Reason by Eugene Volokh | 8.25.2022
Third Circuit Sends Down to District Court the Second Amendment Challenge to N.J.'s Ban on >10-Round Magazines
The appellate court would leave the matter for the district court to decide in the first instance, subject to appellate review; Judge Matey dissented, arguing that the appellate court should have considered the issue directly.
From Ass'n of N.J. Rifle & Pistol Clubs Inc. v. Attorney General (3d Cir.), decided today by the Third Circuit (Judges Kent Jordan and Jane Roth):
This matter having been remanded for further consideration in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), and upon consideration of the parties' positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded.
{We recognize that there are good arguments to be made for resolving this case now, on the record before us, and our dissenting colleague has ably articulated them. Even so, we are mindful that "we are a court of review, not of first view[.]" Cutter v. Wilkinson (2005). The Dissent rightly notes that, even prior to the Supreme Court's latest Second Amendment decision, we have regularly "trace[d] the [Second Amendment's] reach by studying the historical record"—the same approach recently endorsed and "made … more explicit" by the Court, N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). But the Court's decision in Bruen also provided lower courts with new and significant guidance on the scope of the Second Amendment and the particular historical inquiry that courts must undertake when deciding Second Amendment claims.
In light of that guidance, the State has requested a remand for further record development, targeted at the legal and historical analysis required under Bruen. Given the additional guidance provided in Bruen—and given that our last decision in this case turned on law-of-the-case considerations that are no longer in play—it is appropriate to afford the State that opportunity, consistent with our prior practice.
Judge Paul Matey dissented:
Refreshing our recollection illustrates the problem with remand. In 2008, the Supreme Court held that the "18th-century meaning" of "arms" is "no different from the meaning today," and the Second Amendment was not limited to "only those arms in existence in the 18th century." Instead, Heller directed courts to apply a "methodology centered on constitutional text and history" to determine whether the challenged regulation touched upon protected conduct. Heller directed us to look backwards—not to new and novel claims of necessity by the government.
Even a glance is sufficient here. Repeating firearms grew in use throughout the 18th century, when early technical advances paved the way to Samuel Colt's famous rotating cylinder revolver. By 1866, rifles holding more than ten rounds of ammunition were widely available, with handguns holding more than ten rounds appearing in stores by 1935. Both quickly proved popular, and Americans came to hold tens of millions of magazines holding over ten rounds.
More:
https://reason.com/volokh/2022/08/25/third-circuit-sends-down-to-district-court-the-second-amendment-challenge-to-n-j-s-ban-on-10-round-magazines/
