Association <strong>of</strong> New Jersey Rifle and Pistol Clubs I <strong>v.</strong> Attorney General New Jersey
7/17/2026
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Nos. 24-2415, 24-2450 & 24-2506
______________
ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS,
INC.; BLAKE ELLMAN; MARC WEINBERG
v.
ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW
JERSEY STATE POLICE; OFFICER IN CHARGE OF THE CHESTER
POLICE DEPARTMENT; CHIEF OF POLICE OF THE PARK RIDGE
POLICE DEPARTMENT
(D.C. No. 1:18-cv-10507)
MARK CHEESEMAN; TIMOTHY CONNELLY;
FIREARMS POLICY COALITION, INC.,
Appellants in No. 24-2415
v.
ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW
JERSEY STATE POLICE; GLOUCESTER COUNTY PROSECUTOR;
OCEAN COUNTY PROSECUTOR,
Appellants in No. 24-2450
(D.C. No. 1:22-cv-04360)
BLAKE ELLMAN; THOMAS R. ROGERS; ASSOCIATION OF NEW
JERSEY RIFLE AND PISTOL CLUBS, INC.; MARC WEINBERG,
Appellants in No. 24-2506
v.
ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW
JERSEY STATE POLICE; OFFICER IN CHARGE OF THE CHESTER
POLICE DEPARTMENT; CHIEF OF THE WALL
TOWNSHIP POLICE DEPARTMENT
(D.C. 1:22-cv-04397)
______________
Appeal from the U.S. District Court, D.N.J.
Judge Peter G. Sheridan
Before: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ,
KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS,
FREEMAN, MONTGOMERY-REEVES, CHUNG, BOVE,
MASCOTT, and SMITH, Circuit Judges
Argued before Merits Panel July 1, 2025
Argued en banc Oct. 15, 2025
Decided July 17, 2026
______________
OPINION OF THE COURT
2
FREEMAN, Circuit Judge, filed the Opinion of the Court with
whom CHAGARES, Chief Judge, and HARDIMAN, BIBAS,
PORTER, MATEY, MONTGOMERY-REEVES, and BOVE, Circuit
Judges, join, and with whom PHIPPS, Circuit Judge, joins in
part. MATEY, Circuit Judge, filed a concurring opinion with
whom MASCOTT, Circuit Judge, joins. PHIPPS, Circuit Judge,
filed an opinion concurring in part and concurring in the
judgment. MONTGOMERY-REEVES, Circuit Judge, filed a
concurring opinion. MASCOTT, Circuit Judge, filed an opinion
concurring in part and concurring in the judgment. CHUNG,
Circuit Judge, filed an opinion concurring in part and
dissenting in part. SHWARTZ, Circuit Judge, filed a dissenting
opinion with whom KRAUSE, RESTREPO, and SMITH, Circuit
Judges, join. KRAUSE, Circuit Judge, filed a dissenting
opinion with whom RESTREPO and SMITH, Circuit Judges,
join. SMITH, Circuit Judge, filed a dissenting opinion.
New Jersey criminalizes the possession of a class of
weapons that the State labels âassault firearms.â The State also
restricts the possession of what it labels âlarge capacity
ammunition magazinesâ (LCMs), which it currently defines as
magazines that can hold more than 10 rounds of ammunition.
We will refer to those laws as the âAssault Firearm Provisionsâ
and the âLCM Provisions,â respectively.
In three separate lawsuits, gun owners and groups
advocating for gun rights challenged both laws under the
Second Amendment. One of those lawsuits also challenged the
LCM Provisions under the Fifth Amendmentâs Takings
Clause. The District Court consolidated the three cases and
resolved them on cross-motions for summary judgment.
3
When it addressed the Assault Firearm Provisions, the
District Court focused its analysis on one brand and model of
prohibited firearm: the Colt AR-15. It determined that New
Jerseyâs ban on Colt AR-15s violates the Second Amendment.
When it turned to the LCM Provisions, it held that the law does
not violate the Second Amendment or the Takings Clause.
Applying the framework announced in New York State
Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), we
agree with the District Court that New Jerseyâs ban on Colt
AR-15s violates the Second Amendment. However, because
the record supports the same result for all semi-automatic
riflesânot only Colt AR-15sâwe will MODIFY the District
Courtâs order so that it deems the Assault Firearm Provisions
unconstitutional with respect to the full class of semi-automatic
rifles. We will AFFIRM that part of the order as modified.
The LCM Provisions also violate the Second
Amendment, so we will REVERSE the District Courtâs order
with respect to those. Because the LCM Provisions violate the
Second Amendment, we need not address the Takings Clause
challenge.
We will REMAND these matters to the District Court for
further proceedings, including for resolution of the Second
Amendment challenge to the other models and types of
firearms covered by the Assault Firearm Provisions.
I.
A.
New Jersey passed the Assault Firearm Provisions and
the LCM Provisions in 1990. 1990 N.J. Sess. Law Serv. Ch.
4
32 (West) (the âActâ). The regulations were inspired, in part,
by a high-profile mass shooting at a California elementary
school that left five children dead and thirty-three others
injured. As New Jerseyâs governor at the time explained,
âguns capable of wholesale destruction are a direct threat to
our police, our citizens and especially our children,â and the
Act aimed to ensure that âno one can walk off the street and
purchase a gun that is designed to wipe out the greatest number
of people in the shortest possible time.â App. 4651â52.
Under the Actâs Assault Firearm Provisions, it is a
crime in New Jersey to knowingly possess an unlicensed
assault firearm. See N.J. Stat. Ann. § 2C:39-5(f). 1 The Act
defines âassault firearmâ to include a list of over thirty models
and types of semi-automatic rifles, pistols, and shotguns, plus
any firearm âsubstantially identical to any of the firearms
listed.â Id. § 2C:39-1(w)(1)â(2). The Act also includes
descriptions of features that make a weapon an âassault
firearm,â id. § 2C:39-1(w)(3)â(6), resulting in the current
definition:
w. âAssault firearmâ means:
(1) The following firearms:
[listing numerous models and types,
including the âColt AR-15 and CAR-15
1
All citations to New Jersey statutes refer to the version of the
statutes in effect as of June 13, 2018, unless otherwise
indicated. See 2018 N.J. Sess. Law Serv. Ch. 39 (West).
5
seriesâ]; 2
(2) Any firearm manufactured under any
designation which is substantially identical to
any of the firearms listed above. 3
(3) A semi-automatic shotgun with either a
magazine capacity exceeding six rounds, a pistol
grip, or a folding stock.
(4) A semi-automatic rifle with a fixed magazine
capacity exceeding 10 rounds [except] . . . a
semi-automatic rifle which has an attached
tubular device and which is capable of operating
2
The complete list is reproduced at Appendix A.
3
In 1996, the New Jersey Attorney General issued guidance
about the characteristics that make semi-automatic rifles,
pistols, and shotguns âsubstantially identicalâ to those on the
list of banned firearms. For example, a semi-automatic rifle is
âsubstantially identicalâ to a listed weapon if it âhas the ability
to accept a detachable magazineâ and at least two of the
following characteristics: (1) âa folding or telescoping stock,â
(2) âa pistol grip that protrudes conspicuously beneath . . . the
weapon,â (3) âa bayonet mount,â (4) âa flash suppressorâ or a
âbarrel designed to accommodate [one],â and (5) âa grenade
launcher.â Attây Gen. Peter Verniero, Guidelines Regarding
the âSubstantially Identicalâ Provision (Aug. 19, 1996),
https://perma.cc/337W-82Q9.
6
only with .22 caliber rimfire ammunition. 4
(5) A part or combination of parts designed or
intended to convert a firearm into an assault
firearm, or any combination of parts from which
an assault firearm may be readily assembled if
those parts are in the possession or under the
control of the same person.
(6) A firearm with a bump stock attached.
Id. § 2C:39-1(w).
The Act allows for individuals to receive licenses to
purchase, possess, or carry an assault firearm. However, a
person can receive such a license only if a state court
determines (after a hearing, investigation, and
recommendation of a county prosecutor) âthat the public safety
and welfare . . . requireâ the issuance of that license. Id.
§§ 2C:58-5(a)â(b), 2C:39-5(f). The parties challenging the
Assault Firearm Provisions submitâand New Jersey does not
disputeâthat no one in the State has ever received a license for
an assault firearm.
The exemptions from the law are narrow. Individuals
in the military or law enforcement are exempt from the
criminal provisions of the Act. Id. § 2C:39-6(a), (j). And
people who own certain âassault firearms determined by the
Attorney General to be legitimate for target-shooting
4
Until the 2018 amendments to the Act, this provision read:
â(4) A semi-automatic rifle with a fixed magazine capacity
exceeding 15 rounds.â See 2018 N.J. Sess. Law Serv. Ch. 39
(West); see also infra pp. 9â10.
7
purposesâ may register and lawfully possess those firearms
only if they satisfy several requirements. Among other things,
they must have purchased said firearms on or before May 1,
1990 (the date when the Act took effect), be members of a rifle
or pistol club that existed before the Act took effect, and have
joined the rifle or pistol club no more than 210 days after the
Act took effect. Id. § 2C:58-12(a)â(b).
Owners of assault firearms may avoid criminal liability
by rendering those weapons inoperable. But absent licensure
or registration under the strict terms described above, a civilian
who knowingly possesses an operable assault firearm in New
Jersey commits a crime punishable by up to ten yearsâ
imprisonment and a $150,000 fine. Id. §§ 2C:39-5(f),
2C:43-3(a)(2), 2C:43-6(a)(2).
The Act also includes the LCM Provisions. Those
provisions restrict the possession of LCMs to a narrow class of
individuals: those who (a) possess licensed âassault firearmsâ
and (b) only use the magazine in connection with competitive
shooting events sanctioned by a United States Army official.
Id. § 2C:39-3(j).
When passed in 1990, the Act defined âlarge capacityâ
to mean capable of holding more than 15 rounds of
ammunition. Id. § 2C:39-1(y) (1990) (ââLarge capacity
ammunition magazineâ means a box, drum, tube or other
container which is capable of holding more than 15 rounds of
ammunition to be fed continuously and directly therefrom into
a semi-automatic firearm.â). But in 2018, in response to an
increased threat of mass shootings, New Jersey amended the
Act to define âlarge capacity . . . magazineâ as one capable of
holding more than 10 rounds of ammunition. See 2018 N.J.
Sess. Law Serv. Ch. 39 (West) (codified as amended at N.J.
8
Stat. Ann. § 2C:39-l(y)). The 2018 amendments gave New
Jersey residents 180 days to either voluntarily surrender to the
government any magazines that could hold more than 10
rounds; transfer those magazines to someone legally entitled to
possess them; render those magazines inoperable; or
permanently modify them to accept 10 or fewer rounds. N.J.
Stat. Ann. § 2C:39-19. The 2018 amendments contain
exemptions for firearms purchased before the amendmentsâ
effective date that have âa fixed magazine capacity of up to 15
roundsâ or that âonly accept[ ] a detachable magazine with a
capacity of up to 15 roundsâ that cannot be modified to comply
with the amendmentâs 10-round limit, id. § 2C:39-20, as well
as for the magazines that such firearms require,
id. § 2C:39-3(j)(2). 5
B.
When New Jersey amended the LCM Provisions in
2018 to lower the maximum lawful capacity from 15 rounds to
10, the Association of New Jersey Rifle & Pistol Clubs and two
of its members (collectively, the âANJRPC Plaintiffsâ) sued
the Stateâs Attorney General and three police officials
(collectively, âNew Jerseyâ or the âStateâ), asserting that the
LCM Provisions violate the Second Amendment and the Fifth
Amendmentâs Takings Clause. Soon after filing suit, the
ANJRPC Plaintiffs filed a motion for a preliminary injunction
against the enforcement of the LCM Provisions. After an
evidentiary hearing, the District Court denied that motion,
concluding the plaintiffs were not likely to succeed on the
5
The exemptions to the Assault Firearm and LCM Provisions
both require that the owner of an exempt firearm register it with
the State. N.J. Stat. Ann. §§ 2C:39-3(j)(2); 2C:39-20.
9
merits. See Assân of N.J. Rifle & Pistol Clubs, Inc. v. Grewal
(âANJRPC Iâ), No. 3:17-cv-10507, 2018 WL 4688345, at *13
(D.N.J. Sept. 28, 2018).
We affirmed that order on appeal. See Assân of N.J.
Rifle & Pistol Clubs, Inc. v. Attây Gen. N.J. (âANJRPC IIâ),
910 F.3d 106, 110 (3d Cir. 2018). Under our then-binding
precedent from United States v. Marzzarella, 614 F.3d 85 (3d
Cir. 2010), we applied intermediate scrutiny to the LCM
Provisions and held that they did not violate the Second
Amendment. ANJRPC II, 910 F.3d at 122. 6 We also rejected
the Takings Clause claim. Id. at 124. We reasoned that the
LCM Provisions did not effect a physical taking because
owners could sell their over-10-round magazines, modify
them, or register any magazines that could not be modified. Id.
We determined there was no regulatory taking because
magazines capable of holding 10 or fewer rounds could still
function. Id. at 124â25. 7
Following a remand, the District Court granted
summary judgment to New Jersey. See Assân of N.J. Rifle &
Pistol Clubs, Inc. v. Grewal (âANJRPC IIIâ),
6
In a dissent, one of our colleagues contended that we should
have applied strict scrutiny to the Second Amendment claim,
though the LCM Provisions did not withstand even
intermediate scrutiny. ANJRPC II, 910 F.3d at 127â30 (Bibas,
J., dissenting). The dissent did not address the Takings Clause
claim.
7
The ANJRPC Plaintiffs also brought an unsuccessful
Fourteenth Amendment equal protection claim based on the
exceptions for law enforcement. They do not re-raise their
equal protection claim here.
10
No. 3:18-cv-10507, 2019 WL 3430101 (D.N.J. July 29, 2019).
In a short opinion, the District Court explained that summary
judgment was appropriate because there were no genuine
disputes of material fact and because our opinion in ANJRPC
II âresolve[d] all legal issuesâ in the case. Id. at *3.
The ANJRPC Plaintiffs appealed the summary
judgment order, and we affirmed it. See Assân of N.J. Rifle &
Pistol Clubs Inc. v. Attây Gen. N.J. (âANJRPC IVâ), 974 F.3d
237 (3d Cir. 2020), cert. granted, judgment vacated sub. nom.,
Assân of N.J. Rifle & Pistol Clubs, Inc. v. Bruck, 142 S. Ct.
2894 (2022). We explained that, when we addressed the
preliminary injunction issue in ANJRPC II, our opinion went
âbeyond the question of likelihood of success and declared a
holding on the merits.â Id. at 246. In other words, in the prior
appeal, we âheld very plainly that the [LCM Provisions] do[]
not violate the Second Amendment [or] the Fifth
Amendmentâs Takings Clause.â Id. Because our holding in
the prior appeal was not clearly wrong or manifestly unjust, we
determined that it bound us under the law-of-the-case doctrine.
Id. at 247. 8
The ANJRPC Plaintiffs petitioned for certiorari. After
the Supreme Court decided Bruen, it granted the certiorari
petition, vacated our judgment in ANJRPC IV, and remanded
the matter to us for further consideration in light of Bruen.
Assân of N.J. Rifle & Pistol Clubs, Inc. v. Bruck, 142 S. Ct.
8
In a dissent from our ANJRPC IV opinion, one of our
colleagues opined that we should reconsider our precedent
under which intermediate scrutiny applies to Second
Amendment cases. See ANJRPC IV, 974 F.3d at 248â63
(Matey, J., dissenting).
11
2894 (2022). In turn, we remanded the case to the District
Court âfor further record development, targeted at the legal and
historical analysis required under Bruen.â See Assân of N.J.
Rifle & Pistol Clubs Inc. v. Attây Gen. N.J., No. 19-3142, 2022
WL 22860232, at *1 n.1 (3d Cir. Aug. 25, 2022).
The Bruen decision also prompted challenges to the
Assault Firearm Provisions. On the day Bruen was decided,
Mark Cheeseman, Timothy Connolly, and the Firearms Policy
Coalition (collectively, the âCheeseman Plaintiffsâ)
challenged the Assault Firearm Provisions under the Second
Amendment. One week later, ANJRPC and two of its
individual members (the âEllman Plaintiffsâ) filed their own
challenge to the Assault Firearm Provisions. 9 The District
Court consolidated all three cases. Following discovery, the
parties cross-moved for summary judgment, and the District
Court issued an order and opinion resolving all three cases. See
Assân of N.J. Rifle & Pistol Clubs, Inc. v. Platkin (âANJRPC
Vâ), 742 F. Supp. 3d 421 (D.N.J. 2024). That is the decision
currently on appeal.
The District Court began its analysis by limiting the
scope of its assault-firearm decision to the Colt AR-15. Id. at
424â25. It explained that it did so because âthe information
presented to the Court focuse[d] largely on . . . the [Colt]
9
At summary judgment, the Ellman Plaintiffs did not
challenge the restrictions on parts âdesigned or intended to
convert a firearm into an assault firearmâ or from which an
assault firearm could be âreadily assembled,â nor did they
challenge the stateâs ban on firearms with bump stocks
attached.
12
AR-15,â 10 and each of the other firearms regulated by the
Assault Firearm Provisions presented ânuancesâ that the Court
was not equipped to examine. Id. at 424.
Applying the Bruen framework to the Colt AR-15, the
District Court first determined that the plain text of the Second
Amendment âcovers Plaintiffsâ proposed course of conductâ
the possession and use of [Colt] AR-15s within the home for
self-defense.â Id. at 442â43. 11 Next, the District Court
determined that New Jerseyâs restrictions on possessing the
Colt AR-15 âcannot stand since [they are] inconsistent with our
Nationâs historical tradition of firearm regulation.â Id. at 445.
It reasoned that the âAR-15 Provision acts effectively as the
total prohibition on a commonly used firearm for
self-defense . . . within the home,â which it deemed
âimpermissible under the plain text of [District of Columbia v.
Heller, 554 U.S. 570 (2008)].â Id. at 446.
Turning to the LCM Provisions, the District Court
followed our opinion in ANJRPC II, which said LCMs are
âArmsâ within the meaning of the Second Amendment. Id. at
448; see ANJRPC II, 910 F.3d at 116 (âBecause magazines
feed ammunition into certain guns, and ammunition is
necessary for such a gun to function as intended, magazines are
âarmsâ within the meaning of the Second Amendment.â). It
10
Although the District Court referred to âthe AR-15â in its
analysis, it explained that its decision does not reach beyond
the AR-15 manufactured by Colt. ANJRPC V, 742 F. Supp. 3d
at 425 nn.4 & 5.
