NJ 10+ Magazine Ban ANJRPC v. Bruck Update 9/21/2022

[bushmaster1313]

This thread reports on the case out of New Jersey regarding the outright ban on magazines holding more than 10 rounds, ANJRPC v. Bruck ("Bruck").

On June 30 2022 the U.S. Supreme Court sent this case back to the lower courts for further consideration in light of the June 23, 2022 U.S. Supreme Court case (NYSRPC v. Bruen) which made "Shall Issue" the law of the land with respect to a permit to carry a handgun for protection outside the home. The official pronouncement of the Supreme Court on June 30 read as follows in its entirety:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022).

LET's PLEASE STAY WITHIN FORUM GUIDELINES

My first comment: Bruck is being handled for the Pr0-2A plaintiffs by Paul Clement, the top notch Supreme Court litigator who won Bruen and who handles many litigations for the NRA. These cases are a fine example of the NRA's support for important court cases defending the Right to Keep and Bear Arms ("RTKBA") under the Second Amendment ("2A"). If for no other reason the NRA deserves our support. GO TEAM!

Link to the Bruck Docket at the U.S. Supreme Court

Background

New Jersey has a long history of restrictive gun control laws and restrictive interpretation of those laws by New Jersey courts. For example, IIRC, before there was a Federal "Assault Weapons Ban" there was a similar Assault Weapons Ban in New Jersey. New Jersey's Assault Weapons Ban was a resounding success insofar as after its passage there was not a single report of a drive-by bayonetting, collapsible stocking or pistol gripping.

For many years, New Jersey banned magazines that could hold more than 15 rounds. Such magazines were contraband, with no grandfathering and a severe penalty for mere possession.

Several years ago, on June 13, 2018, the limit was lowered to magazines with a maximum of 10 rounds. See N.J. Stat. Ann. § 2C:39-1(y):

“Large capacity ammunition magazine” means a box, drum, tube or other container which is capable of holding more than 10 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm.  The term shall not include an attached tubular device which is capable of holding only .22 caliber rimfire ammunition.

Like before, there was no grandfathering and IIRC the only options were to: destroy any 10+ magazine, transfer the magazine to a jurisdiction were it was legal, permanently limit the magazine to a maximum of 10 rounds, or turn the magazine over to the Police. Like before, there was a severe penalty for mere possession. There was also no provision for the State to "Buy Back" a 10+ magazine or provide any other compensation. The 10+ Magazine Ban did not apply to active military members and active and retired law enforcement officers. See N.J. Stat. Ann. § 2C:39-3(g), 2C:39-17.

ROUND 1 - The District Court Case

On June 13, 2018, the same day the 10 round magazine limit was signed into law, The Association of New Jersey Rifle & Pistol Clubs, Inc. ("ANJRPC") filed a Complaint in the United States District Court for the District of New Jersey ("NJ District Court"). The ANRPC alleged in their Complaint that the 10+ Magazine Ban violates the Second Amendment, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause. With their complaint, ANRPC also filed a motion for a preliminary injunction. In non-legal terms, the ANRPC asked the N.J. District Court to determine that the 10+ Magazine Ban likely violated the Constitution and the ANRPC asked the N.J. District Court to order that the 10+ Magazine Ban would not apply until the case was finally decided. The case was assigned to the Honorable Judge Peter Sheriden.

On August 13, 16 and 17, 2018, Judge Sheriden held a three-day Hearing on the Preliminary Injunction. The Parties presented conflicting expert testimony on the use of 10+ magazines in mass shootings, including the number of casualties involved and whether the 10+ Magazine Ban would save lives during a mass shooting by forcing the shooter to pause and reload ammunition, thus allowing individuals time to escape or subdue the shooter. The Court also heard testimony on whether 10+ magazines are used in self defense. To distinguish law enforcement officers from the general public, the State offered expert testimony that both active and retired police officers who possess firearms are required to pass a
qualification course bi-annually, using a weapon
equipped with a 15-round magazine.

On September 28, 2018 Judge Sheriden of the District Court denied the preliminary injunction, remarking that “the expert testimony [wa]s of little help in its analysis.” Judge Sheriden's Memorandum and Order begins at page 121/166 of the Appendix to the Petition for Certiorari at the Supreme Court.

