Association New Jersey Rifle v. Attorney General New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3142
_____________
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
_______________
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.
(Filed: September 1, 2020)
_______________
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
2
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
3
Joseph G.S. Greenlee
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 N.J. Stat.
Ann. § 2C:39-1 (“the Act”), on appeal from an earlier order of
the District Court denying a preliminary injunction. It upheld
the District Court’s order and, in doing so, went beyond simply
answering the question of the plaintiffs’ likelihood of success
on the merits. It directly addressed the merits of the
constitutionality of the Act, holding that the Act did not violate
the Second, Fifth, or Fourteenth Amendments.
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
4
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.
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. N.J. Stat. Ann.
§ 2C:39-1(y), 2C:39-3(j). Prior to that, it had been illegal in
New Jersey to possess magazines capable of holding more than
15 rounds of ammunition. Owners of LCMs had several
options for complying with the new Act:
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. at 2C:39-20(a); (4) transfer the
firearm or LCM to an individual or entity entitled
to own or possess it, id. at 2C:39-19(a); or (5)
surrender the firearm or LCM to law
enforcement, id. at 2C: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
5
members and active and retired law enforcement officers. N.J.
Stat. Ann. § 2C:39-3(g), 2C:39-17.
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
1
The plaintiffs are the Association of New Jersey Rifle
and Pistol Clubs, Inc. (“ANJRPC”), Blake Ellman, and
Alexander Dembowski. ANJRPC is “an eighty-year old
membership organization, representing tens of thousands of
members, many of whom possess large capacity magazines for
self-defense.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.
Grewal, No. 3:18-cv-10507 (PGS) (LHG), 2018 WL 4688345,
at *2 (D.N.J. Sept. 28, 2018). Ellman and Dembowski are
members of ANJRPC who possess LCMs. Id. The plaintiffs’
standing is not in question.
6
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 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
2
There are three levels of scrutiny: rational basis
review, intermediate scrutiny, and strict scrutiny. In Binderup
v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), we
explained the three levels of scrutiny by saying:
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
7
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
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.
836 F.3d at 341.
8
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
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
9
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
3
The plaintiffs did not argue that the Act’s exemption
for active military personnel violates the Equal Protection
Clause but did argue that there was disparate treatment
between retired police officers and military veterans. The
Court rejected that, saying, “there is no evidence to suggest that
military veterans receive equivalent training [to law
enforcement officers].” Preliminary Injunction Opinion, 2018
WL 4688345, at *14.
10
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
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
11
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. at 119. 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 same 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
4
Since the prior panel opinion was issued, the First
Circuit has also concluded that Massachusetts’s ten round limit
is constitutional. See Worman v. Healey, 922 F.3d 26 (1st Cir.
2019) (affirming grant of summary judgment upholding
Massachusetts ten round limit). The Ninth Circuit, however,
has very recently held that California’s ban on LCMs of more
12
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 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.)
than ten rounds is unconstitutional under either strict scrutiny
or intermediate scrutiny. Duncan v. Becerra, --- F.3d ---, No.
, 2020 WL 4730668, at *25 (9th Cir. Aug. 14, 2020).
13
This timely appeal followed.
II. DISCUSSION 5
“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
5
The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. “It
is well established that we employ a plenary standard in
reviewing orders entered on motions for summary judgment,
applying the same standard as the district court.” Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
14
and thus the moving party 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
15
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 recognized, however,
that reconsideration is justified in extraordinary circumstances
such as where: (1) there has been an intervening change in the
law; (2) new evidence has become available; or (3)
reconsideration is necessary to prevent clear error or a manifest
6
There are sound reasons why a panel reviewing a
ruling on a preliminary injunction should focus on the question
of likelihood of success on the merits rather than reaching the
merits of the claim before them. Given the already-mentioned
different standards on a motion for preliminary injunction and
motion for summary judgment and our different standards of
review, going to the merits on a preliminary record, under
hurried circumstances, can lead to premature and less informed
decisions. On review at the preliminary injunction stage, a
panel may conclude that the district court did not abuse its
discretion or commit obvious errors of law or serious mistakes
in its findings of fact. But a subsequent panel reviewing an
order on summary judgment may, in its plenary review of the
record, identify errors the district court committed that, while
not obvious or serious, impact the analysis or outcome of a
case. We therefore make it a general practice to proceed
cautiously, to avoid ending a case on review from a preliminary
injunction when the record could be more developed on
summary judgment and we can conduct a plenary review of
that record.
