Association New Jersey Rifle v. Attorney General New Jersey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-3142

_____________

ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL

CLUBS INC;

BLAKE ELLMAN; ALEXANDER DEMBOWSKI,

Appellants

v.

ATTORNEY GENERAL NEW JERSEY;

SUPERINTENDENT NEW JERSEY STATE POLICE;

THOMAS WILLIVER, in his official capacity as

Chief of Police of the Chester Police Department;

JAMES B. O’CONNOR, in his official capacity as

Chief of Police of the Lyndhurst Police Department

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-18-cv-10507)

District Judge: Hon. Peter G. Sheridan

_______________

Argued

June 16, 2020

Before: JORDAN, MATEY and ROTH, Circuit Judges.

(Filed: September 1, 2020)

_______________

Marc A. Nardone

John P. Sweeney [ARGUED]

Bradley Arant Boult Cummings

1615 L Street, NW – Suite 1350

Washington, DC 20036

James W. Porter, III

Bradley Arant Boult Cummings

1819 Fifth Avenue North

One Federal Place

Birmingham, AL 35203

Daniel L. Schmutter

Hartman & Winnicki

74 Passaic Street – Suite 101

Ridgewood, NJ 07650

Counsel for Appellants

Joseph Fanaroff [ARGUED]

Stuart M. Feinblatt

Office of Attorney General of New Jersey

Division of Law

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

2

Jeremy Feigenbaum

Office of Attorney General of New Jersey

Division of Criminal Justice

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Bryan E. Lucas

Evan A. Showell

Office of Attorney General of New Jersey

124 Halsey Street

P.O. Box 45029

Newark, NJ 07102

Counsel for Appellees, Attorney General New Jersey,

and Superintendent New Jersey State Police

George C. Jones

John H. Suminski

McElroy Deutsch Mulvaney & Carpenter

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962

Counsel for Appellee, Thomas Williver

Carmine Richard Alampi

Jennifer Alampi

Alampi & Demarrais

One University Plaza – Suite 404

Hackensack, NJ 07601

Counsel for Appellee, James B. O’Connor

3

Joseph G.S. Greenlee

Firearms Policy Coalition

1215 K Street – 17th Floor

Sacramento, CA 95814

Counsel for Amicus Appellants

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

We are asked to determine whether a New Jersey statute

that makes it illegal to possess large capacity magazines

(“LCMs”) – defined as magazines capable of holding more

than ten rounds of ammunition – violates the Second

Amendment, the Fifth Amendment’s Takings Clause, or the

Fourteenth Amendment’s Equal Protection Clause. But we

cannot answer that question, since it has already been

answered. A prior panel of our court reviewed that statute,

known as Assembly Bill No. 2761 and codified at N.J. Stat.

Ann. § 2C:39-1 (“the Act”), on appeal from an earlier order of

the District Court denying a preliminary injunction. It upheld

the District Court’s order and, in doing so, went beyond simply

answering the question of the plaintiffs’ likelihood of success

on the merits. It directly addressed the merits of the

constitutionality of the Act, holding that the Act did not violate

the Second, Fifth, or Fourteenth Amendments.

On remand, the District Court ruled on summary

judgment that it was bound by that earlier decision and so

upheld the constitutionality of the Act. The plaintiffs have now

appealed again, arguing that the District Court erred in treating

4

the prior panel’s opinion as binding and arguing again that the

Act is unconstitutional. Because they are wrong on the first

point, we do not reach the second. We will affirm.

I. BACKGROUND

In 2018, New Jersey enacted Assembly Bill No. 2761,

a law making it illegal to possess a magazine capable of

holding more than ten rounds of ammunition. N.J. Stat. Ann.

§ 2C:39-1(y), 2C:39-3(j). Prior to that, it had been illegal in

New Jersey to possess magazines capable of holding more than

15 rounds of ammunition. Owners of LCMs had several

options for complying with the new Act:

Specifically, the legislation g[ave] LCM owners

until December 10, 2018 to (1) modify their

LCMs “to accept ten rounds or less,” id. at

2C:39-19(b); (2) render firearms with LCMs or

the LCM itself inoperable, id.; (3) register

firearms with LCMs that c[ould not] be

“modified to accommodate ten or less

rounds,” id. at 2C:39-20(a); (4) transfer the

firearm or LCM to an individual or entity entitled

to own or possess it, id. at 2C:39-19(a); or (5)

surrender the firearm or LCM to law

enforcement, id. at 2C:39-19(c).

Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. of N.J.,

910 F.3d 106, 111 (3d Cir. 2018) (“Prior Panel Opinion”)

(footnote omitted). The statute exempts active military

5

members and active and retired law enforcement officers. N.J.

Stat. Ann. § 2C:39-3(g), 2C:39-17.

On the day the bill was signed into law, the plaintiffs

filed this action, 1 naming certain state and local law

enforcement officials as defendants. (For ease of reference, we

refer to the defendants collectively as “the State.”) The

complaint alleges that the Act violates the Second Amendment,

the Fifth Amendment’s Takings Clause, and the Fourteenth

Amendment’s Equal Protection Clause. Prior Panel Opinion,

910 F.3d at 111. With their complaint, the plaintiffs also filed

a motion for a preliminary injunction. Ass’n of N.J. Rifle &

Pistol Clubs, Inc. v. Grewal, No. 3:18-cv-10507 (PGS) (LHG),

2018 WL 4688345, at *1 (D.N.J. Sept. 28, 2018) (“Preliminary

Injunction Opinion”).

The District Court held a three-day hearing on the

motion, during which the parties presented conflicting expert

testimony on the use of LCMs in mass shootings, including the

number of casualties involved and whether the Act would save

lives during a mass shooting by forcing the shooter to pause

1

The plaintiffs are the Association of New Jersey Rifle

and Pistol Clubs, Inc. (“ANJRPC”), Blake Ellman, and

Alexander Dembowski. ANJRPC is “an eighty-year old

membership organization, representing tens of thousands of

members, many of whom possess large capacity magazines for

self-defense.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.

Grewal, No. 3:18-cv-10507 (PGS) (LHG), 2018 WL 4688345,

at *2 (D.N.J. Sept. 28, 2018). Ellman and Dembowski are

members of ANJRPC who possess LCMs. Id. The plaintiffs’

standing is not in question.

6

and reload ammunition, thus allowing individuals time to

escape or subdue the shooter. Id. at *4-8. The Court also heard

testimony on whether LCMs are used in self-defense. Id. To

distinguish law enforcement officers from the general public,

the State offered expert testimony that both active and retired

police officers who possess firearms are required to pass a

qualification course bi-annually, using a weapon equipped

with a 15-round magazine. Id. at *5. Ultimately, the District

Court denied the preliminary injunction, remarking that “the

expert testimony [wa]s of little help in its analysis.” Id. at *8.

In rejecting the plaintiffs’ contention that the Act

violated the Second Amendment, the District Court applied the

two-step analytical approach we set out in United States v.

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). Preliminary

Injunction Opinion, 2018 WL 4688345, at *9. Marzzarella

requires a court to ask first whether the challenged law imposes

a burden on conduct falling within the scope of the Second

Amendment’s guarantee of the right to bear arms. If it does, the

second step is to evaluate that law under some form of

heightened scrutiny. 2 614 F.3d at 89. The level of scrutiny to

2

There are three levels of scrutiny: rational basis

review, intermediate scrutiny, and strict scrutiny. In Binderup

v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), we

explained the three levels of scrutiny by saying:

Depending on the importance of the rights

involved and the nature of the burden on them, a

law’s purpose may need to be only legitimate and

the means to achieve it rational (called rational

basis scrutiny); the purpose may need to be

important and the means to achieve it

substantially related (called intermediate

7

be applied is determined by whether the law burdens the core of

the Second Amendment guarantee. Id. The “core … [of] the

Second Amendment protects the right of law-abiding citizens to

possess non-dangerous weapons for self-defense in the home.”

Id. at 92. See also District of Columbia v. Heller, 554 U.S. 570,

635 (2008) (explaining that the Second Amendment “elevates

above all other interests the right of law-abiding, responsible

citizens to use arms in defense of hearth and home.”). Laws that

do burden that core receive strict scrutiny, whereas those that

do not burden it receive intermediate scrutiny. Marzzarella,

614 F.3d at 89, 96-97.

The District Court concluded that the New Jersey Act

imposes a burden on the Second Amendment because

magazines, including LCMs, are integral components of guns.

Preliminary Injunction Opinion, 2018 WL 4688345, at *9-11.

Having answered the step-one question from Marzzarella, the

Court proceeded to the second step and determined that the law

should be evaluated under intermediate scrutiny because the

core of the Second Amendment right to keep and bear arms is

not burdened by the Act. As the Court saw it, the Act “does not

prohibit the possession of the quintessential self-defense

weapon, the handgun,” nor does it “effectively disarm

individuals or substantially affect their ability to defend

scrutiny); or the purpose may need to be

compelling and the means to achieve it narrowly

tailored, that is, the least restrictive (called strict

scrutiny). The latter two tests we refer to

collectively as heightened scrutiny to distinguish

them from the easily met rational basis test.

836 F.3d at 341.

8

themselves.” Id. at *12 (internal quotation marks and citation

omitted).

Then, applying intermediate scrutiny, the District Court

upheld the Act. Id. at *12-13. Intermediate scrutiny requires

the government to prove that the objective of the government

regulation is “significant, substantial, or important[,]” and that

“the fit between the challenged regulation and the asserted

objective [is] reasonable[.]” Marzzarella, 614 F.3d at 98

(internal quotation marks omitted). “The regulation need not

be the least restrictive means of serving the interest, but may

not burden more [conduct] than is reasonably necessary.” Id.

