3rd Circuit Upheld NJ Magazine Capacity Ban 2-1 But Trump Appointed Judge Used FPC Legal's Amicus Brief in Dissent

[Charlie T Waite]

WHAT HAPPENED: The Third Circuit Court of Appeals today released a 2-1 panel decision in Association of New Jersey Rifle and Pistol Clubs, Inc., et al, v. Attorney General New Jersey, et al. affirming the district court’s judgment upholding New Jersey’s limit on ammunition magazines to a capacity of 10 rounds. Today’s Opinion determined that the 3rd Circuit had already ruled on the constitutionality of the ban on so-called large capacity magazines (LCMs) in an earlier decision, and that the court was therefore bound to follow its earlier precedent. However, there were some significant and positive developments worth taking note of. Judge Matey, who authored the dissenting opinion and was the only Judge on the panel who reached the merits of the case, agreed with FPC’s position.  This case in particular underscores how important it is to get the right judges appointed, and then provide them with the resources and insight necessary to get pro-Liberty outcomes.  

While the majority opinion did not reach the conclusion FPC advocated for, the case was not without its silver linings.  Judge Matey’s Dissent concluded that the prior panel ruling—purported by the majority to have clearly decided the constitutionality of the law—wasn’t so clear after all.  Because that prior ruling lacked some key analysis, Judge Matey wrote, this current panel should not be bound by it, and should instead be free to undertake its own review of the constitutionality of New Jersey’s LCM ban. 

 Perhaps even more important was Judge Matey’s recommendation regarding how the 3rd Circuit should be analyzing Second Amendment challenges,  including this one. Judge Matey concluded unequivocally that the proper standard for adjudicating Second Amendment challenges is one that draws on the text, history, and original meaning of the constitutional guarantee of the right of the people to keep and bear arms.  This so-called “text informed by history and tradition” test has been championed by FPC’s own Director of Research Joseph Greenlee.  Today’s dissent is another clear indication that more and more judges are understanding the importance of clarifying and correcting the current state of confusion surrounding the proper way to consider Second Amendment challenges, and that the text, history, and tradition model is gaining traction.  This is an important move in the right direction. 

Judge Matey also followed several pages of FPC’s brief in summarizing the history of repeating arms, covering a period from 1640 though the present-day and citing FPC’s brief extensively in the process. 

The current appeal reached the 3rd Circuit in a somewhat “tortured procedural posture,” which is legalese for “you won’t fully understand this unless you’re a law student studying for your Civil Procedure final.” Here’s what happened: In a prior ruling on the plaintiffs’ challenge to the constitutionality of the New Jersey mag ban law, the district court denied a preliminary injunction that was being sought by the plaintiffs.  That denial was appealed, and a panel of the 3rd Circuit upheld the district court’s order.  The court today held that in doing so, that panel of the 3rd Circuit went beyond simply answering the question of the plaintiffs’ “likelihood of success on the merits” (part of the standard to receive a preliminary injunction) and directly addressed the constitutionality of the statute.  The case was then sent back to the district court where it had originated, where that court ruled on summary judgment that it was bound by that earlier decision.

 The plaintiffs then appealed that summary judgment ruling, arguing first, that the district court erred in treating the prior panel’s opinion on the constitutionality of the statute as binding, and second, reasserting plaintiffs’ belief that the statute was unconstitutional under the Second, Fifth, and Fourteenth Amendments.  The majority in today’s opinion held that the plaintiffs were wrong on their first argument – i.e. that the prior panel ruling had in fact come to a binding conclusion as to the constitutionality of the law.  Because they were bound to follow the prior decision, the majority said, they did not need to re-address the constitutional arguments.