In rejecting that the 10+ Magazine Ban violated the Second Amendment, the District Court applied the two-step analytical approach set out by the Third Circuit in United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). As laid out in Marzzarella the Third Circuit requires a court to ask first whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee of the right to bear arms. If it does, the second step is to evaluate that law under some form of what Constitutional lawyers and judges call "heightened scrutiny." [Actually, heightened scrutiny is a way to fix the outcome of the case!) According to the lawyers and judges who follow "heightened scrutiny," the level of scrutiny to be applied is determined by whether the law burdens the core of the Second Amendment guarantee. In what I and many others consider to be a deliberate miss-reading of the Supreme Court's Decision in Heller (which found that the 2A applies to People, Duh!) the Third Circuit like the other Liberal Circuits says that the core of the 2A protects the right of law-abiding citizens to possess non-dangerous weapons for self defense in the home. For those who apply levels of scrutiny to the 2A, laws that burden that "core" receive strict scrutiny, whereas those that do not burden the core do not. Note: as soon as a Court says that a law favored by Liberal/Progressives does not receive strict scrutiny, it almost always upholds the law.

The District Court found that the law burdened the 2A, that it did not go to the "core" of the 2A, and applied intermediate scrutiny. Under intermediate scrutiny, because the law was "important" and the fit between the law and the goal was "reasonable," the District Court made a preliminary determination that the 10+ Magazine ban did not violate the 2A and denied and allowed the law to stay in effect on a preliminary basis. In other words, the request for a preliminary injunction was denied.

For brevity (ROTFL )I am not going to discuss the other issues in the denial of the preliminary injunction.

ROUND 2 - The First Appeal to the Third Circuit

On December 6, 2018 the Third Circuit affirmed the District Court's denial of a Preliminary Injunction. The Third Circuit's Amended Opinion begins at page 66/166 of the Appendix to the Petition for Certiorari at the Supreme Court.

The Third Circuit noted that the record at the District Court "does show that 1o+ Magazines 'are not necessary or appropriate for self-defense,' and that use of [10+ Magazines] in self-defense can result in 'indiscriminate firing,' and “severe adverse consequences for innocent bystanders.'”

The Third Circuit also noted that the record showed:

While a trained marksman or professional speed shooter operating in controlled conditions can change
a magazine in two to four seconds, an inexperienced shooter may need eight to ten seconds to do so. Therefore, while a ban
on [10+ Magazines] does not restrict the amount of ammunition
or number of magazines an individual may purchase, without access to [10+ Magazines] a shooter must
reload more frequently.

The Third Circuit used the following analysis:

Having determined that magazines are arms, we next apply a two-step framework to resolve the Second Amendment challenge to a law regulating them. First, we consider whether the regulation of a specific type of magazine, namely [a 10+ Magazine, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Second, if the law burdens conduct that is protected by the Second Amendment, “we evaluate the law under some form of
means-end scrutiny.” “If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.”

[OP Comment
Means-end scrutiny works like this:

a) If a law promotes something my side wants the law IS Constitutional

b) If a law goes against something my side wants the law IS NOT Constitutional]

To summarize what happened at the Third Circuit in ROUND 2, the Third Circuit held:

1) Magazines are arms under the 2A;

2) The New Jersey 10+ Magazine ban burdens the 2A

3) The ends justifies the means and increased public safety resulting from the NJ 10+ Magazine Ban justifies the Ban's infringement of the 2A;

4) Therefore, Preliminary Injunction was denied, the law remained in effect, and the case was remanded (i.e. sent back) to the District Court for a final determination of the case.

In terms that we can all understand, the Third Circuit said:

10+ Magazines are BAD -- Laws that prohibit 10+ Magazines are GOOD

ROUND 3 - The District Court After the First Appeal
After Round 2 (the First Appeal) the case went back down to Judge Sheriden at the District Court.

On July 29, 2019 the District Court granted summary judgment against pro-2A Plaintiffs. Basically, the District Court said in its opinion, beginning at p. 58/166
Here that the Third Circuit had already decided the issue in Round 2 and the pro-2A plaintiffs had no case

ROUND 4 - The Second Appeal to the Third Circuit
In the Second Appeal to the Third Circuit, the Third Circuit agreed that it had already decided the issue in Round 2 and held that the pro-2A plaintiffs had no case.

ROUND 5 Petition for Certiorari to the U.S. Supreme Court
After losing again at the in Round 4 in the Second Appeal to the Third Circuit, on April 26, 2021 the pro-2A plaintiffs filed a Petition for Writ of Certiorari at the Supreme Court of the United States. A Petition for Writ of Certiorari means that the pro-2A plaintiffs asked the Supreme Court to please hear their case.

The April 26, 2021 Petition for Writ of Certiorari is here.
The questions presented to the Supreme Court were:

1. Whether a blanket, retrospective, and
confiscatory law prohibiting ordinary law-abiding
citizens from possessing magazines in common use
violates the Second Amendment.

2. Whether a law dispossessing citizens without
compensation of property that was lawfully acquired
and long possessed without incident violates the
Takings Clause.

