Third Circuit Delivers Blow to NJ Gun Owners

Dean Weingarten has an interesting post over at Ammoland that looks at the dissent in the case of the Association of New Jersey Rifle and Pistol Clubs, Inc v. Attorney General of New Jersey which challenges the recent ban on magazines carrying more than 10 rounds of ammunition. Weingaten's article can be found at Third Circuit: Second Amendment is a Second Rate Right.

First, Weingarten sets the table:

The two majority judges followed the trend of other Circuits where the Second Amendment is being degraded and reduced to second-rate status. Only a month ago, the First Circuit ruled the Second Amendment does not apply outside of the home.

The rogue Circuits are able to do this because the Supreme Court has been refusing to hear Second Amendment cases for nearly a decade. The Supreme Court only hears a limited number of cases. They are not required to hear all cases.

Some Circuit courts are gutting the Second Amendment by claiming it is not really a right. Rather, they say, it is a privilege the government may regulate if the government thinks it might do some good to regulate it. These Jurists seem embarrassed by the Second Amendment. They seem to believe their job is to limit it as much as possible, rather than to protect it as a fundamental right.

Weingarten then cites the Dissenting opinion in the case of Judge Stephanos Bibas, and implies that this is a Judge we should be watching.

Yet the majority treats the Second Amendment differently in two ways. First, it weighs the merits of the case to pick a tier of scrutiny. That puts the cart before the horse. For all other rights, we pick a tier of scrutiny based only on whether the law impairs the core right. The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home. The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period. That is the case here.

Second, though the majority purports to use intermediate scrutiny, it actually recreates the rational-basis test forbidden by Heller. It suggests that this record favors the government, but make no mistake—that is not what the District Court found. The majority repeatedly relies on evidence that the District Court did not rely on and expert testimony that the District Court said was “of little help.” 2018 WL 4688345, at *8. It effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government.

We can only hope the Supreme Court hears this case, and finds for the New Jersey Association of Rifle and Pistol Clubs, Inc. According to an article by George Rasley at Conservative HQ, entitled Yes, They Are Coming For Your Guns:

Charles Toutant, writing for the New Jersey Law Journal, reports the appeals court, by a 2-1 margin, said the law limiting high-capacity magazines does not violate the Second Amendment, the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Equal Protection Clause. The court affirmed an order from the U.S. District Court that denied the challengers’ motion to preliminarily enjoin enforcement of the law.