The Volokh Conspiracy
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Second Amendment Roundup: 3d Circuit Oral Argument on N.J. Rifle Ban
The en banc court exhibited a deep understanding of the issues.
On October 15, the Third Circuit en banc heard arguments on New Jersey's prohibition on numerous semiautomatic firearms (pejoratively named "assault firearms") and magazines holding over ten rounds. Three cases were consolidated under the title Association of New Jersey Rifle & Pistol Clubs, Inc. (ANJRPC) v. Attorney General New Jersey. The district court in ANJRPC held the rifle ban to violate the Second Amendment but upheld the magazine ban. Earlier, a Third Circuit panel upheld the magazine ban, but the Supreme Court ordered it to reconsider in light of Bruen. In August, the Third Circuit sua sponte ordered that the appeal of the district court decision be held en banc.
Predictably, the "common use" test set forth in Heller and Bruen was at the heart of the controversy. The challengers argued that the banned firearms are bearable "arms" in the meaning of the text, and that the Supreme Court in Heller decided that arms in common use may not be banned under the history and tradition test. Counsel agreed with a judge that the banned firearms are in common use both numerically and as determined by the numbers of gun owners. The Supreme Court in Staples, and most recently in S&W v. Mexico, acknowledged that AR-15 rifles are commonly possessed by Americans.
New Jersey rejected what it called a "popularity test" for common use and argued that the banned firearms and magazines are not in common use, meaning that on average a gun is fired only 2.2 times in self-defense. But "common use" refers to "keeping and bearing" and not "shooting/going bang bang" at a bad guy. To use arms as in to keep and bear means, as Heller stated, "to possess and carry weapons in case of confrontation."
Judge Hardiman noted that Heller referred to defense against tyranny three times, and that self-defense being the "central component" of the Second Amendment implied other lawful purposes. New Jersey changed the subject to machineguns, suggesting that the high number of registered machineguns – 176,000 – proved the numerosity test to be unworkable. Judge Hardiman countered that they are bound by Heller's statement that machineguns are not protected. Moreover, the challengers noted, registered machineguns are largely held today as collector's items, not for self-defense, and many are not even functional. This is a phantom question that the court need not resolve.
Moreover, the challengers pointed out that, unlike semiautomatics with magazines that have been chosen by Americans for over a century, machineguns were never widely accepted into the market as useful for self-defense, not to mention hunting and target shooting. While a semiautomatic can pinpoint aggressors and avoid bystanders in a self-defense situation, indiscriminately firing in full automatic cannot distinguish the guilty from the innocent.
That got into the issue of arms that are "dangerous and unusual." Judge Matey asked whether the element of creating "terror to the people" implied that the people at large are a factor in what is common use. The challengers responded that doing so was a common-law offense but that carrying arms peaceably is not subject to a heckler's veto. Arms that are commonly carried are not dangerous and unusual.
While most historical references use the term "dangerous and unusual," New Jersey contended that some also use the formulation "dangerous or unusual," citing Blackstone. But Blackstone referred not to mere possession, but to "riding or going armed, with dangerous or unusual weapons, … terrifying the good people of the land." Heller used the term "dangerous and unusual," and Justice Alito, concurring in Caetano, wrote that "this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual." And Bruen found aspects of English history "ambiguous at best," seeing "little reason to think that the Framers would have thought it applicable in the New World."
New Jersey then claimed that "dangerous or unusual" actually boils down to the test of "unusually dangerous," a term never used by the Supreme Court. In any event, it ultimately doesn't matter, because common arms cannot be unusually dangerous.
In response to a question of whether the people decide subjectively what they deem appropriate for self-defense, New Jersey argued that "the people" through their representatives decide what is unusually dangerous based on their perception of "objective characteristics." As one judge suggested, since all firearms are dangerous under the alleged dangerous-or-unusual test, no limit would exist on what the legislature may choose to ban, despite what the people choose.
New Jersey responded that AR-15s have been used in mass shootings, to which another judge noted that handguns are used in the majority of murders, yet Heller held them to be protected. Indeed, the Virginia Tech shooting in 2007 involved the criminal using modern semiautomatic handguns with so-called "large-capacity magazines," yet a year later, the Supreme Court decided Heller. Not to mention that there were other similar pre-Heller murders, showing that mass shootings were not considered "unprecedented" in the minds of the Justices even back in 2008.
