ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS INC; BLAKE ELLMAN; ALEXANDER DEMBOWSKI, Appellants v. ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW JERSEY STATE POLICE; THOMAS WILLIVER, in his official capacity as Chief of Police of the Chester Police Department; JAMES B. O‘CONNOR, in his official capacity as Chief of Police of the Lyndhurst Police Department
No. 19-3142
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 1, 2020
2020 Decisions 833
Before: JORDAN, MATEY and ROTH, Circuit Judges.
PRECEDENTIAL. On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-18-cv-10507). District Judge: Hon. Peter G. Sheridan. Argued June 16, 2020.
John P. Sweeney [ARGUED]
Bradley Arant Boult Cummings
1615 L Street, NW – Suite 1350
Washington, DC 20036
James W. Porter, III
Bradley Arant Boult Cummings
1819 Fifth Avenue North
One Federal Place
Birmingham, AL 35203
Daniel L. Schmutter
Hartman & Winnicki
74 Passaic Street – Suite 101
Ridgewood, NJ 07650
Counsel for Appellants
Joseph Fanaroff [ARGUED]
Stuart M. Feinblatt
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Office of Attorney General of New Jersey
Division of Criminal Justice
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Bryan E. Lucas
Evan A. Showell
Office of Attorney General of New Jersey
124 Halsey Street
P.O. Box 45029
Newark, NJ 07102
Counsel for Appellees, Attorney General New Jersey, and Superintendent New Jersey State Police
George C. Jones
John H. Suminski
McElroy Deutsch Mulvaney & Carpenter
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
Counsel for Appellee, Thomas Williver
Carmine Richard Alampi
Jennifer Alampi
Alampi & Demarrais
One University Plaza – Suite 404
Hackensack, NJ 07601
Counsel for Appellee, James B. O‘Connor
Firearms Policy Coalition
1215 K Street – 17th Floor
Sacramento, CA 95814
Counsel for Amicus Appellants
OPINION OF THE COURT
JORDAN, Circuit Judge.
We are asked to determine whether a New Jersey statute that makes it illegal to possess large capacity magazines (“LCMs“) – defined as magazines capable of holding more than ten rounds of ammunition – violates the Second Amendment, the Fifth Amendment‘s Takings Clause, or the Fourteenth Amendment‘s Equal Protection Clause. But we cannot answer that question, since it has already been answered. A prior panel of our court reviewed that statute, known as Assembly Bill No. 2761 and codified at
On remand, the District Court ruled on summary judgment that it was bound by that earlier decision and so upheld the constitutionality of the Act. The plaintiffs have now appealed again, arguing that the District Court erred in treating
I. BACKGROUND
In 2018, New Jersey enacted Assembly Bill No. 2761, a law making it illegal to possess a magazine capable of holding more than ten rounds of ammunition.
Specifically, the legislation g[ave] LCM owners until December 10, 2018 to (1) modify their LCMs “to accept ten rounds or less,” id. at
2C:39-19(b) ; (2) render firearms with LCMs or the LCM itself inoperable, id.; (3) register firearms with LCMs that c[ould not] be “modified to accommodate ten or less rounds,” id. at2C:39-20(a) ; (4) transfer the firearm or LCM to an individual or entity entitled to own or possess it, id. at2C:39-19(a) ; or (5) surrender the firearm or LCM to law enforcement, id. at2C:39-19(c) .
Ass‘n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. of N.J., 910 F.3d 106, 111 (3d Cir. 2018) (“Prior Panel Opinion“) (footnote omitted). The statute exempts active military
On the day the bill was signed into law, the plaintiffs filed this action,1 naming certain state and local law enforcement officials as defendants. (For ease of reference, we refer to the defendants collectively as “the State.“) The complaint alleges that the Act violates the Second Amendment, the Fifth Amendment‘s Takings Clause, and the Fourteenth Amendment‘s Equal Protection Clause. Prior Panel Opinion, 910 F.3d at 111. With their complaint, the plaintiffs also filed a motion for a preliminary injunction. Ass‘n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal, No. 3:18-cv-10507 (PGS) (LHG), 2018 WL 4688345, at *1 (D.N.J. Sept. 28, 2018) (“Preliminary Injunction Opinion“).
