A federal judge has declared that New Jersey’s ban on so-called assault weapons is unconstitutional, at least when it comes to one of the makes and models prohibited by law, and though he was none too happy about having to reach that conclusion.
U.S. District Judge Peter Sheridan wrote that it “is hard to accept the Supreme Court’s pronouncements that certain firearms policy choices are ‘off the table’ when frequently, radical individuals possess and use these same firearms for evil purposes,” but added that under the “elementary principle” of stare decisis, New Jersey’s ban on at least one so-called assault weapon is unconstitutional.
At the same time, Sheridan took pains to limit the scope of his decision to that one particular make and model of modern sporting rifle, and upheld entirely the state’s ban on “large capacity” magazines. The judge recognized that AR-15s are in common use for self-defense, but claimed that since the plaintiffs had largely focused their legal arguments on that one particular model instead of all of the firearms listed under New Jersey’s Assault Firearms Law, he could only address the constitutionality of banning the AR-15.
That’s an odd decision, but at least opens the door for the plaintiffs to argue for a broader ruling on appeal. Where Sheridan’s ruling really went off the rails, in my opinion, was the portion of his ruling dealing with large capacity magazines. Unlike some other federal judges, Sheridan agreed that magazines are “arms” that fall under the Second Amendment’s protections, but concluded that the state’s ban on magazines that can hold more than ten rounds is still constitutional because “the accuracy and lethality of the weapons facilitated by these large capacity ammunition magazines is an unprecedented change and was not addressed in the Supreme Court’s decisions in Heller or Bruen.”
As the briefing has revealed, the question of magazine capacity is directly related to the mass shooting issue since a magazine’s capacity bears strongly upon the lethality and accuracy of modern firearms; where mass shootings have become a societal scourge, the very practical issue of ways to prevent-or alternately, to limit-their lethality is before the Court. Even where there may have been mass events of murder in the Founding Era or Reconstruction Era, these instances pale in comparison to the accurate brutality exacted today by mass shooters. For these reasons, the nuanced historical analysis discussed within Bruen-which called for nuanced “analogical reasoning” to determine whether historical analogues are”relevantly similar in unprecedented circumstances-is appropriate.
In his “nuanced” approach, Sheridan dismissed the fact that firearm capacity increased exponentially in the 19th century without any type of governmental limitation on magazine size, because those magazines were fixed, not detachable. Sheridan then pointed to a handful of bans on Bowie knives in the 1800s to argue that the magazine ban is “a restriction responding to safety concerns present in our time.”
Second Amendment attorney Kostas Moros is less than impressed with Sheridan’s reasoning.
What’s really strange about Sheridan’s argument is that he rejected bans on Bowie knives as an appropriate analogue to New Jersey’s ban on Colt AR-15s, holding that because those laws generally prohibited the carrying of knives, not their possession, it wasn’t a close enough fit with the state’s modern prohibition on semi-automatic long guns. Yet those very same 19th-century statutes were a close enough fit to justify New Jersey’s ban on large capacity magazines for reasons that Sheridan never adequately explained.
It’s not a great decision, but it could have been much worse. Sheridan’s opinion does open the door for the Third Circuit to take his logic to its rational conclusion and to declare the entirety of the state’s “assault weapon” ban unconstitutional, and arguably the magazine ban as well.
