DOJ Enters the New Jersey AWB and Mag Ban Cases, Sets the Record Straight on Common Use

On September 18, the federal government weighed in on a major Second Amendment challenge out of New Jersey, addressing the state’s ban on semi-automatic rifles and standard capacity magazines. The government made its position clear, indicating it is interested in correctly resolving the case at hand and ensuring that “…the Second Amendment is not treated as a second-class right…” citing the Supreme Court NYSRPA v. Bruen.

The Justice Department’s amicus curiae brief was issued under the office of the Assistant Attorney General, Harmeet K. Dhillon, addressing the case of ANJRPC v. Platkin, before the United States Court of Appeals for the Third Circuit. The case is a consolidation of three separate cases.

This marks only the third time the office of the attorney general has taken the action to file an amicus curiae in support of the Second Amendment. In May, the Justice Department filed a briefing in the case of Wolford v. Lopez, in the Ninth Circuit Court of Appeals, and in June, it filed a briefing in Barnett v. Raoul, in the Seventh Circuit Court of Appeals.

The controlling law in the United States on questions surrounding arms bans is the landmark Supreme Court case of District of Columbia v. Heller, where the court established what is known as the “in common use” test. In its simplest terms, the court found that arms in common use for lawful purposes are protected under the Second Amendment. At issue in Heller was a District of Columbia law that banned the possession of handguns. While the Supreme Court has been clear that common use includes all lawful purposes, the opinion in Heller focused on personal self-defense as but one example of a lawful purpose in striking down the ban.

In Wolford and Barnett, courts have twisted the holding in Heller into a test that narrows common use to just personal self-defense and have used that as a basis to find that commonly owned semi-automatic rifles and standard capacity magazines are infrequently used for self-defense and are more militaristic in nature.

At oral arguments in early July before a three-judge panel of the Third Circuit, these same themes emerged with both the attorneys representing the state and the panel judges questioning the applicability of semi-automatic rifles and magazines holding more than ten rounds to self-defense situations.

Before that three-judge panel could rule, a majority of the entire circuit voted sua sponte (meaning of its own accord without any outside impetus) to rehear the case en banc with oral arguments scheduled in October.

In its brief, the Justice Department focused heavily on the broader implications of the common use test and, quite importantly, drew attention to the fact that self-defense is but one example of a lawful purpose. From the brief, the DOJ states that,

In Heller, the Supreme Court made clear that the lawful purposes protected by the Second Amendment include individual self-defense, but the Court did not limit the Second Amendment right to that purpose. Quite to the contrary. The Second Amendment also protects the right to possess and carry arms for the purpose of the common defense-i.e., for the purpose of “repelling invasions,” “suppressing insurrections,” or “resist[ing] tyranny.” Thus, the arms protected by the amendment include weapons that are “suitable for the general defense of the community against invasion or oppression.” (Citing Heller and The General Principles of Constitutional Law in the United States, written by Thomas Cooley in 1880.)

In concluding its brief, the DOJ uses words that are music to the ears for every gun owner in New Jersey. The highest law enforcement agency in the land upholds our rights to own these arms:

Applying these principles to the state law at issue here, New Jersey’s complete bans on possessing rifles such as the AR-15 and magazines with a more-than-ten-round capacity violate the Second Amendment.

Under the Democrat-led regime in New Jersey, citizens have long endured infringements upon their Second Amendment rights, in particular under Attorney General Matthew Platkin, who has aggressively targeted law-abiding businesses and individuals, and enforced significant restrictions on the lawful carry of firearms, which is being challenged in a separate case.

The office of the New Jersey Attorney General has just been called out by the federal government for the first time in history for its unconstitutional infringements on the Second Amendment. How will they respond?

We will continue to follow this story. Stay tuned.