16
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
7
See Prior Panel Opinion, 910 F.3d at 122 (“[W]e hold
that laws restricting magazine capacity to ten rounds of
ammunition do not violate the Second Amendment.”); id. at
125 (“In short, the Act does not result in a taking.”); id. at 126
(“[R]etired law enforcement officers are not similarly situated
to retired military personnel and ordinary citizens, and
therefore their exemption from the LCM ban does not violate
the Equal Protection Clause.”).
8
The case-determinative facts here centered on
reloading. The District Court’s conclusion that the Act
survived intermediate scrutiny relied on its finding that “there
is some delay associated with reloading, which may provide an
opportunity for potential victims to escape or for a bystander
to intercede[.]” Preliminary Injunction Opinion, 2018 WL
4688345, at *12. The prior panel also relied heavily on that
finding. Prior Panel Opinion, 910 F.3d at 119-20. The
17
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 grant 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 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
plaintiffs’ own witness before the District Court acknowledged
that there would be some pause while a shooter reloaded.
Preliminary Injunction Opinion, 2018 WL 4688345, at *6-7.
And, on appeal, the plaintiffs have presented only legal, not
factual, arguments.
9
We have explained that “[u]nder the law of the case
doctrine, once an issue is decided, it will not be relitigated in
the same case, except in unusual circumstances.” Hayman
Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982).
Thus, the prior panel’s opinion is both the law of the case and
binding precedent.
18
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
19
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
10
The dissent concludes that the law of the case doctrine
does not bar our consideration of the merits of the parties’
dispute, for two reasons: first, the prior panel assumed without
deciding that magazines holding more than ten rounds are
protected under the Second Amendment, and, second, the prior
panel was imprecise and interchangeably used the terms
“magazines,” “LCMs,” and “large capacity magazines” to refer
to magazines of different capacities and to magazines and
firearms with different capabilities. In our view, neither of
those considerations affects whether we are bound by the prior
panel’s decision. Even though the prior panel assumed without
deciding that magazines holding more than ten rounds are
protected under the Second Amendment, that assumption did
20
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.
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 Second
Amendment. That holding settled the parties’
rights. Similarly, the prior panel’s language describing
magazines, even if not as precise as our dissenting colleague
would like, does not, in our opinion, create anything that we
can call clear error or manifest injustice and thus that would
permit us to disregard the prior panel’s case dispositive
holdings and reach the merits afresh.
21
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 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
1
For convenience, I sometimes refer to the NJ Rifle I
panel as “the prior panel.”
1
order of the District Court and remand this matter to permit the
State to provide evidence that N.J. Stat. Ann. § 2C:39-1(y)
(“New Jersey Magazine Act” or “the Act”) is narrowly tailored
to advance the State’s interests.
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.”
U.S. Const. amend. II.
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.,
2
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
3
“arm” regulated by New Jersey in the Act. Quite differently,
the opinion focused on what it viewed as a narrower category
of magazines called “Large Capacity Magazines” or “LCMs.”
Id. at 116–17. And then, the opinion “assume[d] without
deciding that LCMs . . . are entitled to Second Amendment
protection.” Id. at 117 (emphasis added). So are “LCMs” an
“arm” under the Second Amendment? It is doubtful New
Jersey thinks so. Indeed, when pressed at oral argument, the
State declined to characterize NJ Rifle I as holding that such
magazines enjoy constitutional protection.2 That waffling is no
small matter. It would of course be significant that some
twenty-two million individuals residing in our Circuit are left
to wonder whether they have, since the Founding, surrendered
a fundamental right. But that unanswered question takes
sharper focus when coupled with a second: what, exactly, is a
“Large Capacity Magazine?”
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
2
(Oral Arg. Tr. at 28:13,
https://www2.ca3.uscourts.gov/oralargument/audio/19-
3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.)