11
As we discuss below, Plaintiffs seek to possess these
weapons for lawful purposes including, but not limited to,
self-defense.
13
then determined that the Nation has a historical tradition of
restricting certain arms (though not banning them outright) in
response to safety concerns of the time. ANJRPC V, 742 F.
Supp. 3d at 451â52. It reasoned that the LCM Provisions
achieve New Jerseyâs stated purpose of âeffectively slow[ing]
down a mass shooterâ without resorting to an outright ban, so
those provisions comport with the Second Amendment. Id. at
452. Finally, the District Court reasoned that nothing about
Bruen disrupted our Fifth Amendment Takings Clause analysis
in ANJRPC IV, so the LCM Provisions do not violate that
clause. Id. at 452â53.
All parties cross-appealed the District Courtâs summary
judgment order, and we consolidated those appeals. We heard
oral argument as a three-judge panel in July 2025, and we
reheard the appeals en banc in October 2025. 12
12
Some members of our Court would opt not to decide these
consolidated appeals because the Supreme Court will address
the constitutionality of AR-15 bans next term. See Krause Op.
at 3, 30; Montgomery-Reeves Op. at 1â3; Viramontes v. Cook
County, No. 24-1437, 2025 WL 1553896 (7th Cir. June 2,
2025), cert. granted, --- S. Ct. ----, 2026 WL 1871322 (June
30, 2026); Natâl Assân for Gun Rts. v. Lamont, 153 F.4th 213
(2d Cir. 2025), cert. granted sub nom., Grant v. Higgins, --- S.
Ct. ----, 2026 WL 1871312 (June 30, 2026). But our decision
in these cases resolves a question the Supreme Court has not
committed to addressing: the constitutionality of a law
restricting possession of magazines that can hold more than 10
rounds of ammunition. Moreover, despite one party notifying
us of the Supreme Courtâs grant of certiorari to address AR-15
14
II. 13
The Second Amendment provides: âA well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.â
U.S. Const. amend. II. In District of Columbia v. Heller, the
Supreme Court determined that the Second Amendmentâs
language âconfer[s] an individual right to keep and bear arms.â
554 U.S. 570, 595 (2008).
Soon after Heller, the Court clarified that the âDue
bans, to date no party to these long-pending cases has asked us
to hold our decision pending the Supreme Courtâs decision.
13
The District Court had subject matter jurisdiction under
28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction under
28 U.S.C. § 1291. We review a district courtâs order resolving
cross-motions for summary judgment de novo. Spivack v. City
of Philadelphia, 109 F.4th 158, 165 (3d Cir. 2024). When we
do so, we apply âthe same standards and presumptions as the
District Court.â Mid-Century Ins. Co. v. Werley, 114 F.4th
200, 207 (3d Cir. 2024) (citation modified). That is, we ask
whether, âviewing the evidence in the light most favorable to
the nonmoving party and drawing all inferences in favor of that
party, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.â Auto-Owners
Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402
(3d Cir. 2016); Fed. R. Civ. P. 56(a). When presented with
cross-motions for summary judgment, âcourts must rule on
each partyâs motion on an individual and separate basis,
determining, for each side, whether a judgment may be entered
in accordance with the summary judgment standard.â Spivack,
109 F.4th at 166 n.5 (citation modified).
15
Process Clause of the Fourteenth Amendment incorporates the
Second Amendment right recognized in Hellerâ against the
states. McDonald v. City of Chicago, 561 U.S. 742, 791
(2010). The individual right is incorporated against the states
because âthe Framers and ratifiers of the Fourteenth
Amendment counted the right to keep and bear arms among
those fundamental rights necessary to our system of ordered
liberty.â Id. at 778.
In Heller, after the Supreme Court addressed the
meaning of the Second Amendment, the Court turned to the
law at issue in that case: a District of Columbia law that (1)
âtotally ban[ned] handgun possession in the home,â and (2)
ârequire[d] that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable.â 554 U.S. at 628. It summarized the handgun
ban as âa prohibition of an entire class of âarmsâ that is
overwhelmingly chosen by American society for
[self-defense],â and a prohibition that âextends . . . to the home,
where the need for defense of self, family, and property is most
acute.â Id. It concluded that, â[u]nder any of the standards of
scrutiny . . . applied to enumerated constitutional rights,â the
handgun ban âwould fail constitutional muster.â Id. at 628â29.
As for the prohibition on operable firearms in the home,
the Court noted that the provision âma[de] it impossible for
citizens to use [firearms] for the core lawful purpose of
self-defense.â Id. at 630. Thus, that prohibition also violated
the Second Amendmentâat least as applied to the handgun the
respondent, Dick Heller, wished to possess in his home for
purposes of self-defense. Id.; see also id. at 575â76 & n.2.
For several years, our Court and our sister circuits
interpreted Heller to require means-end scrutiny as a part of the
16
Second Amendment analysis. See Marzzarella, 614 F.3d at 89;
Bruen, 597 U.S. at 17 (â[T]he Courts of Appeals have
coalesced around a âtwo-stepâ framework for analyzing Second
Amendment challenges that combines history with means-end
scrutiny.â). As it turns out, we all missed the mark.
In Bruen, the Supreme Court clarified that means-end
scrutiny has no place in Hellerâs methodology. Bruen, 597
U.S. at 19. Instead, courts must approach Second Amendment
cases under a different two-step framework. At the first step,
we ask whether âthe Second Amendmentâs plain text covers an
individualâs conduct.â Id. at 17. If the answer is yes, then âthe
Constitution presumptively protects that conduct,â and the
government cannot âjustify its regulationâ by âsimply
posit[ing] that the regulation promotes an important interest.â
Id. Instead, at the second step the government âmust
demonstrate that the regulation is consistent with this Nationâs
historical tradition of firearm regulation.â Id. If the regulation
is not consistent with that historical tradition, it cannot stand.
Id.
The government may carry its burden at Bruenâs second
step by demonstrating that ârelevantly similar . . . modern and
historical regulations impose a comparable burden on the right
of armed self-defenseâ and that the burden imposed is
âcomparably justified.â Id. at 29. In comparing modern and
historical regulations, we consider âat least two metrics: how
and why the regulations burden a law-abiding citizenâs right to
armed self-defense.â Id. Still, the Supreme Court warned
against overly stringent analogical reasoning. It explained that
the historical analysis ârequires only that the government
identify a well-established and representative historical
analogue, not a historical twin.â Id. at 30. Thus, a modern
17
regulation need not be a âdead ringerâ for a historical one to
survive Second Amendment scrutiny. Id.
After clarifying the proper methodology in Bruen, the
Supreme Court applied that methodology to the contested
regulation: a New York State law limiting the public carry of
handguns to individuals who could prove âa special need for
self-protection distinguishable from that of the general
community.â Id. at 11â12 (quoting In re Klenosky,
428 N.Y.S.2d 256, 257 (App. Div. 1980)). Under that state
law, mere desire to carry handguns in public for self-defense
did not suffice. Id. at 12â13, 15â16.
As a threshold matter, the Court noted the lack of
dispute about whether the lawâs challengersââtwo ordinary,
law-abiding, adult citizensââwere âpart of âthe peopleâ whom
the Second Amendment protects.â Id. at 31â32. 14 The Court
then turned to a disputed question in the first step of the
inquiry: âwhether the plain text of the Second Amendment
protects [the challengersâ] proposed course of conductâ
carrying handguns publicly for self-defense.â Id. at 32. The
Court had âlittle difficulty concluding that it does.â Id. âAfter
all, the Second Amendment guarantees an âindividual right to
possess and carry weapons in case of confrontation,â and
confrontation can surely take place outside the home.â Id. at
33 (citation omitted) (quoting Heller, 554 U.S. at 592).
At the second step of the inquiry, the Court conducted a
lengthy examination of the historical regulations New York
14
The Court also said there was no dispute that âhandguns are
weapons âin common useâ today for self-defense.â Bruen, 597
U.S. at 32 (quoting Heller, 554 U.S. at 627).
18
invoked in support of its law. Id. at 33â70. It summarized:
âApart from . . . outlier jurisdictions, American governments
simply have not broadly prohibited the public carry of
commonly used firearms for personal defense,â or ârequired
law-abiding, responsible citizens to demonstrate a special need
for self-protection distinguishable from that of the general
community in order to carry arms in public.â Id. at 70 (citation
modified). Because there was no historical analogue for how
New York chose to regulate firearms, the Court concluded that
New York did not carry its âburden to identify an American
tradition justifying the Stateâs [public-carry regulation].â Id.15
Two years after Bruen, the Court provided additional
detail about how to apply the Second Amendment framework.
In United States v. Rahimi, the Court clarified that the
methodology in Bruen was ânot meant to suggest a law trapped
in amber.â 602 U.S. 680, 691 (2024). Rather, just as the
Second Amendment âis not limited only to those arms that
were in existence at the founding,â the Amendment also
âpermits more than just those regulations identical to ones that
could be found in 1791.â Id. at 691â92. Thus, courts must ask
âwhether the challenged regulation is consistent with the
principles that underpin our regulatory tradition.â Id. at 692.
We do so by addressing the âcentralâ considerations: â[w]hy
and how the regulation burdens the [Second Amendment]
15
In Bruen, the Court did not explicitly address whether there
was a historical analogue for why New York enacted its firearm
law. Nonetheless, it observed that New Yorkâs law sought to
address âhandgun violence, primarily in urban areas,â 597 U.S.
at 27 (citation modified), and it did not distinguish any of the
historical regulations it examined on the grounds of dissimilar
âwhys,â see id. at 42â60.
19
right.â Id.
In Rahimi, the Court addressed a Second Amendment
challenge to a federal law that bans firearm possession by an
individual subject to a domestic violence restraining order if
that order includes a finding that the individual represents a
credible threat to the physical safety of an intimate partner. 602
U.S. at 684â85. The Court determined that the provision is
relevantly similar to historical regulations in why it burdens the
Second Amendment right. It discussed historical surety and
affray laws, which demonstrate that, â[f]rom the earliest days
of the common law, firearm regulations have included
provisions barring people from misusing weapons to harm or
menace others.â Id. at 694. The Court also determined that
our Nationâs historical tradition supports how the provision
seeks to accomplish its goal: by temporarily disarming a person
after an individualized assessment that he poses a credible
threat to the physical safety of others. Id. at 699â700. Because
the âwhyâ and the âhowâ of the provision âfit[ ] comfortablyâ
within our Nationâs tradition of weapons regulations, the law
withstood Second Amendment scrutiny. Id. at 690. 16
16
The Supreme Court also applied this framework in United
States v. Hemani, 146 S. Ct. 1677 (2026). There, a man who
uses marijuana about every other day challenged his federal
prosecution for possessing a firearm as an âunlawful user
of . . . [a] controlled substance.â Id. at 1684â85 (quoting
18 U.S.C. § 922(g)(3)). The Court determined that the
governmentâs proffered analoguesâvagrancy,
civil-commitment, and surety laws (categories of what the
government called âhabitual drunkard lawsâ)âwere not
20
This term, in Wolford v. Lopez, the Supreme Court
refined the framework set forth in Bruen. Wolford,
No. 24-1046, --- S. Ct. ----, 2026 WL 1825723 (U.S. June 25,
2026). It explained the plain-text analysis required at Bruenâs
first step âentails three subsidiary questionsâ: whether (1) the
law applies to âthe people,â defined to mean âall members of
the political community, id. at *6 (quoting Heller, 554 U.S. at
580); (2) the law concerns âany form of âArms,â i.e., any
weapon customarily used for offensive or defensive purposes,â
id.; and (3) the law restricts âeither the âkeep[ing]â
(i.e., possession) or the âbear[ing]â (i.e., carrying) of arms,â id.
(alterations in original).
The Court also elaborated on Bruenâs second step:
where the government has an opportunity to âshow that its
challenged law did not infringe the historical understanding of
the codified right.â Id. It explained that courts evaluating
historical analogues should consider three factors: (1) the
number of jurisdictions in which the historical restrictions were
adopted, (2) the extent to which the historical restrictions were
well-accepted, whether expressly or tacitly, and (3) whether
the historical restrictions are ârelevantly similarâ to the modern
challenged law. Id. (quoting Bruen, 597 U.S. at 29). To be
relevantly similar, âthe âhowâ and âwhyâ of the historical
analogue and modern regulation must be close enough to
enable a court to say: âBecause this historical law was
understood to be compatible with the right codified by the
Second Amendment, we can infer that the restriction imposed
by the modern law is likewise consistent with that right.ââ Id.
relevantly similar to the âwhyâ or the âhowâ of the modern law.
Id. at 1687â92, 1694.
21
Applying this framework in Wolford, the Court struck
down a Hawaii law that required anyone carrying a firearm on
private property to have the express consent of the property
owner. Id. at *7â8. The Court concluded that the restriction
easily fell within the Second Amendmentâs plain text, so it
proceeded to Bruenâs second step. Id. at *9â10. There, it
rejected the stateâs historical analogues, which were primarily
laws prohibiting unauthorized hunting of game on someone
elseâs property. Id. at *12â13. Those historical laws were not
relevantly similar in why they were enacted. Targeted at
unauthorized hunting, those laws aimed to prevent theft of
game and the firing of guns that could inflict injury or disturb
others on private property. Id. at *13. But Hawaiiâs modern
law does not address any of those unwanted effects. Id. The
historical laws also were not relevantly similar in how they
functioned. They applied only âto land where game could be
found, not retail establishments that residents of cities and
suburbs frequent as part of their daily routines.â Id. 17
In the years since the Supreme Court announced the
historical inquiry required under Heller and its progeny, it has
17
The Court also rejected two other âweakerâ historical
analogues. Wolford, 2026 WL 1825723, at *13. It explained
that, even if an 1893 Oregon statute could be read to prohibit
the carrying of weapons in commercial establishments, âa lone
statute adopted nearly a century after the adoption of the
Second Amendment and well after the adoption of the
Fourteenth Amendment sheds little if any light on the meaning
of the Second Amendment right.â Id. And an 1865 Louisiana
law that prohibited the carrying of weapons on the âpremises
or plantationsâ of another person without their consent was
âneither widespread nor widely accepted.â Id. at *14.
22
not needed to address which historical periodâthe 1791
adoption of the Bill of Rights or the 1868 ratification of the
Fourteenth Amendmentâcourts should primarily look to
when considering the Second Amendment as incorporated
against the States. See Bruen, 597 U.S. at 37â38; Rahimi, 602
U.S. at 692 n.1. But we have. In Lara v. Commissioner
Pennsylvania State Police, we assessed a Pennsylvania law
that âeffectively ban[ned] 18-to-20-year-olds from carrying
firearms outside their homes during a state of emergency.â 125
F.4th 428, 431 (3d Cir. 2025). When conducting the historical
inquiry, we saw that the principles underpinning Founding-era
firearm regulations pointed in one direction while the
principles underpinning mid-to-late-nineteenth century laws
pointed in the opposite direction. Id. at 441. Faced with an
âirreconcilable conflictâ between the laws of those two
timeframes, we concluded that we must look to Founding-era
laws for analogies to modern-day regulations. Id. at 441â42.
We reached that conclusion based on the Supreme Courtâs
guidance that the Second Amendmentâs âmeaning is fixed
according to the understandings of those who ratified it.â Id.
at 441 (quoting Bruen, 597 U.S. at 28). 18 Under Lara, we
consider historical examples from âbefore, during, and even
after the founding,â while âguard[ing] against giving
postenactment history more weight than it can rightly bear.â
Id. at 434 (quoting Bruen, 597 U.S. at 27, 34â35).
18
We also noted the Supreme Courtâs statement that it has
âgenerally assumed that the scope of the protection[s]
applicable to the Federal Government and States is pegged to
the public understanding of the right when the Bill of Rights
was adopted in 1791.â Lara, 125 F.4th at 441 (alteration in
original) (quoting Bruen, 597 U.S. at 37).
23
As the Supreme Court explained in Bruen, the historical
inquiry is âfairly straightforwardâ in some cases. 597 U.S. at
26. For instance, if âa challenged regulation addresses a
general societal problem that has persisted since the 18th
century, the lack of a distinctly similar historical regulation
addressing that problemâ is evidence that the challenged
regulation violates the Second Amendment. Id.
Heller is an example of such a straightforward case. Id.
at 27. Heller involved a âflat ban on the possession of
handguns in the homeâ that the District of Columbia enacted
to address the âperceived societal problem [of] firearm
violence in densely populated communities.â Id. As the Bruen
Court explained, the ban at issue in Heller was a regulation
âthat the Founders themselves could have adopted to confront
that problem.â Id. Yet the Court found no analogous laws in
âfounding-era historical precedent,â so it concluded that the
District of Columbiaâs ban was unconstitutional. Id. (quoting
Heller, 554 U.S. at 631).
Bruen, too, required only a straightforward historical
inquiry. Id. (â[T]he historical analogies here and in Heller are
relatively simple to drawâ). The Court assessed a restriction
on the public carry of firearms that New York enacted to
address âthe same alleged societal problem addressed in
Heller: âhandgun violence,â primarily in âurban area[s].ââ Id.
(quoting Heller, 554 U.S. at 634). The Court determined that
New Yorkâs regulation violated the Second Amendment for
the same reason as the regulation in Heller: there was no
Founding-era precedent comparable to the modern regulation.
Id.
The Supreme Court acknowledged that not all historical
analogies are as straightforward as those in Bruen and Heller.
24
See id. In Wolford, the Supreme Court observed that the law it
addressed in Rahimi âinvolved conduct that was distinctively
modern: the possession of a firearm by a person against whom
a domestic violence restraining order had been issued,â and
thus âcalled for a more difficult exercise of judgment.â
Wolford, 2026 WL 1825723, at *7. And in Bruen, the Court
noted that âcases implicating unprecedented societal concerns
or dramatic technological changes may require a more nuanced
approach.â 597 U.S. at 27. To date, however, the Supreme
Court has not had occasion to apply that nuanced approach.
III.
â[T]he Second Amendment right . . . extends only to
certain types of weapons.â Heller, 554 U.S. at 623. Here, the
parties dispute whether the weapons New Jersey labels âassault
firearmsâ and âlarge capacity ammunition magazinesâ are
protected by the Second Amendment. Part of that dispute
centers on the Supreme Courtâs use of the phrase âin common
use.â
A.
The first Second Amendment case in which the Court
used the phrase âin common useâ was United States v. Miller,
307 U.S. 174 (1939). There, the Court upheld a regulation
prohibiting the interstate transport of short-barreled shotguns.
