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.

Supreme Court briefMay 28, 2021

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No. 20-1507

In the

Supreme Court of the United States

♦

ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS,

INC.; and BLAKE ELLMAN,

Petitioners,

GURBIR S. GREWAL, in his Official Capacity as

Attorney General of New Jersey, et al.,

Respondents.

♦

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

♦

BRIEF OF AMICUS CURIAE

MOUNTAIN STATES LEGAL FOUNDATION’S

CENTER TO KEEP AND BEAR ARMS

IN SUPPORT OF PETITIONERS

♦

Cody J. Wisniewski

Counsel of Record

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cody@mslegal.org

May 28, 2021

Attorney for Amicus Curiae

QUESTIONS PRESENTED

Whether a blanket, retrospective, and

confiscatory law prohibiting ordinary law-abiding

citizens from possessing magazines in common use

violates the Second Amendment.

Whether a law dispossessing citizens without

compensation of property that was lawfully acquired

and long possessed without incident violates the

Takings Clause.*

*Amicus will not address the second question presented in the Petition,

instead Amicus will limit its discussion to the Second Amendment issue

presented by Petitioners.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............................

TABLE OF AUTHORITIES ..............................

IDENTITY AND INTEREST

OF AMICUS CURIAE .......................................

STATEMENT OF THE CASE ...........................

Historical Background ...............................

II.

Legal Background ......................................

III. Procedural Background .............................

SUMMARY OF THE ARGUMENT ..................

ARGUMENT ......................................................

II.

Heller and McDonald Set Forth the

Appropriate Test to Analyze Second

Amendment Challenges .............................

Courts Across the Nation Apply a TwoStep, Interest-Balancing Test, in

Contravention of this Court’s Mandate ....

The Two-Step Test Rests on a

Fundamental Misinterpretation of

Heller ..................................................

iii

Lower Courts Have Inappropriately

Limited the Scope of the Second

Amendment ........................................

Lower Courts are Engaging in

Interest-Balancing, which was

Explicitly Rejected by Heller and

McDonald ...........................................

III. The Text, History, and Tradition of the

Second Amendment as it Relates to

Magazines...................................................

The Text of the Second

Amendment ........................................

The History and Tradition of

Magazine Regulation .........................

CONCLUSION ...................................................

TABLE OF AUTHORITIES

CASES

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

Attorney Gen. of N.J.,

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

PAGE(S)

District of Columbia v. Heller,

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

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020) ................

26, 27

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ..................

GeorgiaCarry.Org, Inc. v. Georgia,

687 F.3d 1244 (11th Cir. 2012) ..............

Gould v. Morgan,

907 F.3d 659 (1st Cir. 2018) ..................

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .............. Passim

Kachalshy v. Cty. of Westchester,

701 F.3d 81 (2d Cir. 2012) .....................

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................ Passim

Moore v. Madigan,

702 F.3d 933 (7th Cir. 2012) ..................

New York State Rifle & Pistol Ass’n,

Inc. v. Cuomo,

804 F.3d 242 (2d Cir. 2015) ...................13, 16, 17

NRA v. BATFE,

700 F.3d 185 (5th Cir. 2012) ..................

13, 16

Pena v. Lindley,

898 F.3d 981 (9th Cir. 2018) ..................

Teixeira v. Cty. of Alameda,

873 F.3d 682 (9th Cir. 2017) ..................

United States v. Chester,

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

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) ................

United States v. Cruikshank,

92 U.S. 542 (1876) ..................................

United States v. Greeno,

679 F.3d 510 (6th Cir. 2012) ..................

United States v. Marzzarella,

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

13, 16

United States v. Reese,

627 F.3d 792 (10th Cir. 2010) ................

CONSTITUTIONAL PROVISIONS

THE DECLARATION OF

INDEPENDENCE (U.S. 1776) ..............

U.S. CONST. Amend. II ...................................

STATUTES

N.J. Stat. § 2C:39-1(y) (1990) ........................

N.J. Stat. § 2C:39-1 (2018).............................

N.J. Stat. § 2C:39-3(f) (2018) .........................

N.J. Stat. § 2C:39-5(j) (2018) .........................

N.J. Stat. § 2C:39-19 (2018)...........................

N.J. Stat. § 2C:39-20(a) (2018) ......................

RULES

Supreme Court Rule 37.2(a) ..........................

Supreme Court Rule 37.6 ..............................

HISTORICAL SOURCES (CHRONOLOGICAL)

13 Edw. 1, st. 2, c. 5 (1285) ............................

1 W. & M., 2d sess., c. 2 (1689) ......................

U.K. Patent No. 418 (filed May 15, 1718) .....

vii

THE FEDERALIST NO. 46 (James

Madison) .................................................

1 ANNALS OF CONG. 451 (1789)

(Joseph Gales ed., 1834) ........................

Act of Apr. 22, 1927, ch. 1052, §§ 1, 4, 1927

R.I. Acts & Resolves 256, 256–57

(amended 1959) ......................................

Act of June 2, 1927, No. 373, § 3, 1927

Mich. Public Acts 887, 888 (repealed

1959) .......................................................

OTHER AUTHORITIES

16-Shot Wheel Lock, AMERICA’S 1ST

FREEDOM (May 10, 2014) .......................

A. V. B. NORMAN & DON POTTINGER,

ENGLISH WEAPONS & WARFARE: 449–

1660 (1979) .............................................

