3rd Circuit upholds New Jersey mag ban

1
Ellman v. Grewal.

Ruling:
https://www2.ca3.uscourts.gov/opinarch/183170p.pdf
Today we address whether one of New Jersey’s
responses to the rise in active and mass shooting incidents in
the United States—a law that limits the amount of ammunition
that may be held in a single firearm magazine to no more than
ten rounds—violates the Second Amendment, the Fifth
Amendment’s Takings Clause, and the Fourteenth
Amendment’s Equal Protection Clause. We conclude that it
does not. New Jersey’s law reasonably fits the State’s interest
in public safety and does not unconstitutionally burden the
Second Amendment’s right to self-defense in the home. The
law also does not violate the Fifth Amendment’s Takings
Clause because it does not require gun owners to surrender
their magazines but instead allows them to retain modified
magazines or register firearms that have magazines that cannot
be modified. Finally, because retired law enforcement officers
have training and experience that makes them different from
ordinary citizens, the law’s exemption that permits them to
possess magazines that can hold more than ten rounds does not
violate the Fourteenth Amendment’s Equal Protection Clause.
6 We will therefore affirm the District Court’s order denying
Plaintiffs’ motion to preliminarily enjoin enforcement of the
law.

Active shooting and mass shooting incidents have
dramatically increased during recent years. Statistics from
2006 to 2015 reveal a 160% increase in mass shootings over
the prior decade. App. 1042. Department of Justice and
Federal Bureau of Investigation (“FBI”) studies of active
shooter incidents (where an individual is actively engaged in
killing or attempting to kill people with a firearm in a confined,
populated area) reveal an increase from an average of 6.4
incidents in 2000 to 16.4 incidents in 2013. App. 950, 953.
These numbers have continued to climb, and in 2017, there
were thirty incidents. App. 1149, 1133. In addition to
becoming more frequent, these shootings have also become
more lethal. App. 906-07 (citing 2018 article noting “it’s the
first time [in American history] we have ever experienced four
gun massacres resulting in double-digit fatalities within a 12-
month period”).

In response to this trend, a number of states have acted.
In June 2018, New Jersey became the ninth state to pass a
new law restricting magazine capacity.1 New Jersey has
made it illegal to possess a magazine capable of holding more
than ten rounds of ammunition (“LCM”).2 N.J. Stat. Ann.
2C:39-1(y), 2C:39-3(j) (“the Act”).
Complaint rom June:
https://www.courthousenews.com/wp-conte ... plaint.pdf

Re: 3rd Circuit upholds New Jersey mag ban

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I don't understand the "similarly situated" discussion about police and why they are special with regard to 2A rights. Aren't all citizens, regardless of situation (baring violent felonies), the same before the constitution? Slaves were not "similarly situated" and we finally decided that was incorrect. Women, too. And gay marriage. Since when are we moving backward in time to describe a special class of citizen that has more right under a constitutional amendment than others? I am totally ignorant on case law regarding this, but it seems to be the opposite of what other major milestones have defined along the way to human equity.
Finally, Plaintiffs’ Equal Protection claim fails. The
Equal Protection Clause provides that no state shall “deny to
any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. “This is essentially a
direction that all persons similarly situated should be treated
alike.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422
F.3d 141, 151 (3d Cir. 2005) (citing City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Thus, to
establish an equal protection claim, Plaintiffs “must
demonstrate that they received different treatment from that
received by other individuals similarly situated.” Id. (citations
omitted).
The problem is, this is a question of a constitutional right, not a license to police, practice medicine or lawyer where "similarly situated" with regard to expertise or education would seem relevant.