The District Court held a three-day hearing on the motion, during which the parties presented conflicting expert testimony on the use of LCMs in mass shootings, including the number of casualties involved and whether the Act would save lives during a mass shooting by forcing the shooter to pause
In rejecting the plaintiffs’ contention that the Act violated the Second Amendment, the District Court applied the two-step analytical approach we set out in United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). Preliminary Injunction Opinion, 2018 WL 4688345, at *9. Marzzarella requires a court to ask first whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment‘s guarantee of the right to bear arms. If it does, the second step is to evaluate that law under some form of heightened scrutiny.2 614 F.3d at 89. The level of scrutiny to
The District Court concluded that the New Jersey Act imposes a burden on the Second Amendment because magazines, including LCMs, are integral components of guns. Preliminary Injunction Opinion, 2018 WL 4688345, at *9-11. Having answered the step-one question from Marzzarella, the Court proceeded to the second step and determined that the law should be evaluated under intermediate scrutiny because the core of the Second Amendment right to keep and bear arms is not burdened by the Act. As the Court saw it, the Act “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
Then, applying intermediate scrutiny, the District Court upheld the Act. Id. at *12-13. Intermediate scrutiny requires the government to prove that the objective of the government regulation is “significant, substantial, or important[,]” and that “the fit between the challenged regulation and the asserted objective [is] reasonable[.]” Marzzarella, 614 F.3d at 98 (internal quotation marks omitted). “The regulation need not be the least restrictive means of serving the interest, but may not burden more [conduct] than is reasonably necessary.” Id. (citations omitted). The District Court concluded that New Jersey has a significant, substantial, and important interest in the safety of its citizens. Preliminary Injunction Opinion, 2018 WL 4688345, at *12. While the Court did not make a definitive finding that the Act will significantly reduce casualties in a mass shooting by limiting the number of shots that can be fired from a single gun, it did decide that there was a reasonable fit between the Act and its stated object. It said, “the expert testimony established that there is some delay associated with reloading, which may provide an opportunity for potential victims to escape or for a bystander to intercede and somehow stop a shooter.” Id. at *12. Finally, the Court concluded that the Act places a minimal burden on lawful gun owners because it does not impose a restriction on the number of magazines an individual may own and instead limits only the lawful capacity of a single magazine. Id. at *13.
The District Court also rejected the plaintiffs’ Fifth and Fourteenth Amendment claims. It concluded that there had been no taking of property in violation of the Fifth Amendment because the Act allows for gun owners to permanently modify
Dissatisfied with the denial of their motion for a preliminary injunction, the plaintiffs appealed, but a divided panel of our Court affirmed. Prior Panel Opinion, 910 F.3d at 110. The panel announced its holding in these straightforward words: “Today we address whether [the Act] violates the Second Amendment, the Fifth Amendment‘s Takings Clause, and the Fourteenth Amendment‘s Equal Protection Clause. We conclude that it does not.” Id. While the panel explained
Addressing the Second Amendment claim, the panel applied the analytical approach from Marzzarella, as had the District Court. Id. at 116-24. First, it assumed without deciding that LCMs are “typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection.” Id. at 117. It then turned to the second step of Marzzarella and determined that intermediate scrutiny should apply because the Act does not burden the core Second Amendment guarantee, for five reasons: (1) it does not categorically ban a class of firearms but is rather a ban on a subset of magazines; (2) it is not a prohibition of a class of arms overwhelmingly chosen by Americans for self-defense in the home; (3) it does not disarm or substantially affect Americans’ ability to defend themselves; (4) New Jersey residents can still possess and use magazines, just with fewer rounds; and (5) “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.” Id. at 117-18 (citations and internal quotation marks omitted).
The panel also agreed with the District Court that the Act survives intermediate scrutiny. It recognized New Jersey‘s significant, substantial, and important interest in protecting its citizens’ safety. Id. at 119. And, the panel said, the Act reasonably fits the State‘s interest because, by reducing the
In ruling for the State, the panel‘s decision was in line with the decisions of at least four other circuits that have decided that laws regulating LCMs are constitutional. See Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) (affirming grant of summary judgment upholding Maryland‘s ten round limit); N.Y. State Rifle & Pistol Ass‘n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (upholding, on review from summary judgment, New York and Connecticut‘s laws imposing a ten round limit); Friedman v. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015) (affirming grant of summary judgment upholding City of Highland Park‘s ten round limit); Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (“Heller II“) (affirming grant of summary judgment upholding D.C.‘s ten round limit).4
When the case was remanded to the District Court, the parties promptly filed cross-motions for summary judgment, and the State‘s motion won. Although the Court recognized that different standards apply at the summary judgment stage than at the preliminary injunction stage, it said that it was granting summary judgment because “the Third Circuit has issued a precedential decision that resolves all legal issues in this case and there remains no genuine disputes of material fact.” (App. at 8.) The District Court noted that the prior panel opinion said the Act does not violate the Second, Fifth, or Fourteenth Amendments, so there was “binding Third Circuit precedent that the New Jersey law is constitutional[.]” (App. at 8-9.)
II. DISCUSSION5
“It is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels.” (3d Cir. I.O.P 9.1.) The plaintiffs argue, however, that we are not under that restriction here, for two reasons. First, they contend the outcome can differ here because this appeal arises in a different procedural posture than did the earlier one, with different standards and different inferences in play. Second, they say that the prior panel decision was clearly wrong and should be disregarded, to prevent manifest injustice. Neither argument succeeds.