CHARLES FFOULKES, THE GUN-FOUNDERS

OF ENGLAND: WITH A LIST OF ENGLISH

AND CONTINENTAL GUN-FOUNDERS

FROM THE XIV TO THE XIX CENTURIES

(1937) ......................................................

viii

Clayton E. Cramer & Joseph E. Olson,

Pistols, Crime, and Public: Safety in

Early America,

44 WILLAMETTE L. REV. 699 (2008) .......

24, 25

DAVID HARSANYI, FIRST FREEDOM (2018) ......

David B. Kopel, The History of Firearm

Magazines and Magazine

Prohibitions,

78 ALB. L. REV. 849 (2015) ............. 23, 25, 26, 27

David B. Kopel & Joseph G.S. Greenlee,

The Federal Circuits’ Second

Amendment Doctrines,

61 ST. LOUIS U.L.J. 193 (2017) ..............

James Lindgren & Justin L. Heather,

Counting Guns in Early America,

43 WM. & MARY L. REV. 1777 (2002) .....

John Danielski, The Ferguson Rifle –

The British Weapon that Might have

Changed the Outcome of

the American Revolution, MILITARY

HISTORY NOW (Sept. 26, 2020) ...............

Robert J. Cottrol & Raymond T. Diamond,

The Second Amendment: Toward an

Afro-Americanist Reconsideration,

80 GEO. L.J. 309 (1991) ..........................

Robert E. Shalhope, The Ideological

Origins of the Second Amendment,

69 J. AM. HIST. 599, 614 (1982)..............

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

The Center to Keep and Bear Arms

(“CKBA”) is a project of Mountain States Legal

Foundation (“MSLF”), a Colorado-based nonprofit,

public interest legal foundation. MSLF was founded

in 1977 to defend the Constitution, protect private

property rights, and advance economic liberty. CKBA

was established in 2020 to advance MSLF’s litigation

in protection of Americans’ natural and fundamental

right to self-defense. CKBA represents individuals

and organizations challenging infringements on the

constitutionally protected right to keep and bear

arms. See, e.g., Caldara v. City of Boulder, No. 20-416

(certiorari denied Nov. 16, 2020). MSLF’s history of

involvement also includes filing amicus curiae briefs

with this Court. See, e.g., McDonald v. City of

Chicago, 561 U.S. 742 (2010) (representing amici

Rocky Mountain Gun Owners and National

Association for Gun Rights); District of Columbia v.

Heller, 554 U.S. 570 (2008) (representing MSLF).

MSLF’s amici curiae brief was cited in this Court’s

McDonald opinion. 561 U.S. 742, 777 n.27 (2010).

The Court’s decision in this case will directly impact

CKBA’s clients and litigation.

The parties were timely notified and have consented to the

filing of this amicus curiae brief. See Supreme Court Rule

37.2(a). Pursuant to Supreme Court Rule 37.6, the undersigned

affirms that no counsel for a party authored this brief in whole

or in part, and no person or entity other than amicus curiae or

its counsel, made a monetary contribution specifically for the

preparation or submission of this brief.

♦

STATEMENT OF THE CASE

HISTORICAL BACKGROUND

“A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.” U.S. CONST.

Amend. II.

The Second Amendment derives from the

Founders and Framers’ deep respect for natural rights

and their intent to preserve the rights of the

individual against the expansive government they

were establishing.

See THE DECLARATION OF

INDEPENDENCE para. 2 (U.S. 1776) (“WE hold these

truths to be self-evident, that all Men are created

equal, that they are endowed by their Creator with

certain unalienable Rights, that among these are Life,

Liberty and the pursuit of Happiness.”); 1 ANNALS OF

CONG. 451 (1789) (Joseph Gales ed., 1834) (Madison

began the process of proposing the first constitutional

amendments in 1789 with: “First, That there be

prefixed to the constitution a declaration, that all

power is originally vested in, and consequently

derived from, the people.”).

In so doing, the Founders and Framers drew on

their knowledge of history, particularly the

longstanding tradition for private persons to keep and

bear arms, as well as their recent need for the exercise

of such a right in successfully fighting the American

Revolution. See 13 Edw. 1, st. 2, c. 5 (1285) (“It is

likewise commanded that every man have in his house

arms for keeping the peace in accordance with the

ancient assize . . . .”); 1 W. & M., 2d sess., c. 2 (1689)

(“English Bill of Rights”) (“That the subjects . . . , may

have arms for their defence suitable to their

conditions, and as allowed by law.”); THE FEDERALIST

NO. 46 (James Madison) (“It may well be doubted,

whether a militia thus circumstanced could ever be

conquered by such a proportion of regular troops.

Those who are best acquainted with the last

successful resistance of this country against the

British arms, will be most inclined to deny the

possibility of it.”); James Lindgren & Justin L.

Heather, Counting Guns in Early America, 43 WM. &

MARY L. REV. 1777, 1780 (2002) (“[I]n 1774, we can

estimate that at least 50% of all wealth owners (both

males and females) owned guns.”).

George Washington and James Madison, among

other Framers, “firmly believed that the character

and spirit of the republic rested on the freeman’s

possession of arms as well as his ability and

willingness to defend himself and his society.” Robert

E. Shalhope, The Ideological Origins of the Second

Amendment, 69 J. AM. HIST. 599, 614 (1982). The

colonial experience and American Revolution

strengthened the notion that an armed populace is

essential to liberty. Robert J. Cottrol & Raymond T.

