Federal Appeals Court Upholds New Jersey ‘High Capacity’ Magazine Ban

This March 1, 2018 file photo shows a display of various models of semi-automatic rifles at a store in Pennsylvania. Research published Tuesday, Sept. 11, 2018 in the Journal of the American Medical Association shows active shooters with semi-automatic rifles wound and kill twice as many people as those using …
AP Photo/Keith Srakocic

A three-judge panel from the United States Court of Appeals for the Third Circuit ruled Wednesday that New Jersey’s ban on “high capacity” magazines “does not unconstitutionally burden the Second Amendment’s right to self-defense in the home.”

The two to one ruling allows the ban to stand.

In one part of its Majority Opinion, the Third Circuit panel referenced Plaintiff’s claims then rejected those with claims made by Gabby Gifford’s gun control group.

For example, the majority wrote:

Plaintiffs attempt to discount the need for the LCM ban by describing mass shootings as rare incidents, and asserting that the [“high capacity” magazine] ban burdens the rights of law-abiding gun owners to address an infrequent occurrence. The evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents.

They then reference Giffords’ group’s Amicus Brief in rejecting Plaintiff’s claims:

Despite Plaintiffs’ assertion to the contrary, New Jersey has not been spared from a mass shooting. Just days after the Act was passed, a mass shooter injured twenty-two individuals and killed one at an arts festival in Trenton. …Even if this event had not occurred, “New Jersey need not wait for its own high-fatality gun massacre before curtailing access to LCMs.” Giffords Law Ctr. Amicus Br.

The panel also rejected the plaintiff’s appeal to the Fifth Amendment’s Takings Clause by noting, “the compliance measures in the [“high capacity” magazine ban] do not result in either an actual or regulatory taking.”

Judge Stephanos Bibas, a Trump appointee, dissented from the majority, arguing that the ruling treats the Second Amendment as protecting second-class rights, unequal with other rights. He wrote, “The Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy.”

Bibas noted that the majority failed to apply strict scrutiny to the magazine ban, although such scrutiny was exactly what was needed. He wrote, “I would apply strict scrutiny to any law that impairs the core Second Amendment right to defend one’s home. This law does so. And it fails strict scrutiny.” He fleshed out his position by referring to the “common use” language of District of Columbia v. Heller (2008) and noted that the central use of guns in “common use” is home defense. Therefore, a law that inhibits home defense must face stricter scrutiny.

Bibas further stressed that the majority looked to Heller in a way that made it applicable only to handgun bans, thus providing leeway for bans that fall outside that scope. Bibas countered, “No other right works that way. Strict scrutiny applies to laws that burden speech or religion even if they do not nearly eliminate the right to speak or believe.”

The NRA supported the plaintiff’s case against the magazine ban. And the next steps for plaintiff’s attorneys Chuck Cooper and David Thompson are to request an en banc hearing from the Third Circuit, thereafter appeal to the Supreme Court of the United States.

The case is Association of New Jersey Rifle and Pistol Clubs v. Attorney General New Jersey, No. 18-3170, in the United States Appeals Court for the Third Circuit.

AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News, the host of the Breitbart podcast Bullets with AWR Hawkins, and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com. Sign up to get Down Range at breitbart.com/downrange.

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