True enough, the standards for obtaining a preliminary injunction and summary judgment are different. Under the well-known standard for obtaining a preliminary injunction, the moving party must show “both a likelihood of success on the merits and a probability of irreparable harm. Additionally, the district court should consider the effect of the issuance of a preliminary injunction on other interested persons and the public interest.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990) (citations omitted). On summary judgment, by contrast, the moving party must establish that “there is not a genuine dispute with respect to a material fact
But despite the differing standards pertaining to the differing procedural postures, a panel of our Court reviewing a decision on a preliminary injunction motion can indeed bind a subsequent panel reviewing an appeal from an order on summary judgment. As then-Judge Alito explained in Pitt News v. Pappert, 379 F.3d 96 (3d Cir. 2004),
although a panel entertaining a preliminary injunction appeal generally decides only whether the district court abused its discretion in ruling on the request for relief and generally does not go into the merits any farther than is necessary to determine whether the moving party established a likelihood of success, a panel is not always required to take this narrow approach. If a preliminary injunction appeal presents a question of law and the facts are established or of no controlling relevance, the panel may decide the merits of the claim.
Id. at 105 (internal quotation marks and citations omitted). Thus, “[i]n the typical situation—where the prior panel stopped at the question of likelihood of success—the prior panel‘s legal
Here, the prior panel‘s opinion immediately went beyond the question of likelihood of success and declared a holding on the merits. Again, it held very plainly that the Act does not violate the Second Amendment, the Fifth Amendment‘s Takings Clause, and the Fourteenth Amendment‘s Equal Protection Clause. Prior Panel Opinion, 910 F.3d at 110. In short, it addressed the ultimate merits of the dispute, as the plaintiffs rightly admit.7 (Oral Arg. At 2:02-40, https://www2.ca3.uscourts.gov/oralargument/audio/19-3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.) And the panel did so primarily on the basis of facts that are uncontested.8
Not so. According to our Internal Operating Procedures, we “may take summary action … if it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” (3d Cir. I.O.P 10.6 (emphasis added)). Thus, although we may choose to summarily affirm, a decision of a motions panel declining to affirm is not the same as a
Moreover, we do not afford the same deference to decisions made by a motions panel that we afford to opinions by a merits panel. Although “a merits panel does not lightly overturn a decision made by a motions panel during the course of the same appeal, we do not apply the law of the case doctrine as strictly in that instance as we do when a second merits panel is asked to reconsider a decision reached by the first merits panel on an earlier appeal.” Council Tree Commc‘ns, Inc. v. FCC, 503 F.3d 284, 292 (3d Cir. 2007). That is in part because litigants can seek en banc review and review by certiorari of merits panel decisions but do not have similar opportunities with respect to a motions panel decision. Id. at 291-92. Here, the order denying the motion for summary affirmance does not explain why the motion was being denied. Thus, even if the decisions of the merits panel and the motions panel were in conflict (which they are not), the merits panel is the one owed deference.
The plaintiffs next argue that we need not follow the prior panel‘s decision because it is clearly wrong and would work a manifest injustice. The burden that accompanies that contention is heavy. The plaintiffs must “persuade us not only that our prior decision was wrong, but that it was clearly wrong[.]” See In re City of Phila. Litig., 158 F.3d 711, 720-21 (3d Cir. 1998) (emphasis added). Similarly, a manifest injustice occurs only when there is “direct, obvious, and observable error[.]” Manifest Injustice, Black‘s Law Dictionary (11th ed. 2019). “The law of the case will be
There is certainly room for vigorous debate about the prior decision. The thorough dissent shows that. But whether we agree with the majority‘s opinion or not, we cannot say that it is clearly wrong or manifestly unjust. Even if we ignore that many other circuit courts have reached the same conclusion as the prior panel, with respect to very similar laws, there is evident in the prior panel‘s work thoughtful consideration of the record and the relevant legal principles. Whether the prior panel ultimately got things wrong is not the question now. The question is whether it went so far astray that its decision can be called clearly wrong and manifestly unjust. The answer to that is no. We are therefore bound to respect the decision rendered by the prior panel, which ends this appeal.10
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s grant of summary judgment in favor of the State and its denial of the plaintiffs’ cross-motion for summary judgment.
The majority concludes that a prudential principle bars our consideration of the meaning of the Constitution. But “[t]he interpretation of the laws is the proper and peculiar province of the courts,” The Federalist No. 78, at 525 (Alexander Hamilton) (J. Cooke ed., 1961), and a judicially created tool for case management does not, in my opinion, supersede the expectation that the judiciary will decide cases and controversies arising under the Constitution. No doubt, there are rational reasons behind the “law-of-the-case doctrine.” Allowing courts to repeatedly consider questions already decided would undermine the stability and predictability of the law. In contrast, where issues remain undecided, or the assumptions underlying those decisions are unclear, then the opposite conclusion holds. And in such cases, the twin aims of finality—constancy and certainty—do not support limiting the judicial power granted in the Constitution and extended by Congress.