Diamond, The Second Amendment: Toward an AfroAmericanist Reconsideration, 80 GEO. L.J. 309, 327

(1991).

In 2008, this Court decided the landmark case of

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

and, shortly thereafter, McDonald v. City of Chicago,

561 U.S. 742 (2010). Heller was this Court’s first indepth analysis of the Second Amendment, the rights

it protects, and how courts must examine challenges

brought thereunder. Heller, 554 U.S. at 635 (“[S]ince

this case represents the Court’s first in-depth

examination of the Second Amendment, one should

not expect it to clarify the entire field . . . .”).

McDonald

reinforced and expanded Heller,

incorporating the Second Amendment against the

states via the Fourteenth Amendment. McDonald,

561 U.S. at 791. The Heller and McDonald Courts

relied on the text of the Second Amendment and the

history and tradition of regulation of the right, to

reject infringements imposed on Americans’ right to

keep and bear arms.

Despite these decisions, states and cities

continue to violate their residents’ natural,

fundamental, unalienable rights to keep and bear

arms and to self-defense.

II.

LEGAL BACKGROUND

The state of New Jersey passed its first magazine

prohibition in 1990, banning the possession of

magazines capable of holding more than 15 rounds of

ammunition. N.J. Stat. § 2C:39-1(y) (1990). That

law—passed prior to Heller and McDonald—stood

unamended for nearly 30 years.

Then, in 2018, New Jersey passed Assembly Bill

No. 2761, which bans possession of firearm magazines

with a capacity of more than 10 rounds of

ammunition, with few and limited exceptions.

Pet.App.2; N.J. Stat. §§ 2C:39-1(w)(4), 2C:39-1(y),

2C:39-3(j), 2C:39-5(f). Owners of these newly-illegal

magazines were required to:

(1) modify their [magazines] “to accept ten

rounds or less,” [N.J. Stat. §] 2C:39-19(b);

(2) render firearms with [these magazines]

or the [magazine] itself inoperable, id.;

(3) register firearms with [magazines] that

c[ould not] be “modified to accommodate ten

or less rounds,” id. at 2C:39-20(a);

(4) transfer the firearm or [magazine] to an

individual or entity entitled to own or

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

(5) surrender the firearm or [magazine] to

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

Pet.App.3 (quoting Ass’n of N.J. Rifle & Pistol Clubs,

Inc. v. Attorney Gen. of N.J., 910 F.3d 106, 111 (3d Cir.

2018) (reproduced at Pet.App.63–117)).

III. PROCEDURAL BACKGROUND

Petitioners filed the underlying lawsuit in the

United States District Court for the District of New

Jersey alleging that New Jersey’s magazine

prohibition violates, inter alia, the Second

Amendment. Pet.App.4.

Petitioners sought a preliminary injunction,

which the district court denied. Pet.App.4. To

address the Second Amendment claim, the district

court applied a two-step analysis outlined in the Third

Circuit case United States v. Marzzarella—asking

first whether the law imposes a burden on conduct

within the scope of the Second Amendment; and, if so,

applying some degree of means-end scrutiny, with the

exact degree depending on whether the law burdens

what the Third Circuit regards as the “core” of the

Second Amendment. Pet.App.4–5.

Purporting to apply Heller, the Third Circuit

defines this “core” of the Second Amendment as “the

right of law-abiding citizens to possess non-dangerous

weapons for self-defense in the home.” Pet.App.5.

Under the Third Circuit’s test, laws that burden this

“core” receive strict scrutiny. Pet.App.5. Laws that

otherwise burden the exercise of Second Amendment

protected rights receive intermediate scrutiny.

Pet.App.5–6.

Applying this two-step analysis, the district court

found that New Jersey’s ban imposed a burden on

“non-core” conduct within the scope of the Second

Amendment and upheld the ban under intermediate

scrutiny. Pet.App.6–7, 5 n.2.

Petitioners appealed to the United States Court

of Appeals for the Third Circuit. Pet.App.8. A divided

Third Circuit panel upheld the denial—again

applying Marzzarella—over a dissent that accused the

majority of applying a rational-basis standard

disguised as intermediate scrutiny and noting that

“people commonly possess large magazines to defend

themselves and their families in their homes.”

Pet.App.8–11; Pet.App.103–07 (Bibas, J., dissenting).

Back on the merits, the district court granted

summary judgment in favor of Defendants,

determining that the Third Circuit had resolved all

legal issues on consideration of the preliminary

injunction and that no disputes of material fact

remained. Pet.App.11.

Once again before the Third Circuit, Petitioners

argued that the prior Third Circuit panel’s ruling did

not bind the new panel, and that the earlier ruling

was manifestly in error. Pet.App.12. The new panel

rejected Petitioners’ arguments. Pet.App.12.

Petitioners moved for rehearing en banc, which

motion was denied on an 8-6 vote. Pet.App.53–54.

♦

SUMMARY OF THE ARGUMENT

This Court should grant certiorari to vindicate

text, history, and tradition as the appropriate test for

assessing challenges brought pursuant to the Second

Amendment. Additionally, granting certiorari would

allow this Court to review New Jersey’s prohibition on

commonly owned magazines and establish whether

the Second Amendment’s protections extend to

magazines. At minimum, this Court should hold this

matter over until it decides New York State Rifle &

Pistol Association v. Corlett, and remand to the lower

court to apply the test elucidated by this Court in that

case. No. 20-843 (U.S., cert. granted Apr. 26, 2021).