The Court recounted that, at the time of the Founding, men
called for militia service âordinarily . . . were expected to
appear bearing arms supplied by themselves and of the kind in
common use at the time.â Id. at 179.
The Court used the phrase again in Heller when it
sought to explicate which weapons are covered by the Second
25
Amendment. It quoted the foregoing language from Miller,
and it added that â[t]he traditional militia was formed from a
pool of men bringing arms âin common use at the timeâ for
lawful purposes like self-defense.â Heller, 554 U.S. at 624;
see also id. at 627 (â[T]he conception of the militia at the time
of the Second Amendmentâs ratification was the body of all
citizens capable of military service, who would bring the sorts
of lawful weapons that they possessed at home to militia
duty.â). It explained that this language from Miller goes to the
scope of the Second Amendment right: âthe Second
Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns.â Id. at 625. And Millerâs language
about protecting âthe sorts of weapons . . . âin common use at
the time,ââ id. at 627 (quoting Miller, 307 U.S. at 179), is
âsupported by the historical tradition of prohibiting the
carrying of âdangerous and unusual weapons,ââ id.
Later, in Bruen, the Court again addressed âin common
use.â It recounted that Heller âexplained . . . that the Second
Amendment protects only the carrying of weapons that are
those âin common use at the time,â as opposed to those that âare
highly unusual in society at large.ââ Bruen, 597 U.S. at 47
(quoting Heller, 554 U.S. at 627). Turning to the handgun ban
at issue in Bruen, the Court wrote, âWhatever the likelihood
that handguns were considered âdangerous and unusualâ during
the colonial period, they are indisputably in âcommon useâ for
self-defense today.â Id. âThus, even if . . . colonial laws
prohibited the carrying of handguns because they were
considered âdangerous and unusual weaponsâ in the 1690s,
they provide no justification for laws restricting the public
carry of weapons that are unquestionably in common use
today.â Id.
26
The Courtâs discussion of âin common useâ illuminates
several points. First, although the Court sometimes uses only
the three-word phrase âin common use,â that phrase means in
common use for lawful purposes at the time of the modern
restriction. The lawful-purposes component of this meaning
draws directly from Heller, which clarifies that weapons
typically used for unlawful purposes fall outside the Second
Amendmentâs scope. 554 U.S. at 625 (â[T]he Second
Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns.â (discussing Miller, 307 U.S. at 179)).
Second, self-defense is one lawful purpose relevant to
the common-use inquiry, but it is not the only one. While
self-defense is âcentralâ to the Second Amendment, see id. at
628, other lawful purposes also bring a commonly used
weapon within the ambit of the Second Amendment. After all,
Founding-era Americans commonly used weapons for hunting
in addition to self-defense. See id. at 599 (noting that most
Founding-era Americans âundoubtedly thought [the Second
Amendment right] even more important for self-defense
and huntingâ than for securing the citizen militia). So weapons
commonly used for hunting fall under the protection of the
Second Amendment. 19 Whatever the purpose of using a given
19
One dissent contends that we have caused âan unfounded
expansion of Second Amendment rightsâ by recognizing
hunting as a lawful purpose supporting the exercise of the right.
Krause Op. at 18; but see Shwartz Op. at 7, 12â13 n.9, 14 n.14
(recognizing that the Second Amendment protects the right to
keep and bear arms for hunting); Chung Op. at 8 (same). That
view is incompatible with Supreme Court authority. The
27
arm, the lawfulness of that purpose is a necessary condition of
Second Amendment coverage.
Third, a weapon that is âdangerous and unusualâ cannot
be in common use for lawful purposes. That is, while
âdangerous and unusualâ may not be the direct opposite of âin
common use for lawful purposes,â the two descriptors are
mutually exclusive. Indeed, in Heller the Supreme Court
positioned the two in opposition, explaining that the Second
Amendmentâs protection of weapons âin common use at the
timeâ is âsupported by the historical traditionâ of prohibiting
the inverseââthe carrying of âdangerous and unusual
weapons.ââ 554 U.S. at 627. So a weapon âin common use for
lawful purposesâ cannot be âdangerous and unusual.â
Finally, Bruen makes clear that when we assess
common use for lawful purposes, we consider how a given arm
is used in present timesânot in the past. In Bruen, any
argument that âcolonial laws prohibited the carrying of
handguns because they were considered âdangerous and
unusual weaponsâ in the 1690sâ could âprovide no
justificationâ for restrictions on the public carry of handguns
Second Amendment codified a right that existed at the time of
its enactment, Heller, 554 U.S. at 592, when Americans
âundoubtedlyâ valued the right for hunting and self-defense,
id. at 599; see also Wolford, 2026 WL 1825723, at *4 n.4
(observing that hunting was particularly important as a source
of sustenance for Founding-era Americans moving west).
Moreover, there is no tension between recognizing
self-defense as the âcore lawful purposeâ of the Second
Amendment right, Heller, 554 U.S. at 630, and recognizing
other lawful purposes of that right.
28
today, when handguns are âunquestionably in common use.â
597 U.S. at 47. 20
20
One dissent says this amounts to âa popularity poll.â
Shwartz Op. at 17â18 n.19. But we must abide by Supreme
Court authority saying governments cannot ârestrict[] the
public carry of weapons that are unquestionably in common
use today,â Bruen, 597 U.S. at 47, and the popularity of the
restricted weapons bears on that question. See Heller, 554 U.S.
at 628 (âThe handgun ban amounts to a prohibition of an entire
class of âarmsâ that is overwhelmingly chosen by American
society for th[e] lawful purpose [of self-defense].â (emphasis
added)); id. at 628â29 (â[B]anning from the home the most
preferred firearm in the nation to âkeepâ and use for protection
of oneâs home and family . . . fail[s] constitutional muster.â
(emphasis added)); id. at 629 (âWhatever the reason, handguns
are the most popular weapon chosen by Americans for
self-defense in the home, and a complete prohibition of their
use is invalid.â (emphasis added)).
Additionally, two dissents say we conflate the possession of a
firearm with the use of the firearm. Shwartz Op. at 17â18 n.19;
Krause Op. at 21â22. But the Second Amendment protects
âthe right of the people to keep and bear Arms,â U.S. Const.
amend. II, not merely the right to âuseâ arms. And the
Supreme Court recently clarified that, in the Second
Amendment, âkeepâ means âpossess.â Wolford, 2026 WL
1825723, at *6 (instructing courts to ask whether a challenged
law âplace[s] any restrictions on either the âkeep[ing]â (i.e.,
possession) or the âbear[ing]â (i.e., carrying) of armsâ (second
and third alterations in original)). Respectfully, the meaning
of the word âuseâ in a criminal statute barring certain uses of
29
B.
With this understanding, we turn to another threshold
issue: whether to conduct the âin common useâ inquiry at
Bruenâs first or second step. That question has divided our
sister circuits. 21
The disagreement stems from the Supreme Courtâs use
firearms is irrelevant to this inquiry. See Shwartz Op. at 17
n.19 (relying on Watson v. United States, 552 U.S. 74, 76
(2007), where the Supreme Court addressed the ordinary or
natural meaning of the word âuseâ in 18 U.S.C. § 924(c)(1)).
21
See, e.g., Knife Rts., Inc. v. Bonta, 165 F.4th 1330, 1338â39
(9th Cir. 2026) (declining to resolve); United States v. Wilson,
164 F.4th 380, 387 (5th Cir. 2026) (relying on a pre-Bruen
Fifth Circuit opinion that appears to have considered common
use at step one); United States v. Bridges, 150 F.4th 517, 524â
28 (6th Cir. 2025) (step two); Natâl Assân for Gun Rts., 153
F.4th at 234â35 (noting that the Second Circuit âhas
understood the âin common useâ analysis to fall under the first
step of Bruen,â but stating a preference ânot to venture into an
area in which such uncertainty aboundsâ); United States v.
Charles, 159 F.4th 545, 546 (8th Cir. 2025) (discussing a
pre-Bruen Eighth Circuit opinion that appears to have relied on
common use at step one); United States v. Morgan, 150 F.4th
1339, 1346 (10th Cir. 2025) (step one); Hanson v. District of
Columbia, 120 F.4th 223, 232 n.3 (D.C. Cir. 2024) (assuming,
without deciding, step one); Bianchi v. Brown, 111 F.4th 438,
460â61 (4th Cir. 2024) (en banc) (step one); Bevis v. City of
Naperville, 85 F.4th 1175, 1193â94, 1198 (7th Cir. 2023)
(assuming, without deciding, step two).
30
of the phrase âcommon useâ in two sections of its Bruen
opinion. 597 U.S. at 32, 47. Before its step-one textual
inquiry, the Court noted two issues that were not disputed by
that parties: that the lawâs challengers were among âthe
peopleâ whom the Second Amendment protects, and âthat
handguns are weapons âin common useâ today for
self-defense.â Id. at 31â32. Having stated those
understandings about the individuals and the weapons at issue,
the Court âtherefore turn[ed] to whether the plain text of the
Second Amendment protects [the challengersâ] proposed
course of conductâcarrying handguns publicly for
self-defense.â Id. at 32.
Some courts have relied on this mention of âcommon
useâ to conclude that only weapons in common use are âArmsâ
governed by the plain text of the Second Amendment. See,
e.g., Bianchi v. Brown, 111 F.4th 438, 460â61 (4th Cir. 2024)
(en banc) (âBruen implies that a weapon must be âin common
use today for self-defenseâ to be within the ambit of the Second
Amendment.â (quoting Bruen, 597 U.S. at 32)).
But the Court used the phrase âcommon useâ again later
in the Bruen opinion. When it assessed historical tradition at
step two, it explained that even if âhandguns were considered
âdangerous and unusualâ during the colonial period, they are
indisputably in âcommon useâ for self-defense today.â 597
U.S. at 47 (quoting Heller, 554 U.S. at 629). Today handguns
are indeed âthe quintessential self-defense weapon.â Id. So
any historical tradition of prohibiting the carrying of handguns
during colonial times âprovide[d] no justificationâ for
contemporary laws ârestricting the public carry of weapons
that are unquestionably in common use today.â Id.
We are persuaded that the first mention of âcommon
31
useâ in Bruen merely disposed of an uncontested threshold
issue in the case. The Court did so before turning to the
step-one textual analysis. Later, during its step-two discussion
of history and tradition, the Court actually relied on common
use. We will do the same.
This reading is supported by the operation of the Bruen
framework. Bruenâs first step is fundamentally a textual
inquiry. See id. at 32. Yet âcommon useâ appears nowhere in
the Second Amendmentâs text. Nor is it âan inherent part of
the definition of âArm.ââ Duncan v. Bonta, 133 F.4th 852, 900
(9th Cir. 2025) (en banc) (Bumatay, J., dissenting). Relying on
Founding-era dictionaries, Heller defined âArmsâ to include
â[w]eapons of offenceâ and âany thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast at or
strike another.â 554 U.S. at 581 (citation modified); see also
id. at 582 (emphasizing that âthe Second Amendment extends,
prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
foundingâ). And Wolford defined âArmsâ to mean âany
weapon customarily used for offensive or defensive purposes.â
Wolford, 2026 WL 1825723, at *6. Common use has no
bearing on those definitions. 22
While the connection between the step-one textual
inquiry and âcommon useâ is tenuous at best, common use fits
22
Read alongside Hellerâs definition of âArms,â Wolfordâs use
of the term âcustomarilyâ distinguishes items that can be used,
offensively or defensively, as weapons (e.g., bricks) from
weapons normally used for offensive or defensive purposes.
So âcustomarilyâ describes how a weapon is normally used,
not how commonly the weapon is used for protected purposes.
32
logically in step twoâs consideration of analogues. In Bruen,
and again in Rahimi, the Court explained that we must consider
âhow and whyâ a modern regulation and the relevant historical
analogue burden the Second Amendment right. Bruen, 597
U.S. at 29; Rahimi, 602 U.S. at 692. Whether a regulation
restricts a weapon in common use for lawful purposes is
necessarily a part of âhowâ the regulation burdens the right.
This is why Bruen concluded that colonial restrictions on
âdangerous and unusualâ weapons were inapt analogues for a
contemporary New York law that ârestrict[ed] the public carry
of weapons that are unquestionably in common use today.â
597 U.S. at 47. So common use helped the Court conclude that
the colonial restrictions were not ârelevantly similar.â See id.
at 29.
Likewise, the Supreme Courtâs discussion of common
use in Heller was a part of its analysis of historical analogues.
554 U.S. at 626â27. There, the Court explained that handguns
were âoverwhelmingly chosen by American society for [a]
lawful purpose,â id. at 628, so our nationâs âhistorical tradition
of prohibiting the carrying of âdangerous and unusual
weapons,ââ id. at 627, did not support the District of
Columbiaâs ban. Again, common use of handguns for lawful
purposes helped the Court conclude that certain historical
prohibitions of weapons were not relevant analogues.
For all these reasons, we will address âcommon useâ at
Bruenâs second step. 23
23
The dissents view common use as part of the step-one
inquiry. Shwartz Op. at 8â11; Krause Op. at 4â13; Chung Op.
at 1â6. Before Wolford, that was a closer call. But Wolford
33
IV.
Before we apply these principles to the Assault Firearm
Provisions of New Jerseyâs law, we must address a threshold
issue particular to this litigation: the scope of our analysis of
the Assault Firearm Provisions. As discussed above, the
District Court ruled only as to the Colt AR-15âthe firearm
about âwhich the Court ha[d] been provided the most
information.â App. 13. Plaintiffs contend that this limitation
was improper. 24
explained that Bruenâs first step requires us to ask whether a
challenged regulation restricts the right to keep or bear
âArms,â which are defined to include âany weapon
customarily used for offensive or defensive purposes.â
Wolford, 2026 WL 1825723, at *6; see also supra n.22. A
category that includes any weapon customarily used for any
offensive or defensive purpose cannot also be limited to
weapons in common use for self-defense. And it certainly
cannot be limited to weapons whose âobjective features and
uses make [them] proportional to the needs of, and customarily
used in service of, an individualâs right to keep and bear arms
for self-defense.â Krause Op. at 5. Nor need we
âascertain . . . whether, based on the [weapon]âs history,
features, and uses, it is objectively more akin to unusually
dangerous military weapons than those in common use for
self-defense,â Shwartz Op. at 11, before deciding whether a
weapon falls within this category.
24
The Ellman Plaintiffs assert that they challenged all weapons
covered by the Assault Firearm Provisions, and the Cheeseman
Plaintiffs (who only challenged a subset of covered âassault
34
We agree with Plaintiffsâ view that we need not address
only Colt AR-15s. But there are two reasons why we cannot
issue a decision that addresses all the weapons covered by the
Assault Firearm Provisions.
First, as the District Court noted, the evidence offered
by Plaintiffs and the State was focused heavily on AR-15s and
other semi-automatic rifles. The record about the other
weapons classified as âassault firearmsâ is too sparse to
support the analysis required under Bruen and its progeny.
The limited record may be the result of the scope of
Plaintiffsâ challenges. In their complaint, the Cheeseman
Plaintiffs expressly declined to challenge the prohibition on
firearms with bump stocks attached, N.J. Stat.
Ann. § 2C:39-1(w)(6), and at summary judgment they clarified
that they likewise do not challenge N.J. Stat.
Ann. § 2C:39-1(w)(4)â(5), which pertain to semi-automatic
rifles with a fixed magazine capacity exceeding 10 rounds and
parts âfrom which an assault firearm may be readily
assembled.â Only the Ellman Plaintiffs challenged the Assault
Firearm Provisions as to all covered weapons. Yet even though
firearmsâ) argue that the Supreme Courtâs Second Amendment
opinions typically focus on classes of weapons, not particular
makes and models. The Ellman Plaintiffs also argue that, to
the extent the District Court narrowed its ruling based on the
Stateâs submissions, that inverts the ordinary operation of
Federal Rule of Civil Procedure 56, under which the party
moving for summary judgment carries the burden of
identifying the issues on which summary judgment is sought.
Therefore, they argue, we should address all firearms meeting
the statutory definition of âassault firearm.â
35
those plaintiffs cross-moved for summary judgment (and thus
bore the burden of proof on their motion), they did not present
evidence pertaining to the full breadth of weapons covered
under those Provisions.
Nonetheless, the record before us supports a ruling as to
all semi-automatic riflesânot just Colt AR-15s. The AR-15 is
a âstyleâ of semi-automatic rifle made by various
manufacturers and sold to the public since 1964. ANJRPC V,
742 F. Supp. 3d at 432â33. But several manufacturers sell
largely interchangeable semi-automatic rifles based on the
AR-15 platform. See Bianchi, 111 F.4th at 454; App. 1839â
41, 1974â75, 1978, 1981. And all covered semi-automatic
rifles share common features, regardless of the model or
manufacturer. There is no evidence in the record that the Colt
AR-15 is meaningfully different than any other banned
semi-automatic rifle. That is why the Assault Firearm
Provisions restrict the possession not only of the enumerated
makes and models of semi-automatic rifles, but also any
âsubstantially identicalâ semi-automatic riflesâthose that
share features like telescoping stocks, pistol grips, and flash
suppressors. N.J. Stat. Ann. § 2C:39-1(w)(2). Plus, New
Jersey neither disputed that the Colt AR-15 is substantively
identical to the other banned rifles nor argued that it should be
treated differently. 25
25
In their complaint and briefing to the District Court, the
Ellman Plaintiffs challenged all weapons covered by the
Assault Firearm Provisions. That necessarily includes the
prohibition on semi-automatic rifles of all makes and models.
When the District Court chose to address only Colt AR-15s, it
did so because of the ânuancesâ presented by âeach individual
36
In determining whether a modern regulation has a
relevantly similar historical analogue, the Bruen
history-and-tradition test considers the functionality, features,
and common use of a regulated weapon. Here, the record
contains sufficient information for us to assess the largely
interchangeable semi-automatic rifles covered by the Assault
Firearm Provisions, but it lacks the evidence and factual
findings about the covered semi-automatic pistols and
shotguns. Accordingly, we will rule on the Assault Firearm
Provisions with respect to all semi-automatic rifles, but our
ruling will go no farther. On remand, the District Court shall
address the constitutionality of the Assault Firearm Provisions
as to semi-automatic pistols, shotguns, and other weapons to
which Plaintiffs lodge challenges.
firearmâ covered by the Assault Firearm Provisions, and
because New Jersey focused on the Colt AR-15 as the âtypicalâ
covered weapon. ANJRPC V, 742 F. Supp. 3d at 424. The
District Courtâs choice notwithstanding, our decision to
address the arguments Plaintiffs presented throughout their
cases is consistent with all party-presentation principles. See
United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020)
(recounting that party-presentation principles guide courts to
âdecide only questions presented by the partiesâ rather than
âsally[ing] forth . . . looking for wrongs to rightâ (citation
modified)). Moreover, notwithstanding their reminder of our
role as a âcourt of review, not of first view,â Shwartz Op. at 2
(quoting OâHanlon v. Uber Techs., Inc., 990 F.3d 757, 762 n.3
(3d Cir. 2021)), even our dissenting colleagues acknowledge
that the District Courtâs decision was unduly narrow, see id.
