DocketNumber: No. 18-3170
Citation Numbers: 910 F.3d 106
Judges: Bibas, Greenaway, Shwartz
Filed Date: 12/5/2018
Status: Precedential
Modified Date: 11/2/2022
*110Today we address whether one of New Jersey's responses to the rise in active and mass shooting incidents in the United States-a law that limits the amount of ammunition that may be held in a single firearm magazine to no more than ten rounds-violates the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Equal Protection Clause. We conclude that it does not. New Jersey's law reasonably fits the State's interest in public safety and does not unconstitutionally burden the Second Amendment's right to self-defense in the home. The law also does not violate the Fifth Amendment's Takings Clause because it does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Finally, because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law's exemption that permits them to possess magazines that can hold more than ten rounds does not violate the Fourteenth Amendment's Equal Protection Clause. We will therefore affirm the District Court's order denying Plaintiffs' motion to preliminarily enjoin enforcement of the law.
I
A
Active shooting and mass shooting incidents have dramatically increased during recent years. Statistics from 2006 to 2015 reveal a 160% increase in mass shootings over the prior decade. App. 1042. Department of Justice and Federal Bureau of Investigation ("FBI") studies of active shooter incidents (where an individual is actively engaged in killing or attempting to kill people with a firearm in a confined, populated area) reveal an increase from an average of 6.4 incidents in 2000 to 16.4 incidents in 2013. App. 950, 953. These numbers have continued to climb, and in 2017, there were thirty incidents. App. 1149, 1133. In addition to becoming more frequent, these shootings have also become more lethal. App. 906-07 (citing 2018 article noting "it's the first time [in American history] we have ever experienced four gun massacres resulting in double-digit fatalities within a 12-month period").
In response to this trend, a number of states have acted. In June 2018, New Jersey became the ninth state to pass a new law restricting magazine capacity.
*111Active law enforcement officers and active military members, who are "authorized to possess and carry a handgun," are excluded from the ban. N.J. Stat. Ann. 2C:39-3(g). Retired law enforcement officers are also exempt and may possess and carry semi-automatic handguns with magazines that hold up to fifteen rounds of ammunition.
The Act provides several ways for those who are not exempt from the law to comply. Specifically, the legislation gives LCM owners until December 10, 2018
B
On the day the bill was signed, Plaintiffs Association of New Jersey Rifle and Pistol Clubs and members Blake Ellman and Alexander Dembrowski (collectively, "Plaintiffs")
The District Court held a three-day evidentiary hearing on the preliminary injunction request. The Court considered declarations from witnesses, which served as their direct testimony, and then these witnesses were thoroughly examined.
*112
A magazine is an implement that increases the ammunition capacity of a firearm. App. 128. An LCM refers to a particular size of magazine. App. 159. LCMs allow a shooter to fire multiple shots in a matter of seconds without reloading. App. 225, 865. Millions of LCMs have been sold since 1994, App. 1266, and 63% of gun owners reported using LCMs in their modern sporting rifles, App. 516, 753. LCMs often come factory standard with semi-automatic weapons. App. 656, 994-95.
Gun owners use LCMs for hunting and pest control. App. 655. LCMs have also been used for self-defense. App. 225, 844-51, 915-16, 1024. The record does not include a reliable estimate of the number of incidents where more than ten shots were used in self-defense,
There is also substantial evidence that LCMs have been used in numerous mass shootings,
While a trained marksman or professional speed shooter operating in controlled conditions can change a magazine in two to four seconds, App. 109, 263-67, 656, 1027, an inexperienced shooter may need eight to ten seconds to do so, App. 114. Therefore, while a ban on LCMs does not restrict the amount of ammunition or number of magazines an individual may purchase, App. 231, without access to LCMs, a shooter must reload more frequently.
"[S]hooters in at least 71% of mass shootings in the past 35 years obtained their guns legally," App. 853, or from a family member or friend (as was the case with the Newtown shooter who took his mother's lawfully-owned guns), App. 190, 195, 486, and gun owners in lawful possession of firearms are a key source of arming criminals through loss and theft of their firearms, App. 221-22, 800-01, 924-25.
New Jersey law enforcement officers regularly carry LCMs, App. 116, 1102, and along with their retired counterparts, are trained and certified in the use of firearms, App. 143-46, 1101-02. Law enforcement officers use certain firearms not regularly used by members of the military and use them in a civilian, non-combat environment.