Not only did Heller affirmatively establish the

text, history, and tradition test, but both Heller and

McDonald operate as guides on how to navigate the

analysis. First, a court must examine the text of the

Second Amendment through the lens of its historical

meaning at the time it was enacted and ratified. Once

the court has thus established the scope of the right,

it must then look to historical and traditional

regulations to determine what regulation of arms was

considered appropriate. Finally, the court must parse

the challenged statute or regulation to determine if it

is consistent with, or the modern analogue of,

historical and traditional regulations.

Lower courts across the nation, however, have

ignored text, history, and tradition and opted instead

to employ a two-step, interest-balancing test to assess

regulations challenged under the Second Amendment.

This two-step test is based on a fundamental

misinterpretation of a single paragraph in Heller, has

allowed courts to inappropriately narrow Second

Amendment protected rights, and ignores this Court’s

explicit prohibition of the use of interest-balancing

tests for Second Amendment challenges.

If the district court and Third Circuit had applied

the text, history, and tradition test, those courts would

have held New Jersey’s magazine prohibition

unconstitutional.

♦

ARGUMENT

HELLER AND MCDONALD SET FORTH

THE APPROPRIATE TEST TO ANALYZE

SECOND AMENDMENT CHALLENGES

Courts must analyze the text, history, and

tradition of the Second Amendment when

determining whether a modern firearm regulation is

constitutional.

Employing this Court’s precedent, courts must

first look to the text and history of the Second

Amendment to determine the “scope of the right.”

Heller, 554 U.S. at 652. While the pure textual

analysis allows the court to partially determine the

scope, looking to the historical landscape is necessary

because “the Second Amendment was not intended to

lay down a ‘novel principl[e]’ but rather codified a

right ‘inherited from our English ancestors.’” Id. at

599 (alterations in original) (citation omitted). Once

the scope is established, the court should then look to

traditional regulation, which clarified “the public

understanding of [the] legal text in the period after its

enactment or ratification.” Id. at 605. Finally, the

court must parse the challenged regulation to

determine if it fits within the history and tradition of

arms regulation.

See id. at 631–35 (analyzing

traditional regulation of firearms against D.C.’s

handgun regulations).

Restrictions that comport with early historical

and traditional regulation of arms are constitutionally

sound. A court may draw analogues between modern

arms and traditional regulations, just as courts

regularly do when evaluating First Amendment

protections for electronic speech. See Heller v. District

of Columbia, 670 F.3d 1244, 1275 (D.C. Cir. 2011)

(“Heller II”) (Kavanaugh, J., dissenting) (“Nor does it

mean that the government is powerless to address

those new weapons or modern circumstances. Rather,

in such cases, the proper interpretive approach is to

reason by analogy from history and tradition.”) (citing

Heller, 554 U.S. 570, Tr. of Oral Arg., at 77 (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 descendents (sic) of

the arms but presumably there are lineal descendents

(sic) of the restrictions as well.”)).

Sections II and III of the Heller opinion operate

as a roadmap of how to undertake this analysis. 554

U.S. at 576–628. Section IV then applies the analysis

to the underlying facts of that case. Id. at 628–36.

First, the Heller Court engaged in a thorough analysis

of the text of the Second Amendment “guided by the

principle that ‘[t]he Constitution was written to be

understood by the voters; its words and phrases were

used in their normal and ordinary as distinguished

from technical meaning.’”

Id. at 576 (citations

omitted). After analyzing the grammar, diction,

syntax, and punctuation of the text, the Court then

looked to contemporaneous and analogous state

constitutional provisions. Id. at 600–03. The Court

next turned to the historical and traditional

interpretation of the Second Amendment, specifically

the period “immediately after its ratification through

the end of the 19th century.” Id. at 605. Finally, the

Heller Court specified that certain longstanding

limitations on the right to keep and bear arms are

presumptively lawful. Id. at 626 (“Like most rights,

the right secured by the Second Amendment is not

unlimited.”). The Heller Court, however, did not fully

elaborate on the extent of those “longstanding

prohibitions.” Id. at 626–27.

The McDonald Court engaged in a similar

examination: first, looking to Heller’s textual analysis,

561 U.S. at 767–68; then to the historical scope, id. at

768–69; and eventually to traditional treatment and

regulation, id. at 769–78. 2

Then-Judge Kavanaugh recited this analysis in

his dissent in Heller II:

“Constitutional rights,” the [Heller] Court

said, “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.” [Heller, 554

U.S.] at 634–35. The scope of the right is

thus

determined

“historical

Given this Court was considering incorporation under the

Fourteenth Amendment, the Court also looked to historical and

traditional regulation surrounding the ratification of that

Amendment. McDonald, 561 U.S. at 770–78.

justifications.” Id. at 635. And tradition

(that is, post-ratification history) also

matters because “examination of a variety of

legal and other sources to determine the

public understanding of a legal text in the

period after its enactment or ratification” is

“critical

tool

constitutional

interpretation.”

Id. at 605 (emphasis

omitted).

