“Like most rights, the right secured by the Second Amendment is not unlimited.” The scope of that exception, noted in the United States Supreme Court's District of Columbia v. Heller opinion, was examined by the Third Circuit in an appeal challenging New Jersey's new statutory restrictions on large-capacity magazines (LCMs) as a violation of the Second Amendment. Assoc. of N.J. Rifle & Pistol Clubs, Inc. at al. v. Atty. Gen. New Jersey et al., No. 18-3170 (3d Cir., Dec. 5, 2018).

There can be no doubt that the spate of gun violence in the United States in recent years is horrifying. There also is no doubt that not only has gun violence increased in general but that events of mass shootings also have increased. Some of this increased violence is the result of ever more sophisticated instruments of death, guns with the ability to shoot more bullets faster and with less effort or interruption than in earlier historic periods. Society must have the commonsense right to protect itself and, indeed, state governments have the corresponding obligation to try to protect their citizens from such wanton violence.

We in New Jersey are fortunate to have a government that takes this responsibility seriously, having enacted some of the most forward-looking, protective gun legislation in the country. For example, New Jersey has regulations that require background checks for firearms purchasers, establish mental health limitations, limit concealed-carry of firearms, bar armor-piercing ammunition, and now limit to 10 the number of rounds held in a magazine. It is this last limitation that was challenged in this case.

In June 2018, similar to eight states and the District of Columbia before it, New Jersey enacted legislation that limited the rounds of ammunition in a firearm magazine to no more than 10. In five other circuit courts, comparable statutory restrictions had withstood constitutional scrutiny. New Jersey has not been spared from the current epidemic of mass shootings that has swept this country. Only days after the enactment of the statutory restrictions on LCMs, a shooting occurred at a crowded arts festival in Trenton, leaving 22 individuals injured and one killed; one of the suspects was charged with unlawful possession of a weapon and a large-capacity magazine that could hold 30 rounds.

The new statute was soon challenged. The New Jersey plaintiffs alleged a civil rights violation of their constitutional rights secured by the Second, Fifth (takings), and Fourteenth (equal protection) Amendments. On the Second Amendment issue, the question before the court was essentially whether the limitation of LCMs to 10 bullets, reduced from the prior regulatory restriction of 15 bullets, was an unconstitutional burden on plaintiffs' rights under the Second Amendment. “Plaintiffs argue[d] that the Act is categorically unconstitutional because it bans an entire class of arms protected by the Second Amendment, there is no empirical evidence supporting the State ban, and the rights of law abiding citizens are infringed and their ability to defend themselves in the home is reduced.” The state claimed the need to reduce the “devastating impact of mass shootings” as a matter of public safety, without infringing the right to legally possess weapons by law-abiding citizens.

Judge Shwartz's majority opinion focused on “the core Second Amendment right to self-defense in the home” articulated in District of Columbia v. Heller. The majority found that the restriction did not “severely burden” this core right since it (1) did “not categorically ban a class of firearms,” (2) did not prohibit “an entire class” of defensive arms, (3) did “not effectively disarm individuals or substantially affect their ability to defend themselves,” (4) did “not render the arm at issue here incapable of operating as intended,” and (5) in any case, the core right of domestic possession was not protected “under all circumstances.” Consequently, intermediate scrutiny, not strict scrutiny, applied. Under that analysis, New Jersey had a significant “qualifying interest” in protecting its citizens, and, based on the facts of record, there was a reasonable fit between that interest and the statutory restriction without burdening more conduct than reasonably necessary. Thus, the law survived intermediate scrutiny. Plaintiffs' Fifth and Fourteenth Amendment claims were likewise dismissed.

In dissent, Judge Bibas took the majority to task for not applying strict scrutiny to a ban on LCMs, which, he contended, burdens the core right. He claimed the District Court's ruling lacked sufficient evidentiary basis, having supposedly rejected all of the expert testimony, which the majority stated was incorrect. He also accused the majority of engaging in “interest-balancing,” prohibited by District of Columbia v. Heller, rather than “scrutiny analysis,” a point which the majority sharply disputed. Finally, Judge Bibas engrafted on his dissent certain principles of First Amendment jurisprudence, which the majority deemed improper in light of the controlling case law.

Judge Bibas's dissent equates Heller's Second Amendment right to armed self-defense in the home with the First Amendment right to political expression. It demands that the courts view the one from the same political and moral perspective as it would view the other, and apply to it the same skeptical presumption of invalidity under the strict scrutiny standard. It tacitly accuses the majority as treating the Heller right as a sort of regrettable aberration to be distinguished and confined to its facts, rather than something to be embraced and fostered as a fundamental part of American life. It is an invitation and a road map to a petition for certiorari.

We believe that the majority correctly found, consistent with Heller, that the core right of domestic possession was not protected “under all circumstances” when weighed against the harm to public order and safety outside the home. The dissent's premise that armed self-defense in the home is something other than a last resort, and that limiting the number of rounds in a magazine must therefore await some kind of proof that it actually would limit deaths or injuries in mass-shooter situations, seems baseless. More fundamentally, it inexplicably ignores the regulatory principle of District of Columbia v. Heller: “Like most rights, the right secured by the Second Amendment is not unlimited.”

New Jersey's new LCM restriction not only withstands the scrutiny of law, as the Third Circuit majority correctly ruled, but also passes the test of common sense.

Larry Lustberg and Edwin Stern recused from this editorial.