3rd Circuit Federal Appeals Court Says Large-Capacity Magazine Bans Are OK

Last month, the 9th Circuit said the opposite. It's a question the Supreme Court might have to resolve.


The U.S. Court of Appeals for the 3rd Circuit, in a three-judge panel decision, declared today in the case of Association of New Jersey Rifle and Pistol Clubs vs. Attorney General New Jersey that New Jersey's ban on "large capacity magazines" (LCMs) that hold more than 10 rounds of ammunition is indeed permitted under the Second Amendment.

The case has a convoluted history, and this is the second time the 3rd Circuit has made the same declaration upholding the law. As Jacob Sullum has reported, hardly anyone in Jersey has been obeying the law, which requires them to disable or turn in formerly legal LCMs they may have owned but that the law now makes illegal to possess.

Last month, the 9th Circuit Court of Appeals decided a similar law in California was not permissible under the Second Amendment. The state of California has appealed for an en banc review of that three-judge-panel decision striking down their ban. For now, at least, it seems a full-on circuit split is brewing in the federal courts of appeals on the LCM ban issue, the sort of thing that ought to invite the Supreme Court to consider a case involving LCM bans when one is next brought before it (as it seems inevitable one will).

The 3rd Circuit, in a decision written by Judge Kent A. Jordan, did admit, at least for the purposes of argument, that the LCM ban implicates the Second Amendment. The court "assumed without deciding that LCMs are 'typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection.'" (The district court that first considered the case concluded LCMs are relevant to the Second Amendment.)

Both the U.S. District Court for the District of New Jersey and the 3rd Circuit nonetheless think New Jersey can ban them anyway. They applied what courts call "intermediate scrutiny" to considering whether the burden on the Second Amendment was too high to be legal.

In doing so, the 3rd Circuit panel concluded the ban:

does not burden the core Second Amendment guarantee, for five reasons: (1) it does not categorically ban a class of firearms but is rather a ban on a subset of magazines; (2) it is not a prohibition of a class of arms overwhelmingly chosen by Americans for self-defense in the home; (3) it does not disarm or substantially affect Americans' ability to defend themselves; (4) New Jersey residents can still possess and use magazines, just with fewer rounds; and (5) "it cannot be the case that possession of a firearm in the home for self-defense is a protected form of possession under all circumstances. By this rationale, any type of firearm possessed in the home would be protected merely because it could be used for self-defense.

The 3rd Circuit further concluded that the law is a fair and constitutional application of "New Jersey's significant, substantial, and important interest in protecting its citizens' safety." They believe in mass shooting incidents, the inability (if the shooter was indeed kept from obtaining an LCM) to fire more than 10 rounds without changing magazines would mean "victims will be able to flee, bystanders to intervene, and numerous injuries will be avoided…."

The 3rd Circuit also noted that its "decision was in line with the decisions of at least four other circuits that have decided that laws regulating LCMs are constitutional." They cite cases from the 4th, 2nd, 7th, and D.C. circuits that they say ratify their decision to consider an LCM ban constitutional.

In a lengthy dissent from the ruling panel decision, Judge Paul Matey explains why he thinks that Jersey's LCM ban does not satisfy the standards of "intermediate scrutiny" applied to a potential Second Amendment violation:

the record does not show the State reasonably tailored the regulation to serve its interest in public safety without burdening more conduct than reasonably necessary. First, the State rests on the ambiguous argument that "when LCM equipped firearms are used, more bullets are fired, more victims are shot, and more people are killed than in other gun attacks."….Perhaps, but "this still begs the question of whether a 10-round limit on magazine capacity will affect the outcomes of enough gun attacks to measurably reduce gun injuries and death."

Matey calls back to another dissent by Judge Stephanos Bibas in an earlier iteration of this same case. Bibas had noted regarding an earlier, less-restrictive Jersey LCM ban that only affected magazines with over 15 rounds capacity, that "since 1990 New Jersey has banned magazines that hold more than fifteen bullets. The ban affects everyone. The challengers do not contest that ban. And there is no evidence of its efficacy, one way or the other."

Matey also points out then when the Supreme Court itself has considered the Second Amendment this century, it has not relied on any specified level of interest-balancing "scrutiny," referring to:

the clear repudiation of interest balancing by the Supreme Court in Heller and McDonald. When twice presented with the opportunity to import tiered
scrutiny from decisions considering the First Amendment, the Supreme Court instead focused on text, history, and tradition. See Heller…(declining to apply a specified level of scrutiny and observing that "[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."); McDonald…("[W]e expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing")"

Be that as it may, even playing the game of applying "intermediate scrutiny" to Jersey's LCM ban, Judge Matey thinks it should fail. In his dissent he asserts that while the state may have a legitimate public safety concern at issue, they have not adequately proven the law actually furthers public safety enough to justify the chipping at the Second Amendment inherent in the ban.

