Amicus Curiae Brief — Association of New Jersey Rifle & Pistol Clubs, Inc., et al., Petitioners v. Andrew J. Bruck, Acting Attorney General of New Jersey, et al.

No. 20-1507

In the

Supreme Court of the United States

ASSOCIATION OF NEW JERSEY RIFLE & PISTOL

CLUBS, INC. AND BLAKE ELLMAN,

Petitioners,

v.

GURBIR S. GREWAL, IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF NEW JERSEY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Third Circuit

BRIEF OF CALIFORNIA RIFLE & PISTOL

ASSOCIATION, INCORPORATED, GUN OWNERS

OF CALIFORNIA AND SECOND AMENDMENT

LAW CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

C.D. Michel

A nna M. Barvir

Counsel of Record

Konstadinos T. Moros

Michel & A ssociates, P.C.

180 East Ocean Boulevard, Suite 200

Long Beach, CA 90802

(562) 216-4444

abarvir@michellawyers.com

Counsel for Amicus Curiae

May 28, 2021

304915

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

AMICUS CURIAE STATEMENT OF INTEREST . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Circuits’ Disrespect of Heller Begs

for the Court’s Intervention to Clarify

Several Second Amendment Issues . . . . . . . . . . . 3

II. The Erosion of the Second Amendment

in the Ninth Circuit Illustrates How

Courts Have Disrespected Heller . . . . . . . . . . . . 7

III. Comparing the Different Decisions of the

Third and Ninth Circuits Regarding the

Constitutionality of LCM Bans . . . . . . . . . . . . . 10

A. Both ANJRPC and Duncan Hold

That LCMs Are in Common Use . . . . . . . . 10

B. Both ANJRPC and Duncan A lso

Hold That LCMs Are Protected by

the Second Amendment, But Only

Duncan Engages in a Text, History,

and Tradition Analysis . . . . . . . . . . . . . . . . 12

ii

Table of Contents

Page

C. A NJRPC Upheld New Jer sey ’s

LCM Ban Under a Watered-down

For m of Int er med iat e Scr uti ny

Favored by Most Circuits, While

Duncan Stands Out for Its Correct

Application of Strict Scrutiny . . . . . . . . . . . 15

1.

The So-Called “Intermediate

Scrutiny” Applied to Second

Amendment Cases Is a Glorified

Rational Basis Test . . . . . . . . . . . . . . . . 15

2. The ANJRPC Panel Upheld New

Jersey’s LCM Ban Under This Faux

Intermediate Scrutiny Standard . . . . 18

3.

The Duncan Panel Held That

Strict Scrutiny Should Apply, But

Even if it Does Not, LCM Bans

Cannot Survive True Intermediate

Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Ass’n of N. J. Rifle & Pistol Clubs v.

Att’y Gen. of N.J.,

910 F.3d 106 (3d Cir. 2018) . . . . . . . . . . . . . . . . . passim

Clark v. Jeter,

486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . . passim

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Drake v. Filko,

724 F.3d 436 (3d Cir. 2013) . . . . . . . . . . . . . . . . . passim

Duncan v. Becerra,

742 F. App’x 218 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . .

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020), reh’g en banc ordered,

988 F.3d 1209 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . 1, 2

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) . . . . . . . . . . . . . . . 12, 15

Jackson v. City & Cnty. of S.F.,

746 F.3d 953 (9th Cir. 2014), cert. denied,

576 U.S. 1013 (2015) . . . . . . . . . . . . . . . . . . . .4, 5, 12, 16

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2019) . . . . . . . . . . . . . . . . . 12, 17

iv

Cited Authorities

Page

Mance v. Sessions,

896 F.3d 390 (5th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 3

McCullen v. Coakley,

573 U.S. 464 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

McDonald v. City of Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . 1, 10, 17, 22

N.Y. State Rifle & Pistol Ass’n v. Corlett,

No. 20-843 (Apr. 26, 2021) . . . . . . . . . . . . . . . . . . . . . . 6

Packingham v. North Carolina,

--U.S.--, 137 S. Ct. 1730 (2017) . . . . . . . . . . . . . . . . . . 16

Peña v. Lindley,

898 F.3d 969 (9th Cir. 2018), cert. denied,

141 S. Ct. 108 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Perry Educ. Ass’n v.

Perry Loc. Educators’ Ass’n,

460 U.S. 37 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Peruta v. San Diego,

824 F.3d 919 (9th Cir. 2016), cert. denied,

137 S. Ct. 1995 (2017) . . . . . . . . . . . . . . . . . . . . . 7, 8, 18

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

v

Cited Authorities

Page

Reynolds v. United States,

98 U.S. 145 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Teixeira v. Cnty. of Alameda,

873 F.3d 670 (9th Cir. 2017), cert. denied sub nom.,

138 S. Ct. 1988 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

United States v. Chester,

628 F.3d 673 (4th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 24

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 18

Young v. Hawaii,

992 F.3d 765 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 8

STATUTES AND OTHER AUTHORITIES

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

U.S. Const., amend. II . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 10

IRS Code § 501(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

IRS Code § 501(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

Rodney Dangerfield, I Don’t Get No Respect!

