Second Amendment Roundup: New Jersey Rifle and Magazine Bans Bite the Dust
Reason · RC · trust 40/100
The Third Circuit takes Second Amendment rights seriously.
On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment. The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey ( AJNRPC ), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman. This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.
Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here ), but cert was not granted on the magazine issue in those cases, plus no party sought delay. My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." All of the other circuit decisions have upheld bans.
The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of AJNRPC . First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction." Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession. Third, such use excludes a "dangerous and unusual" weapon.
Criticism of the common-use test as "a popularity poll" disregards that the Supreme Court requires this test, and "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose. Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.
" Bruen 's first step is fundamentally a textual inquiry," but the common use inquiry is not located there. It neither appears in the Second Amendment's text nor is it part of the definition of "Arms," which as Wolford noted includes "any weapon customarily used for offensive or defensive purposes." "'Customarily' distinguishes items that can be used, offensively or defensively, as weapons ( e.g. , bricks) from weapons normally used for offensive or defensive purposes." So common use fits into Bruen 's step two (the historical tradition step), as a part of "how" a modern regulation burdens the right in comparison with any relevant historical analogue. Here, as in Heller , the "how" is a "flat ban." Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are "dangerous and unusual" and, by necessity, not in common use.
Moving on to New Jersey's ban on its listings of firearm make and models, the AJNRPC court decides that the record encompasses the same result for all semiautomatic rifles, not just the Colt AR-15. For that, "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."
Contrary to the argument that rifles are not commonly "used" in self-defense, "even if a weapon is rarely employed in incidents requiring self-defense, it may still be commonly possessed for that lawful purpose or other lawful purposes, such as hunting." Moreover, "Even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons' overwhelmingly lawful use." Not to mention that interpersonal violence is "a general societal problem that has persisted since the 18th century," where Bruen 's second step is "fairly straightforward."
Of course, the Third Circuit did not really need to engage in the level of analogical reasoning that it did, given that the Supreme Court in Heller had already engaged in the relevant historical spade work to identify the principle that arms that are "dangerous and unusual" can be banned consistent with the Second Amendment.
That's why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols as potential analogues do not work: "They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes." No Founding-era analogue exists for such restrictions, giving little weight to later restrictions. Third Circuit precedent, Lara v. Comm'r Pa. State Police (2025), holds that 1791 prevails over 1868 as the location of proper analogues.
The AJNRPC court next moves on to the magazine ban. Magazines are "arms" because they feed ammunition into certain firearms, making them functional. The label "large capacity magazine" (LCM) "is not objective: what is considered an LCM is statutorily defined." It used to be 15 rounds, now it is 10 rounds. "It would defy reason for a label devised by New Jersey's legislature to govern the reach of the Second Amendment's text." As to the argument that a firearm will still operate with a ten-round magazine, "the text of the Second Amendment does not limit 'Arms' to the minimum equipment necessary to operate a weapon."
In Bruen , the Supreme Court included "instruments that facilitate armed self defense" as part of the plain text definition of "arms." Magazines obviously do so by holding ammunition and allowing the lawful gun owner to discharge a firearm in self-defense and to train for self-defense scenarios without having manually to reload over and over.
The banned magazines easily meet the common-use test. "But the 24 million AR-15s and similar sports rifles in circulation—firearms that we have determined are in common use for lawful purposes—typically come standard with twenty- or thirty-round magazines. And there are…
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