The en banc U.S. Court of Appeals for the Third Circuit got one of the most important Second Amendment questions exactly right: New Jersey cannot ban commonly owned semiautomatic rifles and standard-capacity magazines merely because anti-gun politicians find them objectionable.
In a 10–5 decision issued July 17, the court held that New Jersey’s bans violate the Second Amendment. The majority recognized approximately 24 million AR-15s and similar rifles—and more than 100 million 30-round AR-15 magazines—as powerful evidence that these are ordinary arms possessed by ordinary Americans for lawful purposes.
Unfortunately, the victory has not yet restored anyone’s rights. On August 4, the Third Circuit stayed its mandate while New Jersey prepares a Supreme Court petition. The state’s unconstitutional restrictions, therefore, remain enforceable, and Garden State gun owners remain trapped under laws the full appellate court has already ruled unconstitutional.
The ruling matters nationally, but so does Judge Patty Shwartz’s dissent. Her argument demonstrates the legal sleight of hand anti-gun judges increasingly use to evade Heller and Bruen: declare America’s most popular rifle too military, too dangerous, or insufficiently connected to self-defense—and then pretend it is not an “Arm” at all.
Naturally, anti-rights extremists and their media allies are in a tizzy over the decision. But one of the most revealing aspects of the ruling is that several Democrat-appointed judges actually got it right.
The big surprise in the decision is the fact that several Democrat-appointed members of the court actually got it right. While the media and Democratic politicians incessantly accuse “conservative” jurists of being “activist” when they follow the law and provide rulings that conflict with the Democratic Party’s political agenda, the exact opposite is the reality. Like so much of what comes from Democrats and the media these days, their protestations are projection – accusing the other side of doing that which they themselves are clearly doing.
Americans expect jurists to be neutral, unbiased, and blind to everything except the letter of the law – with some room for empathy and factoring in extenuating circumstances at the trial level. The legal focus is supposed to be especially true at the appellate level though, where judges are legally required to focus exclusively on the law and conduct of the courts, not the particulars of the underlying case. If the law says that evidence illegally obtained is inadmissible, but the trial court allowed it to be admitted, the appellate court must follow the law and order the evidence to be thrown out in a new trial, even if that decision almost guarantees that a heinous criminal will go free.
That’s what “the rule of law” is all about. One clear set of standards that must be upheld, regardless of other presumptions or the identity of the accused, and regardless of whether the judges like it or not.
Something else that’s important to understand about the judiciary, and particularly federal circuit courts of appeal, is that they are bound by Supreme Court precedent. If the Supreme Court rules that a law must be interpreted or evaluated in a particular way, it is incumbent upon the lower courts, and particularly upon the appellate courts, to adhere to the Supreme Court’s guidance, regardless of other considerations or personal opinions.
If a SCOTUS ruling is ambiguous or leaves room for interpretation, the appellate courts are able to use some discretion. But when the Supreme Court’s ruling is clear, the appellate courts have a duty to follow it to the letter.
In the New Jersey case, Judge Arianna Freeman, a Joe Biden appointee, wrote the majority opinion declaring the state’s ban on so-called “assault weapons” and “high-capacity” magazines to be unconstitutional under the clear SCOTUS decision in NYSRPA v. Bruen (a case funded and supported by the NRA, by the way). In that decision, the Supreme Court ruled that in cases falling under the Second Amendment, it is up to the state to prove that the law in question is clearly rooted in the historical tradition of the country at the time that the Constitution and Bill of Rights were ratified.
If, for instance, the state could show that in or around 1791, Congress had passed laws regulating the private ownership of cannons, as Joe Biden often suggested was the case, or military rifles capable of accepting a bayonet, then that law could be used as evidence to show that regulating similar or comparable arms today could be justified.
Unfortunately for the gun control zealots, and happily for the American people, Congress never passed – or even contemplated – such laws, and the few laws passed by the states that come anywhere close to such restrictions were almost universally based more on race, ethnicity, or class, or were some sort of fire code, not about the weapons themselves.
As a result, activist, anti-gun judges have engaged in some of the most disingenuous legal contortions imaginable in their efforts to sidestep and skirt around both the clear meaning and intent of the Second Amendment, and the clear and unambiguous instructions of the Supreme Court.
Judge Shwartz Turns “Common Use” Upside Down
In her contortionist dissent, Judge Patty Shwartz – a Barack Obama appointee – declared that the appellate court could ignore the instructions of SCOTUS in Bruen because the Second Amendment does not apply to arms like the AR-15 and other semi-automatic rifles. Her rationale for that outrageous conclusion is based on her claim that these arms’ “disproportionate criminal use, military history, and combat-oriented features” make such weapons “an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense.”
Disproportionate criminal use? Judge Shwartz assumes facts that are not in evidence.
