2nd Amendment

A Powerful Dissent Charges Judges Who Casually Uphold Magazine Restrictions With Disrespecting the Second Amendment

A 3rd Circuit judge says the decision approving New Jersey's 10-round limit treats the right to arms less seriously than other constitutional rights.



Yesterday the U.S. Court of Appeals Court for the 3rd Circuit upheld New Jersey's 10-round limit on gun magazines, echoing five other federal appeals courts that have found such laws to be consistent with the Second Amendment. "New Jersey's law reasonably fits the State's interest in public safety and does not unconstitutionally burden the Second Amendment's right to self-defense in the home," Judge Patty Shwartz concludes in an opinion joined by Judge Joseph Greenaway.

A powerful dissent by Judge Stephanos Bibas, the third member of the 3rd Circuit panel, argues that the majority's reasoning fails to take the Second Amendment as seriously as the Supreme Court said it should be in District of Columbia v. Heller, the landmark 2008 decision that overturned a local ban on handguns. "The Second Amendment is an equal part of the Bill of Rights," Bibas writes. "We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy."

New Jersey, which has banned magazines holding more than 15 rounds since 1990, imposed the stricter limit last June in response to mass shootings. The law requires owners of "large capacity magazines" (LCMs) to surrender them to the state, render them inoperable, modify them so they cannot hold more than 10 rounds, or sell them to authorized owners (such as retired police officers, who are exempt from the ban) by December 10. New Jersey residents who fail to comply by Monday will become felons, subject to a maximum fine of $10,000 and up to 18 months in prison for possessing previously legal products.

Judges Shwartz and Greenaway note that "millions of LCMs have been sold since 1994" and that "LCMs often come factory standard with semi-automatic weapons." They "assume without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." But because New Jersey's LCM ban "does not severely burden the core Second Amendment right to self-defense in the home," they apply "intermediate scrutiny," which requires that a challenged law advance "a significant, substantial, or important interest" in a way that "does not burden more conduct than is reasonably necessary." By contrast, "strict scrutiny" requires that a challenged law be "narrowly tailored" to advance a "compelling governmental interest."

The majority concludes that "New Jersey's LCM ban reasonably fits the State's interest in promoting public safety," because "LCMs are used in mass shootings" and limiting them may reduce the number of rounds fired in such attacks. "Reducing the capacity of the magazine to which a shooter has access means that the shooter will have fewer bullets immediately available and will need to either change weapons or reload to continue shooting," Shwartz writes. "Weapon changes and reloading result in a pause in shooting and provide an opportunity for bystanders or police to intervene and victims to flee."

The 3rd Circuit's choice of intermediate rather than strict scrutiny relies on some rhetorical sleight of hand. "If the core Second Amendment right is burdened, then strict scrutiny applies; otherwise, intermediate scrutiny applies," Shwartz writes. "Thus, laws that severely burden the core Second Amendment right to self-defense in the home are subject to strict scrutiny."

In his dissent, Bibas highlights the majority's slipperiness in applying strict scrutiny only when the right to self-defense in the home is "severely" burdened. "The Second Amendment's core is the right to keep weapons for defending oneself and one's family in one's home," he writes. "The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period." By weighing the severity of the burden imposed by the LCM ban before settling on a level of scrutiny, Bibas says, the majority "puts the cart before the horse," since "we never demand evidence of how severely a law burdens or how many people it hinders before picking a tier of scrutiny."

If the size of a magazine can make a difference in the hands of a mass shooter, Bibas notes, it also can make a difference in the hands of a law-abiding person using a gun in self-defense. "The government's entire case is that smaller magazines mean more reloading," he writes. "That may make guns less effective for ill—but so too for good. The government's own police detective testified that he carries large magazines because they give him a tactical 'advantage[],' since users must reload smaller magazines more often. And he admitted that 'law-abiding citizens in a gunfight' would also find them 'advantageous.' So the ban impairs both criminal uses and self-defense."

More generally, "Any gun regulation limits gun use for both crime and self-defense. And any gun restriction other than a flat ban on guns will leave alternative weapons. So the majority's test amounts to weighing benefits against burdens." Justice Steven Breyer advocated such a "balancing approach" in his Heller dissent, Bibas notes, and "the Heller majority rejected it."

Even under intermediate scrutiny, Bibas argues, New Jersey has not met its burden, relying on "anecdotes and armchair reasoning" rather than evidence that limiting magazine size reduces mass shooting casualties. "The government has offered no concrete evidence that magazine restrictions have saved or will save potential victims," he writes. "New Jersey cannot win unless the burden of proof lies with the challengers. It does not." But the majority "effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government." Furthermore, he observes, "the majority offers no limiting principle," since "its logic would equally justify a one-round magazine limit."

Bibas also faults the majority for neglecting the "tailoring" required by intermediate scrutiny. New Jersey already had a 15-round magazine limit, and it also has a discretionary carry permit law that severely restricts who may bear guns in public. Yet the state presented no evidence that such policies are so inadequate that the further step of imposing a lower magazine limit is necessary.

Bibas argues that "the majority's watered-down 'intermediate scrutiny' is really rational-basis review," a highly deferential standard that asks only if a policy is rationally related to a legitimate government interest. "Though the Supreme Court has yet to specify a tier of scrutiny for gun laws," he says, "it forbade rational-basis review."

Why does the 3rd Circuit majority, like the other courts that have upheld legal limits on magazine capacity, treat the right to keep and bear arms so casually? "It offers only one reason: guns are dangerous," Bibas writes. "But as Heller explained, other rights affect public safety too. The Fourth, Fifth, and Sixth Amendments often set dangerous criminals free. The First Amendment protects hate speech and advocating violence. The Supreme Court does not treat any other right differently when it creates a risk of harm. And it has repeatedly rejected treating the Second Amendment differently from other enumerated rights. The Framers made that choice for us. We must treat the Second Amendment the same as the rest of the Bill of Rights."