New Jersey counsel was fixated on the "Bowie knife craze" of the nineteenth century that prompted laws that are supposedly the most substantial analogues for New Jersey's rifle and magazine ban. But most of those laws restricted only concealed carry, not possession. What is more, the outcome of cases challenging Bowie knife laws turned on common use. For example, the Texas Supreme Court held in Cockrum v. State (1859) that citizens had a right to carry Bowie knives for lawful self-defense, even though the Bowie knife was the "most deadly of all weapons in common use."
Since the focus was on the AR-15 semiautomatic rifle, the question arose whether the court should remand the case to the district court for fact finding on the other rifles as well as the shotguns and handguns on the ban list. The challengers answered in the negative, as all (except one shotgun) were semiautomatics and shared many of the same features. Staples drew the line at full automatics versus semiautomatics. Moreover, the burden was on New Jersey to demonstrate that each and every weapon it sought to ban was not in common use. It had ample opportunity to fulfill that burden but failed to introduce such evidence. See Mark W. Smith, "What Part of 'In Common Use' Don't You Understand?" JLPP (2023) (the common-use issue is encompassed in the history-tradition test of Bruen and, thus, the burden rests with the government to prove a banned arm NOT in common use).
New Jersey argued that in contrast to handguns, AR-15s have muzzle velocity that can shoot through walls and can fire out to 500 yards, features not appropriate for self-defense. A judge stated that a rifle may be better for self-defense in a rural area, asking whether the Second Amendment recognizes a rural-urban distinction. New Jersey responded that a Bowie knife or a machinegun could also be useful for self-defense, but are still not protected. Once again, that side steps the fact that AR-15s meet the common-use test. Also recall that the majority in Bruen rejected Justice Breyer's dissenting argument that violence with firearms is "more common in urban areas than rural ones."
Since the record established that AR-15 rifles typically come with magazines holding no more than thirty rounds, which in turn are in common use, the question arose of whether a facial challenge is proper since the record reflected nothing about magazines holding over thirty rounds. The challengers responded that the ban is facially unconstitutional because it essentially bans all magazines that hold over ten rounds, making it invalid in all applications. It is not an element of the criminal offense that a magazine hold over thirty rounds. Similarly, Heller facially invalidated a handgun ban in toto, even though it suggested that full automatics could be banned. And Bruen facially invalidated New York's "may-issue" carry regime even though the Court reaffirmed that felons could be banned from public carry and that "sensitive places" may exist that warrant a carry ban in certain locations.
New Jersey sought to depict the facial challenge as improper because plaintiffs didn't challenge the law's subsection defining firearms equipped with bumpstocks as "assault firearms." Since these items are not at issue, the challengers responded that the court could view the case as challenging the other subsections of the assault weapons definition. Whether that is characterized as facial with respect to those subsections or as-applied is a matter of semantics.
Early in the argument, one of the judges warned that they must not "stray into intermediate scrutiny," which Bruen soundly rejected. New Jersey counsel did just that with the argument that the state, not the people, decide what is so "unusually dangerous" that it can be banned. That wholly flips the purpose of a guarantee in the Bill of Rights, which confirms "the right of the people" themselves to pick the arms they desire to keep and bear.
With the new Administration, circumstances are changing in the Second Amendment space. The United States filed an amicus curiae brief on behalf of the challengers. Moreover, the composition of the Third Circuit recently changed. Judge Emil Bove took the bench in July, and Judge Jennifer Mascott was sworn in shortly before the oral argument. If the court holds that New Jersey's firearm and magazine bans violate the Second Amendment, as it should, it will – to use Justice Kavanaugh's words in Snope – "assist [the Supreme] Court's ultimate decisionmaking on the AR–15 issue."
I litigated the New Jersey rifle and magazine bans decades ago in Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff'd (3d Cir. 2001). That was pre-Heller, so we focused on vagueness and equal protection. The state argued that the ban list consisted of semiautomatics, but many have machinegun names, most obviously the Avtomat Kalashnikov (Russian for Kalashnikov's automatic rifle). At oral argument in the Third Circuit, one of the judges disagreed with our vagueness argument, unbelievably stating that "everyone knows what an assault weapon is, it's a submachinegun with a silencer." Predictably, we got an adverse ruling. We've come a long way since then.