NEXT: When a Killing Becomes a Rorschach Test: Dispatch From Portland

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  1. The problem here is that the 3rd circuit is rationally responding to the Supreme court’s refusal to take 2nd amendment cases; They’ve concluded, probably correctly, that the Court does not mean to uphold Heller against lower courts chipping away at it.

    So, yes, the Supreme court needs to resolve this. And, no, they probably won’t. Because the Court does not presently have a majority that wants the 2nd amendment upheld.

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    2. Man, did the GOP establishment screw the pooch in every conceivable way.

      And who says a 10 round magazine is “large”? It’s not large, by any means.

      1. It’s insane…on a podcast I was listening to, I think they said something like 55% of all firearms sold in the US have more than 10 rounds.

        I don’t know if they were counting just pistols or that included long guns to…but either way, it clearly impacts a very large percent of gun transactions.

        1. I can see their point. 10 rounds is a great inconvenience for mass murderers.

          My only issue with it is, my rifle came with multiple 15 round magazines.


          I have to admit, if someone opened fire in my grand daughter’s school I would want him to have to stop as much as possible. If it takes the cops more than 10 rounds to take him down we need to train them better.

      2. What are you talking about? The GOP has more dead people on their hands than a fat kid has cake. Their gun nut lobbying effort has been a wild success of mass death.

        1. Just odd how often those mass shootings occur in progressive-demanded “gun-free zones”.

          1. And wouldn’t it be nice if the people who lived there had the freedom to do something about it?

            1. You mean like carrying weapons to defend themselves? That would be nice…

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          2. Funny, Wisconsin is a free gun zone, not a gun free zone. You are free to carry as you wish. Unless you are a minor.

            Where else do you see these events in gun free zones?

        2. In addition to your veil of victim obsession, you are also full of resentment. Not to mention hyperbole.

        3. So rights are akin to mass murder? Okay. Than you have the blood of millions of abortions on your hands.

          1. You’re welcome to believe that the government ought to force women to give birth against their will, but I’d suggest that is a more a lack of rights.

            1. Just like how the government forces innocent citizens to be at greater risk of violence by banning guns and forcing them to die against their will?

        4. Your a clueless fool. You don’t like guns, don’t buy them. But the 2nd amendment exists to protect us from idiots like yourself.

          1. From people who don’t own firearms?

            How about people who own bazookas, Rocket Propelled Grenades?

            Not to mention bombs? They are arms.

            How many of each do you own?

            1. If you are suggesting that it’s the federal government protecting us from those explosive devices you have read history nor have a background in engineering/science. Heck, you don’t need to have the latter. The Boston marathon bombers built bombs out of pressure cookers and The Oklahoma City bomber used fertilizer and a van, and think of all the IEDs made in 3rd world countries. Banning something doesn’t mean people who want them cannot get them or make them.

    3. not quite accurate. The current court has had many cases where they ruled in favor of the 2A

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  2. All gun control is unconstitutional as it violates the 2nd Amendment.

    Any judge who okays state bans on any Arms, including weapon magazines, should be immediately impeached for violating their oath of office.

    1. A three-clinger panel of appellate judges has considered your legal insights, lc1789, and ruled that you are a disaffected dumbass.

      You get to whimper about it as much as you want, though!

    2. Or buying one should require the oath of enlistment.
      The first time one of your 2nd amendment weapon owner shoots down an airliner with his shoulder fired Anti Aircraft missile, you will see the 2nd amendment repealed.

  3. Don’t use authoritarian, statist language.

    These are normal capacity magazines.

    Any reference to them being “large capacity” should include the descriptor “so called” and then point out the falsity of that claim before using the correct terminology.

    1. I use “standard capacity magazines”. It is undeniable that the FAL and M-16 / AR-15 use 20 round magazines standardly.

      1. 30, for AR. At least for a few decades, anyway.

        1. The US Army stopped using 20 round magazines in the 1990s.

      2. The standard for ARs is 30 round magazines since the 1970’s and 40 rounders since around 2000.

      3. 1. The are certain rifles designed to work exclusively with GI mags. Banning the magazine is essentially banning the gun.

        2. Self-defense is a non-sequitur and plays no role in why someone might have a particular firearm (such as historic collection). This is akin to banning high horsepowered vehicles since the speed limit is never higher than 80 MPH.

        3. Depends. While higher caliber is the preferred method, some lack the upper body strength for it or simply prefer quick succession of low powered rounds (or want to keep their hearing). This is government deciding tactics regardless of circumstance.