670 F.3d at 1271–72 (Kavanaugh, J., dissenting).

“Heller and McDonald leave little doubt that courts

are to assess gun bans and regulations based on text,

history, and tradition . . . .” Id. at 1271 (Kavanaugh,

J., dissenting).

Despite the guidance in Heller and McDonald,

including the complete absence of a balancing

approach by those Courts, many lower courts have

taken the opposite approach—attempting to balance

natural, fundamental, constitutionally protected

rights against modern assertions of state interest.

Heller, 554 U.S. at 634 (“We know of no other

enumerated constitutional right whose core protection

has been subjected to a freestanding “interestbalancing” approach.”).

II.

COURTS ACROSS THE NATION APPLY A

TWO-STEP, INTEREST-BALANCING TEST,

IN CONTRAVENTION OF THIS COURT’S

MANDATE

Subsequent to Heller and McDonald, circuits

across the United States have eschewed history and

tradition and instead apply a two-step test to review

Second Amendment challenges. Pet.App.8–9; see, e.g.,

Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018)

(“Although we have not yet explicitly adopted this

two-step approach, we do so today.”); New York State

Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254

(2d Cir. 2015) (“Lacking more detailed guidance from

the Supreme Court, this Circuit has begun to develop

a framework for determining the constitutionality of

firearm restrictions. It requires a two-step inquiry.”);

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.

2010) (“As we read Heller, it suggests a two-pronged

approach to Second Amendment challenges.”)

(citation omitted); United States v. Chester, 628 F.3d

673, 680 (4th Cir. 2010) (same) (citation omitted);

NRA v. BATFE, 700 F.3d 185, 194 (5th Cir. 2012)

(same); United States v. Greeno, 679 F.3d 510, 518

(6th Cir. 2012) (same); Ezell v. City of Chicago, 651

F.3d 684, 701–03 (7th Cir. 2011) (same); United States

v. Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013)

(same) (citations omitted); United States v. Reese, 627

F.3d 792, 800–01 (10th Cir. 2010) (same);

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,

1261 n.34 (11th Cir. 2012) (same); Heller II, 670 F.3d

at 1252 (same). 3

This improper, but now widely adopted, test

suffers three major problems: (1) the two-step test is

based on the misinterpretation of a single paragraph

in Heller, (2) lower courts have inappropriately

limited the scope of the Second Amendment under the

The Eighth Circuit has not adopted the two-step test. See

David B. Kopel & Joseph G.S. Greenlee, Federal Circuit Second

Amendment Developments 2018, 7 L.M.U. L. REV. 75, 75 (2020).

first step, and (3) both Heller and McDonald made

clear that the interest-balancing conducted in step

two is inappropriate in light of the natural,

fundamental rights at issue.

The Two-Step Test Rests on a

Fundamental Misinterpretation of

Heller

The two-step test is purportedly “derived” from

Heller, but actually misinterprets a single paragraph

in that opinion, which reads:

As the quotations earlier in this opinion

demonstrate, the inherent right of selfdefense has been central to the Second

Amendment right. [D.C.’s] handgun ban

amounts to a prohibition of an entire class of

“arms” that is overwhelmingly chosen by

American society for that lawful purpose.

The prohibition extends, moreover, to the

home, where the need for defense of self,

family, and property is most acute. Under

any of the standards of scrutiny that we

have applied to enumerated constitutional

rights, banning from the home “the most

preferred firearm in the nation to ‘keep’ and

use for protection of one's home and family,”

would fail constitutional muster.

Heller, 554 U.S. at 628–29 (citations omitted). ThenJudge Kavanaugh recognized this issue in Heller II:

To be sure, the Court noted in passing that

D.C.'s handgun ban would fail under any

level of heightened scrutiny or review the

Court applied. Heller, 554 U.S. at 628–29.

But that was more of a gilding-the-lily

observation about the extreme nature of

D.C.'s law—and appears to have been a

pointed comment that the dissenters should

have found D.C.'s law unconstitutional even

under their own suggested balancing

approach—than a statement that courts

may or should apply strict or intermediate

scrutiny in Second Amendment cases.

670 F.3d at 1277–78 (Kavanaugh, J., dissenting).

Despite the lack of any interest-balancing in

Heller or McDonald, lower courts have used this one

paragraph to justify their adoption of the two-step,

interest-balancing test.

Lower Courts Have Inappropriately

Limited the Scope of the Second

Amendment

First under the two-step test, a court determines

whether the regulation affects a “core” or “non-core”

Second Amendment protected right; if neither, the

inquiry ends. See Cuomo, 804 F.3d at 254 (“First, we

consider whether the restriction burdens conduct

protected by the Second Amendment. If the

challenged restriction does not implicate conduct

within the scope of the Second Amendment, our

analysis ends and the legislation stands.”) (citation

omitted).

Many circuits, including the Third Circuit below,

however, have taken a very narrow view of Heller and

McDonald, and state the only “core” protected right

under the Second Amendment is self-defense within

the home. See Pet.App.5 (“[T]he ‘core . . . [of] the

Second Amendment protects the right of law-abiding

citizens to possess non-dangerous weapons for selfdefense in the home.’”) (quoting Marzzarella, 614 F.3d

at 92) (some alterations in original); NRA v. BATFE,

700 F.3d at 194 (“Instead, the [Heller] Court identified

the Second Amendment's central right as the right to

defend oneself in one's home . . . .”).

