DOJ Sounds Off on New Jersey 'Assault Weapon' Ban

The plaintiffs challenging New Jersey's ban on so-called assault weapons and "large capacity" magazines are taking their arguments to an en banc panel of Third Circuit judges in just a few weeks, and they're getting a helping hand from the Justice Department's Civil Rights Division. 

Second Amendment rights are civil rights! https://t.co/6NxXGSorCW

— AAGHarmeetDhillon (@AAGDhillon) September 19, 2025

Dhillon, who'll also be participating in oral arguments when the Seventh Circuit Court of Appeals takes up the lawsuits challenging Illinois' gun and magazine bans next week, filed an amicus brief with the Third Circuit on Thursday that argues "New Jersey's complete bans on overwhelmingly popular magazines and rifles flagrantly violate the Second Amendment." 

This amicus brief addresses two principles of Second Amendment doctrine that have confused other courts. First, the Second Amendment does not secure the right to possess and carry arms only for self-defense or sporting-related purposes, but rather for all “traditionally lawful purposes.” History and tradition confirm that these purposes include the common defense. 

Second, the Second Amendment protects arms that are “in common use” among law-abiding citizens for lawful purposes. To be sure, some other courts have criticized this common-use test. But the SupremeCourt’s cases clearly show that it is the governing test for courts determining which arms the Second Amendment protects. Not only that, but the common-use test has deep roots in both English and American law.The Second Amendment’s irreducible minimum guarantee incorporates both principles: Legislatures may not completely ban arms that are in common use among law-abiding citizens for lawful purposes without running afoul of the Constitution.

Dhillon is right; both in terms of what the Supreme Court has said and how lower courts have ignored or twisted the Court's guidance. We've seen courts declare that only those arms that are in common use for self-defense are protected by the Second Amendment, that "large capacity" magazines aren't really "used" in self-defense because one flawed study showed the average number of shots fired in a defensive gun use is less than three, and that commonly-owned semi-automatic firearms aren't even "arms" protected by the Second Amendment because they're "like" machine guns. 

Because rifles such as the AR-15 are in common use for lawful purposes, including self-defense, sporting, and the common defense, the Second Amendment protects law-abiding New Jerseyans’ right to possess them. The Second Amendment also protects those New Jerseyans’ right to possess magazines and other accessories that make constitutionally protected firearms useful for those same lawful purposes. Although such rifles and magazines are subject to reasonable regulations that are consistent with the Nation’s historical tradition of firearm regulation, the complete bans at issue here are unconstitutional.

I'll quibble with the DOJ's characterization of magazines as "accessories" and not arms themselves. That was one of the reasons given by an en banc panel on the Ninth Circuit Court of Appeals in upholding California's magazine ban. But if magazines aren't arms protected by the Second Amendment, then states are free to ban magazines altogether and turn tens of millions of semi-automatic handguns and long guns into single-shot firearms at best, and paperweights at worst. The DOJ at least argues that the Second Amendment protects "accessories" that make firearms more useful for lawful purposes, which is a distinction not made by the Ninth Circuit. 

All in all, this is a solid brief in support of the efforts to undo New Jersey's gun and magazine ban. It's succinct, well-reasoned, and anchored in what the Supreme Court has actually told us about the scope of the Second Amendment. It's great to see the DOJ's Civil Rights Division actively defending our Second Amendment rights, and I look forward to seeing more steps in the same direction from Dhillon and her team in the future. 

Editor's Note: Radical judges are doing everything they can to hamstring our Second Amendment rights. 

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