After carefully considering all of the evidence and the parties' arguments, the District Court denied the motion to preliminarily enjoin the Act. The Court found the expert witnesses were credible but concluded that the testimony of certain experts was "of little help in its analysis .... [because] their testimony failed to clearly convey the effect this law will have on reducing mass shootings in New Jersey or the extent to which the law will impede gun owners from defending themselves." Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal, No. 3:17-cv-10507,
The District Court, however, considered other evidence in the record to reach its conclusion, see, e.g., id. at *6, *6 n.7, *12, that the Act was constitutional. The District Court held that a "ban on magazines capable of holding more than ten rounds implicates Second Amendment protections," id. at *11, but that it does not violate the Second Amendment. Specifically, the District Court held that the Act (1)
*114should be examined under intermediate scrutiny because it "places a minimal burden on lawful gun owners," id. at *13, and (2) "is reasonably tailored to achieve [New Jersey's] goal of reducing the number of casualties and fatalities in a mass shooting," id., based in part on evidence showing that "there is some delay associated with reloading, which may provide an opportunity for potential victims to escape or for a bystander to intercede," id. at *12.
The District Court also held that the Fifth Amendment Takings and Fourteenth Amendment Equal Protection claims lacked merit. The Court concluded that the Takings claim failed because the modification and registration options "provided property owners with ... avenue[s] to comply with the law without forfeiting their property." Id. at *16. The Court also determined that the Act's exemption for retired law enforcement officers did not violate Plaintiffs' right to equal protection because law enforcement officers, in light of their "extensive and stringent training" and experience "confronting unique circumstances that come with being a police officer," are different from, and hence not similarly situated to, other residents. Id. at *14.
After concluding that Plaintiffs failed to demonstrate a likelihood of success on their claims, the District Court stated that Plaintiffs did not satisfy the other requirements for a preliminary injunction, id. at *16, and denied their motion. Plaintiffs appeal.
Plaintiffs do not advocate an absolutist view of the Second Amendment but believe that the State's ability to impose any restriction on magazine capacity is severely limited. Plaintiffs argue that the Act is categorically unconstitutional because it bans an entire class of arms protected by the Second Amendment, there is no empirical evidence supporting the State ban, and the rights of law abiding citizens are infringed and their ability to defend themselves in the home is reduced.
On the other hand, the State asserts that it is imperative to the safety of its citizens to take focused steps to reduce the devastating impact of mass shootings. The State argues that the Act does not hamper or infringe the rights of law abiding citizens who legally possess weapons.
II
The decision to grant or deny a preliminary injunction is within the sound discretion of the district court. Winter v. Nat. Res. Def. Council, Inc.,
*115To obtain a preliminary injunction, the movants must: demonstrate (1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without relief. If these two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm the [defendants] more than denying relief would harm the Appellants and (4) whether granting relief would serve the public interest.
III
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller,
*116We therefore must first determine whether the regulated item is an arm under the Second Amendment. The law challenged here regulates magazines, and so the question is whether a magazine is an arm under the Second Amendment. The answer is yes. A magazine is a device that holds cartridges or ammunition. "Magazine," Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/magazine (last visited Nov. 21, 2018); App. 128 (describing a magazine as "an implement that goes into the weapon to increase the capacity of the weapon itself"). Regulations that eliminate "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,
Having determined that magazines are arms, we next apply a two-step framework to resolve the Second Amendment challenge to a law regulating them. United States v. Marzzarella,
A
Under step one, we consider whether the type of arm at issue is commonly owned,
B
Assuming that the Act implicates an arm subject to Second Amendment protection, we next address the level of means-end scrutiny that must be applied. Marzzarella,
1
The Act here does not severely burden the core Second Amendment right to self-defense in the home for five reasons. First, the Act, which prohibits possession of magazines with capacities over ten rounds, does not categorically ban a class of firearms. The ban applies only to magazines capable of holding more than ten rounds and thus restricts "possession of only a subset of magazines that are over a certain capacity." Fyock,
Second, unlike the ban in Heller, the Act is not "a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for [self-defense in the home]."
Third, also unlike the handgun ban in Heller, a prohibition on "large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves." Heller II,
Fourth, the Act does not render the arm at issue here incapable of operating as intended. New Jersey citizens may still possess and utilize magazines, simply with five fewer rounds per magazine. Ass'n of N.J. Rifle & Pistol Clubs,
Fifth, "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." Marzzarella,
For these reasons, while the Act affects a type of magazine one may possess, it does not severely burden, and in fact respects, the core of the Second Amendment right. See N.Y. State Rifle & Pistol Ass'n,
*1192
"[U]nder intermediate scrutiny[,] the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary." Drake,
"The State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens' safety."
New Jersey's LCM ban reasonably fits the State's interest in promoting public safety. LCMs are used in mass shootings. App. 1057 (stating that "LCM firearms are more heavily represented among guns used in murders of police and mass murders"); see App. 269 (noting 23 mass shootings using LCMs), 1118-26 (describing weapons used in sixty-one mass shootings, eleven of which used fifteen-round magazines, two of which used thirteen, and two of which used fourteen round magazines). LCMs allow for more shots to be fired from a single weapon and thus more casualties to occur when they are used. App. 562 (noting, however, that this does not imply that LCMs "caused shooters to inflict more casualties"), 865, 895-98. By prohibiting LCMs, the Act reduces the number of shots that can be fired from one gun, making numerous injuries less likely.