(recognizing that the parties challenged the prohibition on all
AR-15s, regardless of manufacturer).
37
A.
At step one of the Bruen framework, we ask whether
âthe Second Amendmentâs plain text covers [the] . . . conductâ
the Plaintiffs wish to engage in. 597 U.S. at 17. Here, that
proposed conduct is possession of semi-automatic rifles for
lawful purposes, including self-defense.
The textual analysis is straightforward. All agree about
two of the three subsidiary questions: Plaintiffs in these
consolidated matters are among âthe peopleâ whom the Second
Amendment protects, and New Jerseyâs law restricts the
keeping and bearing of semi-automatic rifles. See Wolford,
2026 WL 1825723, at *6. The only remaining question is
whether those firearms are âany form of âArms, i.e., any
weapon customarily used for offensive or defensive purposes.â
Id. They are.
Like Wolford, Heller defines âArmsâ broadly: âany
thing that a man . . . takes into his hands or useth in wrath to
cast at or strike another.â Heller, 554 U.S. at 581 (citation
modified) (first quoting 1 Samuel Johnson, Dictionary of the
English Language 106 (4th ed. 1773) (reprinted 1978), then
quoting 1 Timothy Cunningham, A New and Complete Law
Dictionary (2d ed. 1771)). And Heller explains that the
Second Amendment right âextends, prima facie, to all
instruments that constitute bearable arms, even those that were
not in existence at the time of the founding.â Id. at 582.
â[E]ven though the Second Amendmentâs definition of âarmsâ
is fixed according to its historical understanding, that general
definition covers modern instruments that facilitate armed
self-defense.â Bruen, 597 U.S. at 28.
Even the narrowest Founding-era definition of âArmsâ
38
addressed by the Heller Court âstated that all firearms
constituted âarms.ââ Id. at 581â82 (citing 1 John Trusler, The
Distinction Between Words Esteemed Synonymous in the
English Language 37 (3d ed. 1794)). Because semi-automatic
rifles are firearms, they are âArmsâ within the meaning of the
Second Amendment. The Constitution thus âpresumptively
protectsâ individualsâ right to keep and bear semi-automatic
rifles. Bruen, 597 U.S. at 17.
B.
That brings us to Bruenâs second step. Because keeping
and bearing semi-automatic rifles is conduct presumptively
protected by the Second Amendment, the Assault Firearm
Provisions restricting the possession of those weapons can
stand only if New Jersey shows they are âconsistent with the
principles that underpin our regulatory tradition.â Rahimi, 602
U.S. at 692. It has not carried that burden.
To determine whether a regulation is consistent with the
principles underlying our Nationâs tradition of firearm
regulation, we consider â[w]hy and how the regulation burdens
the [Second Amendment] right.â Id.; see also Bruen, 597 U.S.
at 29.
1
First, we consider why the Assault Firearm Provisions
were enacted. As the Stateâs then-Governor explained, the
Provisions were aimed at restricting the possession of âguns
capable of wholesale destructionâ or that are âdesigned to wipe
out the greatest number of people in the shortest possible time.â
App. 4651â52. Thus, like the regulations at issue in Rahimi,
Bruen, and Heller, the Assault Firearm Provisions seek to
39
âbar[] people from misusing weapons to harm or menace
others.â Rahimi, 602 U.S. at 693. 26
26
In characterizing the âwhyâ this way, we follow the Supreme
Courtâs example. In Rahimi, the Court synthesized the distinct
purposes of surety laws (âpreventing violence before it
occurredâ) and going armed and affray laws (âpunishing those
who menaced others with firearmsâ) into a higher-level âwhyâ
that encapsulated the purposes of both laws: âbarring people
from misusing weapons to harm or menace others.â 602 U.S.
at 694, 697. The Court looked to the âwhyâ of the modern
federal law disarming individuals subject to domestic violence
restraining orders, and it determined that it âfit[] neatly within
th[at] tradition.â Id. at 698.
Bruen was less explicit in characterizing the âwhyâ of the
colonial, Founding, and Antebellum-era laws it considered.
But it observed that New Yorkâs modern law sought to address
âhandgun violence, primarily in urban areas,â 597 U.S. at 27,
and it did not conclude that this âwhyâ is too dissimilar from
the âwhysâ of the historical regulations it evaluated. Instead,
it concluded that the modern and historical laws are too
dissimilar in how they regulated weapons. See id. at 46â60.
Lastly, characterizing the âwhyâ in this manner is consistent
with Bruenâs discussion of the âmore nuanced approachâ that
might be required by âcases implicating unprecedented societal
concerns or dramatic technological changes.â 597 U.S. at 27â
28; see infra Part IV.B.5. Although the Supreme Court has not
had occasion to explain what a more nuanced approach entails,
the Courtâs use of the terms âunprecedentedâ and âdramaticâ
indicate that courts should be sparing in their use of a âmore
nuanced approach.â But if we define the âwhyâ of a modern
40
That is a purpose that fits comfortably within our
Nationâs tradition of firearm regulation. It can be traced back
to common law surety and going armed laws. In Rahimi, the
Supreme Court reviewed the history of these laws. It explained
that surety laws âtargeted the misuse of firearms,â by
âprovid[ing] a mechanism for preventing violence before it
occurred.â Id. at 696â97. Going armed laws âprovided a
mechanism for punishing those who had menaced others with
firearms.â Id. at 697. Together, these examples showed that
since âthe earliest days of the common law, firearm regulations
have included provisions barring people from misusing
weapons to harm or menace others.â Id. at 693. 27
weapon regulation too narrowly, every case could present an
âunprecedentedâ concern and the exception would swallow the
rule. Id. at 28.
27
As Heller, Bruen, and Rahimi demonstrate, legislatures enact
many weapons laws out of concern about weapons being
misused to harm or menace others. Thus, how a legislature
chooses to address weapons misuse may often determine
whether a law withstands Second Amendment scrutiny. Still,
the âwhyâ metric will serve an important function when the
âhowsâ are analogous but the historical regulations were
enacted for distinct purposes. See Wolford, 2026 WL 1825723,
at *12â13 (rejecting analogues because they were enacted for
different reasons than the challenged regulation); Hemani, 146
S. Ct. at 1689 (same). For instance, as we discuss below, some
Founding-era gunpowder-storage laws limited how much
gunpowder could be stored in a single cannister. See infra note
33. In that some of those laws limited how much ammunition
could be stored together, they are arguably similar to New
41
2
Next, we look to how New Jerseyâs regulation burdens
the Second Amendment right. The Assault Firearm Provisions
make it a crime to knowingly possess a semi-automatic rifle
without a license, N.J. Stat. Ann. § 2C:39-5(f), and âno license
shall be issued unless [a Superior Court] finds that the public
safety and welfare so require,â id. § 2C:58-5(b). The bar for
the issuance of a license is high, and the record contains no
evidence of a member of the public ever receiving one.
Military, law enforcement, and government personnel are
exempt under certain conditions, id. § 2C:39-6(a), (j), but there
are no exemptions for members of the public. The lawâs only
other carveout is for certain âassault firearms determined by
the Attorney General to be legitimate for target-shooting
purposes,â but that carveout applies only to firearms that (1)
were purchased on or before May 1, 1990, (2) belong to an
individual who is a member of a rifle or pistol club that existed
before the act took effect, and (3) belong to an individual who
joined the rifle or pistol club no more than 210 days after the
act took effect. Id. § 2C:58-12(a)â(b). In sum, given the
Assault Firearm Provisionsâ narrow exemptions and
unattainable licensing standard, the law amounts to a de facto
ban on the possession of semi-automatic rifles. See, e.g., Bevis
Jerseyâs LCM restrictions in how they burden the Second
Amendment right. See infra note 49. But even if the âhowsâ
are similar, gunpowder-storage laws were enacted for
fire-safety purposes, not to prevent misuse of firearms to harm
or menace others. See Heller, 554 U.S. at 632; see also infra
Parts IV.B.4 & V.B. Because of those disparate âwhys,â
gunpowder-storage laws are not analogous to the LCM
Provisions.
42
v. City of Naperville, 85 F.4th 1175, 1182 (7th Cir. 2023)
(explaining that a similar regulationâs provisions âinstitute
something close to a banâ on assault weapons); Bianchi, 111
F.4th at 453 (characterizing a similar regulation as a ban).
But that characterization of the law does not end our
analysis of the burden. Common use also bears on âhow . . .
[a] regulation[] burden[s] a law-abiding citizenâs right to
armed self-defense.â Bruen, 597 U.S. at 29. We therefore
consider whether semi-automatic rifles are a class of arms âin
common use for lawful purposes.â 28
The evidence shows that they are. The District Court
found that there are around 24 million AR-l5s and similar
sports weapons in circulationâa figure that is surpassed only
by the number of registered handgun owners within the United
States. New Jersey does not provide any data or statistics of
its own to contradict the sheer number of semi-automatic rifles
28
While the parties dispute some facts, those disagreements
mainly pertain to legislative facts, not adjudicative facts. See
Fed. R. Evid. 201(a) advisory committeeâs note to 1972
proposed rules (explaining that â[a]djudicative facts are simply
the facts of the particular caseâ while legislative facts âare
those which have relevance to legal reasoning and the
lawmaking process, whether in the formulation of a legal
principle or ruling by a judge or court or in the enactment of a
legislative bodyâ). We may resolve any disputes related to
legislative facts, because those are facts subject to judicial
notice. See United States v. Perez, 150 F.4th 237, 248 (4th Cir.
2025); United States v. Love, 20 F.4th 407, 412 (8th Cir. 2021).
43
in common use for lawful purposes. 29 Instead, New Jersey
argues that the features of semi-automatic rifles are a legacy of
their military heritage and are designed for combat.
But the record tells another story. The District Court
found that these weapons are used for lawful purposes
including self-defense, target shooting, hunting, and pest
control, and that their build and design features, such as their
mild recoil, ergonomics, and accuracy make them âa good
choice for self-defense.â App. 57.
In a different case, we might need to qualitatively
examine a weaponâs features to determine whether a weapon
is in common use for lawful purposes. Indeed, the Supreme
Court has suggested the features of âcertain categories of
guns . . . including the machineguns, sawed-off shotguns, and
artillery pieces that Congress has subjected to regulationâ are
different from other categories of guns that âtraditionally have
29
New Jersey provides some statistical evidence that
semi-automatic rifles are rarely used in self-defense. But
statistics on actual usage for self-defense are not revealing
here, because even if a weapon is rarely employed in incidents
requiring self-defense, it may still be commonly possessed for
that lawful purpose or other lawful purposes, such as hunting.
New Jersey also points to data showing that semi-automatic
rifles are disproportionately used in certain crimes and argues
that this demonstrates that those weapons are not commonly
used for lawful purposes. But that conclusion does not follow
from the data. Even if semi-automatic rifles are
disproportionately used in some crimes, those may still
represent a small fraction of those weaponsâ overwhelmingly
lawful use.
44
been widely accepted as lawful possessions.â Staples v. United
States, 511 U.S. 600, 611â12 (1994). 30 But on the record
before us today, we need not precisely define the quantity or
qualities that make a weapon in common use for lawful
purposes. Regardless of where those lines may be drawn, the
many millions of semi-automatic rifles in circulation for lawful
purposes are plainly in common use.
3
This regulation therefore functions like the firearm ban
at issue in Heller: It prohibits the possession of a class of
weapons in common use for lawful purposes. This similarity
to Heller facilitates our decision here. In Heller, faced with a
similar âwhy,â the Supreme Court determined that no historical
regulations were analogous to how the District of Columbia
regulated handgun possession: by imposing a âflat ban.â See
Bruen, 597 U.S. at 27 (citing Heller, 554 U.S. at 631, 634). In
other words, there was no historical support for the
âprohibition of an entire class of âarmsâ that is overwhelmingly
chosen by American society for [the] lawful purposeâ of
30
The Supreme Court also has observed that automatic
weapons and semi-automatic weapons differ in meaningful
ways. See Staples, 511 U.S. at 611â12 (deeming ownership of
a machinegun, but not an unmodified AR-15, âquasi-suspectâ);
Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos,
605 U.S. 280, 297 (2025) (noting that â[t]he AR-15 is the most
popular rifle in the countryâ and is âwidely legal and bought
by many ordinary consumersâ); Garland v. Cargill, 602 U.S.
406, 410 (2024) (holding that a semi-automatic weapon, even
when equipped with a bump stock, is not an automatic weapon
for purposes of the federal machine gun ban).
45
self-defense. Heller, 554 U.S. at 628.
In Bruen, the Supreme Court again considered a
regulation intended to stymie interpersonal gun violence.
Bruen, 597 U.S. at 27. After an exhaustive historical review,
the Court found no analogues that supported âa tradition of
broadly prohibitingâ even âthe public carry of commonly used
firearms for self-defenseââa limitation far less stringent than
a full ban on possession. 31 Id. at 38 (emphasis added).
Together, Heller and Bruen teach that bans or broad
prohibitions on possessing or carrying of a class of weapons in
common use for lawful purposes fail to find support in our
Nationâs tradition of firearm regulation. That is so even when
the regulations are passed with the intention of reducing gun
violence. 32
That principle resolves our inquiry here. That is
31
As the Supreme Court made clear in Bruen, historical
analogues regulating what were considered âdangerous and
unusual weaponsâ in the past cannot support bans on arms that
âare indisputably in common use for self-defense today.â 597
U.S. at 47 (internal quotation marks omitted).
32
One dissent asserts that we âdisregard the democratic will of
the People of New Jerseyâ in holding that the Assault Firearm
Provisions violate the Second Amendment. Krause Op. at 2.
But the Supreme Court recently reinforced that âthe Second
Amendment has the same meaning in all parts of the United
States,â and âlocal attitudes can neither shrink nor inflateâ the
meaning of that fundamental right. Wolford, 2026 WL
1825723, at *11. That truism applies even when citizens
express their local attitudes through their legislators.
46
because the Supreme Court has already evaluated the historical
analysis for the kind of regulation before us today: âa
prohibition of an entire class of âarmsâ that is overwhelmingly
chosen by American society for [the] lawful purposeâ of
self-defense. Heller, 554 U.S. at 628. There is no historical
support for such a measure. Id. at 628â29.
4
Even if we were to conduct the analogical analysis
anew, we would reach the same conclusion. â[W]hen a
challenged regulation addresses a general societal problem that
has persisted since the 18th century,â our analysis at Bruenâs
second step is âfairly straightforward.â Bruen, 597 U.S. at 26.
In such cases, the âlack of a distinctly similar historical
regulation addressing that problemâ; the enactment of
regulations that âaddressed the societal problem . . . through
materially different meansâ; or courtsâ rejection of analogous
regulations on constitutional grounds are all ârelevant evidence
that the challenged regulation is inconsistent with the Second
Amendment.â Id. at 26â27.
This case âexemplifies this kind of straightforward
historical inquiry.â Id. at 27. New Jerseyâs regulation
addresses societal concerns about the âmisus[e] [of] weapons
to harm or menace others,â which is a societal problem that has
existed â[f]rom the earliest days of the common law.â Rahimi,
602 U.S. at 693. Indeed, in Rahimi, the Supreme Court
identified one way of addressing this concern that is within our
historical tradition: disarming an individual who has been
found to pose a clear threat of physical violence to another
person. Id. at 698.
New Jersey submits that our historical tradition shows
47
that it can also achieve the aim of preventing firearm misuse
through the de facto ban enacted by the Assault Firearm
Provisions. The State offers several examples of historical
analogues for our consideration. None is a relevantly similar
analogue for a ban on an entire class of arms in common use
for lawful purposes.
For example, the Founding-era gunpowder aggregation
laws that New Jersey points to are not apt comparators because
the âwhyâ is not analogous. The gunpowder laws were enacted
as fire-safety measures, not to address firearm violence. 33 See
Hanson v. District of Columbia, 120 F.4th 223, 235 (D.C. Cir.
2024). 34
33
See, e.g., 1784 N.Y. Laws 627, ch. 28 (limiting gunpowder
possession per person to 28 pounds, separated into four
canisters); 1798â1813 R.I. Pub. Laws 85, §§ 1, 3 (limiting
gunpowder possession in any shop, building, or other place to
28 pounds and requiring it to be kept in tin canisters); 1786
N.H. Laws 383â84, § 1 (limiting gunpowder possession in any
store, dwelling-house, or building to 10 pounds and requiring
it to be kept in a secured canister to avoid forfeiture to the
firewards); 1806 Ky. Acts 122, § 3 (authorizing limitations on
quantities of gunpowder that may pose a fire danger).
34
The State invokes a single additional Founding-era
analogue: a New Jersey law restricting trap guns, which are
firearms rigged to discharge when a string or wire is tripped.
See 1763â1775 N.J. Laws 343, ch. 540, § 10. Other trap gun
regulations were enacted in the late 1800s, but those are too
late in time to establish a tradition of regulation. See, e.g., 1875
Mich. Pub. Acts 136, no. 97, § 1; 1869 Wis. Sess. Laws 35, ch.
48
New Jersey also offers up Antebellum and
Reconstruction-era regulations of Bowie knives, slungshots
and clubs, pistols, and revolvers as potential analogues. These
laws have the same âwhyâ as the Assault Firearm Provisions:
They were intended to âbar[ ] people from misusing weapons
to harm or menace others.â Rahimi, 602 U.S. at 693.35
Nonetheless, those regulations are insufficiently analogous for
two reasons: They are too late in time, and none enacted an
outright ban on a class of weapons in common use for lawful
purposes.
We have held that the primary time period for the
analogical inquiry is the Founding era. Lara, 125 F.4th at 441â
42. So we must âguard against giving postenactment history
more weight than it can rightly bear.â Id. at 434 (quoting
Bruen, 597 U.S. at 35). Where no precedent from the Founding
era âevinces a comparable tradition of regulation,â regulations
from the mid- to late-1800s cannot bear much weight. Bruen,
597 U.S. at 27. Post-ratification practice can be evidence of
Founding-era principles, but it cannot create a new tradition or
contradict Founding-era practices. Lara, 125 F.4th at 441.
Such is the case here.