4
(citing NJ Rifle I App. at 1057, 1118–26). Each of these four
concepts is different, yet they blend together throughout NJ
Rifle I. For instance, early on the decision defines the term
“LCM” to be coterminous with the object regulated by the New
Jersey Magazine Act: magazines for semi-automatic firearms
able to hold more than ten rounds of ammunition. Id. at 110
(citing N.J. Stat. Ann. § 2C:39-1(y)). A few pages later, the
opinion states that “LCMs are used in mass shootings,” citing
portions of the record that describe a host of different types of
firearms—repeaters, semi-automatic, and automatic—and
various sizes of magazines used in both automatic and semi-
automatic firearms. See id. at 119 (citing NJ Rifle I App. at
1057 (defining “LCM firearms” to include “assault weapons”
and “high-capacity semiautomatic firearms” and stating that
those “LCMs” jointly “appear to account for 22 to 36% of gun
crimes in most places”); NJ Rifle I App. at 1118–26 (describing
sixty-one mass shootings and the weapons used, including
repeaters, semi-automatic firearms, and automatic firearms,
along with magazines of varying capacities, ranging from 13-
round magazines to 100-round magazines)). So the reader is
left with the impression that the “LCMs” regulated in New
Jersey are the same devices involved in a host of criminal acts
across the country.
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
5
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 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 Rile 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.
6
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”
7
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 Second Amendment extends . . . to all
instruments that constitute bearable arms, even those that were
not in existence at the time of the founding.” Heller, 554 U.S.
at 582. In so holding, the Court rejected the “frivolous”
argument “that only those arms in existence in the 18th century
are protected by the Second Amendment.” Id. An unsurprising
observation, because “[w]e do not interpret constitutional
rights that way. Just as the First Amendment protects modern
forms of communications, e.g., Reno v. Am. C.L. Union, 521
U.S. 844, 849 (1997), and the Fourth Amendment applies to
modern forms of search, e.g., Kyllo v. United States, 533 U.S.
27, 35–36 (2001), the Second Amendment extends” to modern
bearable arms. Id.
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
8
confrontation, just as we do not read the First Amendment to
protect the right of citizens to speak for any purpose.” Id. at
595 (emphasis in original). “From Blackstone through the
19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” Id. at 626. Rather, the Court acknowledged
the propriety of “longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 626–27.
It also “recognize[d] another important limitation”: that “the
sorts of weapons protected were those ‘in common use at the
time.’” Id. at 627 (quoting United States v. Miller, 307 U.S.
174, 179 (1939)). The Court held that this “limitation is fairly
supported by the historical tradition of prohibiting the carrying
of ‘dangerous and unusual weapons.’” Id. (citation omitted).
As a result, the Court held that “the Second Amendment does
not protect those weapons not typically possessed by law-
abiding citizens for lawful purposes, such as short-barreled
shotguns. That accords with the historical understanding of the
scope of the right.” Id. at 625.
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
9
evaluation,” the Second Amendment “surely elevates above all
other interests the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” Id. at 635. Heller
makes clear that judicial review of Second Amendment
challenges proceeds from text, history, and tradition. This is
because “[c]onstitutional rights are enshrined with the scope
they were understood to have when the people adopted them,
whether or not future legislatures or (yes) even future judges
think that scope too broad.” Id. at 634–35.3
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
3
Two years later, in McDonald v. City of Chicago, the
Supreme Court reiterated that the right to keep and bear arms
is a “fundamental” constitutional right “deeply rooted in this
Nation’s history and tradition.” 561 U.S. 742, 767–68, 778
(2010) (citation omitted).
4
See David B. Kopel, Joseph G.S. Greenlee, The
Federal Circuits’ Second Amendment Doctrines, 61 St. Louis
U. L. J. 193, 212 n.105 (2017) (citing N.Y. State Rifle & Pistol
Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United
States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); NRA v.
Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700
F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679
F.3d 510, 518 (6th Cir. 2012); United States v. Chovan, 735
F.3d 1127, 1136–37 (9th Cir. 2013); United States v. Reese,
627 F.3d 792, 800–01 (10th Cir. 2010) (“Heller thus suggests
10
challenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee,” and, if it does,
“we evaluate the law under some form of means-end scrutiny.”
Marzzarella, 614 F.3d at 89. I apply both steps, concluding that
the New Jersey Magazine Act does not satisfy the rigorous
scrutiny required for the fundamental rights of the Second
Amendment.
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
a two-pronged approach to Second Amendment challenges to
federal statutes.”) (internal quotations omitted);
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1261 n.34
(11th Cir. 2012); Heller v. District of Columbia (Heller II), 670
F.3d 1244, 1252 (D.C. Cir. 2011)).)
