As expected, the U.S. Court of Appeals for the 3rd Circuit, in an en banc decision, has struck down New Jersey’s prohibitions on semi-automatic rifles and large-capacity magazines. It is a major decision because he creates a circuit court split for the first time. The Supreme Court is already scheduled to hear similar cases from Chicago and Connecticut this December. The decision was 15 judges who wanted to strike down the bans and four who dissented. A copy of the decision is provided here.
The U.S. Court of Appeals for the Third Circuit, in an en banc decision led by Biden appointee Judge Cathy Freeman, found New Jersey’s prohibitions on semi-automatic rifles and large-capacity magazines fail the Supreme Court’s history-and-tradition test from Bruen. The court noted about 24 million such rifles are in common use for lawful purposes nationwide, with no historical basis for the magazine limits. While the ruling deepens a circuit split and sets up likely Supreme Court review, the bans stay in place pending appeals.
The majority opinion was written by Judge Arianna J. Freeman, who was appointed by Biden. Some of the more conservative judges put in opinions concurring with finding the ban unconstitutional, but they disagreed on issues such as whether it was necessary for the case to be remanded to the district court for further consideration. Freeman’s decision also gives too much weight to Bowie knives regulations and she doesn’t understand the historical issues involved — Bowie knife laws regulated the sale or public carry of Bowie knives but did not prohibit the mere possession or ownership as these assault weapon bans do (see notes at the end of this post).
The dissent’s discussion by Krause, Restrepo, and Smith wants the courts figuring out whether a gun is primarily used for self-defense or “criminal purposes” is misplaced. Obviously it is trying to bring in judicial discretion to allow Democrat judges to insert their own preferences on whether guns should be banned. (President Barack Obama appointed Patty Shwartz (who also filed a dissent), Cheryl Ann Krause, and Luis Felipe Restrepo, while President George W. Bush appointed D. Brooks Smith.)
The Supreme Court has thus made clear that whether a type of weapon is “in common use” for purposes of the Second Amendment inquiry—and thereby falls within the scope of the Amendment’s presumptive protection—turns on whether its objective features and uses make it better suited for self-defense, in contrast to those weapons best suited for offensive military or criminal purposes like inflicting mass casualties on enemy combatants or terrorizing victims while committing a crime.
Virtually all the concurrences were by Republican appointees. While all of Trump’s appointees favored striking down the bans, George W. Bush’s two nominees were equally divided on the decision.
Chief Judge Chagares: Appointed by President George W. Bush.
Judge Hardiman: Appointed by President George W. Bush.
Judge Bibas: Appointed by President Donald Trump.
Judge Porter: Appointed by President Donald Trump.
Judge Matey: Appointed by President Donald Trump.
Judge Montgomery-Reeves: Appointed by President Joe Biden.
Judge Bove: Appointed by President Donald Trump.
Judge Phipps: Appointed by President Donald Trump.
Judge Mascott: Appointed by President Donald Trump.
A copy of the decision is available here.
For examples of the Bowie knife regulations see:
Georgia (1837) — Restricted possession for purposes of carrying and imposed taxes and regulations on sale, but modern scholarship notes it was not a general prohibition on owning a Bowie knife in one’s home.
Alabama (1839) — Regulated concealed carry of Bowie knives rather than ownership.
Texas (1871) — Prohibited carrying Bowie knives “on or about the person,” but did not prohibit keeping one at home. Travelers and certain other exceptions existed.
Arkansas (1881) — Prohibited wearing or carrying Bowie knives but did not ban ownership.
also
Tennessee (1838) — was the most restrictive but even it did not prohibit owning one. Prohibited merchants from selling Bowie knives, prohibited concealed carry, and imposed enhanced penalties for assaults committed with Bowie knives. It did not generally prohibit simple possession in the home.
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