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Second Amendment Roundup: New Jersey Rifle and Magazine Bans Bite the Dust

The Third Circuit takes Second Amendment rights seriously.

Stephen Halbrook | 7.22.2026 9:57 PM

On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment.  The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (AJNRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman.  This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.

Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay.  My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue."  All of the other circuit decisions have upheld bans.

The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of AJNRPC.  First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction."  Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession.  Third, such use excludes a "dangerous and unusual" weapon.

Criticism of the common-use test as "a popularity poll" disregards that the Supreme Court requires this test, and "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose.  Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.

"Bruen's first step is fundamentally a textual inquiry," but the common use inquiry is not located there.  It neither appears in the Second Amendment's text nor is it part of the definition of "Arms," which as Wolford noted includes "any weapon customarily used for offensive or defensive purposes." "'Customarily' distinguishes items that can be used, offensively or defensively, as weapons (e.g., bricks) from weapons normally used for offensive or defensive purposes."  So common use fits into Bruen's step two (the historical tradition step), as a part of "how" a modern regulation burdens the right in comparison with any relevant historical analogue.  Here, as in Heller, the "how" is a "flat ban."  Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are "dangerous and unusual" and, by necessity, not in common use.

Moving on to New Jersey's ban on its listings of firearm make and models, the AJNRPC court decides........

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