Re: 3rd Circuit upholds New Jersey mag ban

3
A split panel, Judge Bibas (Trump appointee) makes a strong dissent.
The Second Amendment is an equal part of the Bill of
Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We
may not water it down and balance it away based on our own sense of wise policy. 554 U.S. at 634-35.
But the Second Amendment provides a right to “keep and bear Arms.” U.S. Const. amend. II (emphasis added). It protects possessing arms, not just firing them. So the majority misses a key part of the Second Amendment. The analysis cannot turn on how many bullets are fired.
So we must apply strict scrutiny to protect people’s core right to defend themselves and their families in their homes. That means holding the government to a demanding burden of proof. Here, the government has offered no concrete evidence that magazine restrictions have saved or will save potential victims. Nor has it made any showing of tailoring.
Request an en banc hearing at the 3rd Circuit or petition for cert to SCOTUS?
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 3rd Circuit upholds New Jersey mag ban

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This is a disappointing but totally expected decision.
I found the dissent to be more compelling but one thing I didn't see in the dissent was an obvious contradiction (to me) the decision:
1) Magazines are defined as arms
2) Heller disallows banning a class of arms in common use
3) Large Capacity Magazines (ie, over the 10 rounds the new law allows) are a class of arms, and, with the 15 round previous limit, obviously in common use in New Jersey. In other words, the previously legal class of arms, the 15 round magazines, were certainly in common use.

Their logic seems contradictory to me.

The dissent argues that the majority uses non-statistical "feel good" tests of the effectiveness of such a ban, asserting that reload times gives victims time to flee. We all know that with an experienced shooter, reloading could take just a second or two--mag release, slam in fresh mag, slide-release, shoot. Even an inexperienced shooter, like the Parkland shooter was able to change 10 round magazines rapidly enough to kill 17.

I expect the appeals will continue. My 15-round mags are legally stored at an FFL until this is resolved at the SCOTUS, at which time I will either retrieve them or have them permanently modified.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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I was just looking up whether ammo purchase laws in NJ have changed (they haven't) because Sig won't sell ammo to NJ (you need a FPID card to buy Ammo--Bud's has mine on record).
I noticed that they, this court, gave the crazy decision of Revell, who was travelling through Newark Airport, had his firearm legally locked up in his checked luggage, but his flight was cancelled and he had to spend the night in NJ. His checked luggage was returned to him, in NJ, and he was arrested for illegal transportation, and the 3rd Circuit upheld the conviction.
However, the Third Circuit Court of Appeals in Association of New Jersey Rifle and Pistol Clubs v. Port Authority of New York and New Jersey has found that this provision only applies to transporting a firearm in a vehicle, and that carrying a firearm in a locked container in checked luggage in an airport terminal to declare it to the airline constitutes unlawful possession and is not protected under the law. This decision was a direct result of a 2005 incident where Gregg C. Revell, a Utah Resident with a valid Utah Concealed Firearm Permit was traveling through Newark Airport en route to Allentown, Pennsylvania. Because of a missed flight, he was given his luggage, which included a properly checked firearm, and was forced to spend the night in a hotel in New Jersey. When he returned to the airport the following day to check his handgun for the last portion of the trip, he was arrested for illegal possession of a firearm. Revell lost his lawsuit after The U.S. Court of Appeals for the Third Circuit held in Gregg C. Revell v. Port Authority of New York and New Jersey, [222] held that "Section 926A does not apply to Revell because his firearm and ammunition were readily accessible to him during his stay in New Jersey." This opinion will apply to NJ airports. If you miss a flight or for any other reason your flight is interrupted and the airline tries to return you luggage that includes a checked firearm, you cannot take possession of the firearm if you are taking a later flight. The Association of New Jersey Rifle and Pistol Clubs (ANJRPC) later also sued the Port Authority of New York and New Jersey, which resulted in a similar decision.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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Jacob Sullum on Judge Stephanos Bibas' dissenting opinion:
A Powerful Dissent Charges Judges Who Casually Uphold Magazine Restrictions With Disrespecting the Second Amendment
A powerful dissent by Judge Stephanos Bibas, the third member of the 3rd Circuit panel, argues that the majority's reasoning fails to take the Second Amendment as seriously as the Supreme Court said it should be in District of Columbia v. Heller, the landmark 2008 decision that overturned a local ban on handguns. "The Second Amendment is an equal part of the Bill of Rights," Bibas writes. "We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy."

