On October 15, the Third Circuit en banc heard arguments on New Jersey's prohibition on numerous semiautomatic firearms (pejoratively named "assault firearms") and magazines holding over ten rounds. Three cases were consolidated under the title Association of New Jersey Rifle & Pistol Clubs, Inc. (ANJRPC) v. Attorney General New Jersey. The district court in ANJRPC held the rifle ban to violate the Second Amendment but upheld the magazine ban. Earlier, a Third Circuit panel upheld the magazine ban, but the Supreme Court ordered it to reconsider in light of Bruen. In August, the Third Circuit sua sponte ordered that the appeal of the district court decision be held en banc.
Predictably, the "common use" test set forth in Heller and Bruen was at the heart of the controversy. The challengers argued that the banned firearms are bearable "arms" in the meaning of the text, and that the Supreme Court in Heller decided that arms in common use may not be banned under the history and tradition test. Counsel agreed with a judge that the banned firearms are in common use both numerically and as determined by the numbers of gun owners. The Supreme Court in Staples, and most recently in S&W v. Mexico, acknowledged that AR-15 rifles are commonly possessed by Americans.
New Jersey rejected what it called a "popularity test" for common use and argued that the banned firearms and magazines are not in common use, meaning that on average a gun is fired only 2.2 times in self-defense. But "common use" refers to "keeping and bearing" and not "shooting/going bang bang" at a bad guy. To use arms as in to keep and bear means, as Heller stated, "to possess and carry weapons in case of confrontation."
