Third Circuit strikes down New Jersey's assault weapon and magazine ban as unconstitutional

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Third Circuit Strikes Down New Jersey’s Ban on Semiautomatic Rifles and Large-Capacity Magazines

On July 17, the U.S. Court of Appeals for the Third Circuit ruled that New Jersey’s ban on semiautomatic rifles and magazines holding more than ten rounds violates the Second Amendment. The decision, issued in Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (AJNRPC), was a 10-to-5 en banc opinion authored by Judge Arianna J. Freeman. This marks the first circuit court decision to invalidate an "assault firearm" and magazine ban.

Procedural Context

Some members of the court argued for delaying the decision until the Supreme Court rules on Viramontes/Grant. However, certiorari was not granted on the magazine issue in those cases, and no party sought a delay. A further rationale for proceeding, as noted in the opinion, is Justice Kavanaugh’s statement in the Snope cert denial that future appellate decisions "should assist this Court's ultimate decisionmaking on the AR–15 issue." All other circuit courts that have considered similar bans have upheld them.

The Common-Use Test

The central legal framework in AJNRPC is the "common-use test," derived from the historical tradition of banning "dangerous and unusual" weapons. The court clarified three key points:

• "In common use" refers to common use for lawful purposes at the time of the modern restriction.
• "Lawful purposes" includes not only self-defense but also hunting and other lawful uses, including mere possession.
• Exclusion applies to weapons that are "dangerous and unusual."

The court rejected criticism that the common-use test is merely "a popularity poll," noting that the Supreme Court requires this test and that "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose. Furthermore, the court emphasized that the Second Amendment protects possession—whether keeping or bearing—not just the active use of firing a weapon in self-defense.

Placement Within the Bruen Framework

The court explained that while Bruen's first step is "fundamentally a textual inquiry," the common-use inquiry does not belong there. It neither appears in the text of the Second Amendment nor is it part of the definition of "Arms," which, as noted in Wolford, includes "any weapon customarily used for offensive or defensive purposes." The term "customarily" distinguishes items that can be used as weapons (e.g., bricks) from weapons normally used for such purposes.

Instead, the common-use test fits into Bruen's second step—the historical tradition analysis—as part of determining "how" a modern regulation burdens the right compared to relevant historical analogues. In this case, 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 (New Jersey) to demonstrate a historical tradition justifying its modern law. Therefore, New Jersey must prove that the banned semiautomatic rifles are "dangerous and unusual" and, by necessity, not in common use.

Scope of the Ban

Regarding New Jersey’s ban on specific firearm makes and models, the AJNRPC court determined that the record supports the same conclusion for all semiautomatic rifles, not just the Colt AR-15. The court stated: "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."

Rebuttal to State Arguments

The court rejected the argument that rifles are not commonly "used" in self-defense, noting that "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." Additionally, the court observed that "even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons' overwhelmingly lawful use." The court further noted that interpersonal violence is "a general societal problem that has persisted since the 18th century," making Bruen's second step "fairly straightforward."

Historical Analogues

The Third Circuit acknowledged that it did not need to engage in extensive analogical reasoning, given that the Supreme Court in Heller had already identified the principle that arms that are "dangerous and unusual" can be banned consistent with the Second Amendment. This is why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols—considered as potential analogues—do not support New Jersey’s modern ban.