The Third Circuit treats the Second Amendment rights with particular weight.
On July 17, the Third Circuit struck down New Jersey’s prohibition on semiautomatic rifles and magazines capable of holding more than ten rounds as unconstitutional under the Second Amendment. The case, formally known as Ass’n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (AJNRPC), was decided by an en banc panel by a 10-to-5 vote, with the opinion authored by Judge Arianna J. Freeman. This marks the first federal appellate decision to invalidate both an “assault weapon” ban and a magazine ban.
Some judges on the court would have preferred to await the Supreme Court’s resolution of Viramontes/Grant (see the post linked here), but certiorari was not granted on the magazine issue in those matters, and no party sought a delay. My sense is that another compelling reason for the court to decide is Justice Kavanaugh’s remarks in the Snope certiorari denial that future appellate rulings will be produced that “should aid this Court’s ultimate decisionmaking on the AR–15 issue.” All of the other circuit courts have sustained bans, to date.
The central issue in AJNRPC is the common-use test, which derives from the historical tradition of prohibiting weapons deemed “dangerous and unusual.” First, “in common use” refers to common use for lawful purposes at the time of the modern restriction. Second, “lawful purposes” encompasses not only self-defense but also hunting and other legitimate uses, including mere possession. Third, such use excludes weapons that are dangerous and unusual.
Critics who call the common-use test “a popularity poll” overlook the fact that the Supreme Court requires this test, and that the popularity of the restricted weapons matters to determine whether they are in common use for a lawful purpose. Moreover, possession—whether keeping or bearing—falls within protection, not only active use in self-defense scenarios.
“Bruen‘s first step is essentially a textual inquiry,” but the common-use inquiry does not reside there. It does not appear in the Second Amendment’s text nor is it part of the definition of “Arms,” which, as Wolford noted, includes “any weapon normally used for offensive or defensive purposes.” “’Customarily’” distinguishes items that can be used, offensively or defensively, as weapons (for example, bricks) from weapons normally used for offensive or defensive purposes. Thus, the common-use concept fits into Bruen‘s second step (the historical-tradition step) as part of evaluating how a modern regulation burdens the right in light of any relevant historical analogue. Here, as in Heller, the burden 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 justify its current statute. Accordingly, in this firearms ban case, New Jersey must show that the semiautomatic rifles it bans are “dangerous and unusual” and therefore not in common use.
Turning next to New Jersey’s ban on the make-and-model listings of firearms, the AJNRPC court concludes that the record supports the same result for all semiautomatic rifles, not merely the Colt AR-15. Consequently, “we need not delineate the precise quantity or characteristics that render a weapon in common use for lawful purposes. Regardless of where those boundaries lie, the many millions of semiautomatic rifles circulating for lawful purposes are plainly in common use.”
Contrary to the claim that rifles are not commonly “used” in self-defense, the court notes that “even if a weapon is infrequently 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 semiautomatic rifles are disproportionately involved in some crimes, that fact may still represent only a small portion of these weapons’ overwhelmingly lawful use. It is also worth noting that interpersonal violence constitutes a broad societal issue that has persisted since the eighteenth century, where Bruen‘s second step remains straightforward.
Of course, the Third Circuit did not need to engage in as extensive a chain of analogies as it did, given that the Supreme Court in Heller had already conducted the relevant historical analysis to identify the principle that weapons deemed “dangerous and unusual” may be prohibited consistent with the Second Amendment.
That is why antebellum and Reconstruction-era regulations of Bowie knives, bludgeons, and pistols as potential analogues do not carry much weight: they are too temporally distant, 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, which weakens the weight of later restrictions. Third Circuit precedent, Lara v. Comm’r Pa. State Police (2025), holds that 1791 supremacy trumps 1868 as the proper baseline for analogues.
The AJNRPC court next addresses the magazine ban. Magazines are “arms” because they feed ammunition into certain firearms, thereby enabling their functioning. The label “large-capacity magazine” (LCM) “is not objective: what counts as an LCM is defined by statute.” It used to be 15 rounds; now it stands at 10. “It would defy logic for a label drafted by New Jersey’s legislature to govern the reach of the Second Amendment’s text.” As to the argument that a firearm can 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” within the plain-text definition of “arms.” Magazines obviously fulfill that function by holding ammunition and enabling a lawfully armed owner to discharge a firearm in self-defense and to train for such scenarios without repetitive reloading.
The banned magazines easily meet the common-use standard. “But the 24 million AR-15s and similar sporting 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 over 100 million 30-round AR-15 magazines in circulation.” (The author notes there are likely even more.)