This case, in my view, is an example of the latter category for two reasons. First, in Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General of New Jersey, 910 F.3d 106 (3d Cir. 2018) (”NJ Rifle I“),1 the panel did not decide whether all “magazines” enjoy the guarantee of the Second Amendment under United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); and second, the decision did not define what constitutes a “large capacity magazine.” Because both issues are central to the resolution of this case, I would decline to apply the law-of-the-case doctrine and would consider the issues raised by the appellant. Doing so, I would reverse the
Finally, given the difficulty applying our existing framework in cases implicating the Second Amendment—illustrated by the deeply reasoned, but still deeply divergent opinions in NJ Rifle I—I believe we should reconsider our decision in Marzzarella in favor of a standard that draws on the text, history, and original meaning of the constitutional guarantee of “the right of the people to keep and bear Arms.”
I. LAW-OF-THE-CASE DOCTRINE
A. Background
Under the law-of-the-case doctrine, “one panel of an appellate court generally will not reconsider questions that another panel has decided on a prior appeal in the same case.” In re City of Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998). The doctrine does not appear in statute. Instead, it is a prudential limitation that “directs courts to refrain from re-deciding issues that were resolved earlier in the litigation.” Pub. Int. Rsch. Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997). But “[t]he law of the case doctrine does not limit a federal court‘s power; rather, it directs its exercise of discretion.” Id. It is, in short, a judicially created self-direction on when to choose to limit further judicial review. And the reasoning is simple: declining to reconsider issues in the same case “promotes the finality and efficiency of the judicial process by protecting against the agitation of settled issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (internal quotation marks and citation omitted). So a “settled” issue is the key and, in this case, I do not find the rights of the parties settled.
B. The NJ Rifle I Decision
NJ Rifle I concluded that “laws restricting magazine capacity to ten rounds of ammunition do not violate the Second Amendment.” NJ Rifle I, 910 F.3d at 122. That conclusion rests on assumptions about the scope of the constitutional right to keep and bear arms, and the technical operation of self-loading firearms.
1. NJ Rifle I Did Not Decide That Magazines Holding More Than Ten Rounds Are Arms Protected under the Second Amendment
I start by asking what constitutional question NJ Rifle I answered. We know the Second Amendment confers “an individual right to keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 595, 598, 622 (2008). We have also read Heller to require “a two-pronged approach to Second Amendment challenges.” Marzzarella, 614 F.3d at 89. “First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment‘s guarantee.” Id. “If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.” Id.
I do not read NJ Rifle I to have fully applied this framework. To begin, the majority opinion held that “a magazine is an arm under the Second Amendment.” NJ Rifle I, 910 F.3d at 116. But it did not view “magazines” as the relevant
2. NJ Rifle I‘s Alternating Technical Definitions
Narrowing the issue presented from “magazines” to a specific kind of magazine appears, in my reading, to have obscured the reasoning in NJ Rifle I. Consider a few examples in which the terms “magazines,” “LCMs,” and “large capacity magazines” interchangeably refer to 1) magazines within the New Jersey Magazine Act because they can hold more than ten rounds of ammunition, id. at 110; 2) magazines subject to laws in other states limiting the amount of rounds of ammunition, id. at 110 n.1; 3) firearms with “combat-functional ends” capable of “rapidly” discharging ammunition, id. at 117 n.16; and 4) magazines used in fully-automatic firearms, id. at 119
But they are not. Yet blending together this wide assortment of firearms and regulatory structures is critical to the prior panel‘s conclusion that “[n]ot only will the LCM ban reduce the number of shots fired and the resulting harm, it will present opportunities for victims to flee and bystanders to intervene.” Id. at 119. I do not see how the current record supports that inference. At best, the record could be read to suggest that criminals use a variety of firearms to commit an
3. The Cumulative Result
It is the combination of these two unanswered questions that gives me greatest pause. The collective effect of declining to confirm that “large capacity magazines” enjoy constitutional protection while defining those same magazines to include sizes greater than the New Jersey Magazine Act allows leaves me unable to predict how the Second Amendment will apply in future cases. I do not believe the constitutional character of a “magazine” rises and falls on a single extra round of ammunition. Nor do I imagine the Second Amendment allows any government to diminish an individual‘s rights through nomenclature. I am, however, confident that new restrictions on firearms will continue to flourish throughout our Circuit. Under NJ Rifle I, that leaves District Court judges with the difficult task of determining whether a magazine is small enough to satisfy the Second Amendment or large enough to slip outside its guarantee. And it leaves this Court with the certainty that we will need to address those unanswered questions.
