The Volokh Conspiracy
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Third Circuit Sends Down to District Court the Second Amendment Challenge to N.J.'s Ban on >10-Round Magazines
The appellate court would leave the matter for the district court to decide in the first instance, subject to appellate review; Judge Matey dissented, arguing that the appellate court should have considered the issue directly.
From Ass'n of N.J. Rifle & Pistol Clubs Inc. v. Attorney General (3d Cir.), decided today by the Third Circuit (Judges Kent Jordan and Jane Roth):
This matter having been remanded for further consideration in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), and upon consideration of the parties' positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded.
{We recognize that there are good arguments to be made for resolving this case now, on the record before us, and our dissenting colleague has ably articulated them. Even so, we are mindful that "we are a court of review, not of first view[.]" Cutter v. Wilkinson (2005). The Dissent rightly notes that, even prior to the Supreme Court's latest Second Amendment decision, we have regularly "trace[d] the [Second Amendment's] reach by studying the historical record"—the same approach recently endorsed and "made … more explicit" by the Court, N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). But the Court's decision in Bruen also provided lower courts with new and significant guidance on the scope of the Second Amendment and the particular historical inquiry that courts must undertake when deciding Second Amendment claims.
In light of that guidance, the State has requested a remand for further record development, targeted at the legal and historical analysis required under Bruen. Given the additional guidance provided in Bruen—and given that our last decision in this case turned on law-of-the-case considerations that are no longer in play—it is appropriate to afford the State that opportunity, consistent with our prior practice.
Judge Paul Matey dissented:
Refreshing our recollection illustrates the problem with remand. In 2008, the Supreme Court held that the "18th-century meaning" of "arms" is "no different from the meaning today," and the Second Amendment was not limited to "only those arms in existence in the 18th century." Instead, Heller directed courts to apply a "methodology centered on constitutional text and history" to determine whether the challenged regulation touched upon protected conduct. Heller directed us to look backwards—not to new and novel claims of necessity by the government.
Even a glance is sufficient here. Repeating firearms grew in use throughout the 18th century, when early technical advances paved the way to Samuel Colt's famous rotating cylinder revolver. By 1866, rifles holding more than ten rounds of ammunition were widely available, with handguns holding more than ten rounds appearing in stores by 1935. Both quickly proved popular, and Americans came to hold tens of millions of magazines holding over ten rounds.
Despite this popularity, regulations on magazine capacity arrived slowly. A few accompanied the Prohibition Era, all except one later repealed. Slower still, New Jersey did not limit magazine capacity to fifteen rounds until 1990. Or reduce that number to ten until 2018. All showing, as we summarized the record of the District Court's three-day hearing, "that millions of magazines are owned, often come factory standard[,] … are typically possessed by law-abiding citizens[,] … and there is no longstanding history" of magazine regulation. And all revealing "a long gap between the development and commercial distribution of magazines, on the one hand, and limiting regulations, on the other." Facts found and the law settled, deciding this case is appropriate….
Slow down, cries the State. Bruen, it argues, changed everything by announcing a "new legal test." Deciding the case now would be unfair because "the State has not yet been given the opportunity to provide the historical evidence of weapons that were regulated at the Founding." Neither point proves persuasive.
For one thing, Bruen confirmed, rather than created, the historical inquiry informing the Second Amendment's guarantee. A point we have repeatedly recognized in Second Amendment challenges. That is also the test we applied here, citing "17th century commentary on gun use in America that the possession of arms also implied the possession of ammunition."
The State's follow-on—that it missed the chance to provide historical evidence— fares no better. Round after round, in both the District Court and this Court, history took center stage. The State joined that discussion, arguing unsuccessfully that laws regulating ammunition capacity were longstanding. It strains credibility for New Jersey to now suggest it simply overlooked the focus on history and practice outlined in Heller, repeatedly applied by this Court, and vigorously advocated in this case. That the State decided not to press those points harder, whether as clever strategy or careless slip, is not relevant. We have been far less forgiving of that sort of waiver by far less sophisticated litigants.
With no new law to apply, and the historical record firm, there would seem no work remaining on remand. {Indeed, we have explained that "[w]e may decide a question not addressed by the District Court when the record has been sufficiently developed for us to resolve the legal issue."}
But what is the harm, some might ask? Why the rush? A question rarely raised when other fundamental rights are at issue and answered, again, by the Supreme Court: bearing arms "is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." As always, "[t]he basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled." Watson v. City of Memphis (1963). And "[a]t its core, the Second Amendment recognizes the widely accepted principle at the Founding that the right to self-defense derived directly from the natural right to life, giving the people predictable protections for securing the 'Blessings of Liberty.'" That balance tips easily toward decision, not further delay….
Finally, I note a bunker to avoid in future proceedings: the protean "large capacity magazine." Throughout this case, exactly what is being regulated has not been clear. In 1990, New Jersey first prohibited a "large capacity ammunition magazine," defined as "a box, drum, tube or other container which is capable of holding more than [fifteen] rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm." In 2018, the State amended that definition by reducing the maximum capacity to ten rounds. The 2018 law is what Plaintiffs challenge. Any discussion of "large capacity magazines," therefore, should refer only to the 2018 law.
That has not happened. The State and this Court have twice altered the definition. First, what began as an inquiry into whether "magazines" are constitutionally protected became a discussion over whether a specific kind of magazine fell outside the Second Amendment's guarantee.
Second, the arguments and analysis soon sank into a survey of all magazine restrictions, then firearms with "combat-functional ends" capable of "rapidly" discharging ammunition, and finally fully automatic rifles. But those are not the same and each is subject to different regulations in New Jersey—not to mention other states and federal law. Blurring these lines improperly boosted the State's claims of regulatory interest. Doing so again will hopelessly complicate the otherwise straightforward historical inquiry of Heller and Bruen, producing a search for an analogy to an object that did not exist at the founding, and does not exist today.
To avoid further confusion, there simply is no such thing as a "large capacity magazine." It is a regulatory term created by the State, meaning no more than the maximum amount of ammunition the State has decided may be loaded into any firearm at one time. Sixteen rounds was large yesterday, eleven rounds is large today. The State is welcome to market its policy goals using catchy slogans, but the rights of our Republic are built on sturdier stuff. Stripping away the buzzwords reveals the real question: whether "the Second Amendment's plain text" protects possession of a firearm magazine, in which case "the Constitution presumptively protects that conduct." The only avenue around that presumption is proof—presented by the State—that its cap on magazine capacity "is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."
Remand is unnecessary as both questions have already been answered. First, "[b]ecause magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended, magazines [fall] within the meaning of the Second Amendment." And second, "there is no longstanding history of" magazine capacity regulation. Another four years of proceedings to reach those conclusions again is not needed. Nor can the United States remain "a government of laws … if the laws furnish no remedy for the violation of a vested legal right." …
For the earlier, pre-Bruen decision upholding the magazine limit under "intermediate scrutiny" (which is no longer the test after Bruen), see here; for Judge Matey's detailed pre-Bruen dissent, see here. Thanks to Alida Kass for the pointer.