New Jersey, which has banned magazines holding more than 15 rounds since 1990, imposed the stricter limit last June in response to mass shootings. The law requires owners of "large capacity magazines" (LCMs) to surrender them to the state, render them inoperable, modify them so they cannot hold more than 10 rounds, or sell them to authorized owners (such as retired police officers, who are exempt from the ban) by December 10. New Jersey residents who fail to comply by Monday will become felons, subject to a maximum fine of $10,000 and up to 18 months in prison for possessing previously legal products.

Judges Shwartz and Greenaway note that "millions of LCMs have been sold since 1994" and that "LCMs often come factory standard with semi-automatic weapons." They "assume without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." But because New Jersey's LCM ban "does not severely burden the core Second Amendment right to self-defense in the home," they apply "intermediate scrutiny," which requires that a challenged law advance "a significant, substantial, or important interest" in a way that "does not burden more conduct than is reasonably necessary." By contrast, "strict scrutiny" requires that a challenged law be "narrowly tailored" to advance a "compelling governmental interest."

Re: 3rd Circuit upholds New Jersey mag ban

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YankeeTarheel wrote: Thu Dec 06, 2018 11:37 amTheir logic seems contradictory to me.
You're right to be confused. It stems from the (imho) false premise that magazines are arms, and 10+ round magazines constitute a class of arms.

I would counter that magazines are accessories and do not relate to the function of the weapon. I would say that an AR would function equally well with a three round or a 17 round magazine.

I do not agree with magazine bans. I'm just looking at the construction of the argument.

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: 3rd Circuit upholds New Jersey mag ban

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CDFingers wrote: Fri Dec 07, 2018 10:00 am
YankeeTarheel wrote: Thu Dec 06, 2018 11:37 amTheir logic seems contradictory to me.
You're right to be confused. It stems from the (imho) false premise that magazines are arms, and 10+ round magazines constitute a class of arms.

I would counter that magazines are accessories and do not relate to the function of the weapon. I would say that an AR would function equally well with a three round or a 17 round magazine.

I do not agree with magazine bans. I'm just looking at the construction of the argument.

CDFingers
It's not MY premise that magazines are "arms"--it's the court's! I agree: it's an accessory. But if it's an accessory, why would it still be entitled to 2A protections? If so, could Hoppe (for example) claim that their cleaning products are exempt from any and all regulation?

If logic is clear and precise, even if I don't like the conclusion, it's hard to reasonably argue with it. But when the "logic" is pretzel logic, it's not logic.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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featureless wrote: Fri Dec 07, 2018 2:39 pm Magazines are not accessories, just like sights and triggers are not accessories. They are integral to semi auto function, thus part of the "arm". A bump stock is an accessory. A scope is an accessory.
While I might agree with your definition, I must remind you that it's not relevant as it's merely an assertion by you, reflecting your opinion. The only relevant definitions come from the legislature and the courts, like it or not.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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Seems to me that based on the interest of the government in public safety, which is the justification for this decision, retired LEO should be allowed to have LESS rounds in their magazines, precisely because they have more training.

If not, then allow private citizens to acquire the same level of training, or demonstrate the same level of proficiency. Many in fact have and can.

Re: 3rd Circuit upholds New Jersey mag ban

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featureless wrote: Fri Dec 07, 2018 3:02 pm I think it was actually part of Heller (although I'd have to reread it). The arm needs to be functional. A semi auto is not fuctional without at least a 2 round magazine. :)
Yep. That's it. A mag cap ban would be legal--I don't agree with it, but it will be legal.

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: 3rd Circuit upholds New Jersey mag ban

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CDFingers wrote: Sat Dec 08, 2018 8:56 am
featureless wrote: Fri Dec 07, 2018 3:02 pm I think it was actually part of Heller (although I'd have to reread it). The arm needs to be functional. A semi auto is not fuctional without at least a 2 round magazine. :)
Yep. That's it. A mag cap ban would be legal--I don't agree with it, but it will be legal.

