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.
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Freedom loving Americans will never comply with unjust and unconstitutional magazine and gun bans!