11
ammunition to be fed continuously and directly therefrom into
a semi-automatic firearm.” N.J. Stat. Ann. § 2C:39-1(y).5 As
ordinarily understood, a “magazine” is “a device that holds
cartridges or ammunition.” NJ Rifle I, 910 F.3d at 116 (citing
Magazine, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/magazine (last
visited Nov. 21, 2018)). What is more, this contemporary
definition tracks the ordinary understanding of magazines
since at least the 1800s.6 Having defined what a magazine is, I
5
At issue in this appeal are only magazines for semi-
automatic firearms. A “semi-automatic” firearm is “a weapon
that fires only one shot with each pull of the trigger, and which
requires no manual manipulation by the operator to place
another round in the chamber after each round is fired.” Staples
v. United States, 511 U.S. 600, 602 n. 1 (1994). This is distinct
from an “automatic” firearm, which “fires repeatedly with a
single pull of the trigger. That is, once its trigger is depressed,
the weapon will automatically continue to fire until its trigger
is released or the ammunition is exhausted.” Id. Individual
ownership of automatic firearms is prohibited in New Jersey.
See N.J. Stat. Ann. § 2C:39-5(a) (making unlawful the
possession of “a machine gun or any instrument or device
adaptable for use as a machine gun”); N.J. Stat. Ann. § 2C:39-
1(i) (defining “machine gun” as “any firearm, mechanism or
instrument not requiring that the trigger be pressed for each
shot and having a reservoir, belt or other means of storing and
carrying ammunition which can be loaded into the firearm,
mechanism or instrument and fired therefrom”).
6
Compare Noah Webster, An American Dictionary of
the English Language 510 (1842) (defining “magazine” as “[a]
store of arms, ammunition or provisions; or the building in
12
next consider whether a magazine is an arm within the Second
Amendment.
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
which such store is deposited; New Illustrated Edition of Dr.
Webster’s Unabridged Dictionary of All the Words in the
English Language 799 (1864) (defining “magazine” as “[t]o
store up or accumulate for future use”); Webster’s Condensed
Dictionary 336 (1887) (expanding the definition of “magazine”
to include a “cartridge chamber of a repeating rifle”);
Webster’s Collegiate Dictionary 590 (3d ed. 1917) (defining
“magazine” to include “[a] chamber in a gun for holding
cartridges to be fed automatically to the piece”); Merriam-
Webster Unabridged Dictionary (2020) (defining “magazine”
to include “a supply chamber: such as . . . a holder that is
incorporated in or attachable to a gun and that contains
cartridges to be fed into the gun chamber by the operation of
the piece”).
13
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 Second Amendment includes
magazines because “[a] regulation eliminating a person’s
ability to obtain or use ammunition could thereby make it
impossible to use firearms for their core purpose.” Jackson v.
City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir.
2014).
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
14
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 repeaters 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.
15
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 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,
16
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).
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.
17
 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).)
18
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
7
One of the State’s experts also conceded the readily
available nature of “large capacity magazines.” (NJ Rifle I
App. at 195 (“Many of the mass shooters did not seek out large
capacity magazines, they just used what was easily available,
and it would have been hard or impossible for many of those
mass shooters to seek out [smaller-capacity] magazines.”).)
19
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 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.
20
Limits on ammunition capacity emerged during the
Prohibition Era, when six states adopted restrictions.8 See also
Kopel, The History of Firearm Magazines and Magazine
Prohibitions, 78 Alb. L. Rev. at 864–68 (internal footnotes and
citations omitted). But all were repealed over time. Only the
District of Columbia maintained an uninterrupted ban on semi-
automatic magazines holding more than twelve rounds from
1932 until 1975, when it banned all functional firearms in the
home and handguns altogether. (See Amici Professors Br. at 33
(citing Pub. L. No. 72-275, §§ 1, 8, 47 Stat. 650, 650, 652).)
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
8
These states include California, Michigan, Minnesota,
Ohio, Rhode Island, and Virginia. (See Amici Professors Br. at
31–32 (citing 1927 R.I. Pub. Laws 256, §§ 1, 4 (banning sales
of guns able to fire more than twelve shots without reloading);
1927 Mich. Pub. Acts ch. 372, § 3 (banning sales of firearms
“which can be fired more than sixteen times without
reloading”); 1933 Minn. Laws ch. 190 (banning “machine
gun[s],” including semi-automatics “which have been
changed, altered or modified to increase the magazine capacity
from the original design as manufactured by the
manufacturers”); 1933 Ohio Laws 189 (requiring a license for
semi-automatics with capacity of more than 18); 1933 Cal.
