Third Circuit Stays Its Own Decision Striking Down New Jersey’s ‘Assault Weapons’ and Magazine Ban

On Tuesday, August 4, the United States Court of Appeals for the Third Circuit issued a stay against its own decision striking down New Jersey’s “assault weapons” and magazine ban laws, a move that disappointed many within the gun rights community, yet is procedurally typical in high-profile cases such as this (which we explain below).

The two-page court order staying its previous July 17 opinion was signed by Circuit Judge Arianna J. Freeman, who authored the majority opinion on the merits. A separate and related document issued by the appeals court directed all parties to file a status report by September 3 and every 30 days thereafter until the stay is lifted, presumably to cover any related legal developments that would have an impact on the case.

Although the court gave no explanation in either order, the self-evident reasoning leans on the arguments cited in the state’s motion seeking a stay, namely that the Supreme Court has granted cert to a similar “assault weapons” ban case that will be heard in the upcoming term beginning in October, called Viramontes.

New Jersey expressly stated this on page seven of its brief, when it wrote: “The State moves for a stay of this Court’s mandate pending submission of its petition for certiorari to the U.S. Supreme Court in this matter.” The state has 90 days to submit its petition to the Supreme Court, though it will likely do so fairly quickly. (The state’s motion notes a petition due date of October 15, 2026.)

A frequent News2A contributor and legal expert offered this observation about the most likely outcome, writing, “Most likely, this case will be GVR’d with Viramontes, which means a do-over with the Third Circuit after Viramontes comes down. That could delay implementation of this ruling as to magazines for a period of months after the Supreme Court settles the AWB question, which would take effect immediately after Viramontes.”

What is unusual is that the Third Circuit issued this decision, only to pause it when it could have waited for the Supreme Court’s decision in Viramontes, a sentiment expressed by Judge Montgomery-Reeves, who wrote, “I see little reason to decide this case now and get out in front of the Supreme Court. But because the majority has decided to do so, I respectfully concur.”

Nonetheless, the court’s decision to stay its own mandate seems to be more procedural than having to do with the merits of the case, a position that is counterintuitive to the gun owner community. In so doing, it seems the court acknowledged the defendant’s argument that the court has previously stayed decisions where circuit splits were involved:

For another, this Court has long ‘stay[ed its] mandate pending the running of the time for filing [a] petition of writ of certiorari’ when its decision implicates a split – including where this Court’s decision was ‘at odds’ with at least ‘five other circuits that have considered the issue.’

What does all this mean for gun owners and FFLs in the state? The stay preserves the status quo, meaning New Jersey’s bans on both “assault firearms” and standard-capacity magazines remain enforceable for now, until either the stay is lifted, a ruling from the Supreme Court influences the Third Circuit’s next move, or the Supreme Court itself grants the state’s impending request for certiorari.

In response to the Third Circuit’s stay order, the New Jersey State Police Firearms Investigation & Licensing Bureau emailed New Jersey firearms dealers with the following message:

The 3rd Circuit has granted a stay, and status quo remains until further order.

Under these conditions, gun owners should not expect to see any of the prohibited items for sale at stores, and it would be unwise under any circumstances to admit to the purchase or possession of any prohibited items purchased in the brief window between the July 17 decision in favor of gun owners and the issuance of the stay. As we covered yesterday, many FFLs wisely chose not to change their sales policies, even though the law was technically unenforceable.

It’s unknown whether the state will include both issues (AWB/magazines) as a combined petition before the Supreme Court or will separate them. Although we don’t have any clues to the method, the state acknowledged they could be handled as separate subjects, writing, “And at the very least, the Court would hold the LCM issue in this case pending resolution of Viramontes – as it has in other petitions, like Duncan, even before a split formed.”

The Association of New Jersey Rifle and Pistol Clubs v. Attorney General case is a consolidation of three cases – Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General (the primary magazine-capacity challenge), Cheeseman v. Attorney General (the Firearms Policy Coalition’s “assault weapons” challenge), and Ellman v. Attorney General (the related “assault weapons” challenge).