Not 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. App. 919-20. Reducing the capacity of the magazine to which a shooter has access means that the shooter will have fewer bullets immediately available and will need to either change weapons or reload to continue shooting.
[u]se of ten-round magazines would thus offer six to nine more chances for bystanders or law enforcement to intervene during a pause in firing, six to nine more chances for something to go wrong with a magazine during a change, six to nine more chances for the shooter to have problems quickly changing a magazine under intense pressure, and six to nine more chances for potential victims to find safety during a pause in firing. Those six to nine additional chances can mean the difference between life and death for many people.
App. 865; see also Kolbe,
This view is corroborated by other items in the record demonstrating that a delay occurs when a shooter needs to reload, see App. 114 (eight to ten seconds for inexperienced shooter or two to four seconds for trained shooter), and that such delay can be consequential. Videos from the Las Vegas shooting in 2017 show that "concert attendees would use the pauses in firing when the shooter's high capacity magazines were spent to flee." App. 914. During the Navy Yard shooting, one victim had a chance to escape when the shooter was forced to reload. App. 1045 (describing Navy Yard shooting where shooter attempted to kill a woman, was out of ammunition, and left to reload, at which time she found a new hiding spot and ultimately survived); see also App. 658-59, 1027 (describing escape during reloading in 2012 Newtown shooting). There are multiple instances when individuals have intervened in mass shootings and active shooter incidents to stop the shooter. App. 830 (Waffle House shooting), 969 (Florida's Gold Leaf Nursery shooting where "shooter was restrained by a citizen while attempting to reload his gun"), 1113 (Arizona's Giffords shooting), 1142 (Seattle Pacific University shooting where shooter was confronted/pepper-sprayed by student while reloading). While each incident may not have involved delay due to a need to reload, see App. 282 (distinguishing Waffle House incident on the basis that the intervener "said he didn't know one way or another, and when he was interviewed the first possibility he offered was the guy's - the shooter's gun jammed"), it was the pause in shooting that allowed individuals and bystanders to act. See App. 865, 979, 1142. In light of this evidence, the District Court did not clearly err when it concluded that the evidence "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." Ass'n of N.J. Rifle & Pistol Clubs,
*121Plaintiffs attempt to discount the need for the LCM ban by describing mass shootings as rare incidents, and asserting that the LCM ban burdens the rights of law-abiding gun owners to address an infrequent occurrence.
*122Ass'n of N.J. Rifle & Pistol Clubs,
Lastly, the Act does not burden more conduct than reasonably necessary. As we have already discussed, the prohibition on LCMs does not disarm an individual. While the Act does limit access to one tool-magazines that hold over ten rounds-it imposes no limit on the number of firearms or magazines or amount of ammunition a person may lawfully possess.
For these reasons, the Act survives intermediate scrutiny, and like our sister circuits, we hold that laws restricting magazine capacity to ten rounds of ammunition do not violate the Second Amendment.
IV
Plaintiffs' Fifth Amendment Takings claim also fails. The Takings Clause provides that "private property [shall not] be taken for public use, without just compensation."
Here, the compliance measures in the Act do not result in either an actual or regulatory taking.
The Act also does not result in a regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines. See Murr v. Wisconsin, --- U.S. ----,
V
Finally, Plaintiffs' Equal Protection claim fails. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "This is essentially a direction that all persons similarly situated should be treated alike." Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,
Plaintiffs assert that the Act violates the Fourteenth Amendment's Equal Protection Clause because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so. N.J. Stat. Ann. 2C:39-3(g), 2C:39-17. Plaintiffs have not shown that retired law enforcement officers are similarly situated to other New Jersey residents. Retired law enforcement officers have training and experience not possessed by the general public. Kolbe,
Law enforcement officers are also different from members of the military. Unlike military personnel trained for the battlefield, law enforcement officers are trained for and have experience in addressing volatile situations in both public streets and closed spaces, and they operate in noncombat zones where the Constitution and other rules apply. App. 148-49. Even if some military members receive firearms training *126comparable to the training law enforcement officers receive, App. 140-41, the scope and nature of their training and experience are different, App. 141, 147-49.
For these reasons, retired 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.
VI
For the foregoing reasons, we will affirm the order denying Plaintiffs' motion for a preliminary injunction.
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.
Yet the majority treats the Second Amendment differently in two ways. First , it weighs the merits of the case to pick a tier of scrutiny. That puts the cart before the horse. For all other rights, we pick a tier of scrutiny based only on whether the law impairs the core right. The Second Amendment's core is the right to keep weapons for defending oneself and one's family in one's home. The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period. That is the case here.
