It's been two weeks since the Third Circuit Court of Appeals struck down New Jersey's ban on so-called assault weapons and large capacity magazines, but the appellate court has yet to issue its mandate that would allow for sales of those items to resume in the Garden State.
New Jersey Attorney General Jennifer Davenport wants to keep that mandate on ice, and in a new court filing she's asking the Third Circuit to allow the gun and magazine ban to remain in effect while the state appeals its loss to the Supreme Court.
The State is mindful that a majority of this en banc Court has already held that some of its statutes violate the Second Amendment. But the State is also aware that this Court nevertheless has repeatedly stayed issuance of its mandates, even after ruling against a movant in a published opinion on the merits, pending resolution of any petitions for certiorari. That does not require the Court to rethink its decision on the merits in any respect. It merely requires this Court to follow its time-honored standards for staying its own mandates.
Davenport goes on to argue that the issues at hand are "obviously worthy of certiorari; the Court already granted review to decide whether States can restrict access to semi-automatic assault rifles, and the constitutionality of LCM restrictions are now the subject of a circuit split." She also believes there is a "reasonable possibility for the State to prevail on appeal, since every other circuit to address these issues disagrees with the Third Circuit, including most recently in Barnett v. Raoul."
The Attorney General is going to be sorely disappointed if she honestly believes there's a reasonable chance that New Jersey will prevail on its appeal, even if she's right that the Third Circuit is the only appellate court to have found bans on so-called assault weapons and large capacity magazines unconstitutional. The other appellate courts, including the Seventh Circuit, have misapplied the "text, history, and tradition" test in order to uphold these bans, but when the Third Circuit followed the Supreme Court's guidance it came to the inescapable conclusion that these arms are in common use for lawful purposes and are therefore protected by the Second Amendment.
Davenport claims New Jersey will suffer irreparable harm if the mandate isn't stayed, including the "inability to enforce its sovereign laws, which will in turn result in practical chaos if thousands of weapons are sold and then the Supreme Court later decides the constitutional question differently in Viramontes." In fact, she argues that several gun stores have already resumed sales of "large capacity magazines" even before the mandate has been issued (which is not a great idea, by the way), and "thousands (or more)" sales of magazines and so-called assault weapons could take place if the stay request isn't granted.
She also laughably claims it is "modest: to keep a 36-year old status quo in place for months, where Plaintiffs accepted that status quo for years before suing and while litigation played out."
No ma'am, the plaintiffs did not accept that status quo. That's why they sued to regain their rights that had been stripped away by New Jersey lawmakers, and they should not have to wait any longer than necessary before they can once again exercise those rights.
I'd hate to see the Third Circuit grant Davenport's motion, but it wouldn't necessarily shock me either. If that does happen, New Jersey's cert petition would be due on October 15, so the earliest the Supreme Court could consider New Jersey's cert petition would be its October 22 conference. If the Third Circuit does keep its decision on hold it would be more than two months before Garden State residents could lawfully purchase the most popular rifles and commonly-owned magazines in the United States, and that's if the Court swiftly denied the state's cert request.
The Third Circuit doesn't have to request a reply from the plaintiffs here, but the plaintiffs also don't have to wait for the court to ask for one before responding to Davenport's motion. I do expect that the Third Circuit will address Davenport's motion within days, not weeks, so New Jersey residents shouldn't have to wait too long before learning how much longer they'll have to wait before they can once again purchase an AR-15 and a couple of 30-round magazines without violating state law.
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