Ammunition Ban Violates Second Amendment

Eugene Volokh highlights a recent DC court decision on the constitutionality of banning or restricting ammunition as a means of circumventing the Second Amendment.

Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C. Code § 7–2506.01 (2001) (now § 7–2506.01(a) (Supp. 2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home….

What is now subsection (a) of D.C. Code § 7–2506.01 provides as follows:

No person shall possess ammunition in the District of Columbia unless: …

(3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; except, that no such person shall possess restricted pistol bullets; …

[F]rom the Court’s reasoning [in Heller], it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it “impossible for citizens to use [their handguns] for the core lawful purpose of self-defense.” By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion….

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