Second , though the majority purports to use intermediate scrutiny, it actually recreates the rational-basis test forbidden by Heller . It suggests that this record favors the government, but make no mistake-that is not what the District Court found. The majority repeatedly relies on evidence that the District Court did not rely on and expert testimony that the District Court said was "of little help."
Whether strict or intermediate scrutiny applies, we should require real evidence that the law furthers the government's aim and is tailored to that aim. But at key points, the majority substitutes anecdotes and armchair reasoning for the concrete proof that we demand for heightened scrutiny anywhere else. New Jersey has introduced no expert study of how similar magazine restrictions have worked elsewhere. Nor did the District Court identify any other evidence, as opposed to armchair reasoning, that illuminated how this law will reduce the harm from mass shootings. Id. at *12-13. So New Jersey cannot win unless the burden of proof lies with the challengers. It does not.
The majority also guts heightened scrutiny's requirement of tailoring. Alternatives to this ban may be less burdensome and as effective. New Jersey has already gone further than most states. It has a preexisting fifteen-round magazine limit and a restrictive permitting system. These laws may already do much to allay its public-safety concerns. New Jersey needs to show that these and other measures will not suffice.
The majority stands in good company: five other circuits have upheld limits on magazine sizes. These courts, like the New Jersey legislature, rightly worry about how best to reduce gun violence. But they err in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof. So I would enjoin this Act until New Jersey provides *127real evidence to satisfy its burden of proving the Act constitutional.
I. STRICT SCRUTINY APPLIES TO LAWS THAT IMPAIR SELF-DEFENSE IN THE HOME
Unlike the majority, 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.
A. Other core constitutional rights get strict scrutiny
The Supreme Court has not set up tiers of scrutiny for gun regulations. Heller ,
As the majority recognizes, if we apply tiers of scrutiny, we apply strict scrutiny to the right's core. Maj. Op. at 117-18. For other rights, that is the end of the question. The "bedrock principle" of the Free Speech Clause forbids limiting speech just because it is "offensive or disagreeable." Texas v. Johnson ,
B. The Second Amendment's core is self-defense in the home
The Second Amendment merits the same level of scrutiny. As Heller and McDonald confirm, and the majority acknowledges, its core turns on the weapon's function and its location: self-defense and the home. Maj. Op. 115-16, 117-18. Laws that tread on both warrant strict scrutiny.
Self-defense is the quintessential protected function of weapons. As Heller stressed, "it [i]s the central component of the right itself."
Not every gun law impairs self-defense. Our precedent applies intermediate scrutiny to laws that do not affect weapons' function, like serial-number requirements. Marzzarella ,
And the home is the quintessential place protected by the Second Amendment. In the home, "the need for defense of self, family, and property is most acute."
*128McDonald v. City of Chicago, Ill. ,
C. This Act burdens the core right
A ban on large magazines burdens that core right. Large magazines, unlike machineguns, are in common use. The ban extends to the home. Indeed, that is the main if not only locale of the law, as New Jersey can already deny most people permits to carry large magazines publicly. See N.J. Stat. Ann. § 2C:58-4(c). And the ban impairs using guns for self-defense. The government's entire case is that smaller magazines mean more reloading. That may make guns less effective for ill-but so too for good. The government's own police detective testified that he carries large magazines because they give him a tactical "advantage[ ]," since users must reload smaller magazines more often. App. 116-18. And he admitted that "law-abiding citizens in a gunfight" would also find them "advantageous." App. 119. So the ban impairs both criminal uses and self-defense.
The law does not ban all magazines, so it is not per se unconstitutional. But it does impair the core Second Amendment right. We usually would stop there. How much the law impairs the core or how many people use the core right that way does not affect the tier of scrutiny. So like any other law that burdens a constitutional right's core, this law warrants strict scrutiny.
D. The majority's responses are unconvincing
The majority tries to justify using intermediate scrutiny. But it errs twice over.
1. Forbidden interest-balancing . First and most fundamentally, the majority weighs the merits of the right to possess large magazines. It extends a passing phrase from Marzzarella into a requirement that a burden "severely burden the core Second Amendment right to self-defense in the home" before it will receive strict scrutiny. Maj. Op. at 117 (emphasis added) (citing Marzzarella ,
But the Second Amendment provides a right to "keep and bear Arms." U.S. Const. amend. II (emphasis added). It protects possessing arms, not just firing them. So the majority misses a key part of the Second Amendment. The analysis cannot turn on how many bullets are fired.
And we never demand evidence of how severely a law burdens or how many people it hinders before picking a tier of scrutiny. That demand is backwards and explicitly forbidden by Heller . We should read our precedent in keeping with the Supreme Court's instructions. Polling defensive gun uses and alternatives to set a level of scrutiny, as the majority does, boils down to forbidden interest-balancing. Any gun regulation limits gun use for both crime and self-defense. And any gun restriction other than a flat ban on guns will leave alternative weapons. So the majority's test amounts to weighing benefits against burdens.
