On July 17, the Third Circuit declared New Jersey’s ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment. The case is Ass’n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (AJNRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman. This is the first circuit court decision to invalidate an “assault firearm” and magazine ban.
Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay. My thought is that another good reason to decide the case is Justice Kavanaugh’s statement in the Snope cert denial that further appellate decisions will be forthcoming that “should assist this Court’s ultimate decisionmaking on the AR–15 issue.” All of the other circuit decisions have upheld bans.
The common-use test, which derives itself from the historical tradition of the banning of “dangerous and unusual” weapons, is the focus of AJNRPC. First, “in common use” refers to “common use for lawful purposes at the time of the modern restriction.” Second, “lawful purposes” refers not just to self-defense, but to hunting and other lawful uses including mere possession. Third, such use excludes a “dangerous and unusual” weapon.
Criticism of the common-use test as “a popularity poll” disregards that the Supreme Court requires this test, and “the popularity of the restricted weapons bears on [the] question” of common use for a lawful purpose. Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.
“Bruen‘s first step is fundamentally a textual inquiry,” but the common use inquiry is not located there. It neither appears in the Second Amendment’s text nor is it part of the definition of “Arms,” which as Wolford noted includes “any weapon customarily used for offensive or defensive purposes.” “‘Customarily’ distinguishes items that can be used, offensively or defensively, as weapons (e.g., bricks) from weapons normally used for offensive or defensive purposes.” So common use fits into Bruen‘s step two (the historical tradition step), as a part of “how” a modern regulation burdens the right in comparison with any relevant historical analogue. Here, as in Heller, the “how” is a “flat ban.” Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are “dangerous and unusual” and, by necessity, not in common use.
Moving on to New Jersey’s ban on its listings of firearm make and models, the AJNRPC court decides that the record encompasses the same result for all semiautomatic rifles, not just the Colt AR-15. For that, “we need not precisely define the quantity or qualities that make a weapon in common use for lawful purposes. Regardless of where those lines may be drawn, the many millions of semi-automatic rifles in circulation for lawful purposes are plainly in common use.”
Contrary to the argument that rifles are not commonly “used” in self-defense, “even if a weapon is rarely employed in incidents requiring self-defense, it may still be commonly possessed for that lawful purpose or other lawful purposes, such as hunting.” Moreover, “Even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons’ overwhelmingly lawful use.” Not to mention that interpersonal violence is “a general societal problem that has persisted since the 18th century,” where Bruen‘s second step is “fairly straightforward.”
Of course, the Third Circuit did not really need to engage in the level of analogical reasoning that it did, given that the Supreme Court in Heller had already engaged in the relevant historical spade work to identify the principle that arms that are “dangerous and unusual” can be banned consistent with the Second Amendment.
That’s why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols as potential analogues do not work: “They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes.” No Founding-era analogue exists for such restrictions, giving little weight to later restrictions. Third Circuit precedent, Lara v. Comm’r Pa. State Police (2025), holds that 1791 prevails over 1868 as the location of proper analogues.
The AJNRPC court next moves on to the magazine ban. Magazines are “arms” because they feed ammunition into certain firearms, making them functional. The label “large capacity magazine” (LCM) “is not objective: what is considered an LCM is statutorily defined.” It used to be 15 rounds, now it is 10 rounds. “It would defy reason for a label devised by New Jersey’s legislature to govern the reach of the Second Amendment’s text.” As to the argument that a firearm will still operate with a ten-round magazine, “the text of the Second Amendment does not limit ‘Arms’ to the minimum equipment necessary to operate a weapon.”
In Bruen, the Supreme Court included “instruments that facilitate armed self defense” as part of the plain text definition of “arms.” Magazines obviously do so by holding ammunition and allowing the lawful gun owner to discharge a firearm in self-defense and to train for self-defense scenarios without having manually to reload over and over.
The banned magazines easily meet the common-use test. “But the 24 million AR-15s and similar sports rifles in circulation—firearms that we have determined are in common use for lawful purposes—typically come standard with twenty- or thirty-round magazines. And there are over 100 million 30-round AR-15 magazines in circulation.” (I would suggest there are far more.)
As for analogues, Founding-era gunpowder storage laws miss the mark – they were for fire safety, not crime control. Nor were concealed carry regulations, which were not outright bans, relevant.