(citations omitted). The District Court concluded that New

Jersey has a significant, substantial, and important interest in

the safety of its citizens. Preliminary Injunction Opinion, 2018

WL 4688345, at *12. While the Court did not make a

definitive finding that the Act will significantly reduce

casualties in a mass shooting by limiting the number of shots

that can be fired from a single gun, it did decide that there was

a reasonable fit between the Act and its stated object. It said,

“the expert testimony established that there is some delay

associated with reloading, which may provide an opportunity

for potential victims to escape or for a bystander to intercede

and somehow stop a shooter.” Id. at *12. Finally, the Court

concluded that the Act places a minimal burden on lawful gun

owners because it does not impose a restriction on the number

of magazines an individual may own and instead limits only

the lawful capacity of a single magazine. Id. at *13.

The District Court also rejected the plaintiffs’ Fifth and

Fourteenth Amendment claims. It concluded that there had

been no taking of property in violation of the Fifth Amendment

because the Act allows for gun owners to permanently modify

9

their magazines to accept ten rounds, and, if those magazines

or guns cannot be modified, they can be kept as long as the

owner registers them. Id. at *16. As to the plaintiffs’ argument

that the Act violates the Fourteenth Amendment’s Equal

Protection clause because it treats active and retired law

enforcement officers differently than other individuals, the

District Court concluded that law enforcement officers are not

similarly situated to other New Jersey citizens for a number of

reasons. 3 Officers are required to pass gun safety

requalification tests, which are not required of other

individuals; officers have “an unusual ethos of public service

… and are expected to act in the public’s interest[;]” and

“retired police officers face special threats that private citizens

do not[.]” Id. at *14 (internal quotation marks and citations

omitted).

Dissatisfied with the denial of their motion for a

preliminary injunction, the plaintiffs appealed, but a divided

panel of our Court affirmed. Prior Panel Opinion, 910 F.3d at

110. The panel announced its holding in these straightforward

words: “Today we address whether [the Act] violates the

Second Amendment, the Fifth Amendment’s Takings Clause,

and the Fourteenth Amendment’s Equal Protection Clause.

We conclude that it does not.” Id. While the panel explained

3

The plaintiffs did not argue that the Act’s exemption

for active military personnel violates the Equal Protection

Clause but did argue that there was disparate treatment

between retired police officers and military veterans. The

Court rejected that, saying, “there is no evidence to suggest that

military veterans receive equivalent training [to law

enforcement officers].” Preliminary Injunction Opinion, 2018

WL 4688345, at *14.

10

that its task was to “decide whether Plaintiffs have a reasonable

probability of showing that the Act violates [these

constitutional rights,]” id. at 115, it nevertheless immediately

went beyond that task, reached the merits, and determined that

the Act withstands the plaintiffs’ constitutional challenge.

Addressing the Second Amendment claim, the panel

applied the analytical approach from Marzzarella, as had the

District Court. Id. at 116-24. First, it assumed without

deciding that LCMs are “typically possessed by law-abiding

citizens for lawful purposes and that they are entitled to Second

Amendment protection.” Id. at 117. It then turned to the

second step of Marzzarella and determined that intermediate

scrutiny should apply because the Act does not burden the core

Second Amendment guarantee, for five reasons: (1) it does not

categorically ban a class of firearms but is rather a ban on a

subset of magazines; (2) it is not a prohibition of a class of arms

overwhelmingly chosen by Americans for self-defense in the

home; (3) it does not disarm or substantially affect Americans’

ability to defend themselves; (4) New Jersey residents can still

possess and use magazines, just with fewer rounds; and (5) “it

cannot be the case that possession of a firearm in the home for

self-defense is a protected form of possession under all

circumstances. By this rationale, any type of firearm possessed

in the home would be protected merely because it could be

used for self-defense.” Id. at 117-18 (citations and internal

quotation marks omitted).

The panel also agreed with the District Court that the

Act survives intermediate scrutiny. It recognized New Jersey’s

significant, substantial, and important interest in protecting its

citizens’ safety. Id. at 119. And, the panel said, the Act

reasonably fits the State’s interest because, by reducing the

11

number of shots that can be fired from one gun, victims will be

able to flee, bystanders to intervene, and numerous injuries will

be avoided in a mass shooting incident. Id. at 119. The panel

further decided that the Act did not burden more conduct than

is reasonably necessary because it imposes no limit on the

number of firearms, magazines, or ammunition an individual

may possess, and there is no record evidence that LCMs are

“well-suited or safe for self-defense.” Id. at 122. The panel

also rejected the plaintiffs’ Fifth Amendment and Equal

Protection Clause claims, for the same reasons as did the

District Court. Id. at 124-26.

In ruling for the State, the panel’s decision was in line

with the decisions of at least four other circuits that have

decided that laws regulating LCMs are constitutional. See

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc)

(affirming grant of summary judgment upholding Maryland’s

ten round limit); N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804

F.3d 242 (2d Cir. 2015) (upholding, on review from summary

judgment, New York and Connecticut’s laws imposing a ten

round limit); Friedman v. City of Highland Park, Illinois, 784

F.3d 406 (7th Cir. 2015) (affirming grant of summary

judgment upholding City of Highland Park’s ten round limit);

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)

(“Heller II”) (affirming grant of summary judgment upholding

D.C.’s ten round limit). 4

4

Since the prior panel opinion was issued, the First

Circuit has also concluded that Massachusetts’s ten round limit

is constitutional. See Worman v. Healey, 922 F.3d 26 (1st Cir.

2019) (affirming grant of summary judgment upholding

Massachusetts ten round limit). The Ninth Circuit, however,

has very recently held that California’s ban on LCMs of more

12

The decision was not, however, unanimous. The

dissenting member of the panel said that, in two ways, the

majority treated the Second Amendment differently from other

parts of the Bill of Rights: first, the majority weighed the merits

of the case in order to pick a tier of scrutiny, and second, the

majority, while purporting to use intermediate scrutiny,

actually applied rational basis review. Id. at 126 (Bibas, J.,

dissenting). Among other things, the dissent was concerned

that the majority failed to demand actual proof to justify the

State’s regulation, as heightened scrutiny demands in other

contexts, and that the majority had likewise failed to put the

burden of proof on the State to demonstrate that the regulation

was sufficiently tailored. Id.

When the case was remanded to the District Court, the

parties promptly filed cross-motions for summary judgment,

and the State’s motion won. Although the Court recognized that

different standards apply at the summary judgment stage than

at the preliminary injunction stage, it said that it was granting

summary judgment because “the Third Circuit has issued a

precedential decision that resolves all legal issues in this case

and there remains no genuine disputes of material fact.” (App.

at 8.) The District Court noted that the prior panel opinion said

the Act does not violate the Second, Fifth, or Fourteenth

Amendments, so there was “binding Third Circuit precedent

that the New Jersey law is constitutional[.]” (App. at 8-9.)

than ten rounds is unconstitutional under either strict scrutiny

or intermediate scrutiny. Duncan v. Becerra, --- F.3d ---, No.

, 2020 WL 4730668, at *25 (9th Cir. Aug. 14, 2020).

13

This timely appeal followed.

II. DISCUSSION 5

“It is the tradition of this court that the holding of a panel

in a precedential opinion is binding on subsequent panels.” (3d

Cir. I.O.P 9.1.) The plaintiffs argue, however, that we are not

under that restriction here, for two reasons. First, they contend

the outcome can differ here because this appeal arises in a

different procedural posture than did the earlier one, with

different standards and different inferences in play. Second,

they say that the prior panel decision was clearly wrong and

should be disregarded, to prevent manifest injustice. Neither

argument succeeds.

True enough, the standards for obtaining a preliminary

injunction and summary judgment are different. Under the

well-known standard for obtaining a preliminary injunction,

the moving party must show “both a likelihood of success on

the merits and a probability of irreparable harm. Additionally,

the district court should consider the effect of the issuance of a

preliminary injunction on other interested persons and the

public interest.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d

1172, 1175 (3d Cir. 1990) (citations omitted). On summary

judgment, by contrast, the moving party must establish that

“there is not a genuine dispute with respect to a material fact

5

The District Court had jurisdiction under 28 U.S.C.

§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. “It

is well established that we employ a plenary standard in

reviewing orders entered on motions for summary judgment,

applying the same standard as the district court.” Blunt v.

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

14

and thus the moving party is entitled to judgment as a matter

of law.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265

(3d Cir. 2014). Our standards of review are also different. We

will affirm a district court’s order on a preliminary injunction,

“unless the court abused its discretion, committed an obvious

error of law, or made a serious mistake in considering the

proof.” Bradley, 910 F.2d at 1175. On the other hand, we

exercise plenary review over an order on summary judgment.

Blunt, 767 F.3d at 265.

But despite the differing standards pertaining to the

differing procedural postures, a panel of our Court reviewing a

decision on a preliminary injunction motion can indeed bind a

subsequent panel reviewing an appeal from an order on

summary judgment. As then-Judge Alito explained in Pitt

News v. Pappert, 379 F.3d 96 (3d Cir. 2004),

although a panel entertaining a preliminary

injunction appeal generally decides only whether

the district court abused its discretion in ruling

on the request for relief and generally does not

go into the merits any farther than is necessary to

determine whether the moving party established

a likelihood of success, a panel is not always

required to take this narrow approach. If a

preliminary injunction appeal presents a question

of law and the facts are established or of no

controlling relevance, the panel may decide the

merits of the claim.

Id. at 105 (internal quotation marks and citations omitted).

Thus, “[i]n the typical situation—where the prior panel stopped

at the question of likelihood of success—the prior panel’s legal

15

analysis must be carefully considered, but it is not binding on

the later panel.” Id. “On the other hand, if the first panel does

not stop at the question of likelihood of success and instead

addresses the merits, the later panel, in accordance with our

Court’s traditional practice, should regard itself as bound by

the prior panel opinion.” 6 Id. “We have recognized, however,

that reconsideration is justified in extraordinary circumstances

such as where: (1) there has been an intervening change in the

law; (2) new evidence has become available; or (3)

reconsideration is necessary to prevent clear error or a manifest

6

There are sound reasons why a panel reviewing a

ruling on a preliminary injunction should focus on the question

of likelihood of success on the merits rather than reaching the

merits of the claim before them. Given the already-mentioned

different standards on a motion for preliminary injunction and

motion for summary judgment and our different standards of

review, going to the merits on a preliminary record, under

hurried circumstances, can lead to premature and less informed

decisions. On review at the preliminary injunction stage, a

panel may conclude that the district court did not abuse its

discretion or commit obvious errors of law or serious mistakes

in its findings of fact. But a subsequent panel reviewing an

order on summary judgment may, in its plenary review of the

record, identify errors the district court committed that, while

not obvious or serious, impact the analysis or outcome of a

case. We therefore make it a general practice to proceed

cautiously, to avoid ending a case on review from a preliminary

injunction when the record could be more developed on

summary judgment and we can conduct a plenary review of

that record.