Respectfully, we need not wait. “[T]he law of the case doctrine bars courts from reconsidering matters actually decided[;] it does not prohibit courts from revisiting matters that are ‘avowedly preliminary or tentative.‘” Council of Alt. Pol. Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (quoting 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (3d ed. 1981)). So we have taken care to “to prevent the doctrine from being used to prevent a properly raised argument from being considered even once.” United Artists Theatre Cir., Inc. v. Township of Warrington, 316 F.3d 392, 398 (3d Cir. 2003) (emphasis in original). And that is why we have recognized that “[w]here there is substantial doubt as to whether a prior panel actually decided an issue, the later panel should not be foreclosed from considering the issue.” Id.
Here, there is substantial doubt about whether all magazines enjoy the guarantee of the Second Amendment or if, instead, that protection turns on the number of rounds of ammunition inside. In my opinion, it is necessary to address that issue to settle the rights of the parties here. Given that uncertainty, I would decline to apply the law-of-the-case doctrine, as I do not believe it applies to these circumstances. For that reason, I would, and therefore do, consider the full question presented by the appellants.
II. APPLICATION OF THE SECOND AMENDMENT
A. The Scope of the Second Amendment
I begin with Heller and the Supreme Court‘s consideration of the text, history, and tradition of firearms regulations in the United States to best understand the meaning of the Second Amendment.
Naturally, the Court began with the “operative clause” which provides that “the right of the people to keep and bear Arms, shall not be infringed.” Heller, 554 U.S. at 576, 578–79. The Court observed that “[t]he 18th-century meaning [of ‘arms‘] is no different from the meaning today.” Id. at 581 (citing 1 S Johnson, Dictionary of the English Language 106 (4th ed. 1773) (reprinted 1978) (defining “arms” as “[w]eapons of offence, or armour of defence“)); 1 Timothy Cunningham, A New and Complete Law Dictionary (1771) (defining “arms”
Next, the Court held that “the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons.‘” Id. As to “bear,” the Court held that “[w]hen used with ‘arms’ . . . the term has a meaning that refers to carrying for a particular purpose—confrontation.” Id. at 584; see id. (“From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century.“). “Putting all of these textual elements together,” and drawing on historical context, the Court held “that they guarantee the individual right to possess and carry weapons in case of confrontation.” Id. at 592, 595.
But the Court acknowledged that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. For example, it did “not read the Second Amendment to protect the right of citizens to carry arms for any sort of
With this foundation, the Court turned to the handgun ban at issue, which prohibited keeping operable handguns in the home. Id. at 628. Rather than cabining the standard of review to a balancing of interests, the Court held that the law was unconstitutional because it banned an entire class of firearms commonly owned by citizens for the lawful purpose of self-defense in the home. Id. at 628–29. Although Heller focused its holding on the handgun ban before it, the Court acknowledged that “whatever else it leaves to future
B. Applying Heller and This Court‘s Interpretative Framework
Since Heller, circuit and district courts have varied in their approaches to evaluating the Second Amendment. Most have now settled on some version of the two-pronged approach we created in Marzzarella.4 As noted, we first “ask whether the
1. Step One: Determining Whether the Challenged Law Imposes a Burden on Conduct Falling Within the Second Amendment
The “threshold inquiry, then, is whether [the Act] regulates conduct that falls within the scope of the Second Amendment.” Id. at 89. That analysis turns on “whether the type of arm at issue is commonly owned,” id. at 90–91, and “‘typically possessed by law-abiding citizens for lawful purposes,’ Heller, 554 U.S. at 625.” NJ Rifle I, 910 F.3d at 116. I conclude the magazines, including those regulated by the New Jersey Magazine Act, are protected arms under the Second Amendment as best understood by history and tradition.
i. Defining the Regulated Arms
I begin by defining the kinds of arms controlled by the New Jersey Magazine Act, which prohibits the possession of magazines “capable of holding more than 10 rounds of
As the Supreme Court explained in Heller, regulation requiring “that firearms in the home be rendered and kept inoperable at all times” is unconstitutional as it necessarily makes “it impossible for citizens to use them for the core lawful purpose of self-defense[.]” Heller, 554 U.S. at 630. From this holding flows the logical conclusion that the Second Amendment‘s use of the term “arms” should be ordinarily understood as “operable arms,” meaning that the Second Amendment likewise guarantees components required to make a protected firearm work for self-defense. See Heller, 554 U.S. at 581.
That necessarily includes ammunition and, by extension, magazines that hold ammunition, as components of an operable firearm. See Miller, 307 U.S. at 180 (observing that in the context of the colonial militia system, “[t]he possession
ii. History and Tradition: The Development of Magazine-Operated Firearms and the Regulations That Followed
That a magazine is an “arm” does not foreclose governmental regulation because “the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. So I next consider what, if any, restrictions on magazines satisfy the history and tradition of the Second Amendment. Answering that question begins with a review of magazines and magazine-operated firearms to understand: 1) the use and ownership of these arms over time, 2) traditional regulations, and 3) common use.