Under this narrow construction, various courts

have found, among other things, that possessing

certain firearm magazines and bearing arms outside

of the home fall outside of the “core” of the Second

Amendment. See, e.g., Pet.App.80 (finding New

Jersey’s magazine ban “does not severely burden the

core Second Amendment right to self-defense in the

home . . . .”); 4 Kachalshy v. Cty. of Westchester, 701

F.3d 81, 94 (2d Cir. 2012) (finding New York’s “proper

cause” requirement to obtain a concealed carry permit

fell “outside of the core Second Amendment

protections identified in Heller” because “New York's

But see Cuomo, 804 F.3d at 258 (“[L]arge-capacity

magazines are commonly owned by many law-abiding

Americans, and their complete prohibition, including within the

home, requires us to consider the scope of Second Amendment

guarantees at their zenith.”) (citations and quotations omitted).

licensing scheme affects the ability to carry handguns

only in public, while the District of Columbia ban

applied in the home ‘where the need for defense of self,

family, and property is most acute.’”) (citation

omitted). 5 Other circuits, in limiting the “core” of the

Second Amendment, have correspondingly limited

their view of the totality of the scope of the Second

Amendment—entirely dismissing claims as not

falling within the category of “protected” rights. See

Teixeira, 873 F.3d at 682 (“Based on such an analysis,

we conclude that the Second Amendment does not

confer a freestanding right . . . upon a proprietor of a

commercial establishment to sell firearms.”).

Heller in no way supports this miserly,

inconsistent approach to the Second Amendment. In

Heller, the specific right at issue was the right to

possess a handgun in the home for the “core lawful

purpose of self-defense.” Heller, 554 U.S. at 630.

Heller did not, however, limit the Second Amendment

in totum, instead stating that the Second Amendment

protects the right of citizens to possess commonly

owned arms for “lawful purposes.” Heller, 554 U.S. at

625. McDonald reiterated that “our central holding in

Heller [is] that the Second Amendment protects a

personal right to keep and bear arms for lawful

purposes . . . .” 561 U.S. at 780 (emphasis added).

These lawful purposes include more than just selfBut see NYSRPA v. Corlett, No. 20-843 (U.S., cert. granted

Apr. 26, 2021) (challenging the same licensing requirements at

issue in Kachalshy) and Moore v. Madigan, 702 F.3d 933, 936

(7th Cir. 2012) (“A right to bear arms thus implies a right to carry

a loaded gun outside the home.”).

defense in the home. See Heller, 554 U.S. at 599 (“The

prefatory clause does not suggest that preserving the

militia was the only reason Americans valued the

ancient right; most undoubtedly thought it even more

important for self-defense and hunting.”); see also

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

Circuits’ Second Amendment Doctrines, 61 ST. LOUIS

U.L.J. 193, 204 (2017) (listing various lawful purposes

described in Heller).

By taking an unreasonably narrow view of

Heller’s holding, circuit courts have failed to consider

a number of Second Amendment challenges as

implicating Second Amendment protected rights, or,

like the Third Circuit here, relegated them to secondtier status, violating this Court’s charge to view the

scope of the right at issue based on the text and

history of the Second Amendment.

Lower Courts Are Engaging in

Interest-Balancing,

Which

Was

Explicitly Rejected by Heller and

McDonald

Second under the two-step test, a court balances

the exercise of the impacted right against the state or

city’s interests. See Pet.App.5 (“[T]he second step is to

evaluate [the challenged] law under some form of

heightened scrutiny.”) (citation omitted).

This approach is contrary to this Court’s

guidance:

We know of no other enumerated

constitutional right whose core protection

has been subjected to a freestanding

“interest-balancing” approach. The very

enumeration of the right takes out of the

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.

Further, despite the

contention of some lower courts, the Heller Court did

not just reject the particular interest balancing

approach suggested by Justice Breyer in his dissent,

but explicitly rejects any interest-balancing approach.

See Heller II, 670 F.3d at 1264 (“As we read Heller, the

Court rejected only Justice Breyer’s proposed

‘interest-balancing’ inquiry.”); but see Heller, 554 U.S.

at 635 (The Second Amendment “is the very product

of an interest balancing by the people—which Justice

Breyer would now conduct for them anew.”) (emphasis

in original).

Despite Heller’s prohibition, courts across the

nation continue to apply means-end scrutiny to

Second Amendment protected rights. First, circuits

have subjected even the rights they deem to be “core”

to the Second Amendment to interest balancing—in

contravention of Heller’s explicit mandate. See Heller,

554 U.S. at 634 (“We know of no other enumerated

constitutional right whose core protection has been

subjected to a freestanding “interest-balancing”

approach.”).

Further, by classifying other Second Amendment

protected rights as “non-core,” circuits have justified

subjecting those rights to weak forms of scrutiny. See,

e.g., Pet.App.5–6 (“Laws that do burden the core

receive strict scrutiny, whereas those that do not

burden it receive intermediate scrutiny.”) (citation

omitted).