(Bell 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1

AMICUS CURIAE STATEMENT OF INTEREST

Founded in 1875, California Rifle and Pistol Association,

Incorporated is a nonprofit organization that seeks to

defend the Second Amendment and advance laws that

protect the rights of individual citizens. CRPA regularly

participates as a party or amicus in firearm-related

litigation. CRPA works to preserve the constitutional and

statutory rights of gun ownership, including the right to

self-defense, the right to hunt, and the right to keep and

bear arms. CRPA is also a plaintiff in Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020), a related case pending before

an en banc panel of the Ninth Circuit.1

Gun Owners of California, Inc. was incorporated

in California in 1982 and is one of the oldest pro-gun

political action committees in the United States. GOC is

a nonprofit organization, exempt from federal taxation

under §§ 501(c)(3) or 501(c)(4) of the Internal Revenue

Code. It is dedicated to the correct interpretation and

application of the constitutional guarantees related to

firearm ownership and use. Affiliated with Gun Owners

of America, GOC lobbies on firearms legislation in

Sacramento and was active in the successful battle to

overturn the San Francisco handgun ban. GOC has filed

amicus briefs in other Second Amendment cases, including

District of Columbia v. Heller, 554 U.S. 570 (2008) and

McDonald v. City of Chicago, 561 U.S. 742 (2010).

1. No counsel for a party authored this brief in whole or

in part, nor did such counsel or any party make a monetary

contribution to fund this brief. Preparation and filing of this brief

were completely funded by CRPA. Amici missed the deadline

to provide 10-day notice of their intention to file, but all parties

individually consented to this filing.

2

The Second Amendment Law Center is a nonprofit

corporation organized under § 501(c)(3) of the Internal

Revenue Code. 2ALC is dedicated to promoting and

defending the individual rights to keep and bear arms for

hunting, sport, self-defense, and other lawful purposes

envisioned by the Founding Fathers. The purpose of

2ALC is to defend these rights in courts across the

country. 2ALC also seeks to educate the public about

the social utility of private firearms ownership and to

provide accurate and truthful historical, criminological,

and technical information about firearms to policy makers,

judges, attorneys, police, and the public.

SUMMARY OF ARGUMENT

Mistreatment of the Second Amendment is now all too

common among lower courts. Indeed, it is the norm. As

plaintiff or amicus in countless Second Amendment

lawsuits in the Ninth Circuit—one of the worst offenders

of peddling in counterfeit Second Amendment analyses—

Amici speak from first-hand experience. Over the last

decade, theirs have been among the consistent flood of

petitions to this Court seeking review of rejected Second

Amendment claims. Left unguided by this Court, lower

courts, including the Third and Ninth Circuits, will

continue to trample Second Amendment rights with

impunity and those petitions will not abate.

Petitioners’ case concerns the constitutionality of

banning large capacity magazines, the same question at

issue in Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020),

reh’g en banc ordered, 988 F.3d 1209 (9th Cir. 2021). That

these courts reached opposite conclusions while employing

such widely divergent analyses highlights why this Court

must grant certiorari.

3

ARGUMENT

I.

The Circuits’ Disrespect of Heller Begs for the

Court’s Intervention to Clarify Several Second

Amendment Issues

In circuit courts across the country, the precedent

established by District of Columbia v. Heller, 554 U.S. 570

(2008), has atrophied from neglect. In the years since that

landmark case, many circuits have so severely contorted

Heller that nearly any type of firearm restriction is upheld

under what amounts to a glorified rational basis test.

Such subjective tests lack grounding in Heller (or any

other Supreme Court precedent), and they essentially

doom every iteration of Second Amendment challenge.

This phenomenon is no secret to the bench. One circuit

judge described the Second Amendment as “the Rodney

Dangerfield of the Bill of Rights.” Mance v. Sessions, 896

F.3d 390, 396 (5th Cir. 2018) (Willett, J., dissenting). It

“don’t get no respect!” Rodney Dangerfield, I Don’t Get

No Respect! (Bell 1970). Another judge warned that “[o]ur

cases continue to slowly carve away the fundamental right

to keep and bear arms,” noting how a particular “decision

further lacerates the Second Amendment, deepens the

wound, and resembles the Death by a Thousand Cuts.”

Teixeira v. Cnty. of Alameda, 873 F.3d 670, 694 (9th Cir.

2017), cert. denied sub nom., 138 S. Ct. 1988 (2018).

To be sure, in Heller, the Court reassured readers

that it did not intend to cast doubt on certain longstanding

restrictions. 554 U.S. at 573. But since then, state and local

governments have passed a torrent of restrictive gun laws,

while exceedingly few such laws have been struck down.

Heller is thus far from being treated as the transformative

4

case it was written to be. Instead, the circuits lean on a few

limiting sentences from Heller to rubberstamp whatever

infringement on the Second Amendment that anti-gun

politicians and lobbyists dream up.

