ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS INC; BLAKE ELLMAN; ALEXANDER DEMBOWSKI, Aрpellants 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
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.
Before: JORDAN, MATEY and ROTH, Circuit Judges.
PRECEDENTIAL
Marc A. Nardone
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
Jeremy Feigenbaum
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
Joseph G.S. Greenlee
Firearms Policy Coalition
1215 K Street - 17th Floor
Sacramento, CA 95814
Counsel for Amicus Appellants
OPINION OF
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 trеating the prior panel‘s opinion as binding and arguing again that the Act is unconstitutional. Because they are wrong on the first point, we do not reach the second. We will affirm.
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 members and active and retired law enforcement officers.
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“).
Thе 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 and reload ammunition, thus allowing individuals time to escape or subdue the shooter. Id. at *4-8. The Court also heard testimony on whether LCMs are used in self-defense. Id. To distinguish law enforcement officers from the general public, the State offered expert testimony that both active and retired police officers who possess firearms are required to pass a qualification course bi-annually, using a weapon equipped with a 15-round magazine. Id. at *5. Ultimately, the District Court denied the preliminary injunction, remarking that “the expert testimony [wa]s of little help in its analysis.” Id. at *8.
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
be applied is determined by whether the law burdens the core of the Second Amendment guarantee. Id. The “core ... [of] the Second Amendment protects the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home.” Id. at 92. See also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (explaining that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.“). Laws that do burden that core receive strict scrutiny, whereas those that do not burden it receive intermediate scrutiny. Marzzarella, 614 F.3d at 89, 96-97.
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
themselves.” Id. at *12 (internal quotation marks and citation omitted).
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 Jersеy 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
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
their magazines to accept ten rounds, and, if those magazines or guns cannot be modified, they can be kept as long as the owner registers them. Id. at *16. As to the plaintiffs’ argument that the Act violates the Fourteenth Amendment‘s Equal Protection clause because it treats active and retired law enforcement officers differently than other individuals, the District Court concluded that law enforcement officers are not similarly situated to other New Jersey citizens for a number of reasons.3 Officers are required to pass gun safety requalification tests, which are not required of other individuals; officers have “an unusual ethos of public service ... and are expected to act in the public‘s interest[;]” and “retired police officers face special threats that private citizens do not[.]” Id. at *14 (internal quotation marks and citations omitted).
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
that its task was to “decide whether Plaintiffs have a reasonable probability of showing that the Act violates [these constitutional rights,]” id. at 115, it nevertheless immediately went beyond that task, reached the merits, and determined that the Act withstands the plaintiffs’ constitutional challenge.
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 сategorically 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).
number of shots that can be fired from one gun, victims will be able to flee, bystanders to intervene, and numerous injuries will be avoided in a mass shooting incident. Id. The panel further decided that the Act did not burden more conduct than is reasonably necessary because it imposes no limit on the number of firearms, magazines, or ammunition an individual may possess, and there is no record evidence that LCMs are “well-suited or safe for self-defense.” Id. at 122. The panel also rejected the plaintiffs’ Fifth Amendment and Equal Protection Clause claims, for the sаme reasons as did the District Court. Id. at 124-26.
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
The decision was not, however, unanimous. The dissenting member of the panel said that, in two ways, the majority treated the Second Amendment differently from other parts of the Bill of Rights: first, the majority weighed the merits of the case in order to pick a tier of scrutiny, and second, the majority, while purporting to use intermediate scrutiny, actually applied rational basis review. Id. at 126 (Bibas, J., dissenting). Among other things, the dissent was concerned that the majority failed to demand actual proof to justify the State‘s regulation, as heightened scrutiny demands in other contexts, and that the majority had likewise failed to put the burden of proof on the State to demonstrate that the regulation was sufficiently tailored. Id.
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 rеsolves 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.)
This timely appeal followed.
