MA GUN LAWYER

By William S. Smith, Esq. www.attorneysmithlaw.com

Yesterday marked one of the most significant Second Amendment victories since New York State Rifle & Pistol Association v. Bruen. Sitting en banc, the United States Court of Appeals for the Third Circuit struck down New Jersey’s ban on so-called “assault weapons” as well as its prohibition on magazines holding more than ten rounds, holding that both violate the Second Amendment. Its deision can be found here: https://www2.ca3.uscourts.gov/opinarch/242415p.pdf

The decision is historic not only because of its practical effect upon New Jersey law, but because it apparently represents the first federal court of appeals to invalidate a state’s “assault-weapon” ban under the Supreme Court’s modern Second Amendment jurisprudence. The court also invalidated New Jersey’s ten-round magazine restriction, concluding that the State failed to justify either prohibition under the historical-tradition test mandated by Bruen. The decision was issued by a solid 10-5 vote of the full court.

A Rejection of Interest Balancing

For decades, lower courts frequently upheld firearm restrictions by weighing the government’s asserted public-safety interests against the constitutional right to keep and bear arms. That methodology was emphatically rejected by the Supreme Court in District of Columbia v. Heller, reaffirmed in McDonald v. Chicago, and replaced with the historical-tradition test in Bruen.

The Third Circuit’s decision is another powerful reminder that constitutional rights cannot be subjected to judicial cost-benefit analysis simply because they involve firearms. Under Bruen, the question is not whether a legislature believes a law might promote public safety. Rather, the question is whether the government can identify a well-established historical tradition of analogous firearm regulation dating to the founding era.

According to the Third Circuit, New Jersey could not meet that burden. The court concluded that broad prohibitions on entire classes of commonly owned semiautomatic firearms and standard-capacity magazines lack sufficient historical support to survive constitutional scrutiny.

“Common Use” Matters

One of the central themes running throughout modern Second Amendment jurisprudence is the principle that arms “in common use” for lawful purposes enjoy constitutional protection.

Semiautomatic rifles built on the AR-15 platform have long since become among the most popular rifles in America, with millions owned by ordinary, law-abiding citizens for lawful purposes including home defense, target shooting, hunting, and competitive shooting. Contrary to the media coverage of this issue, moreover, semiautomatic rifles and shotguns are hardly a new construct, as they are at least 100 years old. Likewise, magazines holding more than ten rounds are standard equipment for countless commonly possessed handguns and rifles.

The Third Circuit recognized that constitutional rights do not disappear simply because an item is popular. To the contrary, widespread lawful ownership is precisely what places these firearms and magazines within the core of Second Amendment protection.

Why This Matters Beyond New Jersey

Although the decision directly governs only the states within the Third Circuit, its significance extends nationwide.

Until now, several federal appellate courts had upheld various assault-weapon and magazine-capacity restrictions under reasoning that many Second Amendment advocates argued was increasingly difficult to reconcile with Bruen. Yesterday’s decision deepens the disagreement among the federal circuits and dramatically increases pressure on the United States Supreme Court to provide a definitive answer when it addresses this same “assault wespons” issue this upcoming term.

The emergence of conflicting appellate decisions on the same constitutional question has historically been one of the strongest reasons for Supreme Court review. The Third Circuit’s opinion therefore adds substantial momentum to litigation that is already headed toward the nation’s highest court.

The Implications for Massachusetts

For Massachusetts gun owners, this decision should be watched with particular interest.

Massachusetts maintains one of the nation’s broadest statutory prohibitions on so-called “assault weapons,” together with extensive restrictions on magazines exceeding ten rounds. Those provisions have long been defended by the Commonwealth on many of the same theories advanced by New Jersey.

Although the Third Circuit’s ruling is not binding upon the United States Court of Appeals for the First Circuit or the Massachusetts state courts, it provides persuasive authority supporting the proposition that categorical bans on commonly possessed semiautomatic firearms and standard-capacity magazines cannot be reconciled with the text-and-history methodology required by Bruen.

Massachusetts courts will undoubtedly continue to confront challenges to these laws. Yesterday’s opinion gives litigants another substantial appellate authority recognizing that modern firearm prohibitions cannot stand merely because legislatures believe them to be desirable public policy.

Indeed, the reasoning employed by the Third Circuit extends beyond assault-weapon bans. More broadly, it reinforces the principle that governments bear the burden of demonstrating a genuine historical analogue whenever they seek to restrict conduct protected by the Second Amendment. That principle has ramifications for virtually every contemporary firearms regulation in Massachusetts, including licensing restrictions, carrying regulations, and other categorical prohibitions.

All Eyes Now Turn to the Supreme Court

Perhaps the most important consequence of yesterday’s decision is what comes next.

The Supreme Court has already agreed to hear challenges involving similar state prohibitions from Illinois and Connecticut. Those pending cases are widely expected to answer the constitutional questions surrounding assault-weapon bans and magazine-capacity limits on a nationwide basis. The Third Circuit’s decision arrives at a pivotal moment, adding another major appellate voice to the debate just as the Court prepares to address the issue.

Should the Supreme Court ultimately affirm the reasoning adopted by the Third Circuit, the consequences would extend far beyond New Jersey. So called assault-weapon prohibitions and magazine-capacity restrictions in numerous states—including Massachusetts—would face elimination.

Conversely, if the Court adopts a different approach, it will define the constitutional boundaries for these regulations for years to come.

A Defining Moment for the Second Amendment

Regardless of one’s views on firearm policy, yesterday’s decision represents a watershed moment in Second Amendment jurisprudence.

For supporters of the right to keep and bear arms, it is another indication that the judiciary is increasingly taking seriously the Supreme Court’s repeated instruction that the Second Amendment is not a second-class constitutional right. Constitutional guarantees are not suspended whenever legislatures invoke “public safety” – a conclusory moniker I hear constantly from opposing counsel at firearms license appeals hearings. Like every other enumerated right, the Second Amendment demands adherence to the Constitution’s text and this Nation’s historical tradition.

The coming Supreme Court decisions promise to be among the most consequential Second Amendment cases in generations. For Massachusetts gun owners, lawyers, and policymakers alike, they will almost certainly shape the future of firearm regulation throughout the Commonwealth.

NOTE: Attorney Smith is licensed in Massachusetts and the First Circuit, and was not involved in this Third Circuit case.