Regarding analogues, Founding-era gunpowder-storage regulations miss the mark—they were aimed at fire safety, not crime control. Nor were concealed-carry rules—though not outright bans—relevant to the issue here.
All of the above resolves the unconstitutionality of New Jersey’s ban on all listed semiautomatic rifles and on magazines. However, the court found the record too sparse regarding shotguns and pistols defined as “assault firearms,” which requires a remand to the district court for further factual development.
Judge Paul Matey’s concurrence is blunt: “Nothing has changed in the decades since the State commenced its battle against the Second Amendment and its ongoing breach of the law.” The terms “LCM” and “assault firearm” lack objective meanings and are instead “marketing materials repurposed into legislation.” Although the court’s opinion does not expressly discuss features, Judge Matey notes, “There is ample evidence that all of the arms at issue—pistol grips, folding stocks, magazines holding eleven or more rounds, and the semiautomatic shotguns and pistols New Jersey lumped into the definition of ‘assault weapons’—have long been in common use for lawful purposes.”
In a concurrence in part, Judge Peter Phipps emphasizes that proper historical analogues “aim to regulate people who actually or imminently misuse firearms to harm or threaten others.” Yet the New Jersey prohibitions are “based on their potential for misuse, however remote, and that is broader than actual or imminent misuse.”
Judge Tamika Montgomery-Reeves concurs, but would have held the case for decision pending the Supreme Court’s rulings in Viramontes and Grant. Citing the laws at issue in those cases, which could determine AJNRPC, two distinct definitions illustrate (my observation) the irrationality of bans labeled as “assault weapons.” Cook County includes a rifle “without a stock attached,” while Connecticut includes a rifle with a “folding or telescoping stock” attached. Which of these conflicting features allegedly makes a rifle so dangerous?
Judge Jennifer L. Mascott concurs in part, agreeing with Judge Matey that it is unnecessary to remand for further fact-finding. She warns against misreading the “dangerous and unusual” standard: “But turning that designation into an antitype risks signaling to assertive state regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use ‘dangerous and unusual’ rather than by demonstrating the historical evidence required by the Supreme Court.”
Judge Cindy Chung concurs in part and dissents in part. She maintains that “common use” is determined at Bruen’s first step and does not encompass “a weapon one would expect to be used in modern warfare; nor does the term embrace weapons most commonly used for criminal purposes.” Instead, common use includes a weapon “an ordinary person would have at home for purposes like self-protection, defending the home, and hunting.” At step two, she writes that a weapon not commonly carried in public can cause fear among the populace. She would order a remand to apply that standard.
Judge Patty Schwartz, joined by three other judges, dissents. Her view is that the objective features of AR-15 rifles and large-capacity magazines render them excessive for “ordinary self-defense needs” and thus outside the Second Amendment’s protections. Her opinion, however, does not clearly identify what those “objective features” are. While no government standard service weapon uses this configuration, she contends that the AR-15 is “an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense.”
Judge Cheryl Ann Krause dissents, arguing that the majority disregards the democratic will of New Jersey’s people based on a novel theory that these weapons are “in common use” because modern manufacturers have flooded the market with a sufficient quantity (undefined) and a portion of gunowners claim to use them solely for lawful purposes. Apparently, consumers purchase AR-15s because manufacturers urge them to, not because such rifles and magazines are objectively superior to alternatives the state imposes. Moreover, she notes, gunowners cannot be trusted to explain why they buy these firearms.
Finally, Judge D. Brooks Smith dissents, aligning with two other dissents and “the persuasive reasoning of Judge Wilkinson” in the Fourth Circuit’s Bianchi decision. That line of reasoning flouts Bruen’s common-use test and inflates the perceived danger of AR-15s, without regard to the caliber of any specific rifle.
This has been a long time in coming. New Jersey’s ban was first enacted in 1990. I litigated a pre-Bruen challenge based on vagueness and equal protection, Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff’d (3d Cir. 2001) (no published opinion). We demonstrated that several “assault firearm” listings like “Avtomat Kalashnikov” (a literal translation of “automatic rifle” from Russian) are machine-gun names. And the catchall “substantially identical” firearms signaled to the public that similar “things like that” would be included. I recall one Third Circuit judge on the panel stating that “everyone knows what an assault firearm is; it’s a submachine gun with a silencer.”
The Third Circuit has now taken Second Amendment rights seriously, and the momentum seems to be shifting.