16

injustice.” Council of Alt. Political Parties v. Hooks, 179 F.3d

64, 69 (3d Cir. 1999).

Here, the prior panel’s opinion immediately went

beyond the question of likelihood of success and declared a

holding on the merits. Again, it held very plainly that the Act

does not violate the Second Amendment, the Fifth

Amendment’s Takings Clause, and the Fourteenth

Amendment’s Equal Protection Clause. Prior Panel Opinion,

910 F.3d at 110. In short, it addressed the ultimate merits of

the dispute, as the plaintiffs rightly admit. 7 (Oral Arg. At 2:02-

40, https://www2.ca3.uscourts.gov/oralargument/audio/19-

3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.) And the

panel did so primarily on the basis of facts that are

uncontested. 8

7

See Prior Panel Opinion, 910 F.3d at 122 (“[W]e hold

that laws restricting magazine capacity to ten rounds of

ammunition do not violate the Second Amendment.”); id. at

125 (“In short, the Act does not result in a taking.”); id. at 126

(“[R]etired law enforcement officers are not similarly situated

to retired military personnel and ordinary citizens, and

therefore their exemption from the LCM ban does not violate

the Equal Protection Clause.”).

8

The case-determinative facts here centered on

reloading. The District Court’s conclusion that the Act

survived intermediate scrutiny relied on its finding that “there

is some delay associated with reloading, which may provide an

opportunity for potential victims to escape or for a bystander

to intercede[.]” Preliminary Injunction Opinion, 2018 WL

4688345, at *12. The prior panel also relied heavily on that

finding. Prior Panel Opinion, 910 F.3d at 119-20. The

17

To avoid the conclusion that the law of the case has been

set and a precedent established, 9 the plaintiffs do not argue that

there has been an intervening change in the law or the

discovery of new evidence, but they do point out an intervening

procedural step in our Court. They note that the State asked a

motions panel of our Court to summarily affirm the District

Court’s grant of summary judgment on remand but that the

motions panel denied that request. According to the plaintiffs,

that means “the motions panel necessarily rejected [the State’s]

argument that the prior merits panel’s denial of a preliminary

injunction binds the outcome of this appeal.” (Reply Br. at 2.)

Not so. According to our Internal Operating

Procedures, we “may take summary action … if it clearly

appears that no substantial question is presented or that

subsequent precedent or a change in circumstances warrants

such action.” (3d Cir. I.O.P 10.6 (emphasis added)). Thus,

although we may choose to summarily affirm, a decision of a

motions panel declining to affirm is not the same as a

plaintiffs’ own witness before the District Court acknowledged

that there would be some pause while a shooter reloaded.

Preliminary Injunction Opinion, 2018 WL 4688345, at *6-7.

And, on appeal, the plaintiffs have presented only legal, not

factual, arguments.

9

We have explained that “[u]nder the law of the case

doctrine, once an issue is decided, it will not be relitigated in

the same case, except in unusual circumstances.” Hayman

Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982).

Thus, the prior panel’s opinion is both the law of the case and

binding precedent.

18

determination that there is a substantial question left in the

case. It often means nothing more than that the presentation

made by motion has left that particular motions panel

wondering whether there is a substantial question.

Moreover, we do not afford the same deference to

decisions made by a motions panel that we afford to opinions

by a merits panel. Although “a merits panel does not lightly

overturn a decision made by a motions panel during the course

of the same appeal, we do not apply the law of the case doctrine

as strictly in that instance as we do when a second merits panel

is asked to reconsider a decision reached by the first merits

panel on an earlier appeal.” Council Tree Commc’ns, Inc. v.

FCC, 503 F.3d 284, 292 (3d Cir. 2007). That is in part because

litigants can seek en banc review and review by certiorari of

merits panel decisions but do not have similar opportunities

with respect to a motions panel decision. Id. at 291-92. Here,

the order denying the motion for summary affirmance does not

explain why the motion was being denied. Thus, even if the

decisions of the merits panel and the motions panel were in

conflict (which they are not), the merits panel is the one owed

deference.

The plaintiffs next argue that we need not follow the

prior panel’s decision because it is clearly wrong and would

work a manifest injustice. The burden that accompanies that

contention is heavy. The plaintiffs must “persuade us not only

that our prior decision was wrong, but that it was clearly

wrong[.]” See In re City of Phila. Litig., 158 F.3d 711, 720-21

(3d Cir. 1998) (emphasis added). Similarly, a manifest

injustice occurs only when there is “direct, obvious, and

observable error[.]” Manifest Injustice, Black’s Law

Dictionary (11th ed. 2019). “The law of the case will be

19

disregarded only when the court has a clear conviction of

error[.]” Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)

(internal quotation marks and citation omitted). “Mere doubt

on our part is not enough to open the point for full

reconsideration.” Id. (internal quotation marks omitted).

There is certainly room for vigorous debate about the

prior decision. The thorough dissent shows that. But whether

we agree with the majority’s opinion or not, we cannot say that

it is clearly wrong or manifestly unjust. Even if we ignore that

many other circuit courts have reached the same conclusion as

the prior panel, with respect to very similar laws, there is

evident in the prior panel’s work thoughtful consideration of

the record and the relevant legal principles. Whether the prior

panel ultimately got things wrong is not the question now. The

question is whether it went so far astray that its decision can be

called clearly wrong and manifestly unjust. The answer to that

is no. We are therefore bound to respect the decision rendered

by the prior panel, which ends this appeal. 10

10

The dissent concludes that the law of the case doctrine

does not bar our consideration of the merits of the parties’

dispute, for two reasons: first, the prior panel assumed without

deciding that magazines holding more than ten rounds are

protected under the Second Amendment, and, second, the prior

panel was imprecise and interchangeably used the terms

“magazines,” “LCMs,” and “large capacity magazines” to refer

to magazines of different capacities and to magazines and

firearms with different capabilities. In our view, neither of

those considerations affects whether we are bound by the prior

panel’s decision. Even though the prior panel assumed without

deciding that magazines holding more than ten rounds are

protected under the Second Amendment, that assumption did

20

III. CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s grant of summary judgment in favor of the State and

its denial of the plaintiffs’ cross-motion for summary

judgment.

not leave the parties’ rights unsettled. That assumption was in

plaintiffs’ favor, and, under that assumption, the prior panel

clearly held that the Act does not violate the Second

Amendment. That holding settled the parties’

rights. Similarly, the prior panel’s language describing

magazines, even if not as precise as our dissenting colleague

would like, does not, in our opinion, create anything that we

can call clear error or manifest injustice and thus that would

permit us to disregard the prior panel’s case dispositive

holdings and reach the merits afresh.

21

Association of New Jersey Rifle & Pistol Clubs, Inc., et al. v.

Attorney General of New Jersey, et al., No. 19-3142

MATEY, Circuit Judge.

The majority concludes that a prudential principle bars our

consideration of the meaning of the Constitution. But “[t]he

interpretation of the laws is the proper and peculiar province of

the courts,” The Federalist No. 78, at 525 (Alexander

Hamilton) (J. Cooke ed., 1961), and a judicially created tool

for case management does not, in my opinion, supersede the

expectation that the judiciary will decide cases and

controversies arising under the Constitution. No doubt, there

are rational reasons behind the “law-of-the-case doctrine.”

Allowing courts to repeatedly consider questions already

decided would undermine the stability and predictability of the

law. In contrast, where issues remain undecided, or the

assumptions underlying those decisions are unclear, then the

opposite conclusion holds. And in such cases, the twin aims of

finality—constancy and certainty—do not support limiting the

judicial power granted in the Constitution and extended by

Congress.

This case, in my view, is an example of the latter category for

two reasons. First, in Association of New Jersey Rifle and

Pistol Clubs, Inc. v. Attorney General of New Jersey, 910 F.3d

106 (3d Cir. 2018) (“NJ Rifle I”), 11 the panel did not decide

whether all “magazines” enjoy the guarantee of the Second

Amendment under United States v. Marzzarella, 614 F.3d 85

11

For convenience, I sometimes refer to the NJ Rifle I panel as

“the prior panel.”

22

(3d Cir. 2010); and second, the decision did not define what

constitutes a “large capacity magazine.” Because both issues

are central to the resolution of this case, I would decline to

apply the law-of-the-case doctrine and would consider the

issues raised by the appellant. Doing so, I would reverse the

order of the District Court and remand this matter to permit the

State to provide evidence that N.J. Stat. Ann. § 2C:39-1(y)

(“New Jersey Magazine Act” or “the Act”) is narrowly tailored

to advance the State’s interests.

Finally, given the difficulty applying our existing framework

in cases implicating the Second Amendment—illustrated by

the deeply reasoned, but still deeply divergent opinions in NJ

Rifle I—I believe we should reconsider our decision in

Marzzarella in favor of a standard that draws on the text,

history, and original meaning of the constitutional guarantee of

“the right of the people to keep and bear Arms.” U.S. Const.

amend. II.

I. LAW-OF-THE-CASE DOCTRINE

A. Background

Under the law-of-the-case doctrine, “one panel of an appellate

court generally will not reconsider questions that another panel

has decided on a prior appeal in the same case.” In re City of

Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998). The doctrine

does not appear in statute. Instead, it is a prudential limitation

that “directs courts to refrain from re-deciding issues that were

resolved earlier in the litigation.” Pub. Int. Rsch. Grp. of N.J.,

Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.