33, § 1. And the Founding-era New Jersey law alone cannot
establish a tradition of regulation. In any event, the âhowâ of
the trap gun regulations is not analogous, because individuals
were not restricted from owning firearmsâthey simply could
not rig those firearms to engage in automatic and
indiscriminate shooting outside of their presence.
35
As we explain above, see supra Part IV.B.1, this âwhyâ can
be traced not just to the Founding era, but the âearliest days of
the common law,â see Rahimi, 602 U.S. at 693.
49
But even setting aside the timing of regulations on
Bowie knives, slungshots and clubs, pistols, and revolvers,
none of those regulations are relevantly similar to the Assault
Firearm Provisions. Take, for example, the regulations of
Bowie knives that several of our sister circuits find
persuasive. 36 Between 1837 and 1893, a majority of states and
territories enacted restrictions on Bowie knives. See David B.
Kopel & Joseph G.S. Greenlee, The History of Bans on Types
of Arms Before 1900, 50 J. Legis. 223, 296â327 (2024). Most
of those regulations prohibited the concealed carry of Bowie
knives, 37 and some prohibited open carry with intent to do
harm 38 or imposed more stringent punishments where Bowie
36
Ocean State Tactical, 95 F.4th at 48; Natâl Assân for Gun
Rts., 153 F.4th at 243â45; Bianchi, 111 F.4th at 466â67; Bevis,
85 F.4th at 1201â02; Duncan, 133 F.4th at 878â82; Hanson,
120 F.4th at 237â38.
37
See, e.g., 1838 Ala. Laws 67, no. 77, § 1 (prohibiting
concealed carry); 1878 Miss. Laws 175, ch. 46, § 1
(prohibiting concealed carry with self-defense exception);
1838 Va. Acts 76, chap. 101, § 1 (prohibiting concealed carry);
1867 Colo. Sess. Laws 191, ch. 22, § 149 (prohibiting
concealed carry in any âcity, town or villageâ). See also
Hanson, 120 F.4th at 237 (observing that most laws regulating
Bowie knives prohibited concealed carry and âtherefore are not
indicative of a ârelevantly similarâ traditionâ of banning the
possession of weapons).
38
See, e.g., 1886 Md. Laws 602, ch. 375, § 1 (fine or
imprisonment for open carry of knife with intent to harm);
1876 Colo. Sess. Laws ch. 24, § 154 (same).
50
knives were used in the commission of a crime. 39 But, outside
of the Western Territories, only one law, in Georgia, banned
the possession of Bowie knives outright. See 1837 Ga. Acts
90, §1 (1838). 40 A decade after that law was enacted, the
Georgia Supreme Court deemed it an unconstitutional
violation of the Second Amendment as applied to everything
other than concealed carry. See Nunn v. State, 1 Ga. 243
(1846).
A handful of the Western Territories enacted
regulations generally prohibiting the open carry of Bowie
knives, though some had exceptions for self-defense. 41 But we
heed the Supreme Courtâs warning about the âexceptional
natureâ of western restrictions. Bruen, 597 U.S. at 66â70. Like
the Supreme Court, âwe will not stake our interpretation on a
handful of temporary territorial laws that were enacted nearly
a century after the Second Amendmentâs adoption, governed
39
See, e.g., 1837 Ala. Acts 7, no. 11, § 1 (where Bowie knife
is used to kill another, âit shall be adjudged murder, and the
offender shall suffer the same as if the killing had been by
malice aforethoughtâ).
40
Like the Supreme Court in Bruen and Heller, we will not
give âdisproportionate weight,â Bruen, 597 U.S. at 65, to
isolated examples of bans on the possession of an arm that
âcontradict[ ] the overwhelming weight of other evidence
regarding the right to keep and bear arms for defense,â Heller,
554 U.S. at 632.
41
See 1881 Ark. Acts 191, ch. 96, § 1 (exception for persons
âupon a journeyâ); 1871 Tex. Gen. Laws 25, ch. 34, § 1
(self-defense exception); 1889 Ariz. Sess. Laws 30, ch. 13, § 2
(self-defense exception).
51
less than 1% of the American population, and also âcontradict
the overwhelming weightâ of other, more contemporaneous
historical evidenceâââparticularly because those regulations
were ârarely subject to judicial scrutiny.â Id. at 67â68 (citation
modified) (quoting Heller, 554 U.S. at 632).
Even if bans on the concealed carry of Bowie knives
could support a ban on the possession of the firearms at issue
here, regulations restricting Bowie knives remain an inapt
analogue because they did not target a class of weapons in
common use for lawful purposes. New Jersey has provided no
evidence that Bowie knives were in common use for lawful
purposes. Instead, it points only to evidence that Bowie knives
were widely used in fights and duels as well as other criminal
activities. See Norm Flayderman, The Bowie Knife:
Unsheathing an American Legend 25â64 (2004). We are
therefore unconvinced that laws regulating Bowie knives are
useful comparators for the weapons at issue here.
The other proffered analogues suffer from similar
infirmities. Like Bowie knives, slungshots were âa regular part
of criminal weaponry.â App. 1110, and there is no evidence in
the record to suggest that they were commonly used for lawful
purposes in addition to unlawful ones. And the regulations on
pistols and revolvers that New Jersey invokes did not restrict
the possession of firearms. Rather, they limited the concealed
52
carry 42âor in a few cases, the sale or exchange 43âof those
arms. 44
42
See, e.g., 1811 Ky. Acts 100, ch. 89, §1 (prohibiting
concealed carry of pistols); 1812 La. Acts 172, § 1 (same);
1819 Ind. Acts 39, ch. 24, § 1 (same); 1838 Ark. Acts 280, div.
8, ch. 44, art. 1, § 13 (same); 1838 Va. Acts. 76, ch. 101, § 1
(same); 1838 Ala. Acts 67, no. 77, § 1 (same); 1835 Terr. of
Fla. Laws 318, chap. 860 (same). A few Western Territories
enacted restrictions on the open carry of some firearms. See
1889 Ariz. Sess. Laws 30, ch. 13, § 1; 1869 N.M. Laws 72, ch.
32, §§ 1â2; 1875 Wyo. Terr. Sess. Laws 352, ch. 52, § 1; 1889
Idaho Terr. Gen. Laws 23, § 1; 1890 Okla. Sess. Laws 495, ch.
25, art. 47, §§ 1â2; see also Bruen, 597 at 66â70 (discussing
these regulations). But, as discussed above, we will not rely
on âexceptionalâ territorial restrictions to establish a historical
tradition of regulation. Bruen, 597 at 67.
43
See, e.g., 1881 Ark. Acts 191, 192, ch. 96, § 3 (outlawing the
sale or exchange of several weapons, including pistols); 1879
Tenn. Acts 135, ch. 96, § 1 (outlawing sale or exchange of belt
pistols, pocket pistols, revolvers, or any other kind of pistol,
with military exception).
44
The exception is an 1871 Tennessee law that banned
âpublicly or privatelyâ carrying a âbelt or pocket pistol or
revolver, other than an army pistol.â 1871 Tenn. Pub. Acts 81,
ch. 90, § 1. The Supreme Court of Tennessee upheld that law.
See State v. Wilburn, 66 Tenn. 57, 62 (1872). The supreme
courts of Alabama and Louisiana considered similar laws and
held that bans on concealed carry were constitutional only if
open carry was not also prohibited. See State v. Reid, 1 Ala.
612, 616, 619â621 (1840); State v. Chandler, 5 La. 489, 490
53
Thus, none of New Jerseyâs analogues are ârelevantly
similarâ to the challenged law. Bruen, 597 U.S. at 29. 45 The
âlack of a distinctly similar historical regulation . . . is relevant
evidence that the challenged regulation is inconsistent with the
Second Amendment.â Id. at 26.
5
The straightforwardness of the analogical inquiry here
also resolves a final open question about the structure of the
Bruen framework as applied here. In step two of its analysis
in Bruen, the Supreme Court explained that â[w]hile the
historical analogies here and in Heller are relatively simple to
draw, other cases implicating unprecedented societal concerns
or dramatic technological changes may require a more nuanced
approach.â Id. at 27. Several of our sister circuits have relied
on this language to uphold regulations like those at issue here.
They have opined that semi-automatic rifles are technological
developments that âimplicat[e] unprecedented societal
concerns.â Id.; see Capen v. Campbell, 134 F.4th 660, 668 (1st
Cir. 2025); Natâl Assân for Gun Rts. v. Lamont, 153 F.4th 213,
238â39 (2d Cir. 2025); Bianchi, 111 F.4th at 464; Barnett v.
(1850). Kentuckyâs Supreme Court struck down a ban on
concealed carry, but it did so under a state constitutional
provision that protected âthe right of the citizens to bear arms
in defence of themselves and the state,â not under the Second
Amendment. Bliss v. Commonwealth, 12 Ky. 90, 90 (1822).
45
To the extent that New Jersey offers as analogues
20th-century regulations restricting the broad classes of
machineguns and semi-automatic firearms, those regulations
are far too late in time to suggest, on their own, a tradition
dating back to the Founding.
54
Raoul, No. 24-3060, --- F.4th ----, 2026 WL 1982951, at *15
(7th Cir. July 9, 2026). We are not persuaded.
As we explained above, this case implicates the societal
concern of people âmisusing weapons to harm or menace
others.â Rahimi, 602 U.S. at 693. That concern âhas persisted
since the 18th century,â and âthe Founders themselves could
have adopted [a similar law] to confront that problem,â but
they did not. Bruen, 597 U.S. at 26â27. This case therefore
falls into the category of cases where âthe historical
analogies . . . are relatively simple to draw,â not the category
calling for a âmore nuanced approach.â Id. at 27.
Finally, even if we agreed that semi-automatic rifles
implicate âunprecedented societal concerns or dramatic
technological changes,â that would not change the outcome
here. That is because the âmore nuanced approachâ does not
permit us to abandon the analogical inquiry prescribed by
Bruen. Fundamentally, we must determine whether âmodern
and historical regulations impose a comparable burden on the
right of armed self-defense and whether that burden is
comparably justified.â Id. at 29. Even if we loosen the
strictures of the analogical inquiry by more broadly construing
the âhowâ and âwhyâ of the analogues New Jersey proffers,
regulations that restrict the carrying of certain types of arms do
not impose a burden comparable to that of a de facto ban on
the possession of an entire class of arms.
We therefore hold that New Jerseyâs complete
prohibition on the possession of semi-automatic rifles runs
afoul of the Second Amendmentâs protections.
55
V.
Applying these principles to the LCM Provisions of
New Jerseyâs law, we conclude that those provisions are
inconsistent with the Second Amendment.
A.
We begin with Bruenâs step-one textual analysis. In
ANJRPC II, we determined that âmagazines are âarmsâ within
the meaning of the Second Amendment.â 910 F.3d at 116. Our
textual analysis in that case remains sound post-Bruen, so we
reaffirm it today.
As discussed above, the Second Amendmentâs
protection of the right to keep and bear arms âextends, prima
facie, to all instruments that constitute bearable arms, even
those that were not in existence at the time of the founding.â
Heller, 554 U.S. at 582. Although history guides our definition
of âarms,â that term âcovers modern instruments that facilitate
armed self-defense.â Bruen, 597 U.S. at 28.
A magazine is a âholder in or on a gun for cartridges to
be fed into the gun chamber.â Magazine, Websterâs Collegiate
Dictionary (9th ed. 1983); see also Magazine, The American
Heritage Dictionary (5th ed. 2018) (âA compartment in some
types of firearms, often a small detachable box, in which
cartridges are held to be fed into the firing chamber.â). For
many firearms, magazines âare required as part of the firing
process.â Bevis, 85 F.4th at 1209 (Brennan, J., dissenting).
The Supreme Court has long recognized that â[t]he
possession of arms also implie[s] the possession of
ammunition.â Miller, 307 U.S. at 180. That is because
56
ammunition is ânecessary to make meaningful an individualâs
right to carry a []gun for self-defense.â Hanson, 120 F.4th at
232; see Jackson v. City & Cnty. of San Francisco, 746 F.3d
953, 967 (9th Cir. 2014) (holding that the Second Amendment
âimplies a corresponding right to obtain . . . bulletsâ (citation
modified)). Therefore, â[b]ecause magazines feed ammunition
into certain guns, and ammunition is necessary for such a gun
to function as intended, magazines are âarmsâ within the
meaning of the Second Amendment.â ANJRPC II, 910 F.3d at
116.
The text of the Second Amendment covers all
magazines, not just magazines that New Jersey considers
âstandard capacity.â Standard capacity magazines and LCMs
are subsets of the broader category of âmagazines,â separate
categories of arms. The determination that magazines are
arms, then, necessarily means that LCMs are arms as well.
New Jerseyâs use of the term âlarge capacity magazineâ
further supports this conclusion. The LCM label is not
objective: what is considered an LCM is statutorily defined. In
New Jersey, that definition has changed over time. Today, a
magazine capable of holding 15 rounds of ammunition is an
LCM. N.J. Stat. Ann. § 2C:39-1(y). But until 2018, that same
magazine was not an LCM. See 2018 N.J. Sess. Law Serv. Ch.
39 (West). It would defy reason for a label devised by New
Jerseyâs legislature to govern the reach of the Second
Amendmentâs text.
The State urges us to adopt the Ninth Circuitâs view that
LCMs are not arms but accessories of weaponry, referred to as
âaccoutrementsâ in the Founding era. See Duncan, 133 F.4th
at 867. As the Ninth Circuit recounted, common
accoutrements at the Founding included âflint, scabbards,
57
holsters, and ammunition containers such as cartridge cases
and cartridge boxes.â Id.
The State notes that a large-capacity magazine is an
ammunition container that is harmless when it is not attached
to a gun. Accordingly, the State reasons that LCMs do not fit
into Hellerâs Founding-era definitions of âArmsâ as items that
a person âtakes into his hands, or useth in wrath to cast at or
strike another.â See id. (quoting Heller, 554 U.S. at 581). It
also reasons that, even if some magazines are protected by the
Second Amendment because they are necessary to the
operation of some firearms, LCMs do not fall into that
protected subcategory because no firearm requires a magazine
with a capacity of more than ten rounds to function.
There are a few problems with this reasoning. First, this
reliance on Founding-era definitions of âArmsâ is at odds with
the Supreme Courtâs instruction in Bruen. There, the Court
explained that âeven though the Second Amendmentâs
definition of âarmsâ is fixed according to its historical
understanding, that general definition covers modern
instruments that facilitate armed self-defense.â Bruen, 597
U.S. at 28 (emphasis added). In many cases, modern
magazines go beyond merely facilitating self-defense; they are
required for some firearms to function. See Duncan, 133 F.4th
at 898 (Bumatay, J., dissenting). But even where a particular
arm does not require the use of a magazine, a magazine
unquestionably facilitates the arm userâs ability âto cast at or
strike another.â Heller, 554 U.S. at 581. Accordingly,
magazines are arms. This reading accords with our earlier
observation that because âammunition is necessary for such a
gun to function as intended, magazines are âarmsâ within the
58
meaning of the Second Amendment.â ANJRPC II, 910 F.3d at
116.
Second, nothing in text of the Second Amendment
suggests that the capacity of a magazine bears on whether it
receives constitutional protection. So it cannot be that a
magazine that can hold ten rounds is an âArm[]â covered by
the plain text of the Second Amendment but a magazine that
can hold eleven rounds is not. Although magazines of different
capacities may implicate different public policy concerns, âthe
enshrinement of constitutional rights necessarily takes certain
policy choices off the table.â Heller, 554 U.S. at 636. At least
at Bruenâs first step, policy choices have no bearing on whether
magazines of any size are covered by the text of the Second
Amendment.
Likewise, we are unpersuaded by the Stateâs argument
that LCMs are not âArmsâ covered by the Second Amendment
because they are not necessary to operate a firearm. The State
reasons that firearms can operate with smaller capacity
magazines. But the text of the Second Amendment does not
limit âArmsâ to the minimum equipment necessary to operate
a weapon. And nowhere in Heller or Bruenâs textual analyses
did the Supreme Court suggest that the availability of
alternative equipment changes the definition of an arm under
the Second Amendment. See id. at 576â626; Bruen, 597 U.S.
at 32â33. Thus, Bruenâs textual step is not the correct place for
such an inquiry. 46
46
In Heller, the Supreme Court considered and rejected an
argument that âit is permissible to ban the possession of
handguns so long as the possession of other firearms (i.e., long
59
Because magazines are required to operate many
firearms, they are âArmsâ within the text of the Second
Amendmentâeven when they can hold more than ten rounds
of ammunition. Thus, magazinesâincluding those that can
hold more than 10 rounds of ammunitionâare presumptively
entitled to constitutional protection.
B.
We now turn to Bruenâs second step, where we ask
whether New Jersey has demonstrated that its LCM Provisions
are consistent with our Nationâs historical tradition. The State
has not carried that burden.
As before, we consider â[w]hy and how the regulation
burdens the [Second Amendment] right.â Rahimi, 602 U.S. at
692; see also Bruen, 597 U.S. at 29.
We begin by considering why the LCM Provisions were
enacted. The original LCM Provisions were passed alongside
the Assault Firearm Provisions. The two sets of provisions had
the same purpose: to prevent people from misusing these
weapons to harm others. And when New Jersey amended the
LCM Provisions in 2018 and lowered the lawful capacity of a
magazine from fifteen rounds to ten in response to the
increased threat of mass shootings, the purpose of the amended
Provisions remained the same. Again, the amended LCM
guns) is allowed.â 554 U.S. at 629. But it did so when
considering historical analogues for the challenged modern
regulation, not when considering the Second Amendmentâs
plain text.
60
Provisions addressed a societal concern that dates back to the
Founding era. See Rahimi, 602 U.S. at 693.
We now examine how the LCM Provisions burden the
Second Amendment right. Other than members of law
enforcement, the only individuals in New Jersey who can
lawfully possess operable LCMs are (1) those who use LCMs
with a qualifying and registered âassault firearmâ for
competitive shooting matches authorized by a United States
Army official, N.J. Stat. Ann. § 2C:39-3(j)(1); and (2) those
who, since before the 2018 amendments took effect, have
owned firearms that can only use detachable magazines that
hold between 11 and 15 rounds and that cannot be modified to
accommodate 10 or fewer rounds, id. §§ 2C:39-3(j)(2);
2C:39-20.