Like any of the thousands of Petitions for Writ of Certiorari the Supreme Court did not have to hear the case.

On or about May 28, 2021 many "Friends of the Court" filed amicus briefs in asking the Supreme Court to hear the case.

On June 11, 2021, the Supreme Court asked the other side (the State of New Jersey) to respond to pro-2A plaintiffs' request that Supreme Court hear the case. This was a good sign for the pro-2A plaintiffs that the Supreme Court might want to hear the case.

On August 11, the State of New Jersey Responded to the Request for Petition of Certiorari

On August 25 the pro-2A plaintiffs filed their Reply to the papers filed by the State of New Jersey

The pro-2A plaintiffs' Petition for Certiorari sat idle for many, many months, with the Supreme Court not saying whether it would or would not hear the case.

INTERMISSION

Meanwhile . . .
Although the Bruck case on the New Jersey magazine ban was lying dormant and stale -- Fresh, Yummy and Delicious things were happening in the Bruen appeal to the Supreme Court of New York's may issue law that made it all but impossible for an ordinary citizen to obtain a carry permit in New York City and many parts of New York State.

In particular, the Supreme Court agreed to hear the Bruen appeal of the New York "may issue" carry law. Then, on June 23, 2022, a day that will forever be remembered as the day that New York, New Jersey, Maryland, California and the other "may issue" states froze over, the Supreme Court held 6-3 that the New York "may issue" carry permit law violated the Second Amendment of the United States Constitution. Justice Thomas, a long time advocate in favor of broad rights under the Second Amendment, wrote a brilliant opinion that not only restored the right to carry to tens of millions of law-abiding Americans, it called into question any gun control law that could not be supported by the text of the Second Amendment and its historical understanding.

ROUND 6 Remand to the lower courts

On June 30, 2022, only one week after the decision in Bruen, the Supreme Court gave the Third Circuit a swift kick in the rear end, and booted the Bruen case on the New Jersey 10+ magazine ban back to the Third Circuit. Basically, the Supreme told the Third Circuit to further consider the New Jersey 10+ magazine ban in light of the principles announced in the Bruen case.

ROUND 7 Consideration after the Supreme Court Decision
On July 7, 2022, the Clerk of the Third Circuit directed the Parties to submit Letter Briefs on the proper disposition of the matter in light of the Supreme Court's decision in Bruen.

On July 27, 2022, The Parties submitted their. From what I can glean: A) the pro-2A plaintiffs argued that the Third Circuit has all the information they need and the Third Circuit should reconsider on the record before it and declare that the 10+ Magazine Ban violates the Second Amendment; and B) the State of New Jersey argued that the Third Circuit should remand to the District Court so that the District Court can develop a full record.

On August 1, 2022 the Third Circuit recalled its Mandate. https://www.njgunforums.com/forum/ap...t.php?id=71683

On August 10, 2022, the Parties submitted their Reply Letter Briefs on how the matter should be handled by the Third Circuit, From what I can glean, the pro-2A Plaintiffs argue that the State had its chance chose to not develop a full record and now the State wants a do-over at the District Court..

Because of the very odd procedural posture, it is not at all clear to me what the Third Circuit will do next.

One thing for sure, it is as if the Third Circuit's decision in Round 4 never happened

ROUND 8. Second remand to District Court

Update 8/25/22
AT 1034 AM the Third Circuit punted this back to the District Court to develop the historical record. Expected but disappointing.

ORDER (JORDAN, MATEY and ROTH, Circuit Judges) This matter having been remanded for further consideration in light of the Supreme Court's decision in New York State Rifle & Pistol ***'n v. Bruen, 142 S. Ct. 2111 (2022), and upon consideration of the parties' positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded. Judge Matey dissents from this order, as described in the attached opinion, filed. Jordan, Authoring Judge. Matey, Dissenting (AWI) [Entered: 08/25/2022 10:34 AM]

On 8/25/2022 The District Court reopened the case and set a Status Conference for September 20, 2022. Typically the parties will submit letters to the Court several days before the Status Conference.

Update September 21, 2022

The Court having conducted a status conference,
IT IS ORDERED, on this 21 St day of September 2022, as follows:
• OrderECFNo. 117 isvacated;
IT IS FURTHER ORDERED:
• Plaintiffs will amend the Complaint by October 7, 2022;
• Defendants will move by filing an Answer or otherwise respond by
October 28, 2022;
• Defendants will submit a proposed schedule for development of
evidence by October 28, 2022. Disclosure of the schedule for
development of evidence is subject to work product and attorney client
privilege. Fed. R. Civ. P. § 26(b)(3); Fed. R. Evid. § 502.; and
• A status conference will he conducted via telephone on November 7,
2022 at 3:00 p.m. to determine the reasonableness of the State’s schedule to develop evidence.