a. The Development of Repeating Firearms
“The desire for . . . repeating weapons is almost as old as the history of firearms, and there were numerous attempts to achieve this goal, beginning at least as early as the opening years of the 16th century.” Harold L. Peterson, Arms and Armor in Colonial America, 1526–1783, at 215 (1956). “Successful systems [of repeating arms] definitely had developed by 1640, and within the next twenty years they had
By the mid-17th century, Americans also began developing repeaters. These repeaters “often employed a revolving cylinder that was rotated by hand.” (Amici Professors Br. at 15 (citing 2 Charles Winthrop Sawyer, Firearms in American History 5 (1939) (six-shot flintlock); Charles Edward Chapel, Guns of the Old West 202–03 (1961) (revolving snaphance)).) For example, the Boston Gazette advertised the American Cookson in 1756 and boasted that it could “fire 9 Times distinctly, as quick, or as slow as you please[.]” Peterson, The Treasury of the Gun 232. In 1777, the Continental Congress ordered Belton rifles able to discharge sixteen or twenty rounds, but then later cancelled the order based on the extraordinary expense. (See Amici Professors Br.
That public knowledge grew into private practice by at least the early 19th century, when repeaters began circulating for personal use. For instance, in 1821, the New York Evening Post described the invention of a new repeater as “importan[t], both for public and private use,” whose “number of charges may be extended to fifteen or even twenty.” Newly Invented Muskets, N.Y. Evening Post, Apr. 10, 1822, in 59 Alexander Tilloch, The Philosophical Magazine and Journal: Comprehending the Various Branches of Science, the Liberal and Fine Arts, Geology, Agriculture, Manufactures, and Commerce 467–68 (1822). Technical challenges, however, limited widespread adoption and “none achieved real popularity.” Peterson, The Treasury of the Gun 199.
Then, in the 1830s, Samuel Colt introduced the revolver, which fired repeating rounds using a rotating cylinder. Peterson, The Treasury of the Gun 202–03, 209–11 (“The real father of the revolver in its modern sense, however, was Samuel Colt.“). See also Ian V. Hogg, The Complete Illustrated Encyclopedia of the World‘s Firearms 40 (1978) (“[Colt] had developed a percussion revolver and patented it in England in 1835 and in America in 1836.“). By the mid- to late 19th century, some revolvers could fire up to twenty-one rounds. David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. 849, 856 (2015) (“Pin-fire revolvers with capacities of up to twenty or twenty-one entered the market in the 1850s[.]“). Around this time,
b. The Development of Semiautomatic Firearms and Magazines
The first commercially successful rifles holding more than ten rounds of ammunition appeared around 1866, with handguns holding more than ten rounds following by 1935. See Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 849–50. And “[o]wing to their simplicity and ease of use, by the mid-twentieth century the use of detachable magazines loaded through the base of the grip far exceeded all other loading methods.” Jeff Kinard, Pistols: An Illustrated History of Their Impact 174 (2003). Given that easy operation, “semiautomatic handguns grew from 28% of handgun production in 1973 to 80% in 1993.” (NJ Rifle I App. at 1272.) As they became more readily available, semiautomatic handguns gradually became more predominant. “Pistol magazines manufactured before September 1994 commonly [held] five to 17 bullets, and magazines produced for some models [held] as many as 30 or more bullets.” (NJ Rifle I App. at 1060.) As for rifles, the AR-15 semiautomatic rifle appeared in 1963 and sold with a standard twenty-round magazine. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 859–60. Since that time it has become “[t]he most popular rifle in American history.” Id. at 859.
Today, “there are at least 58.9 million civilian-owned [magazines capable of holding more than ten rounds] in the United States.” (NJ Rifle I Opening Br. at 17 (emphasis omitted) (citing Gary Kleck, How Many Large Capacity Magazines (LCMs) Are Possessed By Americans?, SSRN (2018)); see also NJ Rifle I App. at 275 (Tr. 372:14–16 (Kleck)) (percentage of firearms with capacity to hold eleven or more rounds); App. at 516–17 (Hill, How Many Guns are in the United States: Americans Own between 262 Million and 310 Million Firearms, Urban Publications).) “Magazines capable of holding more than 10 rounds come standard on some of the most popular handguns and rifles, including the most popular rifle in America.” (NJ Rifle I, Opening Br. at 17–18) (emphasis omitted) (citing NJ Rifle I, App. at 696–704 (Gun Digest 2018); App. at 753 (National Shooting Sports Foundation, Modern Sporting Rifle Comprehensive Consumer Report 2013 (2013); App. at 500 (Dan Haar, America‘s Rifle: Rise of the AR-15, Hartford Courant (Mar. 9, 2013)); App. at 1239 (Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. 849).)