Laws, ch. 450 (requiring license for machine guns, which were
defined to include semi-automatics with detachable magazines
of more than ten rounds); 1934 Va. Acts ch. 96 s137, §§ 1(a),
4(d) (defining machine guns as anything able to fire more than
sixteen times without reloading).))
21
217, 221, 235 (codified at N.J. Stat. Ann. § 2C:39-1(y), -3(j)
(West 2014)). Around the same time, Hawaii enacted a
limitation of ten rounds. (See NJ Rifle I App. at 9 (citing Haw.
Rev. Stat. Ann. § 134-(8)).) A few years later, Congress passed
the Violent Crime Control and Law Enforcement Act of 1994
prohibiting the possession or transfer of magazines holding
more than ten rounds. See Pub. L. 103-322, § 110103 (Sep. 13,
1994). But that law expired in 2004 and has never been
reauthorized. Since then, states including California, Colorado,
Connecticut, Hawaii, Maryland, Massachusetts, and New
Jersey have enacted or maintained regulations limiting
magazine capacity. See Kopel, The History of Firearm
Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 867–
68.
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., N.J. Stat. Ann. §§ 2C:39-
3(m) (prohibiting “[c]overt or undetectable firearms,” such as
3D printed firearms); Guidelines Regarding the “Substantially
Identical” Provision in the State’s Assault Firearms Laws, N.J.
Att’y Gen. Op. (August 1996) (prohibiting “bayonet mounts”
on rifles). At any rate, the State concedes that magazine-
equipped rifles first achieved “mass-market success” in the
1860s and magazine-equipped handguns achieved similar
success in the 1930s. (NJ Rifle I Response Br. at 22.) Yet
regulations did not grow until the 1990s and 2000s, and even
today, only a handful of states limit magazine capacity. Given
that the “success” of magazine-equipped firearms predated
22
these first regulations by at least fifty years, I do not see
evidence of the longstanding tradition required under Heller to
remove magazines from the protection of the Second
Amendment. Cf. Drake v. Filko, 724 F.3d 426, 432 (3d Cir.
2013) (holding New Jersey’s permit requirement was
longstanding because its origins dated to 1924). Nor is it clear
that there is a longstanding tradition of regulating magazines
as “dangerous and unusual.” For one thing, more than eight
states would have rushed to regulate magazine capacity
following the end of the federal ban in 2004.
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
23
“fundamental interest protected by the [Second
Amendment]—the defense of hearth and home.” Id. at 97. By
extension, strict scrutiny should be applied when a challenged
law does burden such a fundamental interest. I conclude that
the New Jersey Magazine Act burdens the right to maintain
operable protected arms without regard to location or
circumstances, warranting strict scrutiny. But regardless of the
level of scrutiny applied, the state does not satisfy its burden
on this record.
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.
24
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.”).
25
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 Second Amendment demands more than back-of-
the-envelope math. At a minimum, it asks the government to
explain, to offer but one example, why eleven rounds is too
many while nine remains fine. Unless competent evidence
answers those questions, New Jersey cannot show why a ten-
round limit is the least restrictive means of achieving public
safety. For this reason, I would hold that the Act fails to satisfy
strict scrutiny.
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).
26
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
capacity 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 report that out of
sixty-one “mass shootings,”9 eleven used fifteen-round
9
The term “mass shootings” does not appear to have an
objective definition. See, e.g., NJ Rifle I App. at 1042, Louis
Klarevas, Rampage Nation: Securing America From Mass
Shootings (2016) (defining mass shootings as “attacks that
resulted in six or more people—not including the
perpetrator(s)—dying as a result of gunshot wounds”)
(emphasis in original); App. at 1067, Cong. Rsch. Serv., Mass
Murder with Firearms: Incidents and Victims, 1999-2013
(2015) (defining “mass shooting” as “a multiple homicide
27
magazines, two used fourteen-round magazines, and two used
thirteen-round magazines. That alone casts doubt on the ten-
round tailoring. As does the declaration of the Commissioner
of the Baltimore Police Department’s stating that the use of a
ten round magazine offers more opportunities to intervene in a
shooting incident than if “30- or 50-round magazines, or 100-
round drums” are used. (NJ Rifle I App. at 865.) (emphasis
added). So too, of course, would use of a magazine holding
eleven or twenty-nine rounds. That is why narrow tailoring
requires more than a ninety-round spread in logic.10
incident in which four or more victims are murdered with
firearms—not including the offender(s)—within one event,
and in one or more locations in close geographical proximity);
App. at 1118, Violence Pol’y Ctr., High-Capacity Ammunition
Magazines are the Common Thread Running Through Most
Mass Shootings in the United States (defining “mass shooting”
as “3 or more fatalities”).