“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
and thus the moving рarty is entitled to judgment as a matter of law.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Our standards of review are also different. We will affirm a district court‘s order on a preliminary injunction, “unless the court abused its discretion, committed an obvious error of law, or made a serious mistake in considering the proof.” Bradley, 910 F.2d at 1175. On the other hand, we exercise plenary review over an order on summary judgment. Blunt, 767 F.3d at 265.
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
analysis must be carefully considered, but it is not binding on the later panel.” Id. “On the other hand, if the first panel does not stop at the question of likelihood of success and instead addresses the merits, the later panel, in accordance with our Court‘s traditional practice, should regard itself as bound by the prior panel opinion.”6 Id. “We have
injustice.” Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999).
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
To avoid the conclusion that the law of the case has been set and a precedent established,9 the plaintiffs do not argue that there has been an intervening change in the law or the discovery of new evidence, but they do point out an intervening procedural step in our Court. They note that the State asked a motions panel of our Court to summarily affirm the District Court‘s grаnt of summary judgment on remand but that the motions panel denied that request. According to the plaintiffs, that means “the motions panel necessarily rejected [the State‘s] argument that the prior merits panel‘s denial of a preliminary injunction binds the outcome of this appeal.” (Reply Br. at 2.)
Not so. According to our Internal Operating Procedures, we “may take summary action ... if it clearly appears that
determination that there is a substantial question left in the case. It often means nothing more than that the presentation made by motion has left that particular motions panel wondering whether there is a substantial question.
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
disregarded only when the court has a clear conviction of error[.]” Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (internal quotation marks and citation omitted). “Mere doubt on our part is not enough to open the point for full reconsideration.” Id. (internal quotation marks omitted).
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
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.
not leave the parties’ rights unsettled. That assumption was in plaintiffs’ favor, and, under that assumption, the prior panel clearly held that the Act does not violate the
MATEY, Circuit Judge, dissenting.
MATEY, Circuit Judge, dissenting.
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 еd., 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
Finally, given the difficulty applying our existing framework in cases implicating the
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 redeciding issues that were
B. The NJ Rifle I Decision
NJ Rifle I concluded that “laws restricting magazine capacity to ten rounds of ammunition do not violate the
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
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
2. NJ Rifle I‘s Alternating Technical Definitions
Narrowing the issue presented from “magazines” to a specific kind of magazine
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 array of violent acts some, all, or none of which are impacted by the New Jersey Magazine Act.
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
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
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
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” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.“); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (similar)). With this foundation, the Court held that “the
Next, the Court held that “the most natural reading of ‘keep Arms’ in the
But the Court acknowledged that “[l]ike most rights, the right secured by the
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 bannеd 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 evaluation,” the
B. Applying Heller and This Court‘s Interpretative Framework
Since Heller, circuit and district courts have varied in their approaches to evaluating 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
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 ammunition to be fed continuously and directly therefrom into a semi-automatic firearm.”
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
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 рossession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former“) (quoting The American Colonies In The 17th Century, Osgood, Vol. 1, ch. XIII). For these reasons, the best reading of “arms” in the
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
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 spread throughout most of Western Europe and even to Moscow.” Harold L. Peterson, The Treasury of the Gun 229 (1962). “[T]he two principal magazine repеaters of the era [were] the Kalthoff and the Lorenzoni. These were the first guns of their kind to achieve success . . . .” Id. The Kalthoff repeater magazines held between six and thirty charges, and “were undoubtedly the first magazine repeaters ever to be adopted for military purposes.” Id. at 230. Also developed during the 17th century, the Lorenzoni was “a magazine-fed Italian repeating pistol that ‘used gravity to self-reload‘” and held about seven shots. (Brief of Amici Curiae Professors of Second Amendment Law, et al. in Support of Appellants and Reversal (“Amici Professors“) at 12 (quoting Martin Dougherty, Small Arms Visual Encyclopedia 34 (2011)).) See also Gerald Prenderghast, Repeating and Multi-Fire Weapons: A History from the Zhuge Crossbow Through the AK-47, at 97 (2018) (“The Lorenzoni is also referred to as the Cookson rifle by American collectors[.]“); David Westwood, Rifles: an Illustrated History of Their Impact 71 (2005).