That balancing approach is a variant of the position of Justice Breyer's dissent in *129Heller ; the Heller majority rejected it. Compare
Otherwise, we put the cart before the horse. Deciding the severity of the burden before picking a tier of scrutiny is deciding the merits first. It is backwards. That upends Heller 's careful approach. The Supreme Court insisted that the Second Amendment has already made the basic policy choice for us.
That is how we approach other constitutional rights. The level of scrutiny for speech restrictions does not change if speech is unpopular or hateful. See Snyder v. Phelps ,
Nor does the availability of alternatives lower our tier of scrutiny. Bans on flag-burning get strict scrutiny even though there are other ways to express one's views. See Johnson ,
So the only question is whether a law impairs the core of a constitutional right, whatever the right may be. Any other approach puts the cart before the horse by weighing the merits of the case to pick a tier of scrutiny.
2. Limiting Heller's core to handgun bans . Second, though it denies it, the majority effectively cabins Heller 's core to bans on handguns. Compare Maj. Op. at 115 n.14 (denying that Heller is so limited), with id. at 118 (stressing that this law, unlike the law in Heller , "does not take firearms out of the hands of law-abiding citizens" and leaves them with "many other firearm options"). But that is like cabining VMI to military institutes. Heller never limited its reasoning to handguns or *130complete bans, and for good reason. 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. E.g. , Trinity Lutheran Church of Columbia, Inc. v. Comer , --- U.S. ----,
People commonly possess large magazines to defend themselves and their families in their homes. That is exactly why banning them burdens the core Second Amendment right. For any other right, that would be the end of our analysis; for the Second Amendment, the majority demands something much more severe.
So I would apply strict scrutiny to this Act, at least insofar as it limits keeping magazines to defend one's home. But as discussed below, the government has not shown that this Act can survive even intermediate scrutiny.
II. EVEN UNDER INTERMEDIATE SCRUTINY, ON THIS RECORD, THE LAW FAILS
Our precedent holds that intermediate scrutiny governs limits on weapons outside the home. Drake v. Filko ,
A. Intermediate scrutiny must be searching, not feeble
Though the Supreme Court has yet to specify a tier of scrutiny for gun laws, it forbade rational-basis review. Heller ,
Intermediate scrutiny requires much more. As the majority concedes, the government bears the burden of proof. Maj. Op. at 120-21 n.24; Binderup , 836 F.3d at 353 (Ambro, J., controlling opinion). This is true even for preliminary injunctions. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal ,
It is not enough to base sex classifications on armchair reasoning. Frontiero ,
The government must also prove that its law does not "burden more [conduct] than *131is reasonably necessary." Marzzarella ,
So we must require that the government introduce substantial proof. We may not reflexively defer to its justifications. And we must look for tailoring. None of these requirements is met here.
B. The government has not met its burden of proof
New Jersey has not met its burden to overcome intermediate scrutiny, let alone strict scrutiny. True, the government has a compelling interest in reducing the harm from mass shootings. No one disputes that. But New Jersey has failed to show how the ban advances its interest. Nor does it provide evidence of tailoring.
1. The record lacks evidence that magazine restrictions reduce mass-shooting deaths . This record lacks any evidence tying that interest to banning large magazines. The reader could be forgiven for any surprise at that statement: the majority acts as if the record abounds in this evidence. But that is not what the District Court found. That Court offered three rationales for upholding the ban. None of them withstands scrutiny.
First, the District Court, like the majority here, reasoned that people can still own many, smaller magazines.
Second, the District Court stressed its deference to the legislature's judgment about the local needs of densely populated urban states.
Third, the District Court detailed the testimony and evidence of all four expert witnesses. But it then "f[ou]nd the expert testimony is of little help in its analysis." Id. at *8. It found that evidence "of little help" in figuring out how the law would impair self-defense and how it would reduce the harm from mass shootings. Id. So none of this satisfied the government's burden of proof.
The only expert finding on which the District Court could rely was a vague and general one: "[T]he 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. In other words, it rested on the armchair proposition that smaller magazines force shooters to pause more often to reload. When shooters must reload, potential victims should have more chances to escape or tackle the shooter. This speculation is plausible. But the Court cited no concrete causal link between that plausible speculation and its effect on mass-shooting deaths.
So with no support from the District Court, the majority digs through the record to link large magazines with the harm from mass shootings. By construing a record that the District Court found unhelpful in favor of the government, the majority effectively flips the burden of proof onto the challengers. It cites many portions of *132the record never mentioned by the District Court. It details the rise of mass shootings. It cites reports of mass shootings to show that people can escape when the shooter stops shooting. And it quotes a police chief as evidence that smaller magazines require more reloading.