1997). But “[t]he law of the case doctrine does not limit a

federal court’s power; rather, it directs its exercise of

discretion.” Id. It is, in short, a judicially created self-direction

23

on when to choose to limit further judicial review. And the

reasoning is simple: declining to reconsider issues in the same

case “promotes the finality and efficiency of the judicial

process by protecting against the agitation of settled issues.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

816 (1988) (internal quotation marks and citation omitted). So

a “settled” issue is the key and, in this case, I do not find the

rights of the parties settled.

B. The NJ Rifle I Decision

NJ Rifle I concluded that “laws restricting magazine capacity

to ten rounds of ammunition do not violate the Second

Amendment.” NJ Rifle I, 910 F.3d at 122. That conclusion rests

on assumptions about the scope of the constitutional right to

keep and bear arms, and the technical operation of self-loading

firearms.

1. NJ Rifle I Did Not Decide That Magazines

Holding More Than Ten Rounds Are Arms

Protected under the Second Amendment

I start by asking what constitutional question NJ Rifle I

answered. We know the Second Amendment confers “an

individual right to keep and bear arms.” District of Columbia

v. Heller, 554 U.S. 570, 595, 598, 622 (2008). We have also

read Heller to require “a two-pronged approach to Second

Amendment challenges.” Marzzarella, 614 F.3d at 89. “First,

we ask whether the challenged law imposes a burden on

conduct falling within the scope of the Second Amendment’s

guarantee.” Id. “If it does not, our inquiry is complete. If it

does, we evaluate the law under some form of means-end

scrutiny. If the law passes muster under that standard, it is

constitutional. If it fails, it is invalid.” Id.

24

I do not read NJ Rifle I to have fully applied this framework.

To begin, the majority opinion held that “a magazine is an arm

under the Second Amendment.” NJ Rifle I, 910 F.3d at 116.

But it did not view “magazines” as the relevant “arm” regulated

by New Jersey in the Act. Quite differently, the opinion

focused on what it viewed as a narrower category of magazines

called “Large Capacity Magazines” or “LCMs.” Id. at 116–17.

And then, the opinion “assume[d] without deciding that LCMs

. . . are entitled to Second Amendment protection.” Id. at 117

(emphasis added). So are “LCMs” an “arm” under the Second

Amendment? It is doubtful New Jersey thinks so. Indeed, when

pressed at oral argument, the State declined to characterize NJ

Rifle I as holding that such magazines enjoy constitutional

protection. 12 That waffling is no small matter. It would of

course be significant that some twenty-two million individuals

residing in our Circuit are left to wonder whether they have,

since the Founding, surrendered a fundamental right. But that

unanswered question takes sharper focus when coupled with a

second: what, exactly, is a “Large Capacity Magazine?”

2. NJ Rifle I’s Alternating Technical Definitions

Narrowing the issue presented from “magazines” to a specific

kind of magazine appears, in my reading, to have obscured the

reasoning in NJ Rifle I. Consider a few examples in which the

terms “magazines,” “LCMs,” and “large capacity magazines”

interchangeably refer to 1) magazines within the New Jersey

Magazine Act because they can hold more than ten rounds of

ammunition, id. at 110; 2) magazines subject to laws in other

states limiting the amount of rounds of ammunition, id. at 110

12

(Oral Arg. Tr. at 28:13,

https://www2.ca3.uscourts.gov/oralargument/audio/19-

3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.)

25

n.1; 3) firearms with “combat-functional ends” capable of

“rapidly” discharging ammunition, id. at 117 n.16; and 4)

magazines used in fully-automatic firearms, id. at 119 (citing

NJ Rifle I App. at 1057, 1118–26). Each of these four concepts

is different, yet they blend together throughout NJ Rifle I. For

instance, early on the decision defines the term “LCM” to be

coterminous with the object regulated by the New Jersey

Magazine Act: magazines for semi-automatic firearms able to

hold more than ten rounds of ammunition. Id. at 110 (citing

N.J. Stat. Ann. § 2C:39-1(y)). A few pages later, the opinion

states that “LCMs are used in mass shootings,” citing portions

of the record that describe a host of different types of

firearms—repeaters, semi-automatic, and automatic—and

various sizes of magazines used in both automatic and semi-

automatic firearms. See id. at 119 (citing NJ Rifle I App. at

1057 (defining “LCM firearms” to include “assault weapons”

and “high-capacity semiautomatic firearms” and stating that

those “LCMs” jointly “appear to account for 22 to 36% of gun

crimes in most places”); NJ Rifle I App. at 1118–26 (describing

sixty-one mass shootings and the weapons used, including

repeaters, semi-automatic firearms, and automatic firearms,

along with magazines of varying capacities, ranging from 13-

round magazines to 100-round magazines)). So the reader is

left with the impression that the “LCMs” regulated in New

Jersey are the same devices involved in a host of criminal acts

across the country.

But they are not. Yet blending together this wide assortment of

firearms and regulatory structures is critical to the prior panel’s

conclusion that “[n]ot only will the LCM ban reduce the

number of shots fired and the resulting harm, it will present

opportunities for victims to flee and bystanders to intervene.”

Id. at 119. I do not see how the current record supports that

26

inference. At best, the record could be read to suggest that

criminals use a variety of firearms to commit an array of

violent acts some, all, or none of which are impacted by the

New Jersey Magazine Act.

3. The Cumulative Result

It is the combination of these two unanswered questions that

gives me greatest pause. The collective effect of declining to

confirm that “large capacity magazines” enjoy constitutional

protection while defining those same magazines to include

sizes greater than the New Jersey Magazine Act allows leaves

me unable to predict how the Second Amendment will apply

in future cases. I do not believe the constitutional character of

a “magazine” rises and falls on a single extra round of

ammunition. Nor do I imagine the Second Amendment allows

any government to diminish an individual’s rights through

nomenclature. I am, however, confident that new restrictions

on firearms will continue to flourish throughout our Circuit.

Under NJ Rile I, that leaves District Court judges with the

difficult task of determining whether a magazine is small

enough to satisfy the Second Amendment or large enough to

slip outside its guarantee. And it leaves this Court with the

certainty that we will need to address those unanswered

questions.

Respectfully, we need not wait. “[T]he law of the case doctrine

bars courts from reconsidering matters actually decided[;] it

does not prohibit courts from revisiting matters that are

‘avowedly preliminary or tentative.’” Council of Alt. Pol.

Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (quoting 18B

Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure: Jurisdiction § 4478 (3d ed.

1981)). So we have taken care to “to prevent the doctrine from

27

being used to prevent a properly raised argument from being

considered even once.” United Artists Theatre Cir., Inc. v.

Township of Warrington, 316 F.3d 392, 398 (3d Cir. 2003)

(emphasis in original). And that is why we have recognized

that “[w]here there is substantial doubt as to whether a prior

panel actually decided an issue, the later panel should not be

foreclosed from considering the issue.” Id.

Here, there is substantial doubt about whether all magazines

enjoy the guarantee of the Second Amendment or if, instead,

that protection turns on the number of rounds of ammunition

inside. In my opinion, it is necessary to address that issue to

settle the rights of the parties here. Given that uncertainty, I

would decline to apply the law-of-the-case doctrine, as I do not

believe it applies to these circumstances. For that reason, I

would, and therefore do, consider the full question presented

by the appellants.

II. APPLICATION OF THE SECOND AMENDMENT

A. The Scope of the Second Amendment

I begin with Heller and the Supreme Court’s consideration of

the text, history, and tradition of firearms regulations in the

United States to best understand the meaning of the Second

Amendment.

Naturally, the Court began with the “operative clause” which

provides that “the right of the people to keep and bear Arms,

shall not be infringed.” Heller, 554 U.S. at 576, 578–79. The

Court observed that “[t]he 18th-century meaning [of ‘arms’] is

no different from the meaning today.” Id. at 581 (citing 1 S

Johnson, Dictionary of the English Language 106 (4th ed.

1773) (reprinted 1978) (defining “arms” as “[w]eapons of

28

offence, or armour of defence”)); 1 Timothy Cunningham, A

New and Complete Law Dictionary (1771) (defining “arms” as

“any thing that a man wears for his defence, or takes into his

hands, or useth in wrath to cast at or strike another.”); see also

N. Webster, American Dictionary of the English Language

(1828) (reprinted 1989) (similar)). With this foundation, the

Court held that “the Second Amendment extends . . . to all

instruments that constitute bearable arms, even those that were

not in existence at the time of the founding.” Heller, 554 U.S.

at 582. In so holding, the Court rejected the “frivolous”

argument “that only those arms in existence in the 18th century

are protected by the Second Amendment.” Id. An unsurprising

observation, because “[w]e do not interpret constitutional

rights that way. Just as the First Amendment protects modern

forms of communications, e.g., Reno v. Am. C.L. Union, 521

U.S. 844, 849 (1997), and the Fourth Amendment applies to

modern forms of search, e.g., Kyllo v. United States, 533 U.S.

27, 35–36 (2001), the Second Amendment extends” to modern

bearable arms. Id.

Next, the Court held that “the most natural reading of ‘keep

Arms’ in the Second Amendment is to ‘have weapons.’” Id. As

to “bear,” the Court held that “[w]hen used with ‘arms’ . . . the

term has a meaning that refers to carrying for a particular

purpose—confrontation.” Id. at 584; see id. (“From our review

of founding-era sources, we conclude that this natural meaning

was also the meaning that ‘bear arms’ had in the 18th

century.”). “Putting all of these textual elements together,” and

drawing on historical context, the Court held “that they

guarantee the individual right to possess and carry weapons in

case of confrontation.” Id. at 592, 595.

But the Court acknowledged that “[l]ike most rights, the right

secured by the Second Amendment is not unlimited.” Id. at

29

626. For example, it did “not read the Second Amendment to

protect the right of citizens to carry arms for any sort of

confrontation, just as we do not read the First Amendment to

protect the right of citizens to speak for any purpose.” Id. at

595 (emphasis in original). “From Blackstone through the

19th-century cases, commentators and courts routinely

explained that the right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose.” Id. at 626. Rather, the Court acknowledged

the propriety of “longstanding prohibitions on the possession

of firearms by felons and the mentally ill, or laws forbidding

the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms.” Id. at 626–27.