The above resolves the unconstitutionality of New Jersey’s ban on all of the listed semiautomatic rifles and on magazines. However, the court found the record too sparse about the shotguns and pistols defined as “assault firearms,” which requires a remand to the district court for further factfinding.
Judge Paul Matey’s concurrence minces no words: “Nothing has changed in the decades since the State launched its battle against the Second Amendment and its ongoing defiance of the law.” The terms “LCM” and “assault firearm” have no objective meanings but are “marketing materials recycled into legislation.” Although the opinion of the court doesn’t mention features, Judge Matey explains, “There is too much evidence that all of the arms at issue—pistol grips, folding stocks, magazines containing eleven or more rounds, and the semiautomatic shotguns and pistols New Jersey lumped into the definition of ‘assault weapons’ with no real thought—are and have long been in common use for lawful purposes.”
Concurring in part, Judge Peter Phipps stresses that proper historical analogues “have the purpose of regulating people who actually or imminently misuse firearms to harm or menace others.” However, the New Jersey prohibitions are “based on their potential for misuse, however remote, and that is broader than actual or imminent misuse.”
Judge Tamika Montgomery-Reeves concurs, but would have held the case pending the Supreme Court’s resolution of Viramontes and Grant. Quoting the laws at issue in those cases, which could resolve AJNRPC, two definitions demonstrate (my observation) the utter irrationality of “assault weapon” bans. Cook County includes the feature of a rifle “without a stock attached,” while Connecticut includes a rifle with a “folding or telescoping stock” attached. Which of these contradictory features pray tell make the rifle so dangerous?
Judge Jennifer Lee Mascott concurs in part, agreeing with Judge Matey that it is unnecessary to remand the case to the district court for further factfinding. She warns about misinterpretation of the “dangerous and unusual” concept: “But turning that designation into an antitype risks signaling to assertive State regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use ‘dangerous and unusual’ rather than affirmatively demonstrating historical evidence for the regulation as commanded by the Supreme Court.”
Judge Cindy Chung concurs in part and dissents in part. She maintains that “common use” is determined at Bruen‘s step one and does not include “a type of weapon one would expect to be used for modern warfare; nor does the term embrace weapons most commonly used for criminal ends.” Instead, common use includes a weapon “an ordinary person would have at home for purposes like protecting oneself against violent interpersonal confrontation, protecting the home, and hunting.” At step two, Judge Chung writes that “a weapon not commonly worn in public causes a terror to the people.” She opines that a remand is necessary to apply that standard.
Judge Patty Schwartz, joined by three other judges, dissents. The thrust of her opinion is that “the objective features of AR-15s and LCMs render them disproportionate to ‘ordinary self-defense needs’ and thus outside the scope of the Second Amendment’s protection.” Her opinion fails to articulate what exactly those “objective features” are. While no government in the world issues it as a standard service weapon, she asserts that the AR-15 is “an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense.”
Judge Cheryl Ann Krause dissents, complaining that the majority disregards “the democratic will of the People of New Jersey” based on “the novel theory that these weapons are ‘in common use’ because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gunowners assert their subjective intent to use them only for lawful purposes.” Apparently, consumers buy AR-15s because manufacturers make them do so, not because such rifles and magazines are superior to the inferior ones New Jersey foists upon them. And gunowners can’t be trusted when they explain why they purchase them.
Finally, Judge D. Brooks Smith dissents, agreeing with two other dissents and “the persuasive reasoning of Judge Wilkinson” in the Bianchi case from the Fourth Circuit. That “persuasive reasoning” flouts the Supreme Court’s common-use test and exaggerates the power of AR-15s, without regard to the caliber of any specific rifle.
It’s been a long time coming. The New Jersey ban was originally enacted in 1990. I litigated a pre-Bruen challenge based on vagueness and equal protection, Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff’d (3d Cir. 2001) (no reported opinion). We demonstrated that several “assault firearm” listings like “Avtomat Kalashnikov” (which means a full automatic in Russian) are machine gun names. And the catchall “substantially identical” firearms alerted the public about like “other stuff like that” would. I recall one of the judges on the Third Circuit panel asserting that “everyone knows what an assault firearm is, it’s a submachinegun with a silencer.”
The Third Circuit has now taken Second Amendment rights seriously, and the tables appear to be turning.
The post Second Amendment Roundup: New Jersey Rifle and Magazine Bans Bite the Dust appeared first on Reason.com.
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