The Third Circuit Just Put ‘Assault Weapon’ Bans on Constitutional Notice

The Second Amendment did not have a good Friday in New Jersey. It had an overdue one.

Sitting en banc, the U.S. Court of Appeals for the Third Circuit held that New Jersey’s ban on semiautomatic rifles and its restrictions on magazines holding more than 10 rounds violate the Constitution. The 10–5 decision is the first from a federal appeals court to invalidate a state ban of this kind. It arrives less than three weeks after the Supreme Court agreed to decide whether similar restrictions in Connecticut and Cook County, Illinois, can survive.

This is not a technical dispute about one rifle model or a narrow victory confined to one state. It is a direct challenge to the legal fiction at the center of modern “assault weapon” laws: that a government may prohibit an entire class of ordinary semiautomatic firearms simply by combining a frightening label with a list of cosmetic or ergonomic features.

The Third Circuit rejected that fiction. The Supreme Court should do the same nationwide.

Common ownership has constitutional meaning

The opinion’s central fact is difficult to talk around. Semiautomatic rifles are not exotic curiosities hiding at the margins of American life. The record before the court included roughly 24 million AR-15s and similar sporting rifles in circulation. Those rifles are used for lawful purposes that include self-defense, target shooting, hunting, and pest control.

New Jersey argued that the rifles’ military heritage and features placed them outside ordinary constitutional protection. The court looked at how Americans actually possess and use them. It emphasized that mild recoil, accuracy, and ergonomics can make such rifles suitable for lawful use, including defense of the home.

That approach follows the basic logic of District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen. The Second Amendment protects arms commonly possessed for lawful purposes. A weapon that is common cannot simultaneously be dismissed as “unusual” merely because legislators consider it dangerous or politically disfavored.

The alternative would turn a constitutional right into a permission slip controlled by vocabulary. Lawmakers could wait for citizens to adopt a firearm, attach a pejorative name to it, and then use that name as evidence that the firearm falls beyond the right. The Bill of Rights does not work that way.

Semiautomatic is not automatic

Precision matters in this debate because imprecision has done so much political work.

An ordinary semiautomatic rifle fires one round for each pull of the trigger. A machine gun can fire multiple rounds through a single trigger function. Federal law has long treated those categories differently, and the Supreme Court has repeatedly recognized the distinction.

Yet New Jersey’s official response blurred it immediately. The governor’s press-release headline described the Third Circuit decision as lifting restrictions on “automatic weapons,” even though the ruling addressed semiautomatic rifles. Governor Mikie Sherrill’s statement then invoked “weapons of war.”

Americans can debate gun policy without pretending that technical categories are interchangeable. Calling a semiautomatic civilian rifle a machine gun does not make it one. Calling a commonly owned arm a weapon of war does not supply the historical analogue that Bruen requires.

The magazine ruling matters just as much

The court also held that magazines capable of holding more than 10 rounds are protected arms and that New Jersey failed to justify its restriction under the nation’s historical tradition.

Here again, the numbers cut through the rhetoric. The record showed more than 100 million 30-round AR-15 magazines in circulation, while 20- and 30-round magazines commonly ship as standard equipment with rifles that are themselves widely possessed for lawful purposes. A state-selected number does not become constitutional merely because officials call everything above it “large capacity.”

New Jersey pointed to Founding-era gunpowder-storage laws as historical support. The majority found that analogy unpersuasive. Those rules addressed fire hazards in the storage of loose gunpowder; they did not broadly prohibit citizens from possessing ordinary arms or their standard components to prevent criminal misuse.

That distinction is exactly why Bruen asks both how a historical law burdened the right and why it did so. A distant resemblance is not enough. Otherwise, almost any modern ban could be defended by rummaging through history for a regulation involving weapons, ammunition, or public safety.

Public safety is serious—but it does not rewrite the test

The dissents and New Jersey’s elected officials are not wrong to treat mass shootings as a grave evil. They argue that these rifles and magazines can magnify the harm when criminals attack crowded places. Any honest account of the case should acknowledge that concern directly.

But constitutional adjudication cannot end whenever a government invokes public safety. Heller itself involved a handgun ban defended as a response to violence. The Supreme Court nevertheless rejected that flat prohibition because the Constitution removes some policy choices from ordinary majoritarian control.

The Third Circuit did not hold that every firearm regulation is forbidden. It distinguished rules aimed at the misuse of weapons and restrictions on dangerous individuals from a categorical ban imposed on law-abiding citizens. Government may punish violent conduct, disarm people who pose a legally established threat, enforce laws against trafficking, and prosecute criminals who misuse firearms. What it may not do is treat millions of peaceful owners as the constitutional equivalent of criminals.

That line is not indifference to safety. It is the difference between regulating unlawful behavior and prohibiting a protected object.

What the court actually decided

The decision is broad, but its boundaries matter.

The Third Circuit expanded the district court’s earlier ruling beyond the Colt AR-15 to New Jersey’s full class of prohibited semiautomatic rifles. It also reversed the district court and held the state’s magazine restrictions unconstitutional. Challenges involving other models and types of firearms covered by New Jersey’s statute—including certain pistols and shotguns—were sent back for further proceedings.

New Jersey Attorney General Jennifer Davenport called the ruling legally incorrect and said the state is considering its options. Further review and requests for a stay are possible, and the appellate mandate and lower-court proceedings still matter. No one should treat a headline—or this article—as individualized legal advice about what may be possessed in New Jersey today.

The national question is also not finished. The Supreme Court has granted review in Viramontes v. Cook County and Grant v. Higgins, consolidating challenges to semiautomatic-rifle bans for argument in its next term. Just days before the Third Circuit ruled, the Seventh Circuit upheld Illinois restrictions. The split could hardly be clearer.

The Supreme Court should finish the job

Lower courts have spent years trying to convert Heller’s protection for arms in common lawful use into something less definite. Some have focused on a weapon’s perceived dangerousness, others on whether alternative firearms remain available, and still others on historical analogies too remote to carry the weight placed on them.

The Third Circuit returned to the simpler rule: a government cannot flatly ban an entire class of arms that millions of Americans lawfully possess. It cannot evade that rule by saying citizens may buy something else. And it cannot transform common equipment into contraband by assigning an arbitrary capacity limit.

The Supreme Court now has an opportunity to end the jurisdiction-by-jurisdiction lottery. The same constitutional right should not protect a rifle in Pennsylvania while allowing a neighboring state to threaten prison for possessing it. Rights do not become less fundamental when a citizen crosses a bridge.

Reasonable people will continue to disagree about firearms. They should. The country needs serious enforcement against violent offenders, responsible gun ownership, secure storage, competent training, and interventions that focus on people who credibly threaten others.

But “serious” policy is not the same as symbolic prohibition. The Constitution protects unpopular rights precisely when political majorities are most tempted to replace individual responsibility with collective punishment.

The Third Circuit’s decision recognizes that principle. The Supreme Court should make it the law of the land.