CDFingers
I'm not sure Heller supported limiting capacity, just that the firearm had to be functional so magazines would be protected. Silent on capacity. So it will either end up a mix based on district court decisions or the Supreme Court will need to clarify. You've probably read the decision on the California mag challenge? Obviously not the final word, but opposite of this decision and well worth the read.

Re: 3rd Circuit upholds New Jersey mag ban

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featureless wrote: Sat Dec 08, 2018 10:02 am
CDFingers wrote: Sat Dec 08, 2018 8:56 am
featureless wrote: Fri Dec 07, 2018 3:02 pm I think it was actually part of Heller (although I'd have to reread it). The arm needs to be functional. A semi auto is not fuctional without at least a 2 round magazine. :)
Yep. That's it. A mag cap ban would be legal--I don't agree with it, but it will be legal.

CDFingers
I'm not sure Heller supported limiting capacity, just that the firearm had to be functional so magazines would be protected. Silent on capacity. So it will either end up a mix based on district court decisions or the Supreme Court will need to clarify. You've probably read the decision on the California mag challenge? Obviously not the final word, but opposite of this decision and well worth the read.
Someone needs to challenge thes magazine capacity bans based on the "common use" element of Heller. Let's put that to the test and see if the courts really care about enforcing their own decisions.
106+ recreational uses of firearms
1 defensive use
0 people injured
0 people killed

Re: 3rd Circuit upholds New Jersey mag ban

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Eris wrote: Sat Dec 08, 2018 2:55 pm
featureless wrote: Sat Dec 08, 2018 10:02 am
CDFingers wrote: Sat Dec 08, 2018 8:56 am
featureless wrote: Fri Dec 07, 2018 3:02 pm I think it was actually part of Heller (although I'd have to reread it). The arm needs to be functional. A semi auto is not fuctional without at least a 2 round magazine. :)
Yep. That's it. A mag cap ban would be legal--I don't agree with it, but it will be legal.

CDFingers
I'm not sure Heller supported limiting capacity, just that the firearm had to be functional so magazines would be protected. Silent on capacity. So it will either end up a mix based on district court decisions or the Supreme Court will need to clarify. You've probably read the decision on the California mag challenge? Obviously not the final word, but opposite of this decision and well worth the read.
Someone needs to challenge thes magazine capacity bans based on the "common use" element of Heller. Let's put that to the test and see if the courts really care about enforcing their own decisions.
ANJRPC is challenging it. The latest decision is the OP of this thread.
I have my issues with ANJRPC but in this case I believe they are 100% correct.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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DispositionMatrix wrote: Tue Dec 11, 2018 10:28 am Life as fourth-degree felons begins today for those who did not obey.
Today? I thought the window closed yesterday.

However, at least the final bill gave us 6 months to comply, where the original didn't have that provision.

There is a LEGAL way around either disposal or modification: and that's storage. You could either store them out of state, although how to get them out of state legally was dicey. Or, you could transport them to an FFL with a compliant storage facility, and have them store the non-compliant mags. All my 15 round mags are stored, so, if the case reaches the SCOTUS and they overturn it, I can get them back. If they uphold it, I can have them modified. For $30/year it's a worthy expenditure for me.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 3rd Circuit upholds New Jersey mag ban

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Eris wrote: Sat Dec 08, 2018 2:55 pm
featureless wrote: Sat Dec 08, 2018 10:02 am
CDFingers wrote: Sat Dec 08, 2018 8:56 am
featureless wrote: Fri Dec 07, 2018 3:02 pm I think it was actually part of Heller (although I'd have to reread it). The arm needs to be functional. A semi auto is not fuctional without at least a 2 round magazine. :)
Yep. That's it. A mag cap ban would be legal--I don't agree with it, but it will be legal.