The District Court was admirably clear about the state of the record. It did not rely on any of this "anecdotal evidence." Compare
It has no citation because there isn't one. The government's own experts never examined the causal link between these magazines and crime. Its best evidence came from a lone CNN article that mentioned a study linking large magazines to mass shootings. But the government never introduced the actual study, the expert, or the underlying data. Nor was the study ever peer-reviewed. Without examination or cross-examination of the study, we cannot rely on it.
So to link reports of mass shootings to generalities about reload times, the majority resorts to saying: "[T]here is some delay associated with reloading, which may provide an opportunity for potential victims to escape or for a bystander to intercede." Maj. Op. at 120 (quoting
This reasoning would be enough for rational-basis review. And it could be enough for intermediate scrutiny too. But the government has produced no substantial evidence of this link. It could compile that evidence by, for example, studying other jurisdictions that have restricted magazine size. Until it does so, we should grant the preliminary injunction.
2. There is no evidence of tailoring . The majority does not even demand evidence of tailoring. But tailoring is not limited to the First Amendment, as our precedent makes clear. Marzzarella ,
If anything, the evidence shows that other effective laws are already on the books. In a footnote, the majority suggests that these other laws prove tailoring. Maj. Op. at 123 n.28. But far from it. If other laws already restrict guns, New Jersey has to show that the laws already on the books will not suffice. See McCullen ,
To start, 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. Though the government cites mass shootings involving large magazines, these shooters often used magazines with thirty or more rounds. So we do not know if a ten-round limit is tailored.
*133New Jersey also has a may-issue permitting law, requiring people to show a "justifiable need" before they may carry handguns outside the home. Drake ,
Given its may-issue law, the government offers nothing to explain why this added ban is necessary, let alone tailored to its interests. If only those with a justifiable need can carry these magazines, why is New Jersey's law not tailored enough already? The government's only answer is that the may-issue requirement does not currently extend to the home. And the majority's only response is that many previously law-abiding citizens commit crime. But these arguments run up against strict scrutiny in the home. At most, they would warrant extending a may-issue permit requirement to the home, rather than banning large magazines entirely. And once again, the majority lacks a limiting principle: since anyone could commit crime, the government could forbid anyone to have a gun.
3. The majority muddles defensive gun uses . Instead of a real tailoring analysis, the majority again demands evidence of how often people use large magazines for self-defense. But tailoring does not depend on how many times a right is impaired.
The majority cannot even decide what the evidence shows. In places, it concedes that large magazines "have also been used for self-defense." Maj. Op. at 112; accord
4. The majority's watered-down "intermediate scrutiny" is really rational-basis review . This law would never survive the intermediate scrutiny applied by the Supreme Court in speech or sex-discrimination cases. Those cases demand compelling evidence and tailoring. See McCullen ,
In a footnote, the majority candidly admits that it is not applying intermediate scrutiny as we know it. It concedes that its approach does not come from the First Amendment or the Fourteenth Amendment (or any other constitutional provision, for that matter). Maj. Op. at 122-23 n.28. It offers only one reason: guns are dangerous.
So the majority's version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.
* * * * *
I realize that the majority's opinion aligns with those of five other circuits. But Heller overruled nine, underscoring our independent duty to evaluate the law ourselves. And unlike most other states, New Jersey has layered its law on top of not only a previous magazine restriction, but also a may-issue permit law that greatly limits public carrying. Those laws may have prevented or limited gun violence. That cuts against the law's necessity and its tailoring.
The majority's concerns are understandable. Guns kill people. States should be able to experiment with reasonable gun laws to promote public safety. And they need not wait for mass shootings before acting. The government's and the majority's position may thus be wise policy. But that is not for us to decide. The Second Amendment is an equal part of the Bill of Rights. And the Supreme Court has repeatedly told us not to treat it differently.
So we must apply strict scrutiny to protect people's core right to defend themselves and their families in their homes. That means holding the government to a demanding burden of proof. Here, 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.
I would thus enjoin the law and remand to let the government provide evidence that the Act will advance its interests and is tailored to do so. On remand, the government would be free to introduce real studies of any causal evidence that large-magazine limits prevent harm from mass shootings or gun violence in general. It could also introduce proof of tailoring and discuss its existing laws and alternatives. The challengers could try to rebut those studies. And we could then find whether the government has met its burden to justify this law. But it has not yet done that. So the law may well irreparably harm the challengers by infringing their constitutional rights. I respectfully dissent.
As of spring 2018, eight states and the District of Columbia had adopted bans on large capacity magazines.
Under the New Jersey statute, a "[l]arge capacity ammunition magazine" is defined as "a box, drum, tube or other container which is capable of holding more than 10 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm. The term shall not include an attached tubular device which is capable of holding only .22 caliber rimfire ammunition."