These infringements even include laws resembling

those that Heller itself struck down. For example,

California effectively banned the commercial sale of

any new semiautomatic handgun released after 2013 by

requiring “microstamping,” a technology that is not even

available at this time—and may never be. Peña v. Lindley,

898 F.3d 969, 996 (9th Cir. 2018) (Bybee, J., dissenting),

cert. denied, 141 S. Ct. 108 (2020). The restriction at issue

in Peña thus differs from the handgun ban overturned

by Heller only by degrees. For grandfathered pistols

without microstamping technology will eventually stop

being made or otherwise fall off of California’s approved

handgun roster. At which point, unless microstamping

someday becomes a reality, semiautomatic handguns will

have been effectively banned in California. Yet in Peña,

the Ninth Circuit upheld the state’s de facto handgun ban

in defiance of Heller, and this Court denied review.

Just a few years earlier, the Ninth Circuit upheld a San

Francisco ordinance requiring handguns in the home to be

kept in a locked container or disabled with a trigger lock.

Jackson v. City & Cnty. of S.F., 746 F.3d 953, 970 (9th Cir.

2014), cert denied, 576 U.S. 1013 (2015). The law differed

from the D.C. storage requirement invalidated in Heller

only in that it expressly allowed residents to unlock their

firearms when carried by a person over 18—ostensibly

so the firearms could be used in self-defense. Id. But it

is a distinction is without consequence. In Heller, the

District conceded that its storage law had an implied self-

5

defense exception, but the Court still held that it violated

the Second Amendment under any level of scrutiny. 554

U.S. at 628. 2 There is no principled reason for treating

San Francisco’s storage law any differently. The Court

denied certiorari in Jackson even though the decision was

“in serious tension with Heller.” Jackson v. City & Cnty.

of S.F., 576 U.S. 1013, 1015 (2015) (Thomas, J., dissenting

from denial of certiorari).

Magazine-capacity limits, which in their worst forms

include the taking of magazines with capacities over some

arbitrary limit, are yet another example of this torrent

of infringements. At minimum, Heller was intended to

protect weapons in common use for lawful purposes, 554

U.S. at 627, which magazines over ten rounds clearly

are. Indeed, in most states, they are not only extremely

popular, they come standard with some of the best-selling

firearms in the country. Pet. Writ Cert. at 1. Yet California,

New Jersey, and other jurisdictions have disregarded

the popularity of magazines over ten rounds in favor

of unconstitutional bans on their sale, possession, and

use. In all, nine states and the District of Columbia have

banned so-called “large capacity magazines” (“LCMs”).

For people in these jurisdictions, it doesn’t matter how

common LCMs are—their legislatures have decided that

they can only be trusted with limited-capacity rights.

This Court is now on track to decide a Second

Amendment issue for the first time since 2010 after

2. See also Oral Arg. Tr. at 82-84, Dist. of Columbia v.

Heller, 554 U.S. 570 (2008) (for a humorous exchange between

Chief Justice Roberts, Justice Scalia, and counsel for the District,

about the burden of preparing a locked up or disabled firearm for

defensive use).

6

granting certiorari in New York State Rifle & Pistol

Association v. Corlett, No. 20-843 (Apr. 26, 2021). That case

is likely to decide the important question of whether New

York’s denial of concealed carry licenses for self-defense

violates the Second Amendment. Amici are relieved that

the Court will hear a Second Amendment question that

may revitalize Heller. That said, the Court should not stop

at deciding a single question after years of silence. When

a house has not been cleaned in years, it is not enough to

clean one room and leave the accumulated filth in every

other room undisturbed. Similarly, it is not enough for the

Court to decide only questions related to carry and allow

circuits like the Ninth to keep undermining Heller on all

other Second Amendment questions.

New York State Rif le & Pistol Association and

Association of New Jersey Rifle & Pistol Clubs Inc. raise

fundamentally different questions about the scope of

the Second Amendment and, potentially, what form the

analysis should take. As the Court anticipated in Heller,

more lawsuits are necessary to clarify the field. Indeed,

recognizing that Heller was its “first in-depth examination

of the Second Amendment,” the Court warned:

One should not expect [Heller] to clarify the

entire field, any more than Reynolds v. United

States, 98 U.S. 145 (1879), our first in-depth Free

Exercise Clause case, left that area in a state of

utter certainty…. [T]here will be time enough

to expound upon the historical justifications for

the exceptions we have mentioned if and when

those exceptions come before us.

554 U.S. at 635. The time to address some of the Second

Amendment questions Heller left unanswered has come.

7

II. The Erosion of the Second Amendment in the Ninth

Circuit Illustrates How Courts Have Disrespected

Heller

Amici are better positioned than most to empathize with

Petitioners’ struggles with New Jersey’s unconstitutional

gun laws and the Third Circuit’s refusal to strike them

down. Much like Petitioners, Amici have watched as the

Ninth Circuit has aggressively eroded Heller, and with it,

the Second Amendment rights of millions of Americans.