        4. See 1.

        5. The only broad exclusion I can think of is sharing a home with a felon, so again non-sequitur at least in regards to magazine capacity.

        If there are to be exceptions to “under all circumstances”, then the court should specify from case law what those exceptions are, and how magazine limits fit into that framework.

        Otherwise this is the flimsiest justification for the law and furthering the divide between civilian and law enforcement (i.e.- if the cop has no obligation to defend, the civilian should have the same manner of defensive equipment as the cop).

  4. 3rd Circuit could have used more rooftop Koreans, I guess.

    1. Last time I heard of roof top Koreans was in the Rodney King riots.

      I seem to recall, the only one they killed was a Korean man, I believe by his own family.

  5. it does not … substantially affect Americans’ ability to defend themselves


    1. Yep: “…shall not infringe…”

      1. “Well regulated militia…”

  6. Bailiff! Fetch my lucky coin!

    /Chief Justice Roberts

  7. Large-Capacity Magazine Bans Are OK

    The fact that you’re calling *standard capacity* magazines ‘large capacity’ tells me that the battle is already lost. Even you guys are buying into the core argument that the banners are pushing.

    10 rounds or less is not ‘normal’ for firearms. These are not large capacity magazines that pose some special danger. These are the standard capacities that firearms have come in for longer than any of us have been alive. We should be talking about being *restricted to* low capacity magazines.

    1. With the primary purpose of firearm ownership being self defense and defense against a tyrannical government and its military being part of that, having a rifle that can hold 30, 40, or more rounds is a part of exercising that right.

    2. If the police need – and get an exemption for the use of – magazines that hold more than 10 rounds, why would the rest of the public not also need magazines of similar size? The police are facing off against the same criminals that the rest of us are.

    1. “Even” you guys? Reason isn’t “even” you guys, they’ve been overtaken by the march through the institutions, they’re left-wing with a lingering remnant of actual libertarianism.

  8. Christmas is only a few months away now. Going to be time to start hanging things from trees real soon.

    1. ^ Shouldn’t be allowed to own a gun.

      1. Tony, stop replying to yourself. Your racist posts from fake accounts are more than obvious.

    2. Do you use a wood chipper after Christmas?

  9. Gonna need more bullets over here.

    I’m paying 50 cents/round (9mm) at the range, and I consider that lucky.
    But there’s a 1 box limit, and I need all the practice I can get

    1. IN 2012/13 I was caught with “my pants down” on ammo; learned my lesson and got into reloading and have been buying deals as they occurred since.

      I advise everyone, given you have a second [amendment] opportunity, to do the same. There are too many opportunistic politicians and misguided fools that want nothing more than to eviscerate this right.




      Online price aggregators. But you’re going to have to bite the bullet and buy a 1k box at current prices or else you’re going to be buying one box at a time as prices continue to climb.

      1. Yep.
        Problem is the only range near me doesn’t allow steel jackets, which is about all that’s available

  10. Looking forward to when this limitation is also applied to rights protected by the First Amendment:

    Each edition of the New Your Times should be limited to 10 words or less.

    No more “million man marches” since no more than 10 people can protest at any given time.

    No more than 10 people can be in a house of worship at any given time.

    1. Bullets are for ripping apart flesh.

      1. The Army must have issued me defective bullets since none ever ripped any flesh.

      2. Then I must be using mine wrong. Not one of the thousands of rounds I’ve fired has ever ripped flesh.

      3. “Bullets are for ripping apart flesh.”

        So are teeth, Tony.

        Tell me, do you have more than ten?

        1. Of course not. Tony doesn’t have dental care or indoor plumbing.

      4. Do you trust gun control laws will be enforced in an even-handed manner?

        1. Other countries manage it. But we are an exceptionally stupid country.

          1. This was worth a laugh.

            1. Even though true?

      5. The pen is mightier than the sword.

      6. Yes. Thank you Captain Obvious. I’m pretty sure we all know what bullets are for.

      7. And mobs are for intimidating people and suppressing their rights, yet we allow that…

        1. If your state allows that you need to move to another state.

    2. Dan_In_Philly is 100% CORRECT!

  11. It is a travesty that they have to agree in the first place that the 2nd Amendment has anything to do with personal self-defense.

    It’s more like a tragedy that instread of the people having the demcratic right to regulate instruments of death in their own communities, the gun nut minority faction gets to hide behind the skirts of holy writ forever while tens of thousands die as a result. Not freedom! Freedom cannot be imposed and doesn’t take the form of mass death.

    Brought to you by Carl’s Jr.

    1. “It is a travesty that they have to agree in the first place that the 2nd Amendment has anything to do with personal self-defense.”

