James A. Byrne federal courthouse in Philadelphia. (Photo: Paul D’Annunzio/ALM)

The U.S. Court of Appeals for the Third Circuit has rejected a challenge to New Jersey’s ban on firearm magazines holding more than 10 rounds.

The appeals court, by a 2-1 margin, said the law limiting high-capacity magazines does not violate the Second Amendment, the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Equal Protection Clause. The court affirmed an order from the U.S. District Court that denied the challengers’ motion to preliminarily enjoin enforcement of the law.

The ruling is a major setback for the Association of New Jersey Rifle & Pistol Clubs, an NRA-affiliated group that challenged New Jersey’s ban, which was adopted in June. California, Connecticut, Hawaii, Maryland, Massachusetts and New York as well as some cities and counties have adopted laws limiting the possession and sale of magazines to 10 rounds, and five other circuit courts have upheld similar laws.

New Jersey’s law was enacted in response to the rise in active and mass shooting incidents in the United States. The appeals court found the ban ”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.”

Judges Joseph Greenaway Jr. and Patty Shwartz ruled to affirm the lower court. Judge Stephanos Bibas, in a 19-page dissenting opinion, called for granting an injunction against enforcement while the state makes its argument that the ban can prevent harm from mass shootings.

Shwartz, writing for the majority, noted that mass shootings increased 160 percent from 2006 to 2015.

New Jersey’s law does not severely burden the core Second Amendment right to self-defense in the home for five reasons, Shwartz wrote. It does not categorically ban a class of firearms; it does not ban a type of firearm that is overwhelmingly chosen by Americans for self-defense in the home, such as a handgun; and the record shows large-capacity magazines are not well-suited for self-defense.

In addition, a ban on large-capacity magazines, unlike a ban on handguns, does not effectively disarm individuals or substantially hamper their ability to defend themselves. It also does not render the weapon incapable of operating as intended, and possession of a firearm in the home for self-defense is not a protected form of possession under all circumstances, Shwartz wrote.

The ruling affirms a Sept. 28 decision by U.S. District Judge Peter Sheridan, who refused to enjoin enforcement of the large-capacity magazine ban. He disagreed with the plaintiffs’ argument that limiting magazines to 10 rounds instead of 15 violates their constitutional rights.

Sheridan’s ruling said New Jersey, a densely populated urban state, has a strong interest in regulating firearms. He cited anecdotal evidence from a June 2018 mass shooting at an arts festival in Trenton that lives are saved when a gunman has to stop shooting to reload. Sheridan said a similar phenomenon was seen in the 2012 shooting at the Sandy Hook Elementary School in Connecticut, and at other mass shootings.

Bibas said the majority erred because laws that impair self-defense in the home warrant strict scrutiny, not intermediate scrutiny as the other judges selected. And the law fails the strict scrutiny test, Bibas said.

The ban impairs using guns for self-defense, since the more-frequent reloading necessitated by a smaller magazine “may make guns less effective for ill—but so too for good,” Bibas said.

Bibas also said that even under intermediate scrutiny, the law fails under the record of the case. Intermediate scrutiny “requires more concrete and specific proof before the government may restrict any constitutional right, period,” Bibas said.

New Jersey Attorney General Gurbir Grewal said in a statement, “We are pleased with the Third Circuit’s ruling. Today’s decision was a big win for public safety and the safety of our law enforcement officers.”

Jeremy Feigenbaum, an assistant attorney general and counsel to the attorney general, argued for the state at the Third Circuit.

David Thompson of Cooper & Kirk in Washington, who argued before the Third Circuit on behalf of the Association of New Jersey Rifle & Pistol Clubs and two individual plaintiffs, did not return a reporter’s call about the ruling.  Daniel Schmutter of Hartman & Winnicki in Ridgewood, local counsel for the plaintiffs, said his clients were “disappointed by the court’s ruling” but “gratified by the strong and persuasive dissent by Judge Bibas.” The plaintiffs are considering their appellate options, including potentially seeking a rehearing en banc, Schmutter said.


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