Indeed, examples of the Ninth Circuit’s thinly veiled

contempt for the Second Amendment are legion.

In one case, rather than doctrinally stretch to avoid

Second Amendment protection altogether, the Ninth

Circuit, en banc, refashioned the plaintiffs’ claim as

seeking relief that was undisputedly unavailable—and not

what they were asking for. Peruta v. San Diego, 824 F.3d

919 (9th Cir. 2016), cert. denied, 137 S. Ct. 1995 (2017).

There, the plaintiffs challenged denials of their licenses

to carry a concealed firearm, arguing that the licensing

authority’s policy offended the Second Amendment

because it did not recognize the right to self-defense as

“good cause” to carry a firearm. Id. at 924. Correctly

applying this Court’s textual and historical analysis,

a three-judge panel agreed and declared the policy

unconstitutional. Peruta v. San Diego, 742 F.3d 1144 (9th

Cir. 2014), rev’d en banc, 824 F.3d 919.

As has become the norm in the Ninth Circuit whenever

a panel invalidates an unconstitutional gun control law, the

court reheard Peruta en banc and reversed the decision, 3

3. Since Heller, nearly every pro-Second Amendment panel

decision in the Ninth has been reviewed en banc and overturned.

8

holding that the plaintiffs demanded licenses to carry

concealed and that no right to concealed carry exists.

824 F.3d at 939. But the court ignored the fact that the

plaintiffs expressly sought to carry in whatever manner

the state preferred (which happened to be concealed

under a license). Id. at 952-55 (Callahan, C., dissenting).

They were arguing for a right to carry, not a right to

carry concealed. Id. Suggesting otherwise, the en banc

decision is disingenuous at best. What’s more, because

open carry is generally unlawful in California, the only

way to lawfully carry is licensed and concealed. Id. at

950. So even though the court did not then address the

legality of an open carry ban, the Peruta decision set

precedent supporting a ban on all public carry within the

Ninth Circuit.

Years later, the Ninth Circuit (again sitting en banc)

would use that precedent to obliterate the right “to bear

arms” altogether. See Young v. Hawaii, 992 F.3d 765 (9th

Cir. 2021). There, the court upheld the county of Hawaii’s

policies effectively barring open carry, reasoning that “[t]

here is no right to carry arms openly in public; nor is any

such right within the scope of the Second Amendment.” Id.

at 821. Under Heller, it seems a flat ban on “bearing” arms

would be unconstitutional under any test. See 554 U.S. at

628. But, through its decisions in Peruta and Young, the

Ninth Circuit has placed itself at odds with Heller.

The only exception of which Amici are aware is Duncan v. Becerra,

742 F. App’x 218 (9th Cir. 2018), the state’s unsuccessful appeal of

an order preliminarily enjoining California’s LCM possession ban.

And even then, the court expressed interest in rehearing the case

en banc, relenting only after the state opposed review.

9

Similarly, in Teixeira v. County of Alameda, 873 F.3d

670, 690 (9th Cir. 2017), cert. denied sub nom., 138 S. Ct.

1988 (2018), the Ninth Circuit held that a restriction on

the location of firearm retailers “does not burden conduct

falling within the [Second] Amendment’s scope....” The

ordinance prohibited gun stores within 500 feet of any

residential district, school, gun store, or establishment

that sells liquor. Id. Even though the ordinance effectively

banned new gun stores, the court artificially limited

the question in Teixeira, asking whether there is “an

independent, freestanding right to sell firearms….” Id. at

682. Holding that there is not, the Ninth Circuit reasoned

that “the right of gun users to acquire firearms legally is

not coextensive with the right of a particular proprietor

to sell them.” Id.

The Teixeira court’s reasoning gives the government

unfettered power to prohibit gun stores and, effectively,

nullify the Second Amendment. For without the ability

to buy and sell firearms, the right to own them means

nothing. The court unconvincingly resisted this logical

implication, claiming that its ruling did not significantly

impair the right to acquire arms but was merely holding

“the Second Amendment does not independently protect

a proprietor’s right to sell firearms.” Id. at 690.

This Court famously declared that “it is not the

role of this Court to pronounce the Second Amendment

extinct.” Heller, 554 U.S. at 636. That may be so, but

the Ninth Circuit seems to think its role is to do so. By

granting certiorari here, the Court can disabuse the Ninth

Circuit of that notion on at least one more critical Second

Amendment issue.

10

III. Comparing the Different Decisions of the Third and

Ninth Circuits Regarding the Constitutionality of

LCM Bans

Recently, a Ninth Circuit panel ruled that California’s

LCM ban violated the Second Amendment because it

imposed a substantial burden on the right to self-defense

and it severely burdened the core of the constitutional

right of law-abiding citizens to keep and bear arms.

Duncan, 970 F.3d at 1162. To the surprise of nobody,

the Ninth Circuit has yet again decided that a win for

the Second Amendment will be reheard en banc. Amici

despair that without this Court acting, the result is a

foregone conclusion.