It also “recognize[d] another important limitation”: that “the

sorts of weapons protected were those ‘in common use at the

time.’” Id. at 627 (quoting United States v. Miller, 307 U.S.

174, 179 (1939)). The Court held that this “limitation is fairly

supported by the historical tradition of prohibiting the carrying

of ‘dangerous and unusual weapons.’” Id. (citation omitted).

As a result, the Court held that “the Second Amendment does

not protect those weapons not typically possessed by law-

abiding citizens for lawful purposes, such as short-barreled

shotguns. That accords with the historical understanding of the

scope of the right.” Id. at 625.

With this foundation, the Court turned to the handgun ban at

issue, which prohibited keeping operable handguns in the

home. Id. at 628. Rather than cabining the standard of review

to a balancing of interests, the Court held that the law was

unconstitutional because it banned an entire class of firearms

commonly owned by citizens for the lawful purpose of self-

defense in the home. Id. at 628–29. Although Heller focused

30

its holding on the handgun ban before it, the Court

acknowledged that “whatever else it leaves to future

evaluation,” the Second Amendment “surely elevates above all

other interests the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.” Id. at 635. Heller

makes clear that judicial review of Second Amendment

challenges proceeds from text, history, and tradition. This is

because “[c]onstitutional rights are enshrined with the scope

they were understood to have when the people adopted them,

whether or not future legislatures or (yes) even future judges

think that scope too broad.” Id. at 634–35. 13

B. Applying Heller and This Court’s Interpretative

Framework

Since Heller, circuit and district courts have varied in their

approaches to evaluating the Second Amendment. Most have

now settled on some version of the two-pronged approach we

created in Marzzarella. 14 As noted, we first “ask whether the

13

Two years later, in McDonald v. City of Chicago, the

Supreme Court reiterated that the right to keep and bear arms

is a “fundamental” constitutional right “deeply rooted in this

Nation’s history and tradition.” 561 U.S. 742, 767–68, 778

(2010) (citation omitted).

14

See David B. Kopel, Joseph G.S. Greenlee, The Federal

Circuits’ Second Amendment Doctrines, 61 St. Louis U. L. J.

193, 212 n.105 (2017) (citing N.Y. State Rifle & Pistol Ass’n,

Inc. v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United States

v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); NRA v. Bureau

of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185,

194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510,

518 (6th Cir. 2012); United States v. Chovan, 735 F.3d 1127,

1136–37 (9th Cir. 2013); United States v. Reese, 627 F.3d 792,

31

challenged law imposes a burden on conduct falling within the

scope of the Second Amendment’s guarantee,” and, if it does,

“we evaluate the law under some form of means-end scrutiny.”

Marzzarella, 614 F.3d at 89. I apply both steps, concluding that

the New Jersey Magazine Act does not satisfy the rigorous

scrutiny required for the fundamental rights of the Second

Amendment.

1. Step One: Determining Whether the Challenged

Law Imposes a Burden on Conduct Falling

Within the Second Amendment

The “threshold inquiry, then, is whether [the Act] regulates

conduct that falls within the scope of the Second Amendment.”

Id. at 89. That analysis turns on “whether the type of arm at

issue is commonly owned,” id. at 90–91, and “‘typically

possessed by law-abiding citizens for lawful purposes,’ Heller,

554 U.S. at 625.” NJ Rifle I, 910 F.3d at 116. I conclude the

magazines, including those regulated by the New Jersey

Magazine Act, are protected arms under the Second

Amendment as best understood by history and tradition.

i. Defining the Regulated Arms

I begin by defining the kinds of arms controlled by the New

Jersey Magazine Act, which prohibits the possession of

magazines “capable of holding more than 10 rounds of

800–01 (10th Cir. 2010) (“Heller thus suggests a two-pronged

approach to Second Amendment challenges to federal

statutes.”) (internal quotations omitted); GeorgiaCarry.Org,

Inc. v. Georgia, 687 F.3d 1244, 1261 n.34 (11th Cir. 2012);

Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252

(D.C. Cir. 2011)).)

32

ammunition to be fed continuously and directly therefrom into

a semi-automatic firearm.” N.J. Stat. Ann. § 2C:39-1(y). 15 As

ordinarily understood, a “magazine” is “a device that holds

cartridges or ammunition.” NJ Rifle I, 910 F.3d at 116 (citing

Magazine, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/magazine (last

visited Nov. 21, 2018)). What is more, this contemporary

definition tracks the ordinary understanding of magazines

since at least the 1800s. 16 Having defined what a magazine is,

15

At issue in this appeal are only magazines for semi-automatic

firearms. A “semi-automatic” firearm is “a weapon that fires

only one shot with each pull of the trigger, and which requires

no manual manipulation by the operator to place another round

in the chamber after each round is fired.” Staples v. United

States, 511 U.S. 600, 602 n. 1 (1994). This is distinct from an

“automatic” firearm, which “fires repeatedly with a single pull

of the trigger. That is, once its trigger is depressed, the weapon

will automatically continue to fire until its trigger is released

or the ammunition is exhausted.” Id. Individual ownership of

automatic firearms is prohibited in New Jersey. See N.J. Stat.

Ann. § 2C:39-5(a) (making unlawful the possession of “a

machine gun or any instrument or device adaptable for use as

a machine gun”); N.J. Stat. Ann. § 2C:39-1(i) (defining

“machine gun” as “any firearm, mechanism or instrument not

requiring that the trigger be pressed for each shot and having a

reservoir, belt or other means of storing and carrying

ammunition which can be loaded into the firearm, mechanism

or instrument and fired therefrom”).

16

Compare Noah Webster, An American Dictionary of the

English Language 510 (1842) (defining “magazine” as “[a]

store of arms, ammunition or provisions; or the building in

which such store is deposited; New Illustrated Edition of Dr.

33

I next consider whether a magazine is an arm within the Second

Amendment.

As the Supreme Court explained in Heller, regulation requiring

“that firearms in the home be rendered and kept inoperable at

all times” is unconstitutional as it necessarily makes “it

impossible for citizens to use them for the core lawful purpose

of self-defense[.]” Heller, 554 U.S. at 630. From this holding

flows the logical conclusion that the Second Amendment’s use

of the term “arms” should be ordinarily understood as

“operable arms,” meaning that the Second Amendment

likewise guarantees components required to make a protected

firearm work for self-defense. See Heller, 554 U.S. at 581.

That necessarily includes ammunition and, by extension,

magazines that hold ammunition, as components of an

operable firearm. See Miller, 307 U.S. at 180 (observing that

in the context of the colonial militia system, “[t]he possession

of arms also implied the possession of ammunition, and the

authorities paid quite as much attention to the latter as to the

Webster’s Unabridged Dictionary of All the Words in the

English Language 799 (1864) (defining “magazine” as “[t]o

store up or accumulate for future use”); Webster’s Condensed

Dictionary 336 (1887) (expanding the definition of “magazine”

to include a “cartridge chamber of a repeating rifle”);

Webster’s Collegiate Dictionary 590 (3d ed. 1917) (defining

“magazine” to include “[a] chamber in a gun for holding

cartridges to be fed automatically to the piece”); Merriam-

Webster Unabridged Dictionary (2020) (defining “magazine”

to include “a supply chamber: such as . . . a holder that is

incorporated in or attachable to a gun and that contains

cartridges to be fed into the gun chamber by the operation of

the piece”).

34

former”) (quoting The American Colonies In The 17th

Century, Osgood, Vol. 1, ch. XIII). For these reasons, the best

reading of “arms” in the Second Amendment includes

magazines because “[a] regulation eliminating a person’s

ability to obtain or use ammunition could thereby make it

impossible to use firearms for their core purpose.” Jackson v.

City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir.

2014).

ii. History and Tradition: The Development

of Magazine-Operated Firearms and the

Regulations That Followed

That a magazine is an “arm” does not foreclose governmental

regulation because “the right secured by the Second

Amendment is not unlimited.” Heller, 554 U.S. at 626. So I

next consider what, if any, restrictions on magazines satisfy the

history and tradition of the Second Amendment. Answering

that question begins with a review of magazines and magazine-

operated firearms to understand: 1) the use and ownership of

these arms over time, 2) traditional regulations, and 3) common

use.

a. The Development of Repeating

Firearms

“The desire for . . . repeating weapons is almost as old as the

history of firearms, and there were numerous attempts to

achieve this goal, beginning at least as early as the opening

years of the 16th century.” Harold L. Peterson, Arms and

Armor in Colonial America, 1526–1783, at 215 (1956).

“Successful systems [of repeating arms] definitely had

developed by 1640, and within the next twenty years they had

spread throughout most of Western Europe and even to

35

Moscow.” Harold L. Peterson, The Treasury of the Gun 229

(1962). “[T]he two principal magazine repeaters of the era

[were] the Kalthoff and the Lorenzoni. These were the first

guns of their kind to achieve success . . . .” Id. The Kalthoff

repeater magazines held between six and thirty charges, and

“were undoubtedly the first magazine repeaters ever to be

adopted for military purposes.” Id. at 230. Also developed

during the 17th century, the Lorenzoni was “a magazine-fed

Italian repeating pistol that ‘used gravity to self-reload’” and

held about seven shots. (Brief of Amici Curiae Professors of

Second Amendment Law, et al. in Support of Appellants and

Reversal (“Amici Professors”) at 12 (quoting Martin

Dougherty, Small Arms Visual Encyclopedia 34 (2011)).) See

also Gerald Prenderghast, Repeating and Multi-Fire Weapons:

A History from the Zhuge Crossbow Through the AK-47, at 97

(2018) (“The Lorenzoni is also referred to as the Cookson rifle

by American collectors[.]”); David Westwood, Rifles: an

Illustrated History of Their Impact 71 (2005).

