New Jersey’s Bans on Commonly Owned Rifles and Magazines Are Unconstitutional, the 3rd Circuit Says

On Friday, in a decision written by a Joe Biden nominee, the U.S. Court of Appeals for the 3rd Circuit ruled that New Jersey’s ban on semi-automatic rifles that legislators describe as “assault firearms” violates the Second Amendment. The appeals court reached the same conclusion regarding New Jersey’s ban on “large capacity magazines” (LCMs), currently defined as those capable of holding more than 10 rounds.

The 5th Circuit’s decision in Association of New Jersey Rifle & Pistol Clubs v. Platkin addresses three consolidated challenges to these laws. Two years ago in the same case, U.S. District Judge Peter Sheridan agreed with the plaintiffs that New Jersey’s “assault firearm” ban was unconstitutional to the extent that it prohibited possession of AR-15-style rifles. But his decision did not address other guns covered by the law, and it upheld the LCM ban.

The 5th Circuit’s ruling, which was written by Judge Arianna Freeman and joined in whole or part by 10 of her colleagues, extends Sheridan’s order to cover “the full class of semi-automatic rifles” banned in New Jersey. It reverses his determination regarding the LCM ban, saying that provision is also inconsistent with the Second Amendment.

“This is a massive victory for the People and another devastating blow to the authoritarian war on gun owners,” said Brandon Combs, president of the Firearms Policy Coalition, which filed one of the consolidated lawsuits. “The Third Circuit correctly recognized what was obvious all along: the government cannot ban an entire class of commonly owned firearms, full stop. New Jersey’s bans were always unconstitutional, and today the en banc court said so.”

The “assault firearm” law, originally enacted in 1990, applies to more than 30 specified models of semi-automatic rifles, pistols, and shotguns, along with firearms “substantially identical” to them. The list encompasses some of the most popular rifles sold in the United States, including the AR-15. Unauthorized possession of the prohibited weapons is punishable by up to 10 years in prison and a $150,000 fine.

Because permission to possess the covered rifles is essentially impossible for ordinary citizens to obtain, Freeman notes, “the law amounts to a de facto ban on the possession of semi-automatic rifles.” That is a problem under the Supreme Court’s 2008 decision in District of Columbia v. Heller, which overturned a local ban on handguns. In Heller, the Court recognized a historical tradition of banning “dangerous and unusual weapons.” But it said the Second Amendment protects the right to own “bearable arms” that are “in common use” for “lawful purposes like self-defense.”

Under the Supreme Court’s precedents, Freeman says, “a weapon that is ‘dangerous and unusual’ cannot be in common use for lawful purposes. That is, while ‘dangerous and unusual’ may not be the direct opposite of ‘in common use for lawful purposes,’ the two descriptors are mutually exclusive.”

As Freeman sees it, the rifles banned in New Jersey clearly fall into the latter category. Sheridan “found that there are around 24 million AR-l5s and similar sports weapons in circulation,” she notes. According to the most recent figures from the National Shooting Sports Foundation, the gun industry’s trade group, Americans own more than 32 million “modern sporting rifles,” its preferred term for the models covered by bans like New Jersey’s.

Sheridan “found that these weapons are used for lawful purposes including self-defense, target shooting, hunting, and pest control, and that their build and design features, such as their mild recoil, ergonomics, and accuracy, make them ‘a good choice for self-defense,'” Freeman writes. “On the record before us today, 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.”

Like the handgun ban at issue in Heller, New Jersey’s law “prohibits the possession of a class of weapons in common use for lawful purposes,” Freeman notes. “This similarity
to Heller facilitates our decision here,” she says, since the Supreme Court in that case “determined that no historical regulations were analogous to how the District of Columbia regulated handgun possession: by imposing a ‘flat ban.’ In other words, there was no historical support for the ‘prohibition of an entire class of “arm” that is overwhelmingly chosen by American society for [the] lawful purpose’ of self-defense.”

In the 2022 case New York State Rifle & Pistol Association v. Bruen, the Supreme Court clarified the constitutional test for laws that implicate Second Amendment rights, saying the government has the burden of showing they are “consistent with this Nation’s historical tradition of firearm regulation.” The government can meet that test by citing “relevantly similar” historical analogs that resemble the challenged law in motivation (the “why”) and scope (the “how”).

The majority in Bruen concluded that New York had failed to carry that burden in defending its highly restrictive carry permit policy. “After an exhaustive historical review, the Court found no analogues that supported ‘a tradition of broadly prohibiting’ even ‘the public carry of commonly used firearms for self-defense,'” Freeman notes. New York’s restrictions, she adds, were “far less stringent than a full ban on possession” like New Jersey’s.

“Together, Heller and Bruen teach that bans or broad prohibitions on possessing or carrying of a class of weapons in common use for lawful purposes fail to find support in our Nation’s tradition of firearm regulation,” Freeman writes. “That principle resolves our inquiry here.”

Freeman nevertheless considers New Jersey’s attempt to meet the Bruen test. “The State offers several examples of historical analogues for our consideration,” she notes. “None is a relevantly similar analogue for a ban on an entire class of arms in common use for lawful purposes.”

Among other purported historical analogs, New Jersey cited Founding-era restrictions on gunpowder storage. These “are not apt comparators because the ‘why’ is not analogous,” Freeman says. “The gunpowder laws were enacted as fire-safety measures, not to address firearm violence.”

New Jersey “also offers up Antebellum and Reconstruction-era regulations of Bowie knives, slungshots and clubs, pistols, and revolvers as potential analogues,” Freeman notes. These measures were similar in motivation to New Jersey’s law, she says, since they aimed to stop people from “misusing weapons to harm or menace others.” But they “are insufficiently analogous for two reasons: They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes.”