Regardless of the fate of Duncan though, the Ninth

Circuit panel decision in that case still presents an

excellent analytical comparison to the Third Circuit’s

analysis in Association of New Jersey Rifle & Pistol Clubs

v. Attorney General of New Jersey, 910 F.3d 106 (3d Cir.

2018) (“ANJRPC”). The similarities and contrasts between

these two rulings function as an excellent case study into

why the Circuits need this Court’s guidance to resolve

these issues.

A.

Both ANJRPC and Duncan Hold That LCMs

Are in Common Use

This Court confirmed that the Second Amendment

protects a fundamental, individual right to keep and bear

arms that, under the Fourteenth Amendment, state and

local governments are bound to respect. Heller, 554 U.S.

at 581; McDonald, 561 U.S. at 750, 766. It follows that

there are certain “instruments that constitute bearable

11

arms,” Heller, 554 U.S at 582, that law-abiding citizens

have an inviolable right to possess and use. Indeed, the

constitution protects firearms “of the kind in common use

... for lawful purposes like self-defense.” Id. at 624. But it

“does not protect those weapons not typically possessed

by law-abiding citizens for lawful purposes.” Id. at 625.

Put another way, the Second Amendment does not protect

arms “that are highly unusual in society at large,” id.

at 627, but it definitively protects those in common use

for lawful purposes, id. at 624. This distinction is fairly

supported by the historical prohibition on carrying

“dangerous and unusual weapons.” Id. at 627.

As Petitioners correctly explain, the banned magazines

are far from unusual. Pet. Writ Cert. at 4-5, 10, 18, 19, 22.

Millions of Americans possess them for lawful purposes,

including the core lawful purpose of self-defense. Id. at 4.

This point is not disputed by either Duncan or ANJRPC.

Indeed, the Duncan panel wrote that “[f]irearms with

greater than ten round capacities existed even before

our nation’s founding, and the common use of LCMs for

self-defense is apparent in our shared national history,”

970 F.3d at 1147. The ANJRPC panel, for its part, did

everything but concede that the banned magazines are in

common use. It noted that “[m]illions of LCMs have been

sold since 1994,” that “LCMs often come factory standard

with semi-automatic weapons,” and that “[g]un owners

use LCMs for hunting and pest control.” ANJRPC, 910

F.3d at 112. Constitutional protection is thus clear, and

both California’s and New Jersey’s bans are necessarily

incompatible with the Second Amendment.

Heller confirms this implication of the constitutional

text. There, the Court held that the Second Amendment

12

“elevates above all other interests the right of law-abiding,

responsible citizens to use arms in defense of hearth and

home.” Heller, 554 U.S. at 635 (emphasis added). After

finding that handguns are protected “arms,” the Court

held without pause that D.C.’s ban violated the Second

Amendment. While Heller recognizes that the handgun

ban would fail “any of the standards of scrutiny,” id. at

628, it made a point of not applying any of them. That the

Court did so is unsurprising—for the Second Amendment

would mean little if the application of a particular test

might permit the government to ban the very firearms

the right protects. That said, even though both Duncan

and ANJRPC deal with magazine bans and such laws lack

any tailoring, both panels continued their analyses, and

so the comparison between the two continues.

B. Both ANJRPC and Duncan Also Hold That

LCMs Are Protected by the Second Amendment,

But Only Duncan Engages in a Text, History,

and Tradition Analysis

Many circuits employ a two-step approach to Second

Amendment claims, asking first whether a given restriction

burdens conduct within the the Amendment’s scope and,

if it does, applying the appropriate level of heightened

scrutiny. Often, courts skip the first step and assume,

without deciding, that the Second Amendment applies.

See, e.g., Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2019);

Jackson, 746 F.3d 953; Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) (Heller II). This is not the

courts being magnanimous. To the contrary, doing so

ensures they need not confront the Second Amendment’s

text and history, teleporting them directly to the second

step, where the real opportunities to manipulate the

analysis reside.

13

This is exactly what happened in ANJRPC. Right

after conceding that the record proved that millions of

LCMs are “typically possessed by law-abiding citizens”

for lawful purposes, ANJRPC, 910 F.3d at 116, the panel

“assume[d] 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.

In contrast, while the Duncan panel also recognized

that LCMs are protected, it did so only after first

examining the history of firearms and magazines able to

hold over 10 rounds. 970 F.3d at 1146-1149. For example,

the Duncan panel explained that “the first firearm that

could fire more than ten rounds without reloading was

invented around 1580.” Id. at 1147. The panel then traced

the history of such arms from before the Founding

through the period just after the Revolution, highlighting

well-known inventions like the Giradoni air rifle which

“had a 22-round capacity and was famously carried on the

Lewis and Clark expedition.” Id. The panel also discussed

the rise of self-contained magazines in handguns,

including the Browning 13-round Hi-Power pistol, which

achieved mass-market success in the mid-1900s. Since

then, the Duncan panel observed, “new semi-automatic

pistol designs have replaced the revolver as the common,

quintessential, self-defense weapon.” Id.