      The 2nd does not have anything to do with self-defense on a personal level—that is an inherent right that pre-exists writing, let alone the federal constitution.

      Some state constitutions do mention self-defense, such as Pennsylvania’s Article 1 (“1. Inherent rights of mankind.
      All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”) generally;
      and Article 21 specifically covers firearms (“Right to bear arms.The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”)

      1. I suppose you could say people have always had the ability to try to defend themselves, but unless it’s written down by a government it’s just an assertion, not a right. “Inherent rights“ is not a phrase that means anything.

        1. God gives me rights , you boob.

          1. Which god would that be?

        2. Tony, we went through this: socialist states and monarchies have enumerated rights, the US has enumerated powers.

          The government has not been granted the power to ban or restrict guns. That’s true even without the 2A.

          1. If that’s so then our system needs a tweak.

            1. Fine. Why are you making the argument here? In general, the crowd here is not a very ripe place to seek lobbying/votes that will take your quest to get 3/4 of the states to ratify an amendment to the Constitution that nullifies the Second Amendment and grants Congress the power to regulate arms (firearms, knives, baseball bats, rocks, etc) as they see fit.

        3. So . . . then you’re saying there’s no right to an abortion?

          1. In the US there is currently until the theocrats take it away.

            1. It’s not even in a “holy writ” that YOU can hide behind (unlike the 2A that you disdain), it was made up out of whole-cloth…

    2. How have tens of thousands of people died as a result of the availability of factory-standard magazines, Tony?

      Be specific.

      1. That’s more about preventing rare but devastating mass bloodshed in schools and at concerts and stuff.

        1. Given that “rare but devastating mass bloodshed in schools and at concerts and stuff” frequently occurs without use of factory-standard magazines, what makes you believe that banning them will accomplish this preventative goal?

          1. I dunno let’s try it out anyway.

  12. “By this rationale, any type of firearm possessed in the home would be protected merely because it could be used for self-defense.”
    Sounds like – – ‘shall not be infringed”
    By the “logic” of the 3rd circuit, NJ could just go ahead an ban triggers, since that does not ban the whole gun.

    “(3) it does not disarm or substantially affect Americans’ ability to defend themselves;”
    It damn well affects your ability to deal with 15 rioters set on burning down your property and killing you.

  13. By the logic provided by the court, an 11-round limit or 9-round limit would be ok, too. So would a 4-round limit (which would affect most wheel-guns, albeit not a “magazine”).

    And so would a 1-round magazine limit.

    The 10-round value (or 15 in the old law) is arbitrary and capricious, especially when so many firearms STANDARD magazine holds 15 or more.

  14. Whining, tearful gun nuts are among my favorite disaffected culture war casualties.

    1. Smug, hilariously self-regarding mediocrities are among my favorite future lamppost decorations.

    2. And yet it must be so frustrating to you to see the USSC support those whining, tearful gun nuts.

  15. So the unasked question here is when is “she” going to depart for the eternal chambers in heaven? And with whom will she be replaced? That is going to make all the difference that matters.

  16. Unless we allow the Democratic hell holes on the coasts to succeed, there will be a Civil War.
    I don’t see any other course of action.

    1. It does stoke the imagination doesn’t it?

  17. I wonder how many people went to prison for violating this ban.

  18. New Jersey’s law requires people to turn their magazines in, right? Are they being paid for it? If not, how is that not a clear 5A issue along with being a 2A issue?

    That was part of the 9ths ruling, not only is this a violation of 2A you cannot require people to turn in what was legally owned property without just compensation.

    1. The 5th amendment does not apply to contraband.

      1. It wasn’t contraband when they acquired it. Ex post facto would indicate that you can’t punish someone by confiscating something that was legal when they bought it.

  19. What is the argument? Brief me, I didn’t read the complaint but don’t need, too. No quantifiable difference exists between 10 or 11 rounds of ammunition; other than a pause to reload.

    Why would you want to do that, huh?

  20. Assuming that the 9th Circuit upholds the finding of it’s panel, and the 3rd Circuit does the same, how might The Supreme Court duck ruling here? I suppose that there is a way for the court to so act, how they might manage such a stunt escapes me.

  21. By the way, the following leaves me curious. Regarding what seems to be a sacred number, 10 being the maximum allowable number of cartridges in a firearm magazine, what was/is the source of this magic number? Who came up with it, and on what basis was it selected?

  22. I think a private citizen should be able to own whatever law enforcement can own. I don’t like classes of people given special priveldges.
    If “(3) it does not disarm or substantially affect Americans’ ability to defend themselves” then why aren’t police limited to 10 rounds? Because police know that most of the time it takes several shots to stop a threat especially a determined one, sometimes you miss, and sometimes there are multiple attackers.

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