On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment. The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (ANJRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman. This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.
Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay. My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." All of the other circuit decisions have upheld bans.
The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of ANJRPC. First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction." Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession. Third, such use excludes a "dangerous and unusual" weapon.