After discussing the use of LCMs in rifles as well,

the panel wrote:

The point of our long march through the

history of firearms is this: The record shows

that firearms … [over] ten rounds … have been

14

available in the United States for well over two

centuries. While the Supreme Court has ruled

that arms need not have been common during

the founding era to receive protection under the

Second Amendment, the historical prevalence

of firearms capable of holding more than ten

bullets underscores the heritage of LCMs in

our country’s history.

Id. at 1149. The panel concluded its historical analysis by

holding that LCMs are not “unusual” arms, and because

they are not unusual, the panel declined to opine whether

they are “dangerous.” Id.

The difference in how the Third and Ninth circuits

approached this first step of the analyses is yet another

reason the Court should grant certiorari. The Court

should clarify that it is not enough for courts to “assume

without deciding” that Second Amendment protections

apply. There appears a clear explanation for why courts

avoid examining the history of the conduct at issue

before deciding whether it can be restricted. It allows

them to avoid the discomfort of upholding restrictions on

protected activity just after explaining that the conduct

has historically been accepted. This Court should force

them to confront that discomfort head-on.

15

C.

ANJRPC Upheld New Jersey’s LCM Ban

Under a Watered-down Form of Intermediate

Scrutiny Favored by Most Circuits, While

Duncan Stands Out for Its Correct Application

of Strict Scrutiny

1.

The So-Called “Intermediate Scrutiny”

Applied to Second Amendment Cases Is a

Glorified Rational Basis Test

In the years since this Court decided Heller, very few

Second Amendment challenges have ever been analyzed

under strict scrutiny. This is a striking departure from

the default that strict scrutiny applies to restrictions on

fundamental rights. See, e.g., Perry Educ. Ass’n v. Perry

Loc. Educators’ Ass’n, 460 U.S. 37, 54 (1983); see also

Heller II, 670 F.3d at 1284-85 (Kavanaugh, J., dissenting).

It also reveals the lower courts’ bias against the Second

Amendment and their ability to sway the analysis in

favor of upholding almost any gun-control measure. That

virtually every Second Amendment claim brought to

date has warranted only intermediate scrutiny is itself

suspicious. But when considering the specific decisions,

there remains little doubt something odd is afoot.

Generally, courts avoid strict scrutiny by narrowly

construing “core” Second Amendment conduct as only the

precise conduct at issue in Heller—handgun possession in

one’s home. This error is the same one the Third Circuit

made below; mischaracterizing LCM bans as not imposing

a severe burden on the core of the Second Amendment.

ANJRPC, 910 F.3d at n.21. But even if a law is found to

burden conduct falling within the Second Amendment’s

core, courts typically consider anything less than a

16

complete ban on that conduct to be an insignificant burden

on the right, even though Heller nowhere suggests “that

a law must rise to the level of the absolute prohibition at

issue in that case to constitute a ‘substantial burden.’”

Jackson v. City and Cnty. of S.F., 576 U.S. 1013, 1016

(2015) (Thomas, J., dissenting from denial certiorari). Yet

ANJRPC shows us that even when a full ban is at issue,

too often courts will do whatever necessary to uphold the

restriction.

Worse than treating intermediate scrutiny as

the default standard for analyzing restrictions on the

fundamental right to keep and bear arms, however, is

the way lower courts contort the intermediate scrutiny

standard, ensuring that almost no gun-control measure

could fail it. Indeed, almost every court purporting to apply

“intermediate scrutiny” has instead applied a toothless

form of review more like rational basis. But this Court

has expressly rejected that standard as inappropriate for

evaluating government restrictions on enumerated rights,

including the right to arms. Heller, 554 U.S. at 628, n.27.

Under heightened review, a challenged law is

presumed unconstitutional, and the state bears the burden

of justifying the law’s validity. See, e.g., R.A.V. v. City of St.

Paul, 505 U.S. 377, 382 (1992). Under true intermediate

scrutiny, as explained by this Court, the burden is on the

government to prove a “substantial relationship” between

the law and an important government objective. Clark v.

Jeter, 486 U.S. 456, 461 (1988). What’s more, the “law must

be narrowly tailored to serve a significant governmental

interest.” Packingham v. North Carolina, --U.S.--, 137

S. Ct. 1730, 1736 (2017)(internal quotations omitted).

This test ensures that the encroachment on liberty does

17

not “burden substantially more [protected conduct] than

is necessary to further the government’s legitimate

interests.” McCullen v. Coakley, 573 U.S. 464, 486 (2014).