Worse, courts often purport to apply

intermediate scrutiny to “non-core” rights, but do so in

name only, really applying some sort of elevated

rational basis review. See, e.g., Pet.App.107 (Bibas, J.,

dissenting) (“The majority purports to apply

[intermediate scrutiny]. But its version is watered

down—searching in theory but feeble in fact.”); Pena,

898 F.3d at 981–87 (9th Cir. 2018) (“When policy

disagreements exist in the form of conflicting

legislative ‘evidence,’ we ‘owe [the legislature’s]

findings deference in part because the institution is

far better equipped than the judiciary to amass and

evaluate the vast amounts of data bearing upon

legislative questions.’”) (alterations in original)

(citation omitted). That is exactly what the Third

Circuit did in this case when it relied almost solely on

unsupported assertions as to the ‘dangers’ associated

with commonly owned magazines to establish that the

prohibition was substantially related to an important

government interest. See Pet.App.45–49 (Matey, J.,

dissenting), 107–16 (Bibas, J., dissenting).

Regardless of the number of circuits that have

adopted the two-step, interest-balancing test, that

test violates the charge of this Court—a charge this

Court leveled due to the importance and nature of the

rights at issue.

III. THE TEXT, HISTORY, AND TRADITION OF

THE SECOND AMENDMENT AS IT

RELATES TO MAGAZINES

If the lower courts had evaluated the text,

history, and tradition of the Second Amendment in

examining the constitutionality of New Jersey’s

magazine prohibition, those courts would have

determined that New Jersey’s law is unconstitutional.

The Text of the Second Amendment

This Court has already set forth an in-depth,

textual analysis of the Second Amendment in Heller

and McDonald.

First, the Second Amendment

protects, at minimum, the natural rights to selfdefense and to keep and bear arms:

[I]t has always been widely understood that

the Second Amendment, like the First and

Fourth Amendments, codified a pre-existing

right.

The very text of the Second

Amendment implicitly recognizes the preexistence of the right and declares only that

it “shall not be infringed.” As we said in

United States v. Cruikshank, 92 U.S. 542,

553 (1876), “[t]his is not a right granted by

the Constitution. Neither is it in any

manner dependent upon that instrument for

its existence. The second amendment

declares that it shall not be infringed . . . .”

Heller, 554 U.S. at 592; see McDonald, 561 U.S. at 778

(quoting Cruikshank). Importantly, “‘[k]eep arms’

was simply a common way of referring to possessing

arms, for militiamen and everyone else.” Heller, 554

U.S. at 583 (emphasis in original).

Second, the right protected is an individual right,

not a collective right tied to militia service. Id. at 595

(“There seems to us no doubt, on the basis of both text

and history, that the Second Amendment conferred an

individual right to keep and bear arms.”).

Third, the Second Amendment protects a

fundamental right. McDonald, 561 U.S. at 778 (“In

sum, it is clear that the Framers and ratifiers of the

Fourteenth Amendment counted the right to keep and

bear arms among those fundamental rights necessary

to our system of ordered liberty.”).

Finally, the Second Amendment is incorporated,

via the Fourteenth Amendment, against the states.

Id. at 791 (“We therefore hold that . . . the Fourteenth

Amendment incorporates the Second Amendment

right recognized in Heller.”).

The Court in this matter need not rehash its

textual analysis and can rely on the analysis from

Heller and McDonald.

The History and Tradition of Magazine

Regulation

Because the rights protected by the Second

Amendment are not unlimited, the next step of the

analysis is to determine whether there is a history and

tradition of prohibiting the activities prohibited by the

modern law or regulation in question, thereby

allowing the modern regulation to withstand

constitutional scrutiny. See Heller, 554 U.S. at 626

(“Like most rights, the right secured by the Second

Amendment is not unlimited.”).

Here, when

analyzing the breadth of New Jersey’s prohibition of

magazines against the historical and traditional

regulation of the same, it is evident that New Jersey’s

prohibition has no basis in any historical or

traditional regulation.

Firearms capable of firing more than 10 rounds

without reloading have been in existence since at least

the sixteenth century. See David B. Kopel, The

History of Firearm Magazines and Magazine

Prohibitions (“History of Firearm Magazines”), 78

ALB. L. REV. 849, 852–53 (2015) (“The first known

firearm that was able to fire more than ten rounds

without reloading was a sixteen-shooter created

around 1580, using ‘superposed’ loads (each round

stacked on top of the other.)”). Firearms like the 16shot, German made wheel lock rifle are the historical

antecedents to our modern, semi-automatic magazinefed firearms. See 16-Shot Wheel Lock, AMERICA’S 1ST

FREEDOM

(May

10,

2014)

https://www.americas1stfreedom.org/articles/2014/5/

10/16-shot-wheel-lock/.

This technology quickly developed from multishot wheel lock rifles to repeating, magazine-fed

rifles, with the English military employing magazinefed repeating firearms as early as 1658. Clayton E.

Cramer & Joseph E. Olson, Pistols, Crime, and Public:

Safety in Early America, 44 WILLAMETTE L. REV. 699,

716 (2008) (citing A. V. B. NORMAN & DON POTTINGER,

ENGLISH WEAPONS & WARFARE: 449–1660 206–07

(1979)). The now famous “Puckle Gun,” or “Defence

Gun,” was patented by James Puckle in 1718 in

England and operated using “a Sett of Chambers

ready Charg’d to be Slip’d on when the first Sett are

pull’d off to be recharg’d.” U.K. Patent No. 418 (filed

May

15,

1718)

http://wedmore.org.uk/puckle/James.html; CHARLES

FFOULKES, THE GUN-FOUNDERS OF ENGLAND: WITH A

LIST OF ENGLISH AND CONTINENTAL GUN-FOUNDERS

FROM THE XIV TO THE XIX CENTURIES 32–33 (1937).