By the mid-17th century, Americans also began developing

repeaters. These repeaters “often employed a revolving

cylinder that was rotated by hand.” (Amici Professors Br. at 15

(citing 2 Charles Winthrop Sawyer, Firearms in American

History 5 (1939) (six-shot flintlock); Charles Edward Chapel,

Guns of the Old West 202–03 (1961) (revolving snaphance)).)

For example, the Boston Gazette advertised the American

Cookson in 1756 and boasted that it could “fire 9 Times

distinctly, as quick, or as slow as you please[.]” Peterson, The

Treasury of the Gun 232. In 1777, the Continental Congress

ordered Belton rifles able to discharge sixteen or twenty

rounds, but then later cancelled the order based on the

extraordinary expense. (See Amici Professors Br. at 18.) See

also 7 Journals of the Continental Congress 1774–1789, at 324,

36

361 (1907) (describing the ordering of Belton rifles and later

the cancellation of the same rifles over Belton’s request for “an

extraordinary allowance”); Peterson, The Treasury of the Gun

197. All of which documents both the existence and public

knowledge of repeating weapons.

That public knowledge grew into private practice by at least

the early 19th century, when repeaters began circulating for

personal use. For instance, in 1821, the New York Evening Post

described the invention of a new repeater as “importan[t], both

for public and private use,” whose “number of charges may be

extended to fifteen or even twenty.” Newly Invented Muskets,

N.Y. Evening Post, Apr. 10, 1822, in 59 Alexander Tilloch,

The Philosophical Magazine and Journal: Comprehending the

Various Branches of Science, the Liberal and Fine Arts,

Geology, Agriculture, Manufactures, and Commerce 467–68

(1822). Technical challenges, however, limited widespread

adoption and “none achieved real popularity.” Peterson, The

Treasury of the Gun 199.

Then, in the 1830s, Samuel Colt introduced the revolver, which

fired repeating rounds using a rotating cylinder. Peterson, The

Treasury of the Gun 202–03, 209–11 (“The real father of the

revolver in its modern sense, however, was Samuel Colt.”). See

also Ian V. Hogg, The Complete Illustrated Encyclopedia of

the World’s Firearms 40 (1978) (“[Colt] had developed a

percussion revolver and patented it in England in 1835 and in

America in 1836.”). By the mid- to late 19th century, some

revolvers could fire up to twenty-one rounds. David B. Kopel,

The History of Firearm Magazines and Magazine

Prohibitions, 78 Alb. L. Rev. 849, 856 (2015) (“Pin-fire

revolvers with capacities of up to twenty or twenty-one entered

the market in the 1850s[.]”). Around this time, repeating rifles

could fire between fifteen and sixty shots per minute. Id. at 854.

37

In addition, the lever-action repeating rifle arrived by the

1850s, and could fire thirty times per minute. Id. at 854–55.

The arms development during this time was “fueled by the

Civil War market.” Robert L. Wilson, Winchester: An

American Legend (1991).

b. The Development of Semi-

Automatic Firearms and

Magazines

The first commercially successful rifles holding more than ten

rounds of ammunition appeared around 1866, with handguns

holding more than ten rounds following by 1935. See Kopel,

The History of Firearm Magazines and Magazine

Prohibitions, 78 Alb. L. Rev. at 849–50. And “[o]wing to their

simplicity and ease of use, by the mid-twentieth century the use

of detachable magazines loaded through the base of the grip far

exceeded all other loading methods.” Jeff Kinard, Pistols: An

Illustrated History of Their Impact 174 (2003). Given that easy

operation, “semiautomatic handguns grew from 28% of

handgun production in 1973 to 80% in 1993.” (NJ Rifle I App.

at 1272.) As they became more readily available,

semiautomatic handguns gradually became more predominant.

“Pistol magazines manufactured before September 1994

commonly [held] five to 17 bullets, and magazines produced

for some models [held] as many as 30 or more bullets.” (NJ

Rifle I App. at 1060.) As for rifles, the AR-15 semiautomatic

rifle appeared in 1963 and sold with a standard twenty-round

magazine. Kopel, The History of Firearm Magazines and

Magazine Prohibitions, 78 Alb. L. Rev. at 859–60. Since that

time it has become “[t]he most popular rifle in American

history.” Id. at 859.

38

Possession of magazines exceeding ten rounds grew rapidly

“given the growing popularity of semi-automatic rifles and of

large-capacity handguns. Nearly 80 percent of ammunition

magazines owned by gun owners at the time of [a 1994] survey

held fewer than 10 rounds.” Edward W. Hill, How Many Guns

are in the United States: Americans Own between 262 Million

and 310 Million Firearms, Urban Publications 3 (2013). By

contrast, a market survey conducted in or around 2013 “of

owners of semi-automatic assault rifles . . . showed that 63

percent of owners of these guns had ammunition magazines

that held more than 10 rounds.” Id.

Today, “there are at least 58.9 million civilian-owned

[magazines capable of holding more than ten rounds] in the

United States.” (NJ Rifle I Opening Br. at 17 (emphasis

omitted) (citing Gary Kleck, How Many Large Capacity

Magazines (LCMs) Are Possessed By Americans?, SSRN

(2018)); see also NJ Rifle I App. at 275 (Tr. 372:14–16

(Kleck)) (percentage of firearms with capacity to hold eleven

or more rounds); App. at 516–17 (Hill, How Many Guns are in

the United States: Americans Own between 262 Million and

310 Million Firearms, Urban Publications).) “Magazines

capable of holding more than 10 rounds come standard on

some of the most popular handguns and rifles, including the

most popular rifle in America.” (NJ Rifle I, Opening Br. at 17–

18) (emphasis omitted) (citing NJ Rifle I, App. at 696–704

(Gun Digest 2018); App. at 753 (National Shooting Sports

Foundation, Modern Sporting Rifle Comprehensive Consumer

Report 2013 (2013); App. at 500 (Dan Haar, America’s Rifle:

Rise of the AR-15, Hartford Courant (Mar. 9, 2013)); App. at

1239 (Kopel, The History of Firearm Magazines and Magazine

Prohibitions, 78 Alb. L. Rev. 849).)

39

The State does not appear to have rebutted the fact that

magazines holding more than ten rounds are commonly

owned. 17 The commonality of magazines holding more than

ten rounds fits with findings by other courts as well. See, e.g.,

Heller II, 670 F.3d at 1261 (“We think it clear enough in the

record that semi-automatic rifles and magazines holding more

than ten rounds are indeed in ‘common use,’ as the plaintiffs

contend” because “fully 18 percent of all firearms owned by

civilians in 1994 were equipped with magazines holding more

than ten rounds, and approximately 4.7 million more such

magazines were imported into the United States between 1995

and 2000.”).

c. Regulating Magazine Capacity

With the history of magazines and magazine-equipped

firearms as a guide, I next consider traditional regulation.

Heller, 554 U.S. at 627; McDonald, 561 U.S. at 786

(reaffirming that Heller “did not cast doubt on . . . longstanding

regulatory measures” and “does not imperil every law

regulating firearms”). That analysis first requires answering

how a prohibition can be “traditional” or “longstanding” when

it regulates arms of the modern era. That is because Heller

permits “[s]tate and local experimentation with reasonable

firearms regulations.” McDonald, 561 U.S. at 785 (alteration

in original). Logically, then, “when legislatures seek to address

17

One of the State’s experts also conceded the readily available

nature of “large capacity magazines.” (NJ Rifle I App. at 195

(“Many of the mass shooters did not seek out large capacity

magazines, they just used what was easily available, and it

would have been hard or impossible for many of those mass

shooters to seek out [smaller-capacity] magazines.”).)

40

new weapons that have not traditionally existed or to impose

new gun regulations because of conditions that have not

traditionally existed, there obviously will not be a history or

tradition of banning such weapons or imposing such

regulations.” Heller II, 670 F.3d at 1275 (Kavanaugh, J.

dissenting).

Instead, I believe “the proper interpretive approach is to reason

by analogy from history and tradition.” Id. (citing Parker v.

District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007)

(“[J]ust as the First Amendment free speech clause covers

modern communication devices unknown to the founding

generation, e.g., radio and television, and the Fourth

Amendment protects telephonic conversation from a ‘search,’

the Second Amendment protects the possession of the modern-

day equivalents of the colonial pistol.”), aff’d sub nom. Heller,

554 U.S. 570; Tr. of Oral Arg. at 77, Heller, 554 U.S. 570

(Chief Justice Roberts: “[Y]ou would define ‘reasonable’ in

light of the restrictions that existed at the time the amendment

was adopted. . . . [Y]ou can’t take it into the marketplace was

one restriction. So that would be—we are talking about lineal

descendants of the arms but presumably there are lineal

descendants of the restrictions as well.”); cf. Kyllo v. United

States, 533 U.S. 27, 31–35 (2001) (applying traditional Fourth

Amendment standards to novel thermal imaging technology);

California v. Ciraolo, 476 U.S. 207, 213 (1986) (allowing

government to view property from airplanes based on

common-law principle that police could look at property when

passing by homes on public thoroughfares)). So I turn to

historical regulation of both magazines and other restrictions

on ammunition capacity.

41

Limits on ammunition capacity emerged during the Prohibition

Era, when six states adopted restrictions. 18 See also Kopel, The

History of Firearm Magazines and Magazine Prohibitions, 78

Alb. L. Rev. at 864–68 (internal footnotes and citations

omitted). But all were repealed over time. Only the District of

Columbia maintained an uninterrupted ban on semi-automatic

magazines holding more than twelve rounds from 1932 until

1975, when it banned all functional firearms in the home and

handguns altogether. (See Amici Professors Br. at 33 (citing

Pub. L. No. 72-275, §§ 1, 8, 47 Stat. 650, 650, 652).)