As discussed above, vanishingly few civilians are
permitted to register âassault firearmsâ at all, see supra
Part I.A, so the subset of those people who may lawfully
possess LCMs to use with assault firearms at approved
shooting matches is necessarily even smaller. And the other
exemption is remarkably narrow, applying only to long-owned
nonmodifiable firearms with a narrow capacity range. Even
accounting for these exemptions, no civilian in New Jersey
who owns firearms for self-defense can possess a magazine
capable of holding more than 15 rounds of ammunition. Thus,
the LCM Provisions impose a de facto ban on magazines
holding more than 15 rounds, and they impose a severe
restriction on magazines that can hold 11 to 15 rounds.
We next ask whether LCMs are in common use for
lawful purposes. They are.
61
We have observed that âmillions of magazines are
owned, often come factory standard with semi-automatic
weapons, [and] are typically possessed by law-abiding citizens
for hunting, pest-control, and occasionally self-defense.â
ANJRPC II, 910 F.3d at 116 (citations omitted). Of course,
not all magazines satisfy New Jerseyâs definition of an LCM.
But the 24 million AR-15s and similar sports rifles in
circulationâfirearms that we have determined are in common
use for lawful purposesâtypically come standard with
twenty- or thirty-round magazines. 47 And there are over 100
million 30-round AR-15 magazines in circulation. 48
As one of our sister circuits observed based on similar
evidence: âThere may well be some capacity above which
magazines are not in common use but, if so, the record is
devoid of evidence as to what that capacity is; in any event,
that capacity surely is not ten.â Heller v. District of Columbia,
670 F.3d 1244, 1261 (D.C. Cir. 2011). We agree. Based on
the data before us, we are assured that LCMs (as defined by
New Jersey law) are in common use for lawful purposes.
With this in mind, we consider whether our Nationâs
historical tradition of regulation supports New Jerseyâs LCM
Provisions. In support of the Provisions, New Jersey offers the
47
In the District Court, New Jersey made boilerplate objections
to the admissibility of these facts. The District Court did not
resolve the objections, and New Jersey does not reassert them
here. Even so, we note that New Jersey does not meaningfully
dispute the commonality of LCMs.
48
The record also contains evidence of many more millions of
30-round magazines in circulation with semi-automatic
pistolsâa class of firearms we do not examine today.
62
same analogues as it does for the assault firearms law. Each
fails to convince us, for many of the same reasons we have
explained. See supra Part IV.B.4.
The Founding-era gunpowder storage laws that New
Jersey points to were enacted for fire-safety purposes and
therefore are not useful analogues to a regulation aimed at
preventing firearm violence. 49 And given our holding in Lara
that a regulation must be supported by a tradition that dates
back to the Founding era, 125 F.4th at 441â42, we cannot give
much weight to the remainder of New Jerseyâs suggested
analogues. But even if we could give 19th century analogues
more weight, the historical regulations New Jersey offersâ
which largely limited only the concealed carrying of certain
armsâcannot support the LCM Provisionsâ severe restrictions
49
The First and Ninth Circuits have both determined that
modern restrictions on magazines that can hold more than ten
rounds of ammunition are analogous to Founding-era
gunpowder-storage laws. Ocean State Tactical, 95 F.4th at 49;
Duncan, 133 F.4th at 878 (âBoth . . . target the component that
causes or exacerbates the devastating harm, and both affect the
speed at which a person can fire a firearm.â). But
gunpowder-storage laws are not ârelevantly similarâ to the
LCM Provisions simply because both restrict quantities of
ammunition. Bruen, 597 U.S. at 29; see Heller, 554 U.S. at
632 (observing that gunpowder-storage limits âdid not clearly
prohibit loaded weapons, but required only that excess
gunpowder be kept in a special container or on the top floor of
the homeâ). In any event, any similarity in how the laws
burden the Second Amendment right cannot overcome the
disparate reasons why the laws were enacted.
63
and ban on the possession of a broad swath of arms in common
use for lawful purposes. See supra Part IV.B.4.
As with the Assault Firearm Provisions, we need not
employ a ânuanced approachâ to analogical reasoning about
New Jerseyâs LCM Provisions. Bans on weapons in common
use for lawful purposes are unlawful. See Bruen, 597 U.S. at
27; Heller, 554 U.S. at 628â29. So are severe restrictions on
weapons in common use for lawful purposes. See Bruen, 597
U.S. at 47. However much nuance we might employ, we could
not overcome the dearth of relevantly similar Founding-era
restrictions.
For all these reasons, New Jerseyâs LCM Provisions
violate the Second Amendment.
* * *
For the foregoing reasons, we will MODIFY the District
Courtâs summary judgment order in part and AFFIRM it in part
as modified, REVERSE the order in part, and REMAND for further
proceedings.
64
Appendix A
N.J. Stat. Ann. § 2C:39-1(w)(1) defines âAssault firearmâ to
include the following firearms:
Algimec AGM1 type
Any shotgun with a revolving cylinder such as the
âStreet Sweeperâ or âStriker 12â
Armalite AR-180 type
Australian Automatic Arms SAR
Avtomat Kalashnikov type semi-automatic firearms
Beretta AR-70 and BM59 semi-automatic firearms
Bushmaster Assault Rifle
Calico M-900 Assault carbine and M-900
CETME G3
Chartered Industries of Singapore SR-88 type
Colt AR-15 and CAR-15 series
Daewoo K-1, K-2, Max 1 and Max 2, AR 100 types
Demro TAC-1 carbine type
Encom MP-9 and MP-45 carbine types
FAMAS MAS223 types
FN-FAL, FN-LAR, or FN-FNC type semi-automatic
firearms
Franchi SPAS 12 and LAW 12 shotguns
G3SA type
Galil type Heckler and Koch HK91, HK93, HK94,
MP5, PSG-1
65
Intratec TEC 9 and 22 semi-automatic firearms
M1 carbine type
M14S type
MAC 10, MAC 11, MAC 11-9mm carbine type
firearms
PJK M-68 carbine type
Plainfield Machine Company Carbine
Ruger K-Mini-14/5F and Mini-14/5RF
SIG AMT, SIG 550SP, SIG 551SP, SIG PE-57 types
SKS with detachable magazine type
Spectre Auto carbine type
Springfield Armory BM59 and SAR-48 type
Sterling MK-6, MK-7 and SAR types
Steyr A.U.G. semi-automatic firearms
USAS 12 semi-automatic type shotgun
Uzi type semi-automatic firearms
Valmet M62, M71S, M76, or M78 type semi-automatic
firearms
Weaver Arm Nighthawk.
66
MATEY, Circuit Judge, joined by MASCOTT, Circuit Judge,
concurring.
I join the majorityâs thoughtfully reasoned conclusion
that New Jerseyâs blunderbuss legislation is now, as it was the
last three trips to this Court, unconstitutional. And I join the
judgment, which will put New Jerseyâs lawyers to the task of
proving how any of the restrictions on these commonly owned
and ordinarily enjoyed firearms can meet the rigorous test the
majority confirms. Nothing has changed in the decades since
the State launched its battle against the Second Amendment
and its ongoing defiance of the law. All the while, â[r]ound
after round, in both the District Court and this Court, history
took center stage,â and New Jersey has never lacked ample
opportunity to support its firearms ban. Assân of N.J. Rifle &
Pistol Clubs Inc. v. Attây Gen., No. 19-3142, 2022 WL
22860232, at *3 (3d Cir. Aug. 25, 2022) (Matey, J., dissenting
from remand order) [ANJRPC Remand Order].1 There is too
much evidence that all of the arms at issueâpistol grips,
folding stocks, magazines containing eleven or more rounds,
and the semiautomatic shotguns and pistols New Jersey
lumped into the definition of âassault weaponsâ with no real
thoughtâare and have long been in common use for lawful
purposes. On remand, New Jersey neither needs, nor deserves,
yet another round of lengthy litigation on these same questions.
As we confirm today, the Second Amendment demands much
more from the regulator than from the challenger, counseling
in favor of swift proceedings on remand, not deep discovery to
confirm the unconstitutionality of New Jerseyâs repeated and
relentless assault on the Second Amendment. So I reiterate:
âAnother four years of proceedings to reach those conclusions
again is not needed. Nor can the United States remain âa
government of laws . . . if the laws furnish no remedy for the
1
As I explained over three years ago after the Supreme Court
decided Bruen, â[t]hat the State decided not to press those
points harder, whether as clever strategy or careless slip, is not
relevant. We have been far less forgiving of that sort of waiver
by far less sophisticated litigants.â Assân of N.J. Rifle & Pistol
Clubs Inc. v. Attây Gen., No. 19-3142, 2022 WL 22860232, at
*3 (3d Cir. Aug. 25, 2022) (Matey, J., dissenting from remand
order) [ANJRPC Remand Order].
violation of a vested legal right.ââ Id. at *4 (quoting Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).
But the glass is surely half full, as our decision
apprehends that â[t]he right of self defence is the first law of
nature,â 1 Blackstoneâs Commentaries, Editorâs App. 300 (St.
George Tucker ed. 1803), and that âtoday, no less than in 1791,
the Second Amendment guaranteesâ that natural right, N.Y.
State Rifle & Pistol Assân v. Bruen, 597 U.S. 1, 78â79 (2022)
(Alito, J., concurring). That fundamental truth has been lost on
New Jerseyâs lawyers who at every turn have turned a blind
eye to the Constitution while prioritizing histrionics over
history. Perhaps New Jersey will now finally honor its oft-
repeated commitments to the rule of law and start following
this one.
I.
In 1990, New Jersey enacted a sweeping criminal
prohibition on weapons it called âassault firearms.â N.J. Stat.
Ann. §§ 2C:39-1(w)(1)â(2), -5(f). The ban made it a crime to
possess any one of dozens of the Nationâs most popular
semiautomatic rifles, shotguns, and pistols, or any
âsubstantially identicalâ gun. Id. § 2C:39-1(w)(2). The law also
criminalized the possession of semiautomatic shotguns âwith
either a magazine capacity exceeding six rounds, a pistol grip,
or a folding stock,â id. §§ 2C:39-1(w)(3), -5(f), as well as the
possession of semiautomatic rifles with a âfixed magazine
capacity exceeding 15 rounds,â 1990 N.J. Laws 217, 221.
New Jersey also banned what it called âlarge capacity
ammunition magazine[s],â N.J. Stat. Ann. § 2C:39-3(j),
making it a crime to possess a âcontainer which is capable of
holding more than 15 rounds of ammunition to be fed
continuously and directly therefrom into a semi-automatic
firearm,â id.; 1990 N.J. Laws 217, 221. In 2018, New Jersey
amended the criminal prohibition such that it applied to
magazines holding âmore than 10 rounds,â down from 15. N.J.
Stat. Ann. § 2C:39-1(y); see also id. § 2C:39-1(w)(4)
(prohibiting semiautomatic rifles with a âfixed magazine
2
capacity exceeding 10 rounds,â down from 15).2 Since their
passage, these criminal laws have diverged from the Second
Amendmentâs determination of the natural right to defense.
But at bottom, this case is less about the meaning of the
Second Amendment than the process of interpretation. All
agree Bruen contemplated âtwo distinct analytical steps.â Lara
v. Commâr Pa. State Police, 125 F.4th 428, 435 (3d Cir. 2025).
The meaning of these steps is the heart of this dispute as,
apparently, âuncertainty aboundsâ among the courts of appeals
about how to apply them. Natâl Assân for Gun Rights v.
Lamont, 153 F.4th 213, 235 (2d Cir. 2025). It need not, and any
uncertainty is answered with classical rigor, the sort of legal
reasoning that has guided judges in this century, and before.
See Adrian Vermeule, Common Good Constitutionalism 53
(2022) (âThe principles of the classical legal tradition are our
own principles written into our own traditions.â).3
2
As I have explained, and as the majority recognizes, âthere
simply is no such thing as a âlarge capacity magazine.â It is a
regulatory term created by the State, meaning no more than the
maximum amount of ammunition the State has decided may be
loaded into any firearm at one time.â ANJRPC Remand Order,
2022 WL 22860232, at *4 (Matey, J., dissenting); see also
United States v. McIntosh, 124 F.4th 199, 217 n.5 (3d Cir.
2024) (Matey, J., concurring in the judgment). For the same
reasons, there is no objective meaning of an âassault rifle,â a
term referring to a long gun with some combination of features
that some regulator has decided should not be combined.
Virtuous republics commit themselves to principled legal
distinctions, not marketing materials recycled into legislation.
Id.
3
See also Range v. Attây Gen., 124 F.4th 218, 234 n.4 & 234â
35 (3d Cir. 2024) (Matey, J., concurring) (âconsulting classical
authorities discussing natural law to inform the determination
of written rightsâ is a âwell-established practice,â and â[a]bsent
exploration of the natural principles that support our legal
tradition, we overlook those âcertain primary truths, or first
principles, upon which all subsequent reasonings must
dependââ (quoting The Federalist No. 31, at 193 (Alexander
Hamilton) (C. Rossiter ed., 1961))). Even Justice Holmes, who
3
II.
Bruen, as others have noted, is an expression of the
common-law tradition that informs4 the positive enactment of
the preexisting right to bear arms. Using that background, I
explain how the Bruen framework ensures the continued
vitality of the analogical reasoning drawn from the common-
law tradition.
publicly âdismiss[ed] . . . natural law,â see Albert Alschuler,
From Blackstone to Holmes: The Revolt against Natural Law,
36 Pepp. L. Rev. 491, 497 (2009), consulted classical sources
to inform his understanding of positive law, see, e.g., Ker &
Co. v. Couden, 223 U.S. 268, 275â76 (1912) (Holmes, J.)
(relying on âintimations of the doctors of the Roman lawâ
expressed in Justinianâs Institutes, as well as provisions from
King Alfonso X of Castileâs thirteenth-century Seven
Divisions of Law, to show â[t]hat the question is a vexed oneâ);
see also id. at 279 (McKenna, J., dissenting) (relying on a
âprinciple, said to be of natural justiceâ); United States v. The
La Jeune Eugenie, 26 F. Cas. 832, 846 (Story, Circuit Justice,
C.C.D. Mass. 1822) (No. 15,551) (â[E]very doctrine, that may
be fairly deduced by correct reasoning from the rights and
duties of nations, and the nature of moral obligation, may
theoretically be said to exist in the law of nations . . . . And I
may go farther and say, that no practice whatsoever can
obliterate the fundamental distinction between right and
wrong, and that every nation is at liberty to apply to another
the correct principle, whenever both nations by their public
acts recede from such practice, and admits the injustice or
cruelty of it.â).
4
See Hon. Diarmuid F. OâScannlain, The Natural Law in the
American Tradition, 79 Fordham L. Rev. 1513, 1523â27
(2011) (explaining âthe natural law is useful when interpreting
provisions of the Constitution that were themselves efforts to
codify pre-existing natural law rights,â and âwhen [judges]
recall that our constitutional rights are codifications of those
innate rights which exist independent of government,â as
opposed to âsimply what the founders decided to protect,â
judges âare better equipped for t[he] taskâ of âprotect[ing]
these rights against the passion of the timesâ).
4
A.
Start with âStep One,â a consideration of the
commitment that, âwhen the Second Amendmentâs plain text
covers an individualâs conduct, the Constitution presumptively
protects that conduct.â Bruen, 497 U.S. at 17. It is a
straightforward inquiry, the ordinary threshold review into the
relevance of a written law.5
âThe principal task of courtsâ at this stage âis to apply
the original linguistic meaningâ of the Second Amendment to
the facts of the case. J. Joel Alicea, Bruen and the Founding-
Era Conception of Rights, 101 Notre Dame L. Rev.
(forthcoming 2026) (manuscript at 5) (on file with author); see
also United States v. Bridges, 150 F.4th 517, 547 (6th Cir.
2025) (Nalbandian, J., concurring).6 This first step is necessary
5
â[W]e begin by asking whether the Amendmentâs terms cover
the conduct in question.â United States v. Hemani, 146 S. Ct.
1677, 1685 (2026). It is âworthwhile to demandâ that courts
decide, at the threshold, whether to âconstrue a statute, treaty,
or constitutional provisionâ at all, or âhold it inapplicable
instead.â Frank H. Easterbrook, Statutesâ Domains, 50 U. Chi.
L. Rev. 533, 533â36 (1983). We can call this pause âclassical
textualism,â where the interpreter confirms âthe particulars of
the application of the law at issue.â Adrian Vermeule,
Common Good Constitutionalism 74â75 (2022).
6
There is reason to believe that the text of the Second
Amendmentâlike the text of other amendments declaratory of
preexisting natural rightsâshould be understood as âa
placeholder for complex ideas that would be difficult, if not
impossible, to reduce to textual form.â Jud Campbell,
Determining Rights, 138 Harv. L. Rev. 921, 960 (2025); J. Joel
Alicea, Bruen and the Founding-Era Conception of Rights,
101 Notre Dame L. Rev. (forthcoming 2026) (manuscript at
19) (on file with author) (âTrue, as Madison conceded, the text
could only describe the right as well as âthe nature of the
language would admit.â We know that there were, in fact,
aspects of the right that were not fully captured by the text.â
(citation omitted)). That is often the case with positive law,
which is no more than âa set of rational ordinances
promulgated by the public authority for the common goodâ
5
because the liberty from state action codified by the Second
Amendment is, it seems, more limited than the natural right it
recognizes,7 as the Second Amendment only ââextends, prima
that is, in order to give more specific content to the general
principles of the natural law.â Vermeule, Common Good
Constitutionalism, supra, at 44. But âit does not follow that the
precise wording of the text should play no significant role in
understanding the scope of the right.â Alicea, Founding-Era
Conception of Rights, supra, at 15â16. To the contrary, it
âmakes sense to treat a violation of the text as prima facie
evidence of a violation of the underlying right,â id. at 19,
considering the âmembers of the First Congress expressed
agnosticism about the amendments alongside profound
concern about their wording,â Campbell, Determining Rights,
supra, at 964; United States v. Rahimi, 602 U.S. 680, 708
(2024) (Gorsuch, J., concurring) (âtext and history dictate the
contours of th[e] right,â but where the âtext covers an
individualâs conduct,â that conduct is presumptively protected
by the Constitution (emphases added)). Text does not exhaust
the law, but it cannot be ignored. See Brian Flanagan, Hard
Evidence of the Spirit of the Law, The New Digest (Feb. 13,
2024) (â[A] ruleâs text is the dominant but not the sole
determinant of how we think it ought to be applied.â),
https://perma.cc/T5GF-CNVL.
