New Jersey Issues Desperate Reply Brief in AWB and Mag Ban Case As Third Circuit Tilts Conservative

On October 9, New Jersey filed a response to a September Department of Justice amicus brief in the New Jersey “assault weapons” and mag ban case, an unusual move that may signal that New Jersey does not foresee a favorable outcome from the Third Circuit Court of Appeals, which will re-hear en banc oral arguments on October 15.

For those who might not know, the federal appeals courts are the last stop before reaching the U.S. Supreme Court. The Supreme Court grants cert to a very small percentage of cases submitted to it each year, meaning that this ruling could be final. En banc means the case will be heard in front of the full panel of active judges of the U.S. Court of Appeals for the Third Circuit, rather than just a three-judge panel of an unknown makeup.

The September 18th DOJ brief in ANJRPC v. Platkin affirmed the federal government’s position in support of Second Amendment rights and specifically highlighted New Jersey’s restrictions, stating “…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.” The DOJ brief was issued by Assistant Attorney General Harmeet K. Dhillon, who heads up the Civil Rights Division and has proven to be staunchly pro-Second Amendment.

The New Jersey response brief, issued just a few days ago, reads as a desperate attempt to defend its position in light of the fact that the makeup of the court has recently shifted towards a more conservative stance with the recent appointment of Judge Jennifer Mascott, a former Trump White House lawyer and law professor.

The state’s opening argument is a plea to not create a split within the circuit on “assault weapon” ban rulings, an outcome which would make such a case more favorable to Supreme Court intervention. The state asserts, “The Federal Government asks this court to split with six of its sister circuits…. This court should decline that invitation.”

New Jersey also claims (humorously from our point of view), that the federal government doesn’t understand Supreme Court precedent in Heller (reinforced in Bruen), writing, “The Federal Government, like the challengers, reaches its result based on its conclusions that (1) common use is the sole analysis for firearms regulation, and (2) common use refers to the number of items in civilian circulation. Both steps in the logical chain are faulty.”

New Jersey’s approach borders on arrogance, dismissing Supreme Court precedent, and the significant historical studies it undertook to reach that precedent, stating, “First, despite Bruen and Rahimi‘s emphasis on history, a circulation-only test is fundamentally ahistorical.”

Ignoring actual Supreme Court decisions, the state’s very best argument is that the inferior appeals courts have never ruled against such restrictions:

The Federal Government, echoing the challengers, errs in contending that the exclusive justification for a firearms regulation turns on the firearm’s circulation. No court of appeals has ever agreed with the challengers that the volume of a restricted item in circulation is the dispositive constitutional test.

This is an amazing statement given that appeals courts’ unconstitutional rulings were the very reason that the Supreme Court ended up writing decisions like Heller and Bruen.

The state then rambles on for about 14 pages about the regulation of “Bowie knives” as a historical analogue, claiming, “Bowie knives reflected ‘technological advancements’ that were originally designed for offensive fighting…”

New Jersey claims that its laws, “…seek to keep its citizens safe from such weaponry,” (in reference to so-called “assault weapons”). Yet, absent from every argument ever put forth on gun control is the fact that criminals, engaged in already-illegal activities, do not regard or obey such laws, and the unconstitutional bans end up only disarming law-abiding citizens.

We will be reporting on the en banc hearings in the Third Circuit on October 15. Stay tuned.