En Banc Third Circuit Strikes Down New Jersey’s Semi-Automatic Rifle and Magazine Bans
“The en banc Third Circuit just held what I have argued for years the Second Amendment requires: the ‘in common use’ doctrine does its work at Bruen’s second step, where the burden falls squarely upon the government to demonstrate that a banned arm is ‘dangerous and unusual’ — and New Jersey could not come close to meeting that burden. Every semi-automatic rifle ban in America should now be measured against this opinion, and likely will.” – Professor Mark W. Smith, Four Boxes Diner Host
On July 17, 2026, the United States Court of Appeals for the Third Circuit, sitting en banc, declared New Jersey’s ban on semi-automatic rifles — including the AR-15 — and its ban on magazines holding more than ten rounds unconstitutional under the Second Amendment. The decision in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, No. 24-2415, consolidated with Cheeseman v. Davenport, spans almost 200 pages of opinions. It arrived exactly on the schedule I predicted: the Third Circuit waited out the Supreme Court’s term so it could fold Wolford v. Lopez and United States v. Hemani into its analysis and issue a ruling built to last.
Not Just the Colt AR-15 — the Full Class of Semi-Automatic Rifles
The district court had struck the ban only as applied to the Colt AR-15. The en banc court went considerably further, holding that the record compelled the same result for every semi-automatic rifle New Jersey sweeps into its “assault firearms” definition, and that the large-capacity magazine provisions fall as well. The numbers made this straightforward. The court credited the district court’s finding that roughly 24 million AR-15s and similar rifles are in circulation — a figure, the court noted, “surpassed only by the number of registered handgun owners within the United States” — and observed that New Jersey offered no contrary data. An arm that ubiquitous is in common use for lawful purposes, and an arm in common use cannot be “dangerous and unusual.”
The court stopped short in one respect: because the factual record on semi-automatic pistols and shotguns was thinner, it remanded those categories to the district court. Judge Matey, joined by Judge Mascott, would have ended the litigation outright, writing that New Jersey “neither needs, nor deserves, yet another round of lengthy litigation on these same questions.”
Common Use Belongs at Step Two — Where the Government Bears the Burden
This is the doctrinal heart of the opinion, and it vindicates the argument I have pressed in the Harvard Journal of Law and Public Policy and elsewhere. The plain-text inquiry at Bruen’s first step is linguistic — a matter of Founding-era definitions — not a matter for the historical traditions of American firearms regulations. The court agreed writing, “Bruen’s first step is fundamentally a textual inquiry… Yet ‘common use’ appears nowhere in the Second Amendment’s text.”
Quoting District of Columbia v. Heller, 554 U.S. 570, 582 (2008), the court reaffirmed that the Second Amendment extends, prima facie, “to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” The oft-cited “in common use” doctrine does its work at Bruen’s step two, testing whether the government has met its legal burden to demonstrate that a banned arm is indeed “dangerous and unusual.” Thus, New Jersey here had to prove that the banned rifles fell outside the American tradition of “dangerous and unusual,” and it obviously could not.
The Third Circuit also rejected the effort to shrink “lawful purposes” down to armed self-defense alone. Hunting counts as do all other lawful purposes. When a dissent complained that recognizing hunting worked “an unfounded expansion of Second Amendment rights,” the majority answered that the objection “is incompatible with Supreme Court authority.” Indeed, the Supreme Court has made clear that all lawful purposes count for the “in common use” test.
Firearm Magazines Are Textually 2A “Arms”
As to New Jersey’s magazine ban, the court reaffirmed its own precedent in Association of New Jersey Rifle & Pistol Clubs v. Attorney General New Jersey, 910 F.3d 106, 116 (3d Cir. 2018) stating, “Because magazines feed ammunition into certain guns, and ammunition is necessary for such a gun to function as intended, magazines are ‘arms’ within the meaning of the Second Amendment.”
Bruen itself teaches that the term “covers modern instruments that facilitate armed self-defense.” 597 U.S. 1, 28 (2022). Magazines are instruments that facilitate armed self defense because they allow lawabiding Americans to fire multiple rounds without having to manually reload. And, many modern firearms require a magazine to function at all; the rest are unquestionably aided by magazines. A state cannot ban the component and pretend the right survives.
No Trials, No Expert Testimony, No Hired Historians
In footnote 28 of the opinion, the court confirmed a point I have hammered for years: Second Amendment litigation does not require battles of testifying experts, because the disputed questions are legislative facts, not adjudicative ones.
The Third Circuit wrote, “We may resolve any disputes related to legislative facts, because those are facts subject to judicial notice.”
From Heller through McDonald, Caetano, Bruen, Rahimi, Wolford, and Hemani, the Supreme Court has never needed an expert or a historian on the witness stand testifying about the meaning of the Second Amendment. Second Amendment rights organizations should absorb the lesson and stop pouring resources into dueling experts that the Supreme Court’s jurisprudence does not require. Legislative facts speak to the meaning of a law and our Constitution and, thus, do not require testimony or trials to undercover their legal meaning. In contrast, adjudicative facts speak to the parties such as whether a criminal defendant “committed the crime” or whether a doctor committed medical malpractice during an operation. The meaning of the Second Amendment involves legislative facts and not adjudicative facts.
The 2A Road to June 2027
Note the court’s definitions. The court analyzed “semi-automatic rifles” — not “modern sporting rifles” — the same language then-Judge Brett Kavanaugh used in his dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), and that “semi-automatic” language ties modern rifles to the semi-automatic handguns Heller protects. As the court put it, New Jersey’s regulation “functions like the firearm ban at issue in Heller: It prohibits the possession of a class of weapons in common use for lawful purposes.”
The Seventh Circuit went the other way in Barnett v. Raoul on July 9. That split now lands at a Supreme Court that has already granted certiorari in Viramontes v. Cook County and Grant v. Higgins. The confirmations of Judges Mascott and Bove to the Third Circuit before the October 2025 en banc argument mattered; elections matter. Brick by brick, precedent by precedent, the arms-ban question is arriving at the Supreme Court on our terms.
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube and Rumble; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the U.S. Supreme Court. Professor Smith’s most recent book is ISRAEL DISARMED: What the October 7 Attack Teaches Americans about the Right to Bear Arms and he has lectured at Harvard Law School, Yale Law School, Princeton University, the Wharton School at U. Penn, and Oxford University. He is a frequent speaker at the Federalist Society’s Annual National Lawyers Convention in Washington, D.C.