Developed alongside repeating firearms were

breech-loading firearms that could be reloaded

quickly and efficiently. In 1776, for example, British

Captain Patrick Ferguson patented a breech-loading

rifle capable of firing six shots per minute, firing

effectively in wet conditions, and that could be

reloaded on the walk—feats unachievable by the

common muzzle-loading firearms of the time. John

Danielski, The Ferguson Rifle – The British Weapon

that Might have Changed the Outcome of the American

Revolution, MILITARY HISTORY NOW (Sept. 26, 2020)

https://militaryhistorynow.com/2020/09/26/theferguson-rifle-the-advanced-revolutionary-war-longgun-that-might-have-changed-history/; see Cramer &

Olson, Pistols, Crime, and Public, 44 WILLAMETTE L.

REV. at 717–18. The Ferguson Rifle was used by

British forces against our revolutionary forefathers

during the American Revolution. Id.

By the time the Second Amendment was being

ratified, these advancing technologies resulted in the

advent of the Girandoni air rifle. Kopel, History of

Firearm Magazines, 78 ALB. L. REV. at 853. The

Girandoni air rifle, a state-of-the-art rifle featuring a

22-shot magazine, was “ballistically equal to powder

guns in terms of bullet size and velocity,” and was

famously carried by Meriwether Lewis during the

Lewis and Clark Expedition. Id.

These technological developments continued

through the Nineteenth Century with the advent of

the Jennings multi-shot flintlock rifle, the production

of “pepperbox” pistols in the United States, and the

invention of the Bennett and Haviland “pepperbox”

rifle—all of which were capable of firing up to 12 shots

without reloading. Id. at 853–54. Shortly thereafter,

the advent of a self-contained cartridge (containing

gunpowder, a primer, and the ammunition) and the

first metallic cartridge by Daniel Wesson and Oliver

Winchester directly facilitated the invention of the

lever action rifle in 1855—fed by a 30-round tubular

magazine. Id. By 1860, Benjamin Henry debuted a

lever-action, breech-loading rifle with a 16-round

tubular magazine capable of firing 33 rounds per

minute. DAVID HARSANYI, FIRST FREEDOM 120 (2018).

Firearms with internal or detachable magazines

(or their historical antecedents) capable of holding

and firing more than 10 rounds of ammunition

without reloading were in existence and used prior to

our nation’s founding through our early and modern

history. See Duncan v. Becerra, 970 F.3d 1133, 1149

(9th Cir. 2020), reh'g en banc granted, opinion

vacated, 988 F.3d 1209 (9th Cir. 2021) (“The record

shows that firearms capable of holding more than ten

rounds of ammunition have been available in the

United States for well over two centuries.”).

And yet, despite this prevalence, the first laws

restricting ammunition capacity did not arise until

the twentieth century. Kopel, History of Firearm

Magazines, 78 ALB. L. REV. at 864. The first two

examples of such laws, Michigan banning firearms

that could be “fired more than sixteen times without

reloading,” and Rhode Island banning firearms that

could fire “more than twelve shots semi-automatically

without reloading,” were both repealed within 50

years of being enacted. Id. at 864–65 (quoting Act of

June 2, 1927, No. 373, § 3, 1927 Mich. Public Acts 887,

888 (repealed 1959); Act of Apr. 22, 1927, ch. 1052,

§§ 1, 4, 1927 R.I. Acts & Resolves 256, 256–57

(amended 1959)). “[T]he only longstanding statute

banning magazines is found in the District of

Columbia.” Id. That law, passed by Congress in 1932,

was not repealed when D.C. achieved home rule in

1975, and instead, D.C. passed the ban on handguns

and self-defense in the home that was struck down by

this Court in Heller. Id. “In sum, laws restricting

ammunition capacity emerged in 1927 and all but one

have since been repealed.” Duncan, 970 F.3d at 1150–

51 (citing Heller, 554 U.S. at 632) (“[W]e would not

stake our interpretation of the Second Amendment

upon a single law . . . that contradicts the

overwhelming weight of other evidence regarding the

[Second Amendment].”)).

Accordingly, there is no evidence of any historical

or traditional regulation or prohibition on firearms’

ammunition capacity that New Jersey can cite to

justify its challenged magazine prohibition.

While this review of history and tradition is not

exhaustive, it provides significant evidence

suggesting that the commonly owned magazines at

issue are protected under the Second Amendment and

were not prohibited under any direct or analogous

historical or traditional regulation.

Granting

certiorari would allow this Court to fully examine the

historical record surrounding magazine regulation.

***

This Court has established that Second

Amendment challenges must be analyzed based on

the text of the Second Amendment, as well as the

historical and traditional limitations on the right.

Despite this, the Third Circuit—along with circuits

across the nation—examine challenged regulations

using a two-step, intertest balancing test. This Court

should grant certiorari to review New Jersey’s

regulation against the text and historical scope the

Second Amendment and any analogous historical or

traditional firearms and magazine regulations. At

minimum, this Court could hold this case over until it

resolves New York State Rifle & Pistol Association v.

Corlett.

♦

CONCLUSION

For the foregoing reasons, this Court should

grant the Petition for Writ of Certiorari.

Respectfully submitted,

Cody J. Wisniewski

Counsel of Record

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cody@mslegal.org

May 28, 2021

Attorney for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.