New Jersey first limited magazine capacity to fifteen rounds in

1990. Kopel, The History of Firearm Magazines and Magazine

Prohibitions, 78 Alb. L. Rev. at 867 (citing Act of May 30,

1990, ch. 32, §§ 2C:39-1(y), -3(j), 1990 N.J. Laws 217, 221,

18

These states include California, Michigan, Minnesota, Ohio,

Rhode Island, and Virginia. (See Amici Professors Br. at 31–

32 (citing 1927 R.I. Pub. Laws 256, §§ 1, 4 (banning sales of

guns able to fire more than twelve shots without reloading);

1927 Mich. Pub. Acts ch. 372, § 3 (banning sales of firearms

“which can be fired more than sixteen times without

reloading”); 1933 Minn. Laws ch. 190 (banning “machine

gun[s],” including semi-automatics “which have been

changed, altered or modified to increase the magazine capacity

from the original design as manufactured by the

manufacturers”); 1933 Ohio Laws 189 (requiring a license for

semi-automatics with capacity of more than 18); 1933 Cal.

Laws, ch. 450 (requiring license for machine guns, which were

defined to include semi-automatics with detachable magazines

of more than ten rounds); 1934 Va. Acts ch. 96 s137, §§ 1(a),

4(d) (defining machine guns as anything able to fire more than

sixteen times without reloading).))

42

235 (codified at N.J. Stat. Ann. § 2C:39-1(y), -3(j) (West

2014)). Around the same time, Hawaii enacted a limitation of

ten rounds. (See NJ Rifle I App. at 9 (citing Haw. Rev. Stat.

Ann. § 134-(8)).) A few years later, Congress passed the

Violent Crime Control and Law Enforcement Act of 1994

prohibiting the possession or transfer of magazines holding

more than ten rounds. See Pub. L. 103-322, § 110103 (Sep. 13,

1994). But that law expired in 2004 and has never been

reauthorized. Since then, states including California, Colorado,

Connecticut, Hawaii, Maryland, Massachusetts, and New

Jersey have enacted or maintained regulations limiting

magazine capacity. See Kopel, The History of Firearm

Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 867–

68.

This history reveals a long gap between the development and

commercial distribution of magazines, on the one hand, and

limiting regulations, on the other hand. The State reasons, “It

is logical that state limits on such weapons do not predate their

popularity.” (NJ Rifle I Response Br. at 22.) That is doubtful,

as New Jersey has actively regulated firearms lacking any

popular use. See, e.g., N.J. Stat. Ann. §§ 2C:39-3(m)

(prohibiting “[c]overt or undetectable firearms,” such as 3D

printed firearms); Guidelines Regarding the “Substantially

Identical” Provision in the State’s Assault Firearms Laws, N.J.

Att’y Gen. Op. (August 1996) (prohibiting “bayonet mounts”

on rifles). At any rate, the State concedes that magazine-

equipped rifles first achieved “mass-market success” in the

1860s and magazine-equipped handguns achieved similar

success in the 1930s. (NJ Rifle I Response Br. at 22.) Yet

regulations did not grow until the 1990s and 2000s, and even

today, only a handful of states limit magazine capacity. Given

that the “success” of magazine-equipped firearms predated

43

these first regulations by at least fifty years, I do not see

evidence of the longstanding tradition required under Heller to

remove magazines from the protection of the Second

Amendment. Cf. Drake v. Filko, 724 F.3d 426, 432 (3d Cir.

2013) (holding New Jersey’s permit requirement was

longstanding because its origins dated to 1924). Nor is it clear

that there is a longstanding tradition of regulating magazines

as “dangerous and unusual.” For one thing, more than eight

states would have rushed to regulate magazine capacity

following the end of the federal ban in 2004.

Some will argue there must be an outer boundary to this

analysis that, when crossed, renders a magazine dangerous and

unusual. If so, it does not appear in the history and traditions

of our Nation. But in any event that question is not before us.

So while “[t]here may well be some capacity above which

magazines are not in common use . . . the record is devoid of

evidence as to what that capacity is.” Heller II, 670 F.3d at

1261 (Kavanaugh, J., dissenting). As a result, and limited to

this record, I would hold that magazines are arms protected by

the Second Amendment and an act limiting magazine capacity

to ten rounds burdens the Appellants’ Second Amendment

rights.

2. Step Two: Evaluating the Challenged Law

Under Means-End Scrutiny

Although not required by Heller, our precedent uses some form

of means-end scrutiny. See Marzzarella, 614 F.3d at 96–97.

Marzzarella does not insist on a uniform standard in all cases.

Rather, we observed that if, like the First Amendment, “the

Second Amendment can trigger more than one particular

standard of scrutiny,” then intermediate scrutiny should be

applied when the challenged law does not burden the

44

“fundamental interest protected by the [Second

Amendment]—the defense of hearth and home.” Id. at 97. By

extension, strict scrutiny should be applied when a challenged

law does burden such a fundamental interest. I conclude that

the New Jersey Magazine Act burdens the right to maintain

operable protected arms without regard to location or

circumstances, warranting strict scrutiny. But regardless of the

level of scrutiny applied, the state does not satisfy its burden

on this record.

i. Strict Scrutiny

As the Supreme Court has not applied the tiers of scrutiny to

gun regulations, see Heller, 554 U.S. at 634, “we look to other

constitutional areas for guidance in evaluating Second

Amendment challenges.” Marzzarella, 614 F.3d at 89 n.4.

Using this rationale, we concluded “the First Amendment is the

natural choice. Heller itself repeatedly invokes the First

Amendment in establishing principles governing the Second

Amendment.” Id.

Cases considering restrictions on speech and expression hold

the appropriate level of scrutiny is a fact-specific inquiry tied

to the type of regulation at issue. See, e.g., Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (applying

intermediate scrutiny to content-neutral time, place, and

manner restrictions in a public forum); Zauderer v. Off. of

Disciplinary Couns. of Sup. Ct. of Oh., 471 U.S. 626, 651

(1985) (applying rational basis review to disclosure

requirements for commercial speech). Strict scrutiny applies to

content-based restrictions that infringe on the First

Amendment’s core guarantee. See, e.g., Citizens United v.

FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny in the

context of infringement on “political speech”); United States v.

45

Playboy Ent. Grp., 529 U.S. 803, 813 (2000) (applying strict

scrutiny in context of content-based speech restriction). So

following the direction of Marzzarella, strict scrutiny applies

to restrictions burdening rights at the core of the Second

Amendment. See NJ Rifle I, 910 F.3d at 134 (Bibas, J.,

dissenting).

One of the Second Amendment’s core purposes is to protect

the “use [of] arms in defense of hearth and home.” Heller, 554

U.S. at 591, 636. For that reason, prohibiting operable firearms

in the home violates the Second Amendment. Id. The same

result applies here, because the New Jersey Magazine Act

prohibits the possession of magazines exceeding ten rounds at

all times, including inside the home for defense. The State

argues that the Act “does not ban magazines; it imposes a

restriction on the capacity of a single magazine that can be

inserted into a firearm” and does not restrict the number of

magazines an individual may possess. (NJ Rifle I Response Br.

at 34–35.) That is only partially correct, as it leaves owners of

a “noncompliant” magazine without an operating firearm. But

even assuming the Act is not a categorical ban on all

magazines, it still burdens a core Second Amendment right

without exception or limitation, including the defense of

“hearth and home” specifically noted in Heller. Following our

prior analogy to decisions applying the First Amendment

jurisprudence, this “ban on a class of arms is not an ‘incidental’

regulation. It is equivalent to a ban on a category of speech.”

See Heller II, 670 F.3d at 1285 (Kavanaugh, J., dissenting); see

also NJ Rifle I, 910 F.3d at 127 (Bibas, J., dissenting) (“I would

apply strict scrutiny to any law that impairs the core Second

Amendment right to defend one’s home.”).

New Jersey has not offered record evidence meeting that test.

“Strict scrutiny asks whether the law is narrowly tailored to

46

serve a compelling government interest.” Marzzarella, 614

F.3d at 96 n.14. When “a less restrictive alternative would

serve the Government’s purpose, the legislature must use that

alternative.” Playboy Ent. Grp., 529 U.S. at 813. As Judge

Bibas observed, “[h]ere, the government has offered no

concrete evidence that magazine restrictions have saved or will

save potential victims. Nor has it made any showing of

tailoring.” NJ Rifle I, 910 F.3d at 134 (Bibas, J., dissenting).

New Jersey once imposed a fifteen-round limit on magazine

capacity. Now it claims ten is essential for public safety. The

Second Amendment demands more than back-of-the-envelope

math. At a minimum, it asks the government to explain, to offer

but one example, why eleven rounds is too many while nine

remains fine. Unless competent evidence answers those

questions, New Jersey cannot show why a ten-round limit is

the least restrictive means of achieving public safety. For this

reason, I would hold that the Act fails to satisfy strict scrutiny.

ii. Intermediate Scrutiny

For largely the same reasons, the New Jersey Magazine Act

does not satisfy intermediate scrutiny where “the government’s

asserted interest must be more than just legitimate but need not

be compelling. It must be ‘significant, substantial, or

important.’” Drake, 724 F.3d at 436 (quoting Marzzarella, 614

F.3d at 98). “‘[T]he fit’ between the asserted interest and the

challenged law need not be ‘perfect,’ but it must be

‘reasonable’ and ‘may not burden more [conduct] than is

reasonably necessary.’” Id. (quoting Marzzarella, 614 F.3d at

98).

Here, the record does not show the State reasonably tailored

the regulation to serve its interest in public safety without

burdening more conduct than reasonably necessary. First, the

47

State rests on the ambiguous argument that “when LCM-

equipped firearms are used, more bullets are fired, more

victims are shot, and more people are killed than in other gun

attacks.” (NJ Rifle I Response Br. at 28.) Perhaps, but “this still

begs the question of whether a 10-round limit on magazine

capacity will affect the outcomes of enough gun attacks to

measurably reduce gun injuries and death.” (NJ Rifle I App. at

1280 (Christopher S. Koper, An Updated Assessment of the

Federal Assault Weapons Ban 89 (2004)).) In fact, “studies

suggest that state-level [assault-weapon] bans have not reduced

crime[.]” (NJ Rifle I App. at 1272, Koper, supra at 81 n.95.)