There are estimated to be over 32 million AR, AK, and other military-pattern rifles in civilian hands in the United States today, not counting the additional millions of similar firearms that are technically considered to be pistols, but fall under politicians’ broad “assault weapon” label, and which would bring the total to something more like 40 million total. Since there are estimated to be approximately 500 million civilian-owned firearms in the US today, that means that these 40 million guns represent approximately 8% of all US civilian arms, yet they are used in something less than 3% of murders. That’s about par with “unarmed” murders, where only hands, feet, and other body parts were used to kill someone.
Beyond Judge Shwartz’s confusion about what constitutes “disproportionate,” her job is applying the law, and that means applying Supreme Court precedents. Not just recent cases like Bruen, McDonald, and Heller, but previous cases as well, including Miller. While Miller has been abused and misinterpreted by the courts for almost 100 years, the opinion states that the reason Mr. Miller’s conviction for transporting an unregistered short-barreled shotgun across state lines was allowed to stand, was because the Court had no evidence of a military purpose for a short-barreled shotgun. No one showed up to argue Miller’s side of the case, and the government wasn’t about to inform the Court that a variety of short, shotgun-type weapons, from blunderbusses used by the Continental Navy and Cavalry troops in the Revolutionary War, to the “Trench Brooms” of the First World War, have always been common arms of the military and militias.
The Miller Court concluded that usefulness to the military and the common defense should be a prime consideration in determining whether an arm deserved recognition under the Second Amendment. Their opinion was that Miller’s sawed-off shotgun wasn’t military enough, not that it was too military.
Almost seventy years later, in District of Columbia v. Heller the Court concluded that the right to have a functioning pistol in the home for personal defense was protected under the Second Amendment, and that classes of firearms “in common use” could not be banned. In the subsequent McDonald case, the Court concluded that the right to arms for self defense is a fundamental right that must be recognized by the states. Just a few years later, in Bruen, the Court ruled that any law impacting Second Amendment rights had to be shown to be in line with the history and tradition of the United States at the time the Bill of Rights was ratified.
Judge Shwartz and her activist ilk don’t have a legal leg to stand on. Their only arguments are that these guns look scary and could be misused, as could a hammer, baseball bat, or SUV. As liberal legal scholar Professor Sanford Levinson explained in a 1992 Yale Law Review article, “The Embarrassing Second Amendment,” the amendment means just what it says, and the only way gun control advocates can get around it is by amending the Constitution to repeal the Second Amendment.
Since they know that’s not possible, they instead rely on activist judges and pray for a slim majority in the US Senate so they can kill the filibuster, make Puerto Rico and DC states, and stack the Supreme Court with more of their activist judges like Judge Shwartz (that’s not a paranoid conspiracy theory, it’s the stated plan put forth by many Democratic leaders). Not a very democratic approach for a party that calls itself Democratic.
New Jersey’s Gun Bans Remain Enforceable
On August 4, the Third Circuit granted New Jersey’s request to stay its mandate while the state prepares a petition for Supreme Court review. The mandate is the order that would put the ruling into effect. Until the stay is lifted, New Jersey’s rifle and magazine bans remain enforceable. The Court has already agreed to hear similar cases from Illinois and Connecticut next year, and it’s likely they might fold this case into that hearing. That would be good news for gun owners nationwide, as the Illinois and Connecticut cases only address so-called “assault weapons,” while the New Jersey case also includes the question of placing arbitrary limits on magazine capacity.
These cases highlight the importance of voting for pro-rights majorities. If the Republicans lose their majority in the Senate this November, not only does that guarantee pro-rights bills like National Reciprocity will be dead on arrival, but if one of the conservative Justices on the Court were to retire or die, the Democratic Senate majority would almost certainly reject any Trump replacement. If Democrats win back the White House in two years, and hold a Senate majority, expect the filibuster to be eliminated, Puerto Rico to be made a state (giving Democrats 2 additional Senate seats), and additional seats on the Supreme Court to be created. That’s what they’ve promised their supporters, and we should believe them when they tell us what they’re going to do.
For now, pray for the continued good health of Justice Thomas and the other “conservatives” on the Court, and get personally involved in the upcoming elections. It really does matter.
About Jeff Knox:
Jeff Knox is a dedicated political activist and the director of The Firearms Coalition, following in the footsteps of his father, Neal Knox. In 2024, Jeff was elected to the NRA Board of Directors, underscoring his lifelong commitment to protecting the Second Amendment. The Knox family has played a pivotal role in the ongoing struggle for gun rights, a legacy documented in the book Neal Knox – The Gun Rights War, authored by Jeff’s brother, Chris Knox.
Founded by Neal Knox in 1984, The Firearms Coalition is a network of individual Second Amendment activists, clubs, and civil rights organizations. The Coalition supports grassroots efforts by providing education, analysis of current issues, and a historical perspective on the gun rights movement. For more information, visit www.FirearmsCoalition.org.
