Last week, Well Regulated discussed Attorney General Becerra’s petition for an en banc hearing in the 9th Circuit after a three-judge panel ruled California’s ban on the possession of magazines with a capacity greater than 10 rounds was unconstitutional. This week, in Association of New Jersey Rifle and Pistol Clubs v. Attorney General New Jersey, the 3rd Circuit Court upheld New Jersey’s ban on magazines with a capacity above 10 rounds, also in a three-judge panel. More specifically, the panel deferred to a previous ruling in 2018 when the same issue was brought to the court over New Jersey lowering legal magazine capacity from 15 to 10 rounds. For the convenience of the reader (who is encouraged to read the decision in its entirety), this column is divided into two sections, detailing sections of interest from the majority opinion and the dissent.
Majority
The Court decided that while the law did impose a burden on the Second Amendment (given that magazines are “…integral…components of guns.”) it did not burden the core of the Second Amendment as defined in Heller v. DC, namely “…the right of law-abiding citizens to possess non-dangerous weapons for self-defense in the home.” More specifically, the panel claimed that the law “does not prohibit the possession of the quintessential self-defense weapon, the handgun,” nor does it “effectively disarm individuals or substantially affect their ability to defend themselves.” The latter claim is especially suspect given the wealth of data available on defensive shootings. A 2019 study found that police only hit assailants 35% of the time in defensive shootings while an analysis of 1800 defensive shootings found that rate to be much higher (74%) as it also included civilian shooters. The police are demonstrably less proficient with their firearms than the court would have you believe given its claim that the law did not violate the Fourteenth Amendment since active and retired LEOs (law enforcement officers, who are exempt):
…are not similarly situated to other New Jersey citizens for a number of reasons. 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[.]”
It should be noted that while police officers will typically act to protect individuals, the Supreme Court decided in Warren v. DC that police do not have an obligation to protect any given individual.
That same analysis of 1800 defensive uses of firearms cited above also found that 9mm (the most common caliber for carried pistols) took on average 2.45 rounds to incapacitate an assailant. If a given homeowner is as proficient with their weapon as an average police officer, then they would require an average of seven rounds to incapacitate one assailant. This leaves almost no room for error if there are multiple attackers or if an attacker is under the influence of drugs. The court argues that the law “…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.” and surely if a victim needs more ammunition during a home invasion, they can simply reload their firearm. However, this presupposes a firearm owner’s ability to possess and access additional magazines during a violent engagement. Magazines for an AR-15 style rifle typically cost $10-15, and this cost is not reduced for magazines of lower capacity. On the contrary, standard capacity magazines that have been modified to only accept 10 rounds will typically cost $5-10 more meaning that a firearm owner in a restricted state could have to pay seven times that of an owner in a non-restricted state. The need to carry additional magazines also necessitates purchasing more equipment to hold magazines on the person during a home invasion and will reduce response times to a threat in order to put on this equipment. Given these facts, it is outrageous that the court claimed the law:
…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 [large capacity magazines] are “well-suited or safe for self-defense.”
These additional costs were seemingly not considered by the court in its argument that the law did not violate the Fifth Amendment since owners could register, destroy, or permanently modify magazines; each of which is costly, as detailed above, especially considering that a typical firearm owner will possess dozens of magazines.
Even if this law didn’t impede a civilian’s ability to defend themself (a dubious proposal) 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.” This is especially notable given that the entire reason for the law was the state’s claim that a further limit on magazine capacity would reduce a mass shooter’s ability to kill. In fact, there are numerous examples of deadly public mass shootings in which the shooter exclusively used 10 round magazines. One such incident was in 2017 when Dr. Bello – a disgruntled employee – went into a Bronx hospital with a rifle and shot seven people. More infamously, in the Parkland shooting which reinvigorated the gun-control movement in 2018, Nikolas Cruz chose to use 10 round magazines because of their ability to be concealed in his book bag, as opposed to standard capacity magazines (legal in Florida).
The court’s decision on why the law does not violate the Second Amendment is best summarized in the statement on the use of intermediate scrutiny:
…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.”
Of the more egregious points made, this column has already addressed (3) and (4). The second claim, that magazines above 10 rounds are not “overwhelmingly chosen by Americans for self-defense in the home” is blatantly false. The standard capacity for a modern compact or full-size handgun is 15-17 rounds and for modern rifles, the standard capacity is 30 rounds. Shotguns – the only common home-defense firearm with a standard capacity below 10 rounds – are decreasing in popularity for use in home-defense due to concerns of overpenetration, low capacity, reduced ability to quickly fire additional shots as needed, and the greater difficulty of use for shooters with less body mass and upper body strength (such as women and the elderly).
Dissent
Judge Matey dissented, offering a thorough rebuttal to the majority opinion, contesting that the panel had not properly applied Heller, decided whether all magazines are protected by the Second Amendment, or even defined what a “large capacity magazine” is. Central to this issue is whether magazines qualify as “arms” for the purpose of the right to keep and bear arms. Additionally, the state did not provide sufficient evidence that such a ban was necessary or that it would not create an unnecessary burden on the exercise of Second Amendment rights, stating:
At best, the record could be read to suggest that criminals use a variety of firearms to commit an array of violent acts some, all, or none of which are impacted by the New Jersey Magazine Act.
…
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.
As is to be expected in any Second Amendment case, Heller features prominently in Judge Matey’s dissent not only as a matter of determining an appropriate test for examining the constitutionality of the law but also in the definition of relevant terms. Judge Matey argued that since Heller confirmed the definition of “arms” to refer to operable arms, commonly used for the purpose of self-defense, Second Amendment protections extended to the components necessary for the proper use and function of firearms, namely ammunition and magazines. Since the owner of a firearm and appropriate “large capacity magazines” would no longer be able to utilize his firearm if he could not legally possess his magazines, it would make the firearm inoperable for the purpose of lawful self-defense. Furthermore, he asserted that the state did not disprove the fact that “large capacity magazines” are in common use, or prove that such magazines could be considered “dangerous and unusual” – criteria for the types of weapons he argues do not fall within the protections of the Second Amendment.
As stated above, the state could not definitively prove that such a law would result in fewer deaths overall or that it would reduce the lethality of mass shootings. Judge Matey described the state’s justification for the law not as empirical evidence, but mere assertions that this ban will save lives. This is not to mention that supposedly there would already be overwhelming evidence that the previous magazine ban had reduced gun deaths or shooting lethality:
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.
This dissent thoroughly examined the issue at hand, namely that the state has imposed burdensome regulations in the name of “public safety” which have little to no evidence of their efficacy. After one restriction fails to save any lives, the state comes along with another, and another, and another. Even though the state cannot provide any evidence of achieving a positive impact with its regulation of arms, it still seeks to expand its ability to restrict our rights. Under these circumstances, there is no other rational conclusion except that such laws are fundamentally an exercise in the state dominating the people, not a legitimate effort to protect public health and wellbeing.