[Racer X]

I wonder how all this will apply to the new Washington ban, went into effect July 1. Lawsuit already filed.

[raz-0]

Hunh, the docket updated 8-1 for this GVR and the Hawaii carry one. ANyone know why it gets an 08-01 update of judgement issued?

[GaryS]

In theory at least the 3CA is supposed to reexamine the case using the text and history standard set forth in Bruen.

IF they do, then the magazine ban will fall.

[Racer X]

how would I find out about the status of the Washington magazine ban lawsuit, considering the Bruen decision?

[Racer X]

Originally Posted by bushmaster1313

OP updated August 16, 2022 to say that on July 7, 2022 the Third Circuit asked the Parties to submit letter briefs as to how the matter should be handled in light of the Supreme Court's decision in Bruen. As of August 10, 2022 the letter briefs are in. The pro-2A Plaintiffs want the Third Circuit to reconsider in light of Bruen and on the record that has been established. The State of New Jersey is asking the Third Circuit to remand the case back to the District Court to develop a full record and render a decision on the merits.

My guess is that the Third Circuit will send the case back to the District Court. This will have the effect of delaying a decision that can be appealed to the Supreme Court and it will allow the State to put all the evidence it can muster into the record.

What possible evidence could there be? When you bring up "in common use" and there are a billion 11+ round capacity magazines floating around, how can you defend AGAINST them being allowed in NJ?

Is there any process to fast track these things, or is it just the defendants dragging their feet, drawing it out, because they know they will lose anyway, and just being petty and petulant?

I would think they would want to capitulate quickly, rather than get the Supreme Court's undivided attention to a matter that they already settled.

My Dad had a policy that if he had to bring something up a second time, we wouldn't like the second answer far more than the first response.

[bushmaster1313]

Originally Posted by Racer X

what possible evidence could there be? When you bring up "in common use" and there are a billion 11+ round capacity magazines floating around, how can you defend AGAINST them being allowed in NJ?

You make a very valid point. In fact, prior to several years ago, magazines with 11-15 rounds were in common use in New Jersey.

But the most relevant time period is when the 14th Amendment was passed after the civil war. At that time revolvers were just becoming popular after the invention by Samuel Colt of the first practical revolver in 1831. The Colt revolver was a massive increase in firepower compared to the single shot pistol, and as far as I know was not banned prior to the enactment of the 14th Amendment. To me, this is powerful historical evidence that favors ruling a 10+ magazine ban to violate the Second Amendment.

Update September 21, 2022

The Court having conducted a status conference,
IT IS ORDERED, on this 21 St day of September 2022, as follows:
• OrderECFNo. 117 isvacated;
IT IS FURTHER ORDERED:
• Plaintiffs will amend the Complaint by October 7, 2022;
• Defendants will move by filing an Answer or otherwise respond by
October 28, 2022;
• Defendants will submit a proposed schedule for development of
evidence by October 28, 2022. Disclosure of the schedule for
development of evidence is subject to work product and attorney client
privilege. Fed. R. Civ. P. § 26(b)(3); Fed. R. Evid. § 502.; and
• A status conference will he conducted via telephone on November 7,
2022 at 3:00 p.m. to determine the reasonableness of the State’s schedule to develop evidence.

[stansdds]

Originally Posted by bushmaster1313

You make a very valid point. In fact, prior to several years ago, magazines with 11-15 rounds were in common use in New Jersey.

But the most relevant time period is when the 14th Amendment was passed after the civil war. At that time revolvers were just becoming popular after the invention by Samuel Colt of the first practical revolver in 1831. The Colt revolver was a massive increase in firepower compared to the single shot pistol, and as far as I know was not banned prior to the enactment of the 14th Amendment. To me, this is powerful historical evidence that favors ruling a 10+ magazine ban to violate the Second Amendment.

That, I think, is a good point.

[bushmaster1313]

And the Henry rifle, in use during the Civil War, had a 15 round magazine.

[MichaelANJ]

When the First Amendment was enacted it protected written documents created mostly with a quill and pen.



When the Second Amendment was enacted it protected weapons at the time mostly muskets and flintlock pistols.



As time evolved everyone "knew" the First Amendment protections included newer ways to create documents.


How is the same logic not being extended to the Second Amendment?

[stansdds]

Originally Posted by MichaelANJ

When the First Amendment was enacted it protected written documents created mostly with a quill and pen.



When the Second Amendment was enacted it protected weapons at the time mostly muskets and flintlock pistols.



