A challenge to New Jersey’s ban on ammunition magazines that can accept more than ten rounds had an important day in court on Tuesday, as attorneys for the state and the Association of New Jersey Rifle & Pistol Clubs presented oral arguments before a three judge panel of the Third Circuit Court of Appeals.
Much of the oral arguments, which can be heard here, centered around the question of whether the current panel is bound by the decision of an earlier panel that denied a preliminary injunction to block the law from taking effect, as opposed to the constitutionality of the New Jersey law in question. Under the law, continued possession of a 15-round magazine that was legally purchased before the law took effect is a crime.
Judges peppered the attorney for the ANJRPC with questions about their ability to even decide the case on the merits, and one of the judges also raised the fact that the Supreme Court denied cert to ten cases dealing with the Second Amendment on Monday, and wondered if that should have any bearing on the Third Circuit’s decision on New Jersey’s magazine ban.
Because the earlier panel of the Third Circuit not only denied an injunction against the law, but also ruled on the merits of the case, the current Third Circuit panel indicated it may be bound by that earlier decision unless the ANJRPC can show that there are extraordinary circumstances that would require them to take another look at the case. Attorney John P. Sweeney, representing the 2A organization, argued that there were several instances where the state failed to meet its burden of proof that the law is constitutional, including what he called the state’s “discrediting” of evidence that what New Jersey considers to be “large capacity” magazines are in fact the most commonly owned and used magazines in the United States, including for self-defense.
When it came time for the state of New Jersey to present its side of the case, the state’s attorney argued that the current panel is indeed bound by the decision of the previous panel. Lucas too received some pointed questions, this time about whether or not the appellate panel that granted the preliminary injunction depended on evidence that had been rejected by the district court that originally heard the case. The state’s attorney didn’t really have much of an answer for the judges on Tuesday.
The current three judge panel also asked the state’s attorney about the “intermediate scrutiny” standard of review that was used by the earlier panel. Attorneys for the ANJRPC argue that the correct standard of review is “strict scrutiny,” because it’s a burden on a fundamental right, while the state of New Jersey argues that the burden is not severe enough to trigger the highest level of judicial review.
There was an interesting exchange towards the end of the state’s time when a judge asked a simple question: what is a large capacity magazine? The state’s attorney provided the state’s definition; a magazine that can hold more than ten rounds. Under more questioning, however, he was forced to acknowledge that there is no real definition. Some states like say its twenty rounds. Some states say ten. Most states don’t define it all.
The state’s attorney argued that “the Second Amendment realm in particular allows for experimentation,” but I think that missed the judge’s point. Some of the evidence that was used by the original Third Circuit panel contained data that defined “large capacity magazines” differently than New Jersey, and I suspect the judge was looking for an argument about why that data would have been relevant in considering the New Jersey law under challenge.
If this Third Circuit panel is going to decide whether or not the state’s magazine ban is constitutional, it first has to have a reason to overrule the earlier judgement by the panel that considered the request for a preliminary injunction. Listening to the oral arguments, my first thought was that the Association of New Jersey Rifle & Pistol Clubs was facing a nearly insurmountable burden in demonstrating why the Third Circuit needed to take another look at the state’s magazine ban, but the association’s attorneys actually addressed the court’s questions with a great deal of substance. The state’s attorney also faced tough questions, and he didn’t always have a good answer, particular on the question of whether or not the preliminary injunction panel relied on evidence that had been rejected by the original trial court. That’s a judicial no-no, apparently, and it may be reason enough for the panel currently looking at the state’s magazine ban to issue its own ruling on the constitutionality of the law itself.