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. at 18.) See also 7 Journals of the Continental Congress 1774-1789, at 324, 361 (1907) (describing the ordering of Belton rifles and later the cancellation of the same rifles over Belton‘s request for “an extraordinary allowance“); Peterson, The Treasury of the Gun 197. All of which documents both the existence and public knowledge of repeating weapons.
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 Encyclopеdia 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, repeating rifles could fire between fifteen and sixty shots per minute. Id. at 854. In addition, the lever-action repeating rifle arrived by the 1850s, and could fire thirty times per minute. Id. at 854-55. The arms development during this time was “fueled by the Civil War market.” Robert L. Wilson, Winchester: An American Legend (1991).
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 Aрp. 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.
Possession of magazines exceeding ten rounds grew rapidly “given the growing popularity of semi-automatic rifles and of large-capacity handguns. Nearly 80 percent of ammunition magazines owned by gun owners at the time of [a 1994] survey held fewer than 10 rounds.” Edward W. Hill, How Many Guns are in the United States: Americans Own between 262 Million and 310 Million Firearms, Urban Publications 3 (2013). By contrast, a market survey conducted in or around 2013 “of owners of semi-automatic assault rifles . . . showed that 63 percent of owners of these guns had ammunition magazines that held more than 10 rounds.” Id.
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).)
The State does not appear to have rebutted the fact that magazines holding more than ten rounds are commonly owned.7 The commonality of magazines holding more than ten rounds fits with findings by other courts as well. See, e.g., Heller II, 670 F.3d at 1261 (“We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in ‘common use,’ as the plaintiffs contend” because “fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.“).
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
new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed, there obviously will not be a history or tradition of banning such weapons or imposing such regulations.” Heller II, 670 F.3d at 1275 (Kavanaugh, J. dissenting).
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
Limits on ammunition capacity emerged during the Prohibition Era, when six states adopted restrictions.8 See also
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 217, 221, 235 (codified at
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
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
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
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
One of the
New Jersey has not offered record evidence meeting that test. “Strict scrutiny asks whether the law is narrowly tailored to serve a compelling government interest.” Marzzarella, 614 F.3d at 96 n.14. When “a less restrictive alternative would serve the Government‘s purpose, the legislature must use that alternative.” Playboy Ent. Grp., 529 U.S. at 813. As Judge Bibas observed, “[h]ere, the government has offered no concrete evidence that magazine restrictions have saved or will save potential victims. Nor has it made any showing of tailoring.” NJ Rifle I, 910 F.3d at 134 (Bibas, J., dissenting). New Jersey once imposed a fifteen-round limit on magazine capacity. Now it claims ten is essential for public safety. The
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).
Here, the record does not show the State reasonably tailored the regulation to serve its interest in public safety without burdening more conduct than reasonably necessary. First, the State rests on the ambiguous argument that “when LCM-equipped firearms are used, more bullets are fired, more victims are shot, and more people are killed than in other gun attacks.” (NJ Rifle I Response Br. at 28.) Perhaps, but “this still begs the question of whether a 10-round limit on magazine сapacity will affect the outcomes of enough gun attacks to measurably reduce gun injuries and death.” (NJ Rifle I App. at 1280 (Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban 89 (2004)).) In fact, “studies suggest that state-level [assault-weapon] bans have not reduced crime[.]” (NJ Rifle I App. at 1272, Koper, supra at 81 n.95.)
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
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 evidеnce, 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, v. Cuomo, 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
Decided two years after Heller, our decision in Marzzarella ushered in a two-part
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
Second, this historical approach is significant because, as Heller explains, “it has always been widely understood” that “[t]he very text of the
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 that “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). I would decline to invoke that discretion here, as I conclude that determining whether magazines enjoy the guarantees of the
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.