After the Supreme Court handed down its 2008 decision in Heller and its 2022 decision in , anti-liberty/gun cracktivists went berserk. The Court found that the Second Amendment says what it means and means what it says. It’s not a second-class right and certainly not a government-bestowed privilege. It’s an unalienable, God-given, natural right beyond the ability of man to bestow or rescind.
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The Court found no history of the kinds of gun control Democrats demand and established strict scrutiny, the highest level of judicial review, for Second Amendment cases. Worst of all, the Court affirmed that the Second Amendment is an individual right. Americans may carry concealed weapons wherever they are, subject to a few exceptions, such as courtrooms, police stations, and jails. And they may keep and bear arms in common use.
The horror.
Democrats immediately set about enacting all manner of impediments to the exercise of the Second Amendment, including outlandish fees and training requirements, licensing schemes, making entire cities protected zones where guns can’t be carried, and banning “assault weapons” and “high-capacity” magazines. They knew these measures were unconstitutional but also knew they’d find Democrat judges who would uphold them. It would take years for lawsuits to work their way through the courts, and who knows? They might be able to pack the Supreme Court in the meantime, which would be death for the Second Amendment and our constitutional representative republic. They’d also have the fun of harassing, even bankrupting, and jailing Normal Americans.
New Jersey was among the states that leapt on the assault weapon and magazine ban bandwagon. And just in time for the Supreme Court’s next term, when it will hear several assault weapon/high-capacity magazine ban cases, the Third Circuit Court of Appeals has ruled that New Jersey’s bans are unconstitutional. From the majority decision:
Applying the framework announced in New York State Rifle & Pistol Association v. Bruen, we agree with the District Court that New Jersey’s ban on Colt AR-15s violates the Second Amendment. However, because the record supports the same result for all semi-automatic rifles—not only Colt AR-15s—we will MODIFY the District Court’s order so that it deems the Assault Firearm Provisions unconstitutional with respect to the full class of semi-automatic rifles. We will AFFIRM that part of the order as modified.
The LCM Provisions also violate the Second Amendment, so we will REVERSE the District Court’s order with respect to those. Because the LCM Provisions violate the Second Amendment, we need not address the Takings Clause challenge.
The Court rejected common anti-liberty/gun arguments that “assault weapons,” which don’t exist, are unusual and dangerous and are microns from being machine guns, so they have no self-defense utility:
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While self-defense is “central” to the Second Amendment, other lawful purposes also bring a commonly used weapon within the ambit of the Second Amendment. After all, Founding-era Americans commonly used weapons for hunting in addition to self-defense. See id. at 599 (noting that most Founding-era Americans “undoubtedly thought [the Second Amendment right] even more important for self-defense and hunting” than for securing the citizen militia). So weapons commonly used for hunting fall under the protection of the Second Amendment. Whatever the purpose of using a given arm, the lawfulness of that purpose is a necessary condition of Second Amendment coverage.
The Court also ruled that “in common use” means “in common use”:
The District Court found that there are around 24 million AR-l5s and similar sports weapons in circulation—a figure that is surpassed only by the number of registered handgun owners within the United States. New Jersey does not provide any data or statistics of its own to contradict the sheer number of semi-automatic rifles in common use for lawful purposes. Instead, New Jersey argues that the features of semi-automatic rifles are a legacy of their military heritage and are designed for combat.
The Court was equally rational with regard to “large-capacity magazines”:
New Jersey’s use of the term “large capacity magazine” further supports this conclusion. The LCM label is not objective: what is considered an LCM is statutorily defined. In New Jersey, that definition has changed over time. Today, a magazine capable of holding 15 rounds of ammunition is an LCM. But until 2018, that same magazine was not an LCM. It would defy reason for a label devised by New Jersey’s legislature to govern the reach of the Second Amendment’s text.
This is the first federal appellate court to strongly strike down “assault weapon” and “high-capacity magazine” bans. Usually, the Supreme Court won’t take up an issue without a Circuit split, which the Third Circuit just provided. But, as previously mentioned, the Court has already granted cert on these issues, and the Third Circuit’s decision strongly supports the Court’s previous Second Amendment rulings.
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Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, lifelong athlete, firearm instructor, retired police officer, and high school and college English teacher. He is a published author and blogger. His home blog is Stately McDaniel Manor.
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