As time evolved everyone "knew" the First Amendment protections included newer ways to create documents.


How is the same logic not being extended to the Second Amendment?

Welcome to the S&W Forums. That is an excellent point you have made and I agree, but many do not believe that the 2A has any capacity to "evolve" and protect modern firearms.

[bushmaster1313]

Originally Posted by stansdds

Welcome to the S&W Forums. That is an excellent point you have made and I agree, but many do not believe that the 2A has any capacity to "evolve" and protect modern firearms.

To our great good fortune, Justice Clarence Thomas, IMHO the greatest Supreme Court Justice of all time, resolved this question in his brilliant Bruen decision:

Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Id., at 629 [quoting Heller]. Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

[bushmaster1313]

ROUND 8. Second remand to District Court

Update 8/25/22
AT 1034 AM the Third Circuit punted this back to the District Court to develop the historical record. Expected but disappointing.

ORDER (JORDAN, MATEY and ROTH, Circuit Judges) This matter having been remanded for further consideration in light of the Supreme Court's decision in New York State Rifle & Pistol ***'n v. Bruen, 142 S. Ct. 2111 (2022), and upon consideration of the parties' positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded. Judge Matey dissents from this order, as described in the attached opinion, filed. Jordan, Authoring Judge. Matey, Dissenting (AWI) [Entered: 08/25/2022 10:34 AM]

[robertrwalsh]

Thanks for the excellent 411.

[03clyde]

Good read, thanks.

[smoothshooter]

Originally Posted by MichaelANJ

When the First Amendment was enacted it protected written documents created mostly with a quill and pen.



When the Second Amendment was enacted it protected weapons at the time mostly muskets and flintlock pistols.



As time evolved everyone "knew" the First Amendment protections included newer ways to create documents.


How is the same logic not being extended to the Second Amendment?

Because logic no longer applies.
We now live in a Post-Constitutional America.
Prove me wrong?

[bushmaster1313]

Originally Posted by smoothshooter

Because logic no longer applies.
We now live in a Post-Constitutional America.
Prove me wrong?

For 100 years New Jersey prohibited ordinary citizens from getting carry permits. Justice Thomas and five other Justices said that violates the Constitution and New Jersey is now issuing carry permits to ordinary citizens.

[GaryS]

Although it's often frustrating to lay people (including me) that the courts don't move more quickly on what we consider vital matters, the court has it's protocols.

One if which is to remand reversed cases to the court where the case originated for further proceedings consistent with the appellate court's opinion and order.

In effect what SCOTUS did in Bruen is tell all of the lower courts that they screwed up and to fix their mess.

In this case, SCOTUS remanded to the 3CA and the 3CA is now remanding to the federal district. In due course, the district will reverse it's original decision, although the judge might be gritting his teeth as he does it.

Keep in mind that this is not the end of the ramifications of Bruen. Nor is it the beginning of the end. It is, perhaps, the end of the beginning.

We will be seeing a LOT more litigation over the next few years as various bans fall.

I expect that there will be a suit against Mass regarding it's magazine limitations and it's ban on Modern Sporting Rifles.

[Racer X]

A suit has already been filed for Washington's magazine ban, and it isn't even 2 months old. It went into effect just after Bruen. They could have been stand up politicians and immediately repealed it, knowing it was essentially unconstitutional but they seem to be behaving like petulant children. Not as bad as New York state though.

[bushmaster1313]

Status conference set for September 20, 2022

[vt_shooter]

I always thought the purpose of the 2A was to prevent government from being able to outgun the population. That said, if Joe public can't have a 12 rd magazine, then neither should the police be allowed to have one. Believe me, I do not want police to be outgunned by criminals, but I also want the Constitution to be respected.

[bushmaster1313]

Update September 21, 2022

The Court having conducted a status conference,
IT IS ORDERED, on this 21 St day of September 2022, as follows:
• OrderECFNo. 117 isvacated;
IT IS FURTHER ORDERED:
• Plaintiffs will amend the Complaint by October 7, 2022;
• Defendants will move by filing an Answer or otherwise respond by
October 28, 2022;
• Defendants will submit a proposed schedule for development of
evidence by October 28, 2022. Disclosure of the schedule for
development of evidence is subject to work product and attorney client
privilege. Fed. R. Civ. P. § 26(b)(3); Fed. R. Evid. § 502.; and
• A status conference will he conducted via telephone on November 7,
2022 at 3:00 p.m. to determine the reasonableness of the State’s schedule to develop evidence.

[venomballistics]

Originally Posted by bushmaster1313

Update September 21, 2022

Sounds like a good bit of arm twisting involved