7
The ânatural right of resistance and self-preservationâ is
secured by the âpublic allowance, under due restrictions,â of
âhaving arms for [oneâs] defence.â 1 William Blackstone,
Commentaries *143â44. â[I]t is not, neither can it be in fact,
taken away by the law of society,â 3 Blackstone,
Commentaries *4, and it ânaturally belongs to every one, and
stands in no need of permission,â Emmerich de Vattel, The
Law of Nations 466 (Simeon Butler ed. 1820) (1758), meaning
the natural right would be present and operative even in the
absence of the Second Amendment. See also Range, 124 F.4th
at 236 (Matey, J., concurring) (â[T]he liberty to defend oneself
with armsâ is âa right inherent in natural society that âthe law
very wisely, and in a manner silently, gives a manââ (quoting
Marcus Tullius Cicero, Speech in Defence of Titus Annius
6
facie, to all instruments that constitute bearable arms.ââ United
States v. Rahimi, 602 U.S. 680, 691 (2024) (quoting District of
Columbia v. Heller, 554 U.S. 570, 582 (2008)); see also
Wolford v. Lopez, 609 U.S. ----, 2026 WL 1825723, at *6 (U.S.
June 25, 2026) (â[B]ecause th[e] right was not in every way
coterminous with the Amendmentâs literal language, further
analysis may be needed.â).
A familiar path follows. If the arm is bearable, then it is
presumed to reside within the liberty protected by the Second
Amendment. That presumption can be challenged because the
Amendment, like the underlying natural right, is not unlimited.
Cause, grounded in traditional reason,8 may well justify state
action that shapes the liberty retained. That is because liberty,
as traditionally grounded, does not exist abstractly.9 It is
Milo (c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390,
394 (C.D. Yonge trans. 1913))).
This natural right to self-defense, and the right to carry a gun
for that purpose, is inherent in society because âthe law is
chiefly ordained to the common good,â indeed âevery law is,â
Thomas Aquinas, Summa Theologica, pt. I-II, q. 90, art. 2
(Fathers of the English Dominican Province trans., Benzinger
Bros. ed. 1947) (c. 1271), and âthe life of the righteous man
preserves and forwards the common good,â id., pt. II-II, q. 64,
arts. 6â7. So it is ânot unlawfulâ to use deadly force insofar as
âoneâs intention is to save oneâs own life, . . . seeing that it is
natural to everything to keep itself in âbeing,â as far as
possible.â Id.; see also Alberico Gentili, De Iure Belli Libri
Tres 164 (John C. Rolfe trans., Oxford ed. 1933) (1612)
(â[R]eason itself is the law, which from the beginning has been
used for injuring the enemy.â).
8
Bank of Toledo v. City of Toledo, 1 Ohio St. 622, 630â31
(1853) (âA legal principle, to be well settled, must be founded
upon sound reason . . . . [L]aw is the perfection of reason, and
that it is the reason and justice of a legal principle, which give
to it its vitality.â).
9
Conor Casey & Adrian Vermeule, Myths of Common Good
Constitutionalism, 45 Harv. J.L. & Pub. Polây 104, 108 (2022)
(âLaw in [the classical legal] tradition is understood, as
7
always contextual, always understood in relation to the
common good. See Range v. Attây Gen., 124 F.4th 218, 241 (3d
Cir. 2024) (Matey, J., concurring).
Of course, because the liberty found in the Second
Amendment is one from state action, the state carries the
burden to demonstrate there is no infringement of the right
retained. As Rahimi explained, âwhen the Government
regulates arms-bearing conduct, . . . it bears the burden to
âjustify its regulation.ââ 602 U.S. at 691 (quoting Bruen, 597
U.S. at 24). All meaning that if the firearm regulated by state
action is a âbearable arm,â then the analysis moves to the
stateâs attempt to explain that its regulation is permissible.
B.
That brings Bruenâs supposedly enigmatic âStep Twoâ:
the regulator must show that the restriction reflects this
Nationâs âhistorical tradition of firearm regulation.â Bruen,
597 U.S. at 24. Here we must assess whether the regulationâs
proponent has demonstrated that âthe challenged regulation is
consistent with the principles that underpin our regulatory
tradition.â Rahimi, 602 U.S. at 692. Hardly novel, this
examination is an expression of customs preexisting the
Second Amendment that justified the restriction on the right to
bear arms.10 The test encourages us to use straightforward
âcommon-law method[s]â to help âuntangle the right to keep
Aquinas famously framed it, as an ordinance of reason
promulgated by political authorities for the common good.â);
Dante Alighieri, De Monarchia 40 (Prue Shaw trans. & ed.
1996) (c. 1313) (â[I]f the goal of any society is the common
good of its members, it necessarily follows that the purpose of
every right is the common good.â).
10
See, e.g., Samuel Pufendorf, Of the Law of Nature and
Nations: Eight Books 52, Barbeyrac note to § 11 (Basil Kennett
trans. 4th ed. 1729) (1672) (âIf a Person that walks in his Sleep,
being advertised of what he does in his Sleep, does not secure
his Arms, and take other necessary Precautions to hinder him
from doing any Mischief whatsoever, he is not excusable.â
(citing Aulus Hirtius, De Parem. Jur. Germanic, Lib. 3, Parem.
I. § 4)).
8
and bear armsâthat is, the legal claim individuals have against
the government not to regulate arms in certain waysâfrom the
mere liberty that early Americans had to possess and carry all
sorts of weapons (including some that the Framers may not
have recognized as constitutionally protected),â and it
âresembles, if not nearly mirrors (albeit in different language),
the traditional general-law approach in state court cases
involving the right to bear arms.â William Baude & Robert
Leider, The General-Law Right to Bear Arms, 99 Notre Dame
L. Rev. 1467, 1488â89, 1497 (2024); see also Wolford, 2026
WL 1825723, at *6 (âIt undeniably necessitates an exercise of
judgment.â).
The Step Two analysis implicates two further questions.
First, is the bearable arm in common use? Second, what is the
best analogy between customary restrictions and the present
limitation; or, in other words, what is the strongest principle
native to our tradition that would allow that limitation?
Answering both is necessary to avoid the easy error of overly
broad or underinclusive comparisons. And each demands
critical review of the customs exhibited by earlier events, not a
careless canvassing of documents and records. We ask a legal
question, not a historical one, avoiding the unfortunate
tendency of using history to establish, rather than evidence, the
law. And turning too quickly to history risks subordinating law
to custom. Law is always richer than facts and circumstances.
See Alberico Gentili, De Iure Belli Libri Tres 165 (John C.
Rolfe trans., Oxford ed. 1933) (1612) (â[T]he laws of war do
not vary, although the incidental features of war change;
. . . we must not establish our principles from facts but from
their reasons.â).11 So we start by asking the regulator: is your
11
See also J. Joel Alicea, Bruen Was Right, 174 U. Pa. L. Rev.
13, 35â36 (2025) (âTraditions are reflected in practices, but
they are not reducible to practices. A tradition describes some
principle or set of principles that explain and unify the
practices. But it is the principles, not the practices, that
constitute the tradition.â). Of course, â[t]here may be some
practices that are so closely associated with the principles they
reflect that to do away with the practice is to destroy the
tradition.â Id. at 36 n.181; see also Erik Bjorge, General
Principles of Law Formed Within the International Legal
9
proposed liberty definition12 consistent with tradition? And we
can test the response by looking for evidence of customarily
similar definitions.
1.
This is where the common use of the firearm is helpful.
When a commonly accepted practice is incompatible with a
regulatorâs proposed definition of the Second Amendment
liberty, that is powerful evidence that the proposed definition
is inapt. Logically there can be no custom supporting the
wholesale ban of a common arm, and indeed, it has long been
understood that using an ordinary firearm in a genuine act of
System, 72 Intâl & Compar. L. Q. 845, 859 (2023) (â[G]eneral
principles constitute both the backbone of the body of law . . .
and the potent cement that binds together the various and often
disparate cogs and wheels of the normative framework.â
(citation omitted)); John Henry Newman, An Essay on the
Development of Christian Doctrine 178 (1845) (âThe life of
doctrines may be said to consist in the law or principle which
they embody. Principles are abstract, . . . doctrines relate to
facts; doctrines develope, and principles at first sight do not;
doctrines grow and are enlarged, principles are permanent.â);
id. at 185 (âThus the continuity or the alteration of the
principles on which an idea has developed is a . . . mark of
discrimination between a true development and a corruption.â).
12
Every definition has a contracting effect. When a regulator
proposes a firearm restriction, it also necessarily offers a
definition of the scope of the Second Amendment right.
Classical lawyers would refer to constitutionally compliant
legislation of this sort as a âreasonable specification of legal
principlesâ . . . determinationes or determinations,â meant to
âgive more specific content to the general principles of the
natural law.â Vermeule, Common Good Constitutionalism,
supra, at 44. The Supreme Court has adopted this conception
of law in commanding courts to â[d]iscern[] and develop[] the
lawâ by assessing whether a proposed regulation is compatible
with âthe principles that underpin our regulatory tradition.â
Rahimi, 602 U.S. at 692.
10
self-defense does not violate default criminal prohibitions.13
Here, the record already contains notable evidence that all arms
subject to the challenged ban are in common use for lawful
purposes and have been for generations.14 Such common use
would disprove the existence of a closely analogous,
customary definition of the liberty codified in the Second
13
See, e.g., Thomas Wood, An Institute of the Laws of
England, or, the Laws of England in their Natural Order,
according to Common Use 430 (3d ed. 1724) (explaining that,
notwithstanding the default prohibitions in the Statute of
Northampton, â[m]en may use Common Arms according to
their Quality and according to the Fashionâ for self-defense
(emphasis added)); Gentili, supra, at 164 (explaining that the
legitimacy of an arm is supported by evidence of âusage [by] a
former generationâ).
14
Along with todayâs opinion, which clarifies several doctrinal
questions under the Second Amendment, such evidence will
hopefully streamline, and constrain the scope of, any further
District Court proceedings on remand. See, e.g., App. 2677
(6/15/2023 Kapelsohn Rep. at 10) (âSemiautomatic rifles,
shotguns, and handguns were all developed before 1900, and
were in common use in the 1900s.â); App. 2487 (8/4/2023
Kapelsohn Dep. Tr. 142:6â13) (â[T]here are more firearms
used in self-defense that are not semi-automatic rifles than that
are semi-automatic rifles,â including âall kinds of . . .
shotguns.â); App. 3260 (6/8/2021 Kapelsohn Dep. Tr. 215:13â
18) (with respect to pistol grips and recoil-reducing stocks,
âthe most commonly available, most popular, most successful
model of telescoping recoil reducing stock for shotgunsâ is a
model that has the pistol grip âmolded in as part of itâ). Indeed,
the banned weapons appear to fall within the heartland of the
Second Amendment protectionâan âindividual right to own
privately and keep weapons suitable for militia service.â See
Marcus Armstrong, The Militia II: Armed Self-Defense, the
Second Amendment, and the Citizen, 56 St. Maryâs L.J. 739,
763 (2025); see also Robert Leider, Our Non-Originalist Right
to Bear Arms, 89 Ind. L.J. 1587, 1649 (2014) (âHow could an
originalist interpretation of the Second Amendment exclude
from its protection the kinds of weapons necessary to resist
tyranny?â).
11
Amendment. And it would serve as virtually conclusive
evidence that no part of the challenged ban comfortably fits
any qualifying principle informing our regulatory tradition of
contracting the right to bear arms.
2.
Some criticize this focus on common use as an absurd
âcounting exercise,â Lamont, 153 F.4th at 233 (quoting
Bianchi v. Brown, 111 F.4th 438, 460 (4th Cir. 2024) (en
banc)), but they miss the point. Absurd is ignoring or
diminishing common use, since it can serve as the most helpful
illustration of the unsuitability of a sovereignâs asserted
principle. Common use can reveal that a regulation of a
bearable arm is inconsistent with the very reasoning offered by
the regulator and can also guide meaningful legislative
action.15 Or, as Bruen explains, âwhen a challenged regulation
addresses a general societal problem that has persisted since
the 18th century, the lack of a distinctly similar historical
regulation addressing that problem is relevant evidence that the
challenged regulation is inconsistent with the Second
Amendment.â 597 U.S. at 26. Here, the already accessible
evidence of the regulated objectsâ common use should
illustrate the unsuitability of New Jerseyâs overly broad
analogy to âunusually dangerousâ weapons. And as our
majority opinion recognizes, once common use is established,
15
âDanger,â cries New Jersey. But â[i]t is not the arms which
fight, [rather] the men.â Gentili, supra, at 165. Todayâs result
should make clear that restrictions on natural rights can only
withstand constitutional scrutiny when the State exercises
discipline in drafting and defending proposals narrowly
tailored to the common good, consistent with the regulatory
tradition already codified in the Second Amendment. We are
âbound to reason throughâ coherent âarguments from text and
history . . . as best we can.â Rahimi, 602 U.S. at 712 (Gorsuch,
J., concurring). Advancing such arguments is a task much
harder than New Jerseyâs preferred practice of regulating
everything, everywhere, always, but it is one that the State
must accept. Whether labeled as âcommon sense gun safety,â
or similarly facile phrases like âsanctuaries,â âmedicinal,â or
âsafe and effective,â defying federal law is not an option
available to New Jersey or any state in our Republic.
12
nothing more will be needed and the Stateâs systematic control
of the determined natural right should end without further
inquiry.
III.
But what is the proper course when there is no evidence
of common use? Recall Bruen explains that courts must
extrapolate from past to present by looking at custom as
illustrated by historical data. Id. at 27 (âFollowing the course
charted by Heller, we will consider whether âhistorical
precedentâ from before, during, and even after the founding
evinces a comparable tradition of regulation.â). That makes
strong sense, as looking at relevantly similar regulations might
reveal a custom supporting the same definition of (or, again,
restriction on) liberty resulting from the present policy. Or,
better: if there is a custom of regulating a bearable arm that is
analogous to the challenged regulation then there is no new
deprivation of the liberty maintained by the Second
Amendment. Rather, it is the deprivation of a liberty not
governed by the Second Amendment in the first place. Courts
must arrive at such conclusions not by âuphold[ing] every
modern law that remotely resembles a historical analogueâ nor
by looking for some âhistorical twinâ or âdead ringer.â Id. at
30 (citation and emphasis omitted). Instead, we must reason
âby analogyâa commonplace task for any lawyer or judge.â
Id. at 28. If anything, that understates the provenance of a
practice that stretches, unbroken, through the centuries.16
16
Joseph Story, Commentaries on the Constitution of the
United States § 157 (Thomas M. Cooley, 4th ed. 1873) (1833)
(âThe universal principle (and the practice has conformed to it)
has been, that the common law is our birthright and
inheritance, and that our ancestors brought hither with them
upon their emigration all of it which was applicable to their
situation. The whole structure of our present jurisprudence
stands upon the original foundations of the common law.â); 1
James Kent, Commentaries on American Law 342â43 (E.B.
Clayton, 4th ed. 1840) (1826) (â[T]he common law has
become a code of matured ethics, and enlarged civil wisdom,
admirably adapted to promote and secure the freedom and
happiness of social life. It has proved to be a system replete
13
A.
This analogical reasoning ârequires a determination of
whether the two regulations are ârelevantly similar,ââ and
âneeds âsome metric enabling the analogizer to assess which
similarities are important.ââ Id. at 29 (citations omitted). And
Bruen explains that determination includes âhow and why the
regulations burden a law-abiding citizenâs right to armed self-
defense.â Id.17 Try an easy example and suppose a state bans
with vigorous and healthy principles, eminently conducive to
the growth of civil liberty . . . . It is the common jurisprudence
of the people of the United States, and was brought with them
as colonists from England, and established here, so far as it was
adapted to our institutions and circumstances . . . . It fills up
every interstice, and occupies every wide space which the
statute law cannot occupy.â).
17
Here, I depart from Judge Freemanâs thoughtful opinion,
Maj Op. 39â41 & nn. 26â27, in two ways. First, I do not view
Bruen and Rahimiâs references to the âhow and whyâ of a
Second Amendment restriction to require a severable analysis.
Our focus is the aims of the legislature and we âapply
traditional common-law jurisprudential principles, nothing
more, nothing less.â William Baude & Robert Leider, The
General-Law Right to Bear Arms, 99 Notre Dame L. Rev.
1467, 1494 (2024) (âBruen reflects a valiant attempt to avoid
the confusion created by changing conceptions of the common
law. But in the process it may have made the inquiry sound
more novel than it really is.â). Bruen characterized âhow and
whyâ questions merely as âtwo metricsâ in a non-exhaustive
list of considerations that could inform whether a proposed
regulation is consistent with tradition. 597 U.S. 1, 29 (2022).
Rahimi follows that formula noting â[w]hy and how the
regulation burdens the right are central to th[e] inquiry,â but
only as âindicator[s],â because â[e]ven when a law regulates
arms-bearing for a permissible reason, . . . it may not be
compatible with the right.â 602 U.S. at 692. Likewise in
Hemani, the Court confirmed it has ânot yet had cause to
âexhaustive[ly] surveyâ the features that may render a modern
law ârelevantly similarâ to historical ones.â 146 S. Ct. at 1686.
And in Wolford, the Court again explained that Step 2 âis not
14
âtommy gunâ-style drum magazines holding ammunition over
a certain number of rounds. That could be explained as a
restriction on dangerous weapons, dark-colored weapons, even
repeating weapons. But the explanations are inapt, both over
and underinclusive of plenty of dangerous, dark, repeating
firearms.18 Yet a crisp comparator is possible when we
examine why drum magazines were first regulated: their
singular use by Prohibition-era criminals for a host of
misconduct. William J. Helmer, The Gun That Made the
Twenties Roar 126 (1969) (âAs a criminalâs weapon, the
Tommy gun was an unqualified success. As a police weapon,
it was such a flop that many law-enforcement officials wished
sincerely that it had never come off the drawing board.â). So
the proper analogy is bearable arms used exclusively or, at
least, disproportionately, by persons for criminal conduct in
contravention of the standards recognized by the political
community.19 As Bruen explains, âif earlier generations
mechanical.â Wolford v. Lopez, 609 U.S. ----, 2026 WL
1825723, at *6 (U.S. June 25, 2026). In other words, we need
not consider âwhyâ and then âhow,â only whether the nature
of the restriction fits or fights the restrictions on firearms
tolerated since the founding.
Second, following Hemani and Wolford, I frame questions of
âwhyâ a regulation exists narrower than invocations of
âdangerousnessâ and âsafety,â as those concerns can motivate
or mask almost any state action. See Hemani, 146 S. Ct. at
1687â90; Wolford, 2026 WL 1825723, at *13â14. Indeed, as
explained above, it seems impossible to imagine scenarios
where these talismans are not invoked to defend firearms
regulations, the âwell-traveled road in the Garden State, where
long-dormant regulatory powers suddenly spring forth to
address circumstances that have not changed.â Smith &
Wesson Brands, Inc. v. Attây Gen. of N.J., 27 F.4th 886, 896
(3d Cir. 2022) (Matey, J., concurring).