CDFingers
I'm not sure Heller supported limiting capacity, just that the firearm had to be functional so magazines would be protected. Silent on capacity. So it will either end up a mix based on district court decisions or the Supreme Court will need to clarify. You've probably read the decision on the California mag challenge? Obviously not the final word, but opposite of this decision and well worth the read.
Someone needs to challenge thes magazine capacity bans based on the "common use" element of Heller. Let's put that to the test and see if the courts really care about enforcing their own decisions.
That's the best strategy if magazines are arms; Heller would (should) protect 'in common use' magazine sizes. But if magazines over three rounds in size do not change the function of the weapon, they could mandate three round mags as the common size.

Again, I don't support such a law. I'm merely trying to expose their strategy in an effort to counter it. So far, fail.

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: 3rd Circuit upholds New Jersey mag ban

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How many of New Jersey's 1 million or so gun owners have complied with the ban by turning LCMs in to law enforcement agencies? Approximately zero, judging from an investigation by Ammoland writer John Crump. Crump, an NRA instructor and gun rights activist, "reached out to several local police departments in New Jersey" and found that "none had a single report of magazines turned over." He also contacted the New Jersey State Police, which has not officially responded to his inquiry. But "two sources from within the State Police," speaking on condition of anonymity, said "they both do not know of any magazines turned over to their agency and doubted that any were turned in."
https://reason.com/blog/2018/12/20/new- ... seem-eager

"Approximately zero."

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: 3rd Circuit upholds New Jersey mag ban

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CDFingers wrote: Tue Jan 01, 2019 10:42 am
How many of New Jersey's 1 million or so gun owners have complied with the ban by turning LCMs in to law enforcement agencies? Approximately zero, judging from an investigation by Ammoland writer John Crump. Crump, an NRA instructor and gun rights activist, "reached out to several local police departments in New Jersey" and found that "none had a single report of magazines turned over." He also contacted the New Jersey State Police, which has not officially responded to his inquiry. But "two sources from within the State Police," speaking on condition of anonymity, said "they both do not know of any magazines turned over to their agency and doubted that any were turned in."
https://reason.com/blog/2018/12/20/new- ... seem-eager

"Approximately zero."

CDFingers
It's interesting that when the government continues to pass laws that are so ubsurd that compliance is so low. Think those that govern will make the connection? :)

Re: 3rd Circuit upholds New Jersey mag ban

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featureless wrote: Tue Jan 01, 2019 12:26 pm
CDFingers wrote: Tue Jan 01, 2019 10:42 am
How many of New Jersey's 1 million or so gun owners have complied with the ban by turning LCMs in to law enforcement agencies? Approximately zero, judging from an investigation by Ammoland writer John Crump. Crump, an NRA instructor and gun rights activist, "reached out to several local police departments in New Jersey" and found that "none had a single report of magazines turned over." He also contacted the New Jersey State Police, which has not officially responded to his inquiry. But "two sources from within the State Police," speaking on condition of anonymity, said "they both do not know of any magazines turned over to their agency and doubted that any were turned in."
https://reason.com/blog/2018/12/20/new- ... seem-eager

"Approximately zero."

CDFingers
It's interesting that when the government continues to pass laws that are so ubsurd that compliance is so low. Think those that govern will make the connection? :)
Once complete control is achieved by the one percent, I’m sure these laws will be used against the rest of us.
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"Resistance is futile. You will be assimilated!" Loquacious of many. Texas Chapter Chief Cat Herder.

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N.J. gun owners are storing ‘thousands and thousands’ of banned gun magazines in a steel vault
“Thousands and thousands” of large-capacity magazines are stored currently at GunSitters in Whippany, where gun owners have handed over their large-capacity magazines, taking advantage of the storage option as litigation plays out, Rebels said. Some have turned over more than 100 magazines, which are held in a 3,000-square-foot steel vault.
The one thing Rebels said gun owners are not doing is handing their large-capacity magazines over to law enforcement, one of the choices state officials encouraged when the law went into effect.

A New Jersey State Police spokesman said not a single large-capacity magazine has been turned in since the law went into effect nearly nine months ago. Residents can also bring them to their local police departments.

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