The Supreme Court has already accepted one very important Second Amendment case this year, and a group of two dozen Republican Attorneys General are hoping that the Court is willing and ready to hear another challenge; this one taking on the state of New Jersey’s ban on possessing ammunition magazines that can accept more than ten rounds.
The case, known as Association of New Jersey Rifle & Pistol Clubs v. Gurbir Grewal, is scheduled to come up in conference in two weeks, and it could be one of the last cases that justices accept before they recess for the summer. The 24 AGs, led by the Attorneys General of Arizona and Louisiana, argue in their brief that New Jersey’s draconian gun ban, which demanded current owners of “high capacity” magazines turn them over to police or remove them from their possession, is an egregious violation of the right to keep and bear arms.
The enumerated right to bear arms reflected in the Second Amendment is fundamental and predates the Bill of Rights. The right is important to millions of Americans, including many citizens living in disadvantaged communities. The arms at issue in these proceedings are commonly used by millions of law-abiding citizens for a myriad of lawful purposes. New Jersey’s law criminalizes mere possession of commonly-used arms even in the home for self defense, and therefore the law strikes at the core of the Second Amendment. New Jersey’s outright ban on the Affected Magazines is inconsistent with the Second Amendment, and the Third Circuit erred by concluding otherwise.
According to the AGs brief, the Third Circuit Court of Appeals used the wrong test to determine that New Jersey’s magazine ban didn’t violate anyone’s constitutional rights; erroneously applying an “interest balancing test” when it should have used the test that the Supreme Court used in the Heller case back in 2008.
In Heller, the Court created a simple test for those “Arms” that enjoy the Constitution’s protections: the Second Amendment protects a right to possess “Arms” that are “typically possessed by law-abiding citizens.” With this formulation, the Court provided an easily understood and applied test.
Thus, when a law bans possession of an item, under Heller, courts should first ask whether the banned item qualifies as “Arms” under the Second Amendment. If so, courts should ask only whether the banned “Arms” are (1) commonly used, (2) by law abiding citizens, (3) for lawful purposes, including for self-defense or defense of “hearth and home.”
If so, then the banned item is categorically protected under the Second Amendment and no further analysis is needed. This test closely tracks the text of the Second Amendment, and is consistent with the history of gun ownership for self-defense as a key component of the American understanding of ordered liberty.
Magazines that can hold more than ten rounds of ammunition are indeed commonly owned; there are more than 100-million of them lawfully possessed by law abiding citizens. And yes, they’re used for lawful purposes, including self-defense, recreation, competition, and hunting. According to these AGs, that’s all that’s needed for the Court to find that so-called large capacity magazines are protected under the Second Amendment. This is the same test, by the way, that Judge Roger Benitez recently used to strike down California’s ban on “assault weapons.”
Let’s hope that in a couple of weeks, at least four Supreme Court justices agree that the Third Circuit was wrong to uphold New Jersey’s ban and accept ANJRPC v. Grewal. With the Court already slated to hear a challenge to New York’s restrictive carry laws, taking up a magazine ban would be a clear signal that SCOTUS is no longer reluctant to address the many infringements of our right to keep and bear arms that states have implemented since justices last spoke on the Second Amendment.