10
Diving deeper, the record evidence casts doubt on the
State’s intervention theory. For example, “it takes two to four
seconds for shooters to eject an expended magazine from a
semi-automatic gun, insert a loaded magazine, and make the
gun ready to fire.” (NJ Rifle I App. at 1197, Declaration of
Gary Kleck in Support of Plaintiffs’ Motion for a Preliminary
Injunction at 12). Investigations from criminal attacks show
“that the killers typically do not fire at high rates, instead firing
deliberately, at rates far below the fastest rates that can be
maintained with semiautomatic weapons.” (NJ Rifle I App. at
1203, Kleck Decl. at 18.) In fact, “[t]he average interval
between shots in mass shootings . . . is nearly always more than
two to four seconds, which means that magazine changes do
28
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
not even slow the shooter’s rate of fire.” (NJ Rifle I App. at
1203, Kleck Decl. at 18.) Shooters can “avoid the necessity of
reloading by carrying several firearms, carry[ing] several
magazines which can be exchanged quickly, or simply tak[ing]
the time to reload.” (NJ Rifle I App. at 748, Carlisle E. Moody,
Large Capacity Magazines and Homicide, 160 C. Wm. & Mary
Working Paper 6, 6 (2015).) Crediting all of this testimony
seems to undermine the State’s theory, and suggests that
reducing magazine does not meaningfully assist intervention.
29
Decided two years after Heller, our decision in
Marzzarella ushered in a two-part framework for analyzing the
Second Amendment. That test has proved popular, and is now
used by a majority of circuit courts. But our approach has come
into question, and I have serious doubts that it can be squared
with Heller. See, e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1867
(2020) (mem.) (Thomas, J., dissenting) (criticizing the two-
part framework as “rais[ing] numerous concerns” that “yield[]
analyses that are entirely inconsistent with Heller”); N.Y. State
Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525,
1540 (2020) (Alito, J., dissenting) (explaining that Heller is
based “on the scope of the right to keep and bear arms as it was
understood at the time of the adoption of the Second
Amendment”); id. at 1527 (Kavanaugh, J., concurring) (“I
share Justice Alito’s concern that some federal and state courts
may not be properly applying Heller and McDonald.”). I reach
that conclusion on two grounds.
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
30
challenge against an absolute ban—after it has already been
established that the individual has a right to keep and bear
arms—eviscerates that right via judicial interest balancing in
direct contravention of Heller.”).
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.”
U.S. Const. pmbl.; see also Declaration of Independence para.
31
2.11 So “[t]he very enumeration of the right takes out of the
hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis
whether the right is really worth insisting upon.” Heller, 554
U.S. at 634 (emphasis in original).
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
11
Several Founding Era documents reflect this
sentiment. Hamilton wrote in Federalist Paper 28 that the
“original right of self-defense” is “paramount to all positive
forms of government.” The Federalist No. 28, at 146
(Alexander Hamilton) (Colonial Press, ed., 1901). Similarly,
Samuel Adams listed self-preservation under “Natural Rights
of the Colonists as Men”: “First, a right to life; Secondly, to
liberty; Thirdly, to property; together with the right to support
and defend them in the best manner they can.” Samuel Adams,
The Rights of the Colonists: The Report of the Committee of
Correspondence to the Boston Town Meeting Nov. 20, 1772
reprinted in Old South Leaflets no. 173 (Directors of the Old
South Work 1906). Those sentiments, in turn, echo the
classical understanding that “[s]elf-defence, therefore, as it is
justly called the primary law of nature, so it is not, neither can
it be in fact, taken away by the law of society.” 3 William
Blackstone, Commentaries *4.
32
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
Second Amendment, and whether that protection varies based
on their capacity, would “not reopen issues decided in earlier
stages of the same litigation.” Agostini v. Felton, 521 U.S. 203,
236 (1997). Both issues affect the rights of individuals
throughout our Circuit. Likewise, resolving those questions
will allow state governments to design public safety solutions
that respect the freedoms guarded by the Second Amendment.
So I would reverse the order of the District Court, hold that
magazines are arms under the Constitution, and remand this
matter to permit the State to provide evidence that the Act is
narrowly tailored to advance the State’s interests. For these
reasons, I respectfully dissent.
33