A few weeks ago, the Third Circuit Court of Appeals released a 2-1 panel decision affirming (agreeing with) the district court’s judgment that held as constitutional the State of New Jersey’s ban on ammunition magazines that hold more than 10 rounds, sometimes called “large-capacity” magazines by anti-Second Amendment politicians. 

ICYMI: A more thorough recap of the panel opinion in Association of New Jersey Rifle and Pistol Clubs, Inc., et al. v. Attorney General New Jersey, et al. can be found here.

Judge Matey’s dissent from the panel decision agreed with FPC’s position that the proper analysis to undertake for cases involving the Second Amendment is one that looks to the Constitution’s very text, informed by history and tradition. The attorneys for the plaintiffs in that case subsequently filed a petition for an en banc rehearing, requesting that the full Third Circuit court reconsider the case. 

This week, Firearms Policy Coalition filed an important law and history brief in support of the petition for rehearing en banc. FPC’s brief was authored by FPC Director of Research Joseph Greenlee, a published scholar of constitutional and firearms law history, as well as Second Amendment scholars David Kopel of Independence Institute and University of Wyoming law professor George Mocsary. 

FPC was joined by law professors who teach and write on the Second Amendment: Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Donald Kilmer (Lincoln), Nelson Lund (George Mason), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). They were cited by the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. Oft-cited by lower courts as well, these professors include authors of the first law school textbook on the Second Amendment, and many other books and law review articles on the subject. FPC was also joined by Firearms Policy Foundation, California Gun Rights Foundation, Madison Society Foundation, and Independence Institute.

FPC’s brief argues and shows a number of important things:

  1. Magazines holding more than 10 rounds predate the Second Amendment by over two hundred years and the Founders embraced them.
  2. Repeating arms were invented around 1500, with capacity increasing to sixteen shots by 1580.
  3. American colonists began manufacturing repeating arms in the mid-1600s and the Founders sought repeaters capable of firing more than 10 rounds.
  4. Repeating arms with greater than 10-round capacities became some of the most popular arms in the 19th century.
  5. The federal government issued nearly a quarter-million repeaters with 15- to 30-round magazines to civilians during the 20th century.
  6. The Supreme Court in D.C. v. Heller used the Second Amendment’s text as the framework of its analysis, and used history and tradition to inform the original understanding of the text, and that the history and tradition demonstrate that the right protects magazines with greater than 10-round capacities. 
  7. The Second Amendment necessarily protects arms that have existed for half a millennium, have been among the most popular arms for a century-and-a-half, number in the many tens-of-millions today, and have been distributed in large quantities to the people by the federal government itself.

What’s on the line: A rehearing of the case en banc is an opportunity for the arguments found in Judge Matey’s dissent to persuade even more Third Circuit judges. FPC’s position that the text as informed by history and tradition is the proper mode of analysis for Second Amendment claims is gaining acknowledgement by judges nationwide. Another chance to persuade more judges that text as informed by history and tradition is the correct test is a valuable opportunity.

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