c. Regulating Magazine Capacity
With the history of magazines and magazine-equipped firearms as a guide, I next consider traditional regulation. Heller, 554 U.S. at 627; McDonald, 561 U.S. at 786 (reaffirming that Heller “did not cast doubt on . . . longstanding regulatory measures” and “does not imperil every law regulating firearms“). That analysis first requires answering how a prohibition can be “traditional” or “longstanding” when it regulates arms of the modern era. That is because Heller permits “[s]tate and local experimentation with reasonable firearms regulations.” McDonald, 561 U.S. at 785 (alteration in original). Logically, then, “when legislatures seek to address
Instead, I believe “the proper interpretive approach is to reason by analogy from history and tradition.” Id. (citing Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007) (“[J]ust as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a ‘search,’ the Second Amendment protects the possession of the modern day equivalents of the colonial pistol.“), aff‘d sub nom. Heller, 554 U.S. 570; Tr. of Oral Arg. at 77, Heller, 554 U.S. 570 (Chief Justice Roberts: “[Y]ou would define ‘reasonable’ in light of the restrictions that existed at the time the amendment was adopted. . . . [Y]ou can‘t take it into the marketplace was one restriction. So that would be—we are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.“); cf. Kyllo v. United States, 533 U.S. 27, 31–35 (2001) (applying traditional Fourth Amendment standards to novel thermal imaging technology); California v. Ciraolo, 476 U.S. 207, 213 (1986) (allowing government to view property from airplanes based on common-law principle that police could look at property when passing by homes on public thoroughfares)). So I turn to historical regulation of both magazines and other restrictions on ammunition capacity.
New Jersey first limited magazine capacity to fifteen rounds in 1990. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 867 (citing Act of May 30, 1990, ch. 32, §§ 2C:39-1(y), -3(j), 1990 N.J. Laws
This history reveals a long gap between the development and commercial distribution of magazines, on the one hand, and limiting regulations, on the other hand. The State reasons, “It is logical that state limits on such weapons do not predate their popularity.” (NJ Rifle I Response Br. at 22.) That is doubtful, as New Jersey has actively regulated firearms lacking any popular use. See, e.g.,
Some will argue there must be an outer boundary to this analysis that, when crossed, renders a magazine dangerous and unusual. If so, it does not appear in the history and traditions of our Nation. But in any event that question is not before us. So while “[t]here may well be some capacity above which magazines are not in common use . . . the record is devoid of evidence as to what that capacity is.” Heller II, 670 F.3d at 1261 (Kavanaugh, J., dissenting). As a result, and limited to this record, I would hold that magazines are arms protected by the Second Amendment and an act limiting magazine capacity to ten rounds burdens the Appellants’ Second Amendment rights.
2. Step Two: Evaluating the Challenged Law Under Means-End Scrutiny
Although not required by Heller, our precedent uses some form of means-end scrutiny. See Marzzarella, 614 F.3d at 96–97. Marzzarella does not insist on a uniform standard in all cases. Rather, we observed that if, like the First Amendment, “the Second Amendment can trigger more than one particular standard of scrutiny,” then intermediate scrutiny should be applied when the challenged law does not burden the
i. Strict Scrutiny
As the Supreme Court has not applied the tiers of scrutiny to gun regulations, see Heller, 554 U.S. at 634, “we look to other constitutional areas for guidance in evaluating Second Amendment challenges.” Marzzarella, 614 F.3d at 89 n.4. Using this rationale, we concluded “the First Amendment is the natural choice. Heller itself repeatedly invokes the First Amendment in establishing principles governing the Second Amendment.” Id.
Cases considering restrictions on speech and expression hold the appropriate level of scrutiny is a fact-specific inquiry tied to the type of regulation at issue. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restrictions in a public forum); Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Oh., 471 U.S. 626, 651 (1985) (applying rational basis review to disclosure requirements for commercial speech). Strict scrutiny applies to content-based restrictions that infringe on the First Amendment‘s core guarantee. See, e.g., Citizens United v. FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny in the context of infringement on “political speech“); United States v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000) (applying strict scrutiny in context of content-based speech restriction). So following the direction of Marzzarella, strict scrutiny applies to restrictions burdening rights at the core of the Second Amendment. See NJ Rifle I, 910 F.3d at 134 (Bibas, J., dissenting).
One of the Second Amendment‘s core purposes is to protect the “use [of] arms in defense of hearth and home.” Heller, 554 U.S. at 591, 636. For that reason, prohibiting operable firearms in the home violates the Second Amendment. Id. The same result applies here, because the New Jersey Magazine Act prohibits the possession of magazines exceeding ten rounds at all times, including inside the home for defense. The State argues that the Act “does not ban magazines; it imposes a restriction on the capacity of a single magazine that can be inserted into a firearm” and does not restrict the number of magazines an individual may possess. (NJ Rifle I Response Br. at 34–35.) That is only partially correct, as it leaves owners of a “noncompliant” magazine without an operating firearm. But even assuming the Act is not a categorical ban on all magazines, it still burdens a core Second Amendment right without exception or limitation, including the defense of “hearth and home” specifically noted in Heller. Following our prior analogy to decisions applying the First Amendment jurisprudence, this “ban on a class of arms is not an ‘incidental’ regulation. It is equivalent to a ban on a category of speech.” See Heller II, 670 F.3d at 1285 (Kavanaugh, J., dissenting); see also NJ Rifle I, 910 F.3d at 127 (Bibas, J., dissenting) (“I would apply strict scrutiny to any law that impairs the core Second Amendment right to defend one‘s home.“).