The 3rd Circuit has held that “the primary time period for the analogical inquiry is the Founding era,” Freeman writes. “Where no precedent from the Founding era ‘evinces a comparable tradition of regulation,’ regulations from the mid- to late-1800s cannot bear much weight. Post-ratification practice can be evidence of Founding-era principles, but it cannot create a new tradition or contradict Founding-era practices.”

Another problem with the 19th-century restrictions that New Jersey cited, Freeman says, is that they generally did not flatly prohibit possession of the targeted weapons. In the case of Bowie knives, for example, most of the regulations prohibited concealed carry, while “some prohibited open carry with intent to do harm or imposed more stringent punishments where Bowie knives were used in the commission of a crime.”

Outside of the Western territories, only Georgia “banned the possession of Bowie knives outright,” Freeman notes. The Georgia Supreme Court later deemed that prohibition unconstitutional.

A few Western territories “enacted regulations generally prohibiting the open carry of Bowie knives, though some had exceptions for self-defense,” Freeman adds. “But we heed the Supreme Court’s warning about the ‘exceptional nature’ of western restrictions.” In Bruen, she notes, the Court said “we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also ‘contradic[t] the overwhelming weight’ of other, more contemporaneous historical evidence,” especially since those laws were “rarely subject to judicial scrutiny.”

Even setting aside those concerns, “regulations restricting Bowie knives remain an inapt analogue because they did not target a class of weapons in common use for lawful purposes,” Freeman writes. “New Jersey has provided no evidence that Bowie knives were in common use for lawful purposes. Instead, it points only to evidence that Bowie knives were widely used in fights and duels as well as other criminal activities. We are therefore unconvinced that laws regulating Bowie knives are useful comparators for the weapons at issue here.”

Freeman sees “similar infirmities” in the other supposed analogs that New Jersey offered. “Like Bowie knives, slungshots were ‘a regular part of criminal weaponry,’ and there is no evidence in the record to suggest that they were commonly used for lawful purposes in addition to unlawful ones,” she writes. “And the regulations on pistols and revolvers that New Jersey invokes did not restrict the possession of firearms. Rather, they limited the concealed carry—or in a few cases, the sale or exchange—of those arms.”

Freeman says New Jersey’s LCM ban, which originally covered magazines that could hold more than 15 rounds but since 2018 has imposed a 10-round limit, fails the Bruen test for similar reasons. The 3rd Circuit has previously ruled that magazines qualify as “arms” under the Second Amendment, she says, and “nothing in [the] text of the Second Amendment suggests that the capacity of a magazine bears on whether it receives constitutional protection.”

Like the rifles banned in New Jersey, LCMs are in common use for lawful purposes. “We have observed that ‘millions of magazines are owned, often come factory standard with semi-automatic weapons, [and] are typically possessed by law-abiding citizens for hunting, pest-control, and occasionally self-defense,'” Freeman notes. AR-15s and similar rifles “typically come standard with twenty- or thirty-round magazines,” she adds. “And there are over 100 million 30-round AR-15 magazines in circulation.”

In support of its LCM ban, New Jersey “offers the same analogues as it does for the assault firearms law,” Freeman writes. “Each fails to convince us, for many of the same reasons we have explained.”

Freeman concludes that New Jersey’s magazine restrictions likewise “violate the Second Amendment.” The decision remands the case to Sheridan for further consideration, including the question of whether New Jersey’s bans on handguns and shotguns classified as “assault firearms” pass muster under Bruen.

Seven judges, including four Donald Trump nominees, a Biden nominee, and two George W. Bush appointees, joined Freeman’s opinion in full. Two Trump nominees, Jennifer Mascott and Peter Phipps, concurred in the judgment.

Judge Cindy Chung, a Biden appointee, concurred in part but argued that a firearm “in common use” can be restricted as “dangerous and unusual” when it is “not commonly worn in public” and “causes a terror to the people.” Although “a weapon in common use is protected by the Second Amendment,” she writes, “a limitation on the right to bear that arm may still be consistent with the history of regulating dangerous and unusual weapons.”

Writing in dissent, Judge Patty Shwartz, a Barack Obama nominee, argues that “the Second Amendment allows states to ban certain types of firearms.” By holding that “states cannot regulate weapons that are currently popular,” she says, the majority inappropriately “adopts a contemporary lens, even though the Supreme Court tells us that we are to keep our eye on the history and tradition of banning dangerous and unusual weapons, like the semi-automatic rifles equipped with [LCMs] that gunmen have continued to use to commit crimes and mass shootings.”

Shwartz, whose opinion was joined by Obama nominee Cheryl Krause, Biden nominee Felipe Restrepo, and George W. Bush nominee D. Brooks Smith, argues that New Jersey’s laws are justified by that tradition. “The AR-15’s history, features, and uses indicate it is an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense,” she avers. “As such, AR-15s are not Arms that the Second Amendment protects, and the State may ban them.” She reaches the same conclusion regarding LCMs.

As Judge Tamika Montgomery-Reeves, a Biden appointee, notes in her concurring opinion, the Supreme Court will address some of these issues during its next term, when it will hear a pair of cases involving rifle restrictions imposed by Connecticut and Cook County, Illinois. Although Montgomery-Reeves agrees that “current Supreme Court precedent dictates” the outcome of this case, she would have preferred to wait until the justices weigh in on the long-simmering question of whether “assault weapon” bans are consistent with the Second Amendment.