second Amendment.

D.C.’s highest court agreed and, on March 5, a three-judge panel struck down the ban. A two-judge majority observed that “about half of the magazines in the hands of our citizenry” hold more than 10 rounds and “come standard with the most popular firearms sold in America today.” The Constitution does not let a locale ban such “arms in common and ubiquitous use by law-abiding citizens across this country.” The Benson decision now stands as a monument to common sense, protecting magazines that many Americans rely on.

Surprisingly, the court reached this decision with the encouragement of Pirro’s office. Though she had initially prosecuted Benson, she ultimately agreed that the District’s law violated his rights.

Then something even less expected happened: Pirro asked the court to press rewind. It backed the District’s request for the court to rehear the case en banc, meaning all seven of its judges would participate in the decision.

It is anyone’s guess whether Washington gunowners will manage to run the court’s gauntlet a second time. One of the three judges who heard the case the first time dissented from the decision. All four of the judges who would join the case, if reheard, were appointed by Democratic presidents. Letting the decision stand would vindicate the Second Amendment — rehearing would roll the dice with virtually no chance of achieving a better constitutional ruling.

Pirro attempted to explain her stance. While noting that she continued to believe the District law is unconstitutional, she fretted that the court’s decision went too far, saying it should have merely limited the law’s application to extremely high-capacity magazines. (Never mind that the law the court invalidated is far broader than that.) Further, she argued that the law wasn’t what kept Benson from registering his gun. Had he gone down to the station, the police could have “confiscate[d] the prohibited large-capacity magazine while registering the firearm itself.” Judge Deahl, the author of the majority opinion, deemed this poppycock, writing that the District could “with a snap of its fingers” comply with the Constitution by “no longer conditioning the registration and licensure of firearms upon their firing capacity.”

Setting aside the technicalities of D.C.’s gun-registration laws, Second Amendment advocates are wondering why Pirro is working overtime to snatch defeat from the jaws of victory. The National Association for Gun Rights said her support for rehearing “risks undermining” the Benson decision. Gun Owners of America warned: “Stop adopting anti-gun positions, DOJ!” The Reload noted that Pirro’s brief “did not even need to exist.”

This is not the first time Pirro has shown hostility toward the Second Amendment. Back in 2004, she said, “There is no legitimate purpose in possessing an assault weapon other than to kill as many people as quickly as possible.” Two months ago, she threatened: “I don’t care if you have a license in another district, and I don’t care if you’re a law-abiding gun owner somewhere else. You bring a gun into this District, count on going to jail, and hope you get the gun back.” Following backlash, Pirro put out a social media video casting herself as “a proud high-heeled gun owner.”

Those heels are doing quite the dance on the Second Amendment. Should President Trump nominate her to lead the DOJ, every American gun owner will get to know the dangers of Pirro’s pirouettes, facing an attorney general who voices support for their rights while undermining them at every turn.

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Matthew Cavedon is the director of the Cato Institute’s Project on Criminal Justice.