ii. Intermediate Scrutiny
For largely the same reasons, the New Jersey Magazine Act does not satisfy intermediate scrutiny where “the government‘s asserted interest must be more than just legitimate but need not be compelling. It must be ‘significant, substantial, or important.‘” Drake, 724 F.3d at 436 (quoting Marzzarella, 614 F.3d at 98). “‘[T]he fit’ between the asserted interest and the challenged law need not be ‘perfect,’ but it must be ‘reasonable’ and ‘may not burden more [conduct] than is reasonably necessary.‘” Id. (quoting Marzzarella, 614 F.3d at 98).
Second, as Judge Bibas observed, “since 1990 New Jersey has banned magazines that hold more than fifteen bullets. The ban affects everyone. The challengers do not contest that ban. And there is no evidence of its efficacy, one way or the other.” NJ Rifle I, 910 F.3d at 132 (Bibas, J., dissenting). Third, statistics in the record report that out of sixty-one “mass shootings,”9 eleven used fifteen-round
All of this leads to one conclusion: “the Government bears the burden of proof on the appropriateness of the means it employs to further its interest[,]” but “the Government falls well short of satisfying its burden—even under intermediate scrutiny.” Binderup v. Att‘y Gen., 836 F.3d 336, 353 (3d Cir. 2016) (en banc). New Jersey must “present some meaningful evidence, not mere assertions, to justify its predictive [and here conclusory] judgments[,]” and it failed to meet that burden here. Id. at 354 (alteration in original) (citing Heller II, 670 F.3d at 1259); see also N.Y. State Rifle & Pistol Ass‘n, Inc, 804 F.3d 242, 264 (2d Cir. 2015) (“[O]n intermediate scrutiny review, the state cannot ‘get away with shoddy data or reasoning.’ To survive intermediate scrutiny, the defendants must show ‘reasonable inferences based on substantial evidence’ that the statutes are substantially related to the governmental interest.“) (emphasis in original) (internal citations omitted).
For these reasons, I would hold that the Act cannot satisfy intermediate, or any applicable level of, scrutiny.
III. RECONSIDERING MARZZARELLA AND TIERED SCRUTINY
First, the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald. When twice presented with the opportunity to import tiered scrutiny from decisions considering the First Amendment, the Supreme Court instead focused on text, history, and tradition. See Heller, 554 U.S. at 634 (declining to apply a specified level of scrutiny and observing that “[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.“); McDonald, 561 U.S. at 785 (“[W]e expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing“); Binderup, 836 F.3d at 378 (Hardiman, J., concurring) (“Applying some form of means-end scrutiny in an as-applied
Second, this historical approach is significant because, as Heller explains, “it has always been widely understood” that “[t]he very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.‘” Heller, 554 U.S. at 592 (quoting United States v. Cruikshank, 92 U.S. 542, 553 (1876)) (“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.“); see also Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (“The law is perfectly well settled that the first 10 amendments to the constitution . . . were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors[.]“). And rather than turning to the reservoir of decisions, doctrines, and debates flowing from generations of First Amendment cases and tiered tolerance of governmental speech restraints, Heller “pores over early sources to show that while preventing Congress from eliminating state militias was the ‘purpose that prompted the [Amendment‘s] codification,‘” that purpose did not limit the right‘s substance. Wrenn v. District of Columbia, 864 F.3d 650, 658 (D.C. Cir. 2017) (quoting Heller, 554 U.S. at 600). At its core, the Second Amendment recognizes the widely accepted principle at the Founding that the right to self-defense derived directly from the natural right to life, giving the people predictable protections for securing the “Blessings of Liberty.”
For those reasons, I would follow what I believe to be the direction of the Supreme Court and focus our approach “based on text, history, and tradition” rather “than under an interest-balancing test.” Heller II, 670 F.3d at 1275 (Kavanaugh, J. dissenting).
IV. CONCLUSION
The law-of-the-case doctrine can serve important, practical purposes in litigation. But it remains a prudential rule
Notes
Depending on the importance of the rights involved and the nature of the burden on them, a law‘s purpose may need to be only legitimate and the means to achieve it rational (called rational basis scrutiny); the purpose may need to be important and the means to achieve it substantially related (called intermediate
836 F.3d at 341. (Oral Arg. Tr. at 28:13, https://www2.ca3.uscourts.gov/oralargument/audio/19-3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.)scrutiny); or the purpose may need to be compelling and the means to achieve it narrowly tailored, that is, the least restrictive (called strict scrutiny). The latter two tests we refer to collectively as heightened scrutiny to distinguish them from the easily met rational basis test.