In the Second Amendment context, however, circuit

courts have described intermediate scrutiny in starkly

weaker terms. Indeed, in the wake of the courts’

reticence to expand Heller beyond its narrow facts

and their eagerness to sustain nearly any sort of gun

control short of a flat ban on firearms, a consistent theme

has emerged—“substantial deference” to the will of

legislative majorities. See, e.g., Kolbe, 849 F.3d at 140 (“The

judgment made by the General Assembly of Maryland

[…] is precisely the type of judgment that legislatures are

allowed to make without second-guessing by a court.”);

Peña, 898 F.3d at 969, 979 (“We do not substitute our own

policy judgment for that of the legislature,” “we ‘owe [the

legislature’s] findings deference.”); Drake v. Filko, 724

F.3d 436, 440 (3d Cir. 2013) (“We refuse ... to intrude upon

the sound judgment and discretion of the State of New

Jersey.”). Ultimately, this extreme deference has led to

courts singling out the right to keep and bear arms for

especially unfavorable treatment in defiance of the Court’s

admonishment against treating the Second Amendment

“as a second-class right,...” McDonald, 561 U.S. at 780

(plurality op.).

In short, since Heller, a Second Amendment analytical

framework has emerged that all but guarantees not only

that intermediate scrutiny will apply, but also that nearly

every gun-control measure will survive it. This analysis

is in no sense a heightened standard of review. It is in

effect rational basis review, a level of scrutiny that Heller

undeniably forecloses. 554 U.S. at 628, n.27. There would

18

almost certainly be different results in at least some

of these cases had the courts applied real heightened

scrutiny or, better yet, decided to “undertake a complete

historical analysis of the scope and nature of the Second

Amendment right ….” Peruta, 742 F.3d at 1173.

2.

The ANJRPC Panel Upheld New Jersey’s

LCM Ban Under This Faux Intermediate

Scrutiny Standard

After concluding that LCM bans do not severely

burden the core Second Amendment right, in part based

on the nonsensical assertion that LCMs are not well-suited

for self-defense, ANJRPC, 910 F.3d at 118, the Third

Circuit moved on to its analysis of intermediate scrutiny.

As discussed above, true intermediate scrutiny requires

the government prove a substantial relationship between

the law and its important objective, and the law must

be narrowly tailored to serve a significant government

interest. Far from applying this test, the majority never

once uttered the phrase “narrowly tailored.” The dissent

rightfully objected to this, arguing that the “majority

does not even demand evidence of tailoring. But tailoring

is not limited to the First Amendment, as our precedent

makes clear. Tailoring is fundamental to intermediate

scrutiny, wherever applied.” ANJRPC, 910 F.3d at 132

(citing United States v. Marzzarella, 614 F.3d 85, 98 (3d

Cir. 2010) (Bibas, C.J., dissenting).

Nevertheless, claiming that “the risk inherent to

firearms and other weapons distinguishes the Second

Amendment from other fundamental rights” ANJRPC,

910 F.3d at n.28, the majority in ANJRPC applied a

breed of “intermediate scrutiny” devoid of the tailoring

19

required in other rights contexts. To pass intermediate

scrutiny, the court held, “the government must assert

a significant, substantial, or important interest; there

must also be a reasonable fit between that asserted

interest and the challenged law, such that the law does

not burden more conduct than is reasonably necessary.”

Id. at 106 (emphases added). In other words, the majority

downgraded the exacting requirement of “narrow

tailoring” to a mere “reasonable fit,” a standard that

sounds suspiciously like rational basis. After all, in Second

Amendment case law, there seems to be no substantive

difference between being rationally related to a legitimate

state interest, and “reasonably fitting” an important

government interest. And because firearms are inherently

dangerous, every gun law arguably serves the important

government interest in public safety.

ANJRPC highlights this exceedingly well. The panel

held that New Jersey’s LCM ban reasonably fits New

Jersey’s interest in promoting public safety because

LCMs have been used in some mass shootings. Id. at

119. ANJRPC thus suggests that statistically rare crimes

justify banning LCMs, even though the panel also held

that such LCMs are commonly owned by millions of

law-abiding citizens. It is no wonder then that ANJRPC

dispensed with tailoring altogether because this wholesale

ban would never survive the narrow tailoring that true

intermediate scrutiny requires. As the dissent notes,

“This reasoning would be enough for rational-basis review.

And it could be enough for intermediate scrutiny too. But

the government has produced no substantial evidence of

this link.” Id. at 132 (Bibas, C.J., dissenting).

20

To conclude its faux intermediate scrutiny analysis,

the majority held that New Jersey’s LCM ban does not

burden more conduct than reasonably necessary because

it does not disarm the individual. Id. at 121. By that

standard, any gun law would be acceptable so long as a

law-abiding citizen can still purchase a gun of some kind.

It’s hard to imagine such a standard being applied to any

other fundamental right.

In the end, the Third Circuit (like other circuits

before it) applied what is effectively a rational basis test

to restrictions on a fundamental right. This practice must

not stand any longer. Fortunately, Duncan provides a

compelling alternative.

3.