To be exempt from the Act's prohibition, a retired law enforcement officer must, among other things, follow certain procedures, qualify semi-annually in the use of the handgun he is permitted to carry, and pay costs associated with the semi-annual qualifications.
The law gave 180 days from its June 13, 2018 effective date to comply.
Both Ellman and Dembrowski have worked at gun ranges, and Dembrowski is a Marine Corps veteran. App. 470, 476.
Plaintiffs offered expert witness Gary Kleck, Professor Emeritus at Florida State University. Defendants offered three expert witnesses: (1) Lucy Allen, Managing Director of NERA Economic Consulting; (2) Glen Stanton, State Range Master for the New Jersey Office of the Attorney General Division of Criminal Justice; and (3) John Donohue, Professor of Law at Stanford Law School.
The exhibits include writings from Christopher Koper, Professor of Criminology, Law, and Society at George Mason University, see App. 663-67, 768-72, 1047-50, 1051-59, 1060-65, 1247-53, 1254-85, and David Kopel, Research Director at the Independence Institute, Associate Policy Analyst at the Cato Institute, and Adjunct Professor at Denver University Sturm College of Law, App. 654-59, 1233-46.
Allen testified that most defensive gun use involves the discharge of between two and three rounds of ammunition. App. 844-48. Kleck acknowledged that there is no current estimate of the number of incidents where more than ten shots were used in self-defense, App. 240, but then relied on data from Allen to assert that 4,663 incidents of defensive gun use have involved more than ten rounds. App. 239, 328. This figure is based on an extrapolation. As Amicus Everytown for Gun Safety explained,
That number was reached by taking Kleck's ... out-of-date, 2.5 million defensive-gun-uses number, multiplying that by his estimate of the percentage of defensive gun uses in the home, and then multiplying that by the percentage of such incidents found in the NRA's [Armed Citizen] defensive-gun-use database in which more than ten shots were reportedly fired (2 of 411). [App. 328.] This approach takes 411 of what are certainly some of the most extreme and newsworthy cases of defensive gun [use] across a period of more than six years, [App. 69], and assumes that they are representative of all defensive gun uses.
Amicus Everytown for Gun Safety Br. at 23-24 (footnote omitted) (emphasis in original). Plaintiffs attempt to embrace a figure based on data they themselves challenged because the expert did not know the data compilation method, the data may not have been representative, and the search criteria were limited. Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal, No. 3:17-cv-10507,
As the District Court observed, some of the studies and articles use different definitions for the term "mass shootings," which led it to give less weight to these materials. See Ass'n of N.J. Rifle & Pistol Clubs,
Because their duties require access to LCMs, active military members and active law enforcement officers are exempt from the ban. N.J. Stat. Ann. 2C:39-3(g).
Our dissenting colleague is of the view that the District Court rejected all of the expert testimony offered during the preliminary injunction hearing. This does not accurately reflect the Court's opinion. The Court's opinion shows that while it found the testimony of Kleck and Allen unhelpful, Ass'n of N.J. Rifle & Pistol Clubs,
The District Court had jurisdiction under
Plaintiffs' argument that the clear error standard does not apply to legislative facts and that the Court is not limited to the record below in adjudicating questions of legislative fact is unpersuasive.
Legislative facts have been described as: (1) general facts or things "knowable to the industry at all relevant times," In re Asbestos Litig.,
To the extent the record includes legislative facts, Plaintiffs have not met their burden of showing that the legislative facts New Jersey relied upon "could not reasonably be conceived to be true." (In re Asbestos Litig.,
Even if it were within this Court's discretion to refrain from applying the clearly erroneous standard to legislative facts, we are not compelled to do so. See Lockhart v. McCree,
Heller's teachings apply beyond the handgun ban at issue there.
"Common use" is not dispositive since weapons illegal at the time of a lawsuit would not be (or at least should not be) in common use and yet still may be entitled to protection. Friedman v. City of Highland Park,
This plain language from Heller makes clear that the Second Amendment, like all of the amendments in the Bill of Rights, is not limitless. Aside from requiring consideration of whether the arm is typically possessed by law-abiders for lawful purposes, Heller also examines whether the weapon is "dangerous and unusual."
We are also mindful of Heller's admonition that disproportionate criminal use of a particular weapon does not mean it is not typically possessed for lawful purposes. N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo,
LCMs were not regulated until the 1920s, but most of those laws were invalidated by the 1970s. App. 1242-44. The federal LCM ban was enacted in 1994, but it expired in 2004. App. 1244. While a lack of longstanding history does not mean that the regulation is unlawful, see Heller v. District of Columbia,
Rational basis review is not appropriate for laws that burden the Second Amendment. Heller,
Heller stated that "[i]t is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed."