18
Illustrating, again, the silliness of attempting to justify
regulations by slogans like âassault riflesâ and âlarge capacity
magazines.â
19
In other words, a proper analogy should distinguish between
the substantive and accidental features of historical analogues
15
addressed the societal problem, but did so through materially
different means, that also could be evidence that a modern
regulation is unconstitutional. And if some jurisdictions
actually attempted to enact analogous regulations during this
timeframe, but those proposals were rejected on constitutional
grounds, that rejection surely would provide some probative
evidence of unconstitutionality.â 597 U.S. at 26â27.20
offered by the state in support of a claimed regulatory tradition.
âDetermining which practices can change consistent with
traditionâ is a legal inquiry, requiring courts to assess which
features of the practice are âsubstantive,â or âpart of the
contours of the right,â and which features are âincidentalâ or
âcontingent.â Alicea, Bruen Was Right, supra, at 36 n.181, 52.
20
We should ask whether analogical reasoning will ever permit
the regulation of an existing weapon currently in common use.
New firearms present no challenge. If a laser rifle appears
tomorrow, then analogies to existing bans will likely support
restrictions, and common use would be no concern given its
novelty. So, could something like a semiautomatic rifle be
regulated based on changing circumstances? Suppose that over
a measurable period the ownership and use of a semiautomatic
rifle tilted massively toward criminal conduct not sport, self-
defense, or defense against tyranny. At that time, a state might
return to the âtommy gunâ analogy: arms used exclusively or,
at least, disproportionately, by persons for criminal conduct in
contravention of the standards recognized by the political
community might be regulated consistent with the Second
Amendment. Additional examples of suitable principles
supporting regulation may exist, and we need not list those
here, but we can acknowledge what is always understood: the
liberties recognized by the Constitution are subject to
regulation consistent with the common good.
We can also acknowledge that holding a state law
unconstitutional is not a declaration about the per-se legality of
the practices or guns being prohibited; it is a ruling on the
sufficiency of the regulatorâs proposed definition of the liberty
codified by the Second Amendment. See Hemani, 146 S. Ct. at
1687, 1692 (explaining that courts must âdecide cases âbased
on the historical recordâ and arguments âcompiled by the
16
B.
At Step Two, we must also embrace the applicability of
certain deeply rooted background principles of law that may
themselves detract from the constitutional validity of a
regulation, like the rule against arbitrary exercises of police
power.21 We may also guard against legislative deception and
partiesâ before us,â and focusing on the sovereignâs
âsubmissionâ); see also id. at 1701 (Alito, J., concurring in the
judgment) (focusing on âthe deficiency of the Governmentâs
analoguesâ); Alicea, Founding-Era Conception of Rights,
supra, at 39 (âIf the text supports the rights-claimant but the
historical record is indeterminate, the rights-claimant should
win, but in such a scenario, that is not because the original
meaning is definitive. . . . If later historical evidence comes to
light that supports the governmentâs regulation, courts should
be willing to reconsider their prior historical findings and,
therefore, their interpretation of what the law is.â); Haley N.
Proctor, âWill the Meaning of the Second Amendment Change
. . . ?â: Party Presentation and Stare Decisis in Text-and-
History Cases, 98 N.Y.U. L. Rev. Online 453, 454 (2023)
(â[T]he Second Amendment adopts (and the Fourteenth
Amendment incorporates) a pre-existing right whose meaning
is largely determinate and unchanging . . . . The Courtâs
knowledge of that meaning, however, is another matter.â).
21
The lawâs disapproval of arbitrary exercises of police power
is deeply rooted. See Varick v. Smith, 5 Paige Ch. 137, 159
(N.Y. Ch. 1835) (âIt is not pretended that, even under the
arbitrary government of the Roman emperors, it was lawful or
justifiable for the sovereign to take the property of one citizen
and give it to another, where the public interest was not
concerned in such transfer.â (citing 1 Domatâs Civil Law, b. 1,
tit. 2, § 13)); see also 5 U.S.C. § 706(2)(A) (âThe reviewing
court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.â); McLean v. Arkansas, 211 U.S. 539, 547 (1909) (â[T]he
police power of the state is not unlimited, and is subject to
judicial review; and, when exerted in an arbitrary or oppressive
manner, such laws may be . . . violative of rights protected by
17
subterfuge, because âman does not exist for the sake of
government, but government instituted for the sake of man.â
Collected Works of James Wilson 1083 (Kermit L. Hall &
Mark David Hall eds. 2007).22 These principlesâthemselves
the Constitution.â); Dobbins v. City of Los Angeles, 195 U.S.
223, 236 (1904) (â[I]t is now thoroughly well settled by
decisions of this court that municipal by-laws and ordinances,
and even legislative enactments undertaking to regulate useful
business enterprises, are subject to investigation in the courts
with a view to determining whether the law or ordinance is a
lawful exercise of the police power, or whether, under the guise
of enforcing police regulations, there has been unwarranted
and arbitrary interference with the constitutional rights to carry
on a lawful business, to make contracts, or to use and enjoy
property.â); Mugler v. Kansas, 123 U.S. 623, 661 (1887) (âThe
courts are not bound by mere forms, nor are they to be misled
by mere pretenses. They are at liberty, indeed, are under a
solemn duty, to look at the substance of things, whenever they
enter upon the inquiry whether the legislature has transcended
the limits of its authority. If, therefore, a statute purporting to
have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial relation
to those objects, or is a palpable invasion of rights secured by
the fundamental law, it is the duty of the courts to so adjudge,
and thereby give effect to the constitution.â).
22
St. Augustine âdistinguishe[d] between the admirable
Roman leaders who sought âtrue gloryâ and those who desired
âdomination,â . . . the latter . . . us[ing] âguile and deceit,
wishing to seem good when they are not.ââ Robert J.
Delahunty, The Conscience of a King: Law, Religion, & War
in Shakespeareâs King Henry V, 53 J. Cath. Legal Stud. 129,
167 (2014) (quoting St. Augustine, The City of God, in The
Works of St. Augustine 171â73 (Boniface Ramsey ed. 2012)).
De Vattel similarly remarked that notwithstanding political
pressures, â[g]oodness, friendship, [and] gratitude, are still
virtues of the throne.â Vattel, supra, at 70. More recently and
along these lines, scholars have described flavors of
âlegislative deception,â a practice that erodes the very purpose
of government. A legislature may sometimes âleave[] the
generalized substantive law intact, but legislatively direct[]
18
part of the common-law right to bear armsâfurther illuminate
the illegality of New Jerseyâs conduct.23
that a particular litigation (or group of litigations) arising under
that law be resolved in a manner inconsistent with the dictates
of that pre-existing generalized law.â See Martin H. Redish &
Christopher R. Pudelski, Legislative Deception, Separation of
Powers, and the Democratic Process: Harnessing the Political
Theory of United States v. Klein, 100 Nw. U. L. Rev. 437, 439
(2006). Or it might âleave[] substantive law unchanged on its
face, but alter[] it in a generally applicable manner by enacting
procedural or evidentiary modifications that have the effect of
transforming the essenceâor what can appropriately be
described as the âDNAââof that law.â Id. Underexplored in
this debate is harm done to the political community by
legislative manipulation of manufactured regulatory labels,
like âassault firearmâ or âLCM.â See Zachary D. Clopton,
Catch and Kill Jurisdiction, 121 Mich. L. Rev. 171, 209 (2022)
(criticizing practices that âalter[] the essence of underlying
substantive law . . . in a manner not likely to be recognized by
most political consumersâ (quoting Redish & Pudelski, supra,
at 458)).
23
See, e.g., Strickland v. State, 72 S.E. 260, 263 (Ga. 1911)
(â[T]hat the Legislature may prohibit the carrying of concealed
weapons essentially concedes the police power of regulation to
some extent. If this be conceded, the question then becomes
one as to whether the particular regulation involved is
legitimate and reasonably within the police power, or whether
it is arbitrary, and, under the name of regulation, amounts in
effect, to a deprivation of the constitutional right.â); see also
State v. Kerner, 107 S.E. 222, 226 (N.C. 1921) (Allen, J.,
concurring) (âThe right to bear arms, which is protected and
safeguarded by the federal and state Constitutions, is subject to
the authority of the General Assembly, in the exercise of the
police power, to regulate; but the regulation must be reasonable
and not prohibitive, and must bear a fair relation to the
preservation of the public peace and safety.â (emphasis
added)); Baude & Leider, supra, at 1489 (â[S]cholars and cases
suggest that legislation could fail to be a proper exercise of the
police power [to regulate arms] in multiple ways. The
19
For one, New Jersey relies on concocted catchphrasesâ
âLCMsâ and âassault weaponsââregularly modifying the
definitions of both without any meaningful limit and â[a]ll
based on little more than its current say-so.â United States v.
Hemani, 146 S. Ct. 1677, 1693 (2026) (explaining that a
sovereignâs âcurrent say-soâ is insufficient to justify
distinctions drawn in a firearms regulation). The record leaves
no doubt that, by LCMs, New Jersey means âno more than the
maximum amount of ammunition [it] has decided may be
loaded into any firearm at one time. Sixteen rounds was large
yesterday, eleven rounds is large today.â ANJRPC Remand
Order, 2022 WL 22860232, at *4 (Matey, J., dissenting). Nor
does any limiting principle guide the Stateâs definition of
âassault weapons.â
While â[t]he State is welcome to market its policy goals
using catchy slogans, . . . the rights of our Republic are built
on sturdier stuff.â Id.; see also Range, 124 F.4th at 228. And to
the extent New Jersey has attempted to simplify its evidentiary
burdenâeither by 1) grouping dozens of different kinds of
weapons into its âassault weaponsâ slogan or 2) deliberately
âboost[ing its] claims of regulatory interest,â ANJRPC Remand
Order, 2022 WL 22860232, at *3 (Matey, J., dissenting), in
using the âLCMâ sloganâthis Court is duty-bound to guard
against such manipulative practices in light of the
countervailing natural right they encroach upon.
* * *
Our Court today returns the Second Amendment to its
appropriate place in our constitutional design. That is a
welcome step that should end the anxiety imposed over
millions of New Jerseyans who have been unable to enjoy their
natural liberties without wondering what new turn of phrase
will descend from Trenton to take away their freedom. And our
regulation could be arbitrary, such that it did not âbear a fair
relation to the preservation of the public peace and safety.â The
law could be disproportionate to the legitimate ends sought to
be achieved. And, perhaps most importantly, the law could
eviscerate the core purpose that the right sought to achieve, in
which case the law would amount to a denial or abridgment of
the right rather than a mere regulation.â).
20
decision brings opportunity to return the understanding of the
Second Amendment to the classical framework designed to
inform citizens of the conditions suitable for the maintenance
of the common good. For those reasons, and with hope, I
concur.
21
PHIPPS, Circuit Judge, concurring in part and concurring in the
judgment.
I join the Majority Opinion in nearly every respect, but I do
not believe that there is a common purpose between the
restrictions on weapons that âour tradition is understood to
permitâ and the challenged New Jersey statutes. United States
v. Rahimi, 602 U.S. 680, 692 (2024). In evaluating this issue
under the âwhy prongâ of Bruen Step Two, see N.Y. State Rifle
& Pistol Assân v. Bruen, 597 U.S. 1, 29 (2022), the Majority
Opinion concludes that traditional regulations on the right to
keep and bear arms as well as the Assault Firearm Provisions
and the LCM Provisions, all have a common purpose â
âseek[ing] to âbar[] people from misusing weapons to harm or
menace others.ââ Maj. Op. at 39â40 (second alteration in
original) (quoting Rahimi, 602 U.S. at 693). That
characterization of the purpose for the relevant historical
restrictions on the right to keep and bear arms is too broad;
those had a more focused purpose â to prevent the actual or
imminent misuse of firearms to harm or menace others. Using
the narrower conception of the purpose for the historical
restrictions, the why prong is not satisfied for either of the
challenged statutory provisions, and that serves as an
independent basis for their unconstitutionality.
In populating the set of relevant historical analogues, I
agree with the Majority Opinion that all but two of the
proposed historical restrictions of weapons are not valid
comparators. Maj. Op. at 49â53 (explaining that the
prohibitions on Bowie knives; slungshots; and the concealed
carry, sale, or exchange of pistols and revolvers are inapt
analogues); id. at 63 (explaining that Founding-era gunpowder
storage laws are not analogous to âregulation[s] aimed at
preventing firearm violenceâ). The only relevant historical
analogues are going armed laws and surety laws.
In United States v. Rahimi, 602 U.S. 680 (2024), the
Supreme Court explained both of those comparators and
defined the scope of their applicability. Going armed laws
punished individuals based on the misuse of arms to terrify the
public, see id. at 697, and surety laws targeted âindividuals
suspected of future misbehavior,â id. at 695. In reliance on
those two analogues, the Supreme Court recognized a history
and tradition of regulating the actual misuse of weapons:
From the earliest days of the common law,
firearm regulations have included provisions
barring people from misusing weapons to harm
or menace others.
Id. at 693 (emphasis added). It also acknowledged a historical
tradition of preventing the imminent or threatened misuse of
firearms:
Since the founding, our Nationâs firearm laws
have included provisions preventing individuals
who threaten physical harm to others from
misusing firearms.
Id. at 690 (emphasis added). Thus, taken together, these two
historical analogues have the purpose of regulating people who
actually or imminently misuse firearms to harm or menace
others. See id. at 697â98 (explaining that going armed laws
âprovided a mechanism for punishing those who had menaced
others with firearmsâ and that âsurety laws provided a
mechanism for preventing violence before it occurred,â such
that â[w]hen an individual poses a clear threat of physical
violence to another, the threatening individual may be
disarmedâ). Under that articulation of purpose, the Assault
Firearm Provisions and the LCM Provisions would fail the why
prong because those statutes bar the possession of assault rifles
and LCMs based on their potential for misuse, however
remote, and that is broader than actual or imminent misuse.
By contrast, the Majority Opinion does not limit the
purpose of going armed laws and surety laws to the actual or
2
imminent misuse of firearms. Its more general formulation of
the purpose for those historical regulations â âseek[ing] to
âbar[] people from misusing weapons to harm or menace
othersâââ includes the potential misuse of firearms to harm or
menace others. See Maj. Op. at 39â40 (second alteration in
original) (quoting Rahimi, 602 U.S. at 693). Using that
broader formulation, there is a match between the historical
purposes for firearm regulation and the purposes behind the
Assault Firearm Provisions and the LCM Provisions.
But if the purpose behind the historical analogues is read
that capaciously, then it would encompass nearly every firearm
regulation because guns are, by their nature, dangerous and
capable of misuse. The Supreme Court, however, did not
articulate the purpose behind the historical analogues that
broadly in Rahimi, 602 U.S. at 690, 693, 697, and in later
considering other historical analogues, it has resisted that
degree of abstraction, see, e.g., Wolford v. Lopez, No. 24-1046,
2026 WL 1825723, at *13 (U.S. June 25, 2026) (not
characterizing anti-poaching laws as barring the misuse of
firearms to harm or menace others despite recognizing that a
poacher by âthe firing of guns[,] . . . created a risk of
inadvertently inflicting death or serious injury on the owner of
the property, others who were authorized to use the property,
and livestockâ). And for good reason. An articulation of the
purpose for a historical restriction of weapons at a level of
generality such that it will nearly always be satisfied is too
broad of a formulation not only because it makes the analysis
an empty exercise but also because it jeopardizes the rights
expressly protected by the text of the Second Amendment,
leaving the âhow prongâ as the primary barrier to the limitation
of those rights. See Rahimi, 602 U.S. at 740 (Barrett, J.,
concurring) (â[A] court must be careful not to read a principle
at such a high level of generality that it waters down the
right.â); J. Joel Alicea, Bruen was Right, 174 U. Pa. L. Rev. 13,
55 (2025) (â[I]nsofar as a party asserts that there is a historical
tradition whose âwhyâ or âhowâ reflects antipathy to the nature
of the right to keep and bear arms, that cannot be a proper
3
understanding of the tradition, and it likely means that the
tradition is being defined at too high or too low a level of
generality.â).
Even if both interpretations of the purpose behind the
historical analogues â one limited to actual or imminent
misuse, and the other inclusive of potential misuse â are
plausible, the Supreme Court has articulated a tiebreaker:
âfavor the one that is more consistent with the Second
Amendmentâs command.â Bruen, 597 U.S. at 44 n.11.
Through that lens, it is more consistent with the Second
Amendment to construe the purpose of historical analogues
more narrowly, such that their intent was the prevention of
actual or imminent firearm misuse.
For these reasons, the Assault Firearm Provisions and the
LCM Provisions do not satisfy the why prong of Bruen Step
Two. Other than this respectful disagreement, I join the
Majority Opinion.
4
MONTGOMERY-REEVES, Circuit Judge, concurring.
I agree with the majorityâs well-reasoned opinion be-
cause current Supreme Court precedent dictates that out-
come. But nothing dictates that we issue our opinion now. In-
stead, principles of judicial restraint suggest we should not. I
write separately to address why the majorityâs opinion is thus
unnecessary at this time.
On June 30, 2026, the Supreme Court granted certiorari
in Viramontes v. Cook County, --- S. Ct. ---, 2026 WL 1871322
(June 30, 2026), and Grant v. Higgins, --- S. Ct. ---, 2026 WL
1871312 (June 30, 2026). The Court consolidated the cases for
argument on the question of â[w]hether the Second and Four-
teenth Amendments guarantee the right to possess AR-15 plat-
form and similar semiautomatic rifles.â Pet. for Writ of Cert.
i, Viramontes (No. 25-238). Viramontes concerns a challenge
to Cook Countyâs âBlair Holt Assault Weapons Ban.â Cook
Cnty., Ill., Ordinances art. III, div. 4 (2013). The ordinance
defines the term âassault weaponâ to include â[a] semiauto-
matic rifle that has the capacity to accept a large capacity mag-
azine detachable or otherwiseâ with at least one of âa pistol
grip without a stock attached,â â[a]ny feature capable of func-
tioning as a protruding grip that can be held by the non-trigger
hand,â â[a] folding, telescoping or thumbhole stock,â â[a]
shroud attached to the barrel,â or â[a] muzzle brake or muzzle
compensator.â Id. § 54-211(1). The ordinance further prohib-
its âany semi-automatic rifle that has a fixed magazineâ with
âthe capacity to accept more than ten rounds of ammunition.â
Id. § 54-211(2). And it goes on to ban ârifles or copies or
duplicatesâ of more than 100 rifles, including several based on
the AR