The Duncan Panel Held That Strict

Scrutiny Should Apply, But Even if it

Does Not, LCM Bans Cannot Survive True

Intermediate Scrutiny

Once again turning to history and tradition, Duncan

held that California’s LCM ban substantially burdens

core Second Amendment conduct, and thus strict scrutiny

applies. 970 F.3d at 1152. “[T]he right of armed self-defense

sits atop our constitutional order and remains rooted in

our country’s history. Any law that limits this right of

self-defense must be evaluated under this constitutional

and historical backdrop.” Id. at 1153.

Next, the Duncan panel rejected the argument

(embraced by the ANJRPC majority) that LCM bans

impose no substantial burden on the Second Amendment

because citizens still have access to capacity-limited guns.

Id. at 1156. Noting that D.C. had argued in Heller that

21

their handgun ban passed muster because citizens could

still use a shotgun or other arms for self-defense, the

Duncan panel rightly observed that the Supreme Court

had rejected this very argument in that case. Id.

Because the law banned an “entire class of ‘arms’

that is overwhelmingly chosen by American[s]”

for self-defense—a handgun, in that case—the

restriction was “severe” and ran afoul of the

Second Amendment. California’s law, too, bans

an “entire class of ‘arms’” commonly used for

self-defense and thus infringes on the Second

Amendment.

Id.

As to whether LCM bans substantially burden

“core” Second Amendment rights, the Duncan panel

wisely avoided the State’s bait of engaging in a policy

decision that “weighs the pros and cons of an LCM ban to

determine substantial burden.” Id. at 1157. Instead, the

panel concluded that the burden was “plainly obvious.”

Id. at 1158-59. For “when the government bans tens of

millions of protected arms that are staples of self-defense

and threatens to confiscate them from the homes of lawabiding citizens, that imposes a substantial burden on core

Second Amendment rights.” Id. at 1159.

And unlike ANJRPC, the Duncan panel rejected

the premise that the inherent dangers of firearms

distinguished the Second Amendment from any other

fundamental right. Indeed, the panel held, “[t]he right

to keep and bear arms … is not the only constitutional

right that has controversial public safety implications. All

22

of the constitutional provisions that impose restrictions

on law enforcement and on the prosecution of crimes fall

into the same category.” Id. at 1160 (citing McDonald,

561 U.S. at 783).

Having concluded that California’s LCM ban must

pass strict scrutiny to survive, Duncan then held that

the ban could not meet this standard. While agreeing that

California’s interests were compelling, the panel held that

“a statewide blanket ban on LCM possession everywhere

and for nearly everyone” was not at all tailored and was

not the least restrictive means of achieving the state’s

interests. Duncan, 970 F.3d at 1164.

Even so, Duncan also held that even under intermediate

scrutiny, California’s LCM ban would still not survive.

At the outset, the panel rejected the sort of weakened

intermediate scrutiny that ANJRPC used to uphold

New Jersey’s ban. For “[w]hatever its precise contours

might be, intermediate scrutiny cannot approximate the

deference of rational basis review. Heller forecloses any

such notion.” Id. at 1166. Examining California’s ban

under real intermediate scrutiny, then, the panel held

that California’s ban lacked any tailoring at all and, as

such, could not survive intermediate scrutiny. The panel

observed:

The statute operates as a blanket ban on all

types of LCMs everywhere in California for

almost everyone. It applies to rural and urban

areas, in places with low crime rates and high

crime rates, areas where law enforcement

response times may be significant, to those who

may have high degrees of proficiency in their

23

use for self-defense, and to vulnerable groups

who are in the greatest need of self-defense.

Id. at 1167.

Finally, the Duncan panel rejected California’s

argument that a complete ban was necessary to keep

LCMs from falling into the wrong hands. But “[t]he state

could ban virtually anything if the test is merely whether

something causes social ills when someone other than its

lawful owner misuses it. Adopting such a radical position

would give the government carte blanche to restrict the

people’s liberties under the guise of protecting them.” Id.

at 1168. The panel refused to write that check.

Duncan, then, presents a good alternative to the

disrespect thrown at the Second Amendment by other

circuits, and reaches its conclusion through extensive

historical analysis of the kind other circuits routinely

avoid. This is likely why the Ninth Circuit has ordered a

rehearing of the case en banc, hoping for the opportunity

to reverse yet another pro-Second Amendment victory.

The Court should grant certiorari here and stop that from

happening.

24

CONCLUSION

It is undeniable that “Heller has left in its wake a

morass of conflicting lower court opinions regarding

the proper analysis to apply to challenged firearms

regulations.” United States v. Chester, 628 F.3d 673, 68889 (4th Cir. 2010) (Davis, J., concurring in the judgment).

Resolving only one Second Amendment issue would leave

most of this morass undisturbed and allow the abuse of

Heller to continue. This Court should grant the petition

for a writ of certiorari.

May 28, 2021

Respectfully Submitted,

C.D. Michel

A nna M. Barvir

Counsel of Record

Konstadinos T. Moros

Michel & A ssociates, P.C.

180 East Ocean Boulevard, Suite 200

Long Beach, CA 90802

(562) 216-4444

abarvir@michellawyers.com

Counsel for Amicus Curiae