No court has applied strict scrutiny to LCM bans, reasoning that the bans do not impose a severe or substantial burden on the core Second Amendment right. Kolbe,
Our dissenting colleague seems to misunderstand the analytical approach that we have adopted and which is consistent with our precedent. The dissent suggests that we engage in interest-balancing. Our analysis demonstrates that we do not. The scrutiny analysis described above is not the interest-balancing approach advocated by Justice Breyer and rejected by the Heller majority, where a court, focused on proportionality, weighs the government interest against the burden on the Second Amendment right.
While it is true that some active shooters carry multiple weapons, see App. 967-88 (describing active shooter incidents 2000-2013, some of which the shooter had rifles, handguns, and/or shotguns), 1141-46 (same for 2014-2015), 1156-64 (same for 2016-2017), when those weapons are equipped with LCMs, there are more continuously-fired shots from each gun, which means fewer interruptions in the shooting.
Our dissenting colleague says that our analysis has placed the burden of proof on Plaintiffs. That is incorrect. The State bears the burden of proving that the Act is constitutional under heightened scrutiny. Hassan v. City of New York,
The dissent prefers, and in fact insists, on a particular type of evidence, namely empirical studies demonstrating a causal link between the LCM ban and a reduction in mass shooting deaths. This is not required. First, intermediate scrutiny requires not a causal link but a reasonable fit between the ban and the State's goal, and the record supports this reasonable fit. As explained above, the LCM ban provides the circumstance that will enable victims to flee and bystanders to intervene, and thereby reduce harm. Second, while in some contexts empirical evidence may be useful to examine whether a law furthers a significant government interest, Fisher v. Univ. of Tex. at Austin, --- U.S. ----,
Moreover, the dissent criticizes us for reviewing the entire record to determine whether the District Court clearly erred in its factual determinations, but clear error review requires it. See In re Lansdale Family Rests., Inc.,
Plaintiffs also argue that the LCM ban burdens the rights of law-abiding gun owners by depriving them of the tactical advantage that LCMs provide to criminals and law enforcement officers. Transcript of Oral Argument at 11:17-23, 13:3-19, 16:7-17:2, Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal, et al., No. 18-3170 (Nov. 20, 2018). Plaintiffs' expert testified that, given the average citizen's poor shooting accuracy and the potential for multiple assailants, LCMs are important for self-defense. App. 555, 655-56.
We recognize that Heller instructs 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."
The dissent incorrectly asserts that our analysis lacks a limiting principle. We have a limiting principle and have applied it, namely whether the law severely and substantially burdens the core right to self-defense in the home. See Drake,
Plaintiffs rely on evidence from Kleck to support their assertion that LCMs are needed for self-defense. He asserts that attacks by multiple offenders are common, postulates the number of shots an average citizen, as compared to a proficient police officer, needs to shoot an offender, and then multiplies that by four to conclude that average persons need more than ten rounds of ammunition to act in self-defense. App. 555. This calculation is speculative.
Plaintiffs argue that three First Amendment standards should be used to evaluate a Second Amendment challenge to a gun law, namely that: (1) the Act cannot regulate the secondary effects of gun violence by suppressing the right to possess firearms; (2) the Act must alleviate the harm it seeks to address; and (3) New Jersey was required to consider other less restrictive alternatives. The dissent also applies First Amendment, as well as Equal Protection, articulations of the intermediate scrutiny test to the case before us. The controlling case law, however, sets forth the governing law for evaluating Second Amendment challenges.
While our Court has consulted First Amendment jurisprudence concerning the appropriate level of scrutiny to apply to a gun regulation, see Binderup v. Att'y Gen.,
Even if we evaluated the First Amendment considerations Plaintiffs advocate, they do not change the outcome. First, Plaintiffs rely on Justice Kennedy's concurring opinion in City of Los Angeles v. Alameda Books, Inc.,
Second, Plaintiffs argue that the Act must "in fact alleviate the problem meant to be addressed," Turner Broad. Sys., Inc. v. FCC,
Third, Plaintiffs claim that New Jersey failed to consider any less restrictive alternatives in passing the Act and that this is fatal to the law's survival. In Bruni v. City of Pittsburgh,
In a more recent non-precedential opinion, a separate panel of the Court of Appeals for the Ninth Circuit affirmed the United States District Court for the Southern District of California's order preliminarily enjoining California's LCM ban, relying on the district court's fact findings, which it properly recognized it could not reweigh. See Duncan,
The United States District Court for the District of Massachusetts also rejected a Second Amendment challenge to Massachusetts's LCM ban. Worman v. Healey,
The Takings Clause applies to the states through the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. City of Chicago,
New Jersey's LCM ban seeks to protect public safety and therefore it is not a taking at all. A compensable taking does not occur when the state prohibits the use of property as an exercise of its police powers rather than for public use. See Lucas v. S.C. Coastal Council,
Plaintiffs assert that Horne v. Department of Agriculture, --- U.S. ----,