A three-judge appellate panel of the U.S. Third Circuit Court upheld last week New Jersey’s ban on ammunition magazines holding more than 10 rounds.
The ruling directly contradicts a recent ruling out of the Ninth Circuit and could finally force the U.S. Supreme Court to accept a gun rights case and resolve the dispute.
The U.S. Court of Appeals for the Third Circuit voted 2-1 to back previous rulings from a three-judge panel of the Circuit Court as well as the District Court for New Jersey.
The court argued simultaneously that a magazine ban could prevent deaths during a mass murder event and that limiting the number of rounds in a magazine does not affect the ability of the law-abiding to defend themselves.
The law “does not prohibit the possession of the quintessential self-defense weapon, the handgun,” nor does it “effectively disarm individuals or substantially affect their ability to defend” themselves, the court ruled.
The Association of New Jersey Rifle and Pistol Clubs brought the suit immediately after the 10-round mag ban was passed in 2018. They argued that the ban violates the Second, Fifth, and Fourteenth Amendment rights of New Jersey residents.
The court agreed with the previous rulings to strike down the gun-rights group’s arguments on all counts. They argued that the ban does not violate core Second Amendment rights for five reasons:
- it does not categorically ban a class of firearms but is rather a ban on a subset of magazines;
- it is not a prohibition of a class of arms overwhelmingly chosen by Americans for self-defense in the home;
- it does not disarm or substantially affect Americans’ ability to defend themselves;
- New Jersey residents can still possess and use magazines, just with fewer rounds; and
- “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.”
Furthermore, the law survives intermediate scrutiny because it recognizes New Jersey’s “significant, substantial, and important interest in protecting its citizens’ safety.” How? Because, according to the court, there is enough evidence to suggest that during a mass murder, a limited mag capacity will allow “victims… to flee, bystanders to intervene, and numerous injuries will be avoided in a mass shooting incident.”
The court does not resolve the inherent contradiction in its argument: if a mag ban does affect a murderer’s ability to kill, how does it not affect a law-abiding person’s ability to defend himself?
The court also ruled that the law does not violate the Fifth Amendment’s takings clause because it provides avenues for New Jersey residents to modify, transfer, or surrender their magazines. It doesn’t violate the Fourteenth Amendment because the exceptions made for police officers are justified by the officers’ additional training.
In a lengthy dissent, Trump-appointed Judge Paul Matey argues that New Jersey’s mag ban does not satisfy the standards of “intermediate scrutiny” applied to a potential Second Amendment violation. He points out that the state hasn’t proven that such bans actually affect the death count during a mass murder. Even if the state had made a convincing case, it’s unclear whether a limit on magazine capacity will “affect the outcomes of enough gun attacks to measurably reduce gun injuries and death.”
In a footnote, he also points out that mass murderers do not fire at high rates during their killing sprees, meaning that taking an extra 2-4 seconds to reload won’t affect the ultimate outcome of the event.
The ruling from the Third Circuit comes only weeks after the U.S. Ninth Circuit concluded the opposite. Their three-judge panel ruled that “large-capacity” magazines are protected by the Second Amendment because 10-round limits “impose a substantial burden on the right to self-defense.”
In a normal world, this issue would be immediately taken up by the Supreme Court. One of their most important jobs is to settle disputes between the lower circuit courts. But given Justice John Roberts’ unwillingness to take any gun-related cases, it’s anyone’s guess whether this issue will be resolved until the court’s makeup changes.