Second, as Judge Bibas observed, “since 1990 New Jersey has

banned magazines that hold more than fifteen bullets. The ban

affects everyone. The challengers do not contest that ban. And

there is no evidence of its efficacy, one way or the other.” NJ

Rifle I, 910 F.3d at 132 (Bibas, J., dissenting). Third, statistics

in the record report that out of sixty-one “mass shootings,” 19

19

The term “mass shootings” does not appear to have an

objective definition. See, e.g., NJ Rifle I App. at 1042, Louis

Klarevas, Rampage Nation: Securing America From Mass

Shootings (2016) (defining mass shootings as “attacks that

resulted in six or more people—not including the

perpetrator(s)—dying as a result of gunshot wounds”)

(emphasis in original); App. at 1067, Cong. Rsch. Serv., Mass

Murder with Firearms: Incidents and Victims, 1999-2013

(2015) (defining “mass shooting” as “a multiple homicide

incident in which four or more victims are murdered with

firearms—not including the offender(s)—within one event,

and in one or more locations in close geographical proximity);

App. at 1118, Violence Pol’y Ctr., High-Capacity Ammunition

Magazines are the Common Thread Running Through Most

48

eleven used fifteen-round magazines, two used fourteen-round

magazines, and two used thirteen-round magazines. That alone

casts doubt on the ten-round tailoring. As does the declaration

of the Commissioner of the Baltimore Police Department’s

stating that the use of a ten round magazine offers more

opportunities to intervene in a shooting incident than if “30- or

50-round magazines, or 100-round drums” are used. (NJ Rifle

I App. at 865.) (emphasis added). So too, of course, would use

of a magazine holding eleven or twenty-nine rounds. That is

why narrow tailoring requires more than a ninety-round spread

in logic. 20

Mass Shootings in the United States (defining “mass shooting”

as “3 or more fatalities”).

20

Diving deeper, the record evidence casts doubt on the State’s

intervention theory. For example, “it takes two to four seconds

for shooters to eject an expended magazine from a semi-

automatic gun, insert a loaded magazine, and make the gun

ready to fire.” (NJ Rifle I App. at 1197, Declaration of Gary

Kleck in Support of Plaintiffs’ Motion for a Preliminary

Injunction at 12). Investigations from criminal attacks show

“that the killers typically do not fire at high rates, instead firing

deliberately, at rates far below the fastest rates that can be

maintained with semiautomatic weapons.” (NJ Rifle I App. at

1203, Kleck Decl. at 18.) In fact, “[t]he average interval

between shots in mass shootings . . . is nearly always more than

two to four seconds, which means that magazine changes do

not even slow the shooter’s rate of fire.” (NJ Rifle I App. at

1203, Kleck Decl. at 18.) Shooters can “avoid the necessity of

reloading by carrying several firearms, carry[ing] several

magazines which can be exchanged quickly, or simply tak[ing]

the time to reload.” (NJ Rifle I App. at 748, Carlisle E. Moody,

49

All of this leads to one conclusion: “the Government bears the

burden of proof on the appropriateness of the means it employs

to further its interest[,]” but “the Government falls well short

of satisfying its burden—even under intermediate scrutiny.”

Binderup v. Att’y Gen., 836 F.3d 336, 353 (3d Cir. 2016) (en

banc). New Jersey must “present some meaningful evidence,

not mere assertions, to justify its predictive [and here

conclusory] judgments[,]” and it failed to meet that burden

here. Id. at 354 (alteration in original) (citing Heller II, 670

F.3d at 1259); see also N.Y. State Rifle & Pistol Ass’n, Inc, 804

F.3d 242, 264 (2d Cir. 2015) (“[O]n intermediate scrutiny

review, the state cannot ‘get away with shoddy data or

reasoning.’ To survive intermediate scrutiny, the defendants

must show ‘reasonable inferences based on substantial

evidence’ that the statutes are substantially related to the

governmental interest.”) (emphasis in original) (internal

citations omitted).

For these reasons, I would hold that the Act cannot satisfy

intermediate, or any applicable level of, scrutiny.

III. RECONSIDERING MARZZARELLA AND TIERED SCRUTINY

Decided two years after Heller, our decision in

Marzzarella ushered in a two-part framework for analyzing the

Second Amendment. That test has proved popular, and is now

used by a majority of circuit courts. But our approach has come

into question, and I have serious doubts that it can be squared

with Heller. See, e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1867

Large Capacity Magazines and Homicide, 160 C. Wm. & Mary

Working Paper 6, 6 (2015).) Crediting all of this testimony

seems to undermine the State’s theory, and suggests that

reducing magazine does not meaningfully assist intervention.

50

(2020) (mem.) (Thomas, J., dissenting) (criticizing the two-

part framework as “rais[ing] numerous concerns” that “yield[]

analyses that are entirely inconsistent with Heller”); N.Y. State

Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525,

1540 (2020) (Alito, J., dissenting) (explaining that Heller is

based “on the scope of the right to keep and bear arms as it was

understood at the time of the adoption of the Second

Amendment”); id. at 1527 (Kavanaugh, J., concurring) (“I

share Justice Alito’s concern that some federal and state courts

may not be properly applying Heller and McDonald.”). I reach

that conclusion on two grounds.

First, the widespread popularity of the two-step

balancing test does not address the clear repudiation of interest-

balancing by the Supreme Court in Heller and McDonald.

When twice presented with the opportunity to import tiered

scrutiny from decisions considering the First Amendment, the

Supreme Court instead focused on text, history, and tradition.

See Heller, 554 U.S. at 634 (declining to apply a specified level

of scrutiny and observing that “[w]e know of no other

enumerated constitutional right whose core protection has been

subjected to a freestanding ‘interest-balancing’ approach.”);

McDonald, 561 U.S. at 785 (“[W]e expressly rejected the

argument that the scope of the Second Amendment right

should be determined by judicial interest balancing”);

Binderup, 836 F.3d at 378 (Hardiman, J., concurring)

(“Applying some form of means-end scrutiny in an as-applied

challenge against an absolute ban—after it has already been

established that the individual has a right to keep and bear

arms—eviscerates that right via judicial interest balancing in

direct contravention of Heller.”).

Second, this historical approach is significant because,

as Heller explains, “it has always been widely understood” that

51

“[t]he very text of the Second Amendment implicitly

recognizes the pre-existence of the right and declares only that

it ‘shall not be infringed.’” Heller, 554 U.S. at 592

(quoting United States v. Cruikshank, 92 U.S. 542, 553 (1876))

(“This is not a right granted by the Constitution. Neither is it in

any manner dependent upon that instrument for its

existence.”); see also Robertson v. Baldwin, 165 U.S. 275, 281

(1897) (“The law is perfectly well settled that the first 10

amendments to the constitution . . . were not intended to lay

down any novel principles of government, but simply to

embody certain guaranties and immunities which we had

inherited from our English ancestors[.]”). And rather than

turning to the reservoir of decisions, doctrines, and debates

flowing from generations of First Amendment cases and tiered

tolerance of governmental speech restraints, Heller “pores over

early sources to show that while preventing Congress from

eliminating state militias was the ‘purpose that prompted the

[Amendment’s] codification,’” that purpose did not limit the

right’s substance. Wrenn v. District of Columbia, 864 F.3d 650,

658 (D.C. Cir. 2017) (quoting Heller, 554 U.S. at 600). At its

core, the Second Amendment recognizes the widely accepted

principle at the Founding that the right to self-defense derived

directly from the natural right to life, giving the people

predictable protections for securing the “Blessings of Liberty.”

U.S. Const. pmbl.; see also Declaration of Independence para.

2. 21 So “[t]he very enumeration of the right takes out of the

21

Several Founding Era documents reflect this sentiment.

Hamilton wrote in Federalist Paper 28 that the “original right

of self-defense” is “paramount to all positive forms of

government.” The Federalist No. 28, at 146 (Alexander

Hamilton) (Colonial Press, ed., 1901). Similarly, Samuel

Adams listed self-preservation under “Natural Rights of the

52

hands of government—even the Third Branch of

Government—the power to decide on a case-by-case basis

whether the right is really worth insisting upon.” Heller, 554

U.S. at 634 (emphasis in original).

For those reasons, I would follow what I believe to be

the direction of the Supreme Court and focus our approach

“based on text, history, and tradition” rather “than under an

interest-balancing test.” Heller II, 670 F.3d at 1275

(Kavanaugh, J. dissenting).

IV. CONCLUSION

The law-of-the-case doctrine can serve important,

practical purposes in litigation. But it remains a prudential rule

that “merely expresses the practice of courts generally to refuse

to reopen what has been decided, not a limit to their power.”

Messenger v. Anderson, 225 U.S. 436, 444 (1912). I would

decline to invoke that discretion here, as I conclude that

determining whether magazines enjoy the guarantees of the

Colonists as Men”: “First, a right to life; Secondly, to liberty;

Thirdly, to property; together with the right to support and

defend them in the best manner they can.” Samuel Adams, The

Rights of the Colonists: The Report of the Committee of

Correspondence to the Boston Town Meeting Nov. 20, 1772

reprinted in Old South Leaflets no. 173 (Directors of the Old

South Work 1906). Those sentiments, in turn, echo the

classical understanding that “[s]elf-defence, therefore, as it is

justly called the primary law of nature, so it is not, neither can

it be in fact, taken away by the law of society.” 3 William

Blackstone, Commentaries *4.

53

Second Amendment, and whether that protection varies based

on their capacity, would “not reopen issues decided in earlier

stages of the same litigation.” Agostini v. Felton, 521 U.S. 203,

236 (1997). Both issues affect the rights of individuals

throughout our Circuit. Likewise, resolving those questions

will allow state governments to design public safety solutions

that respect the freedoms guarded by the Second Amendment.

So I would reverse the order of the District Court, hold that

magazines are arms under the Constitution, and remand this

matter to permit the State to provide evidence that the Act is

narrowly tailored to advance the State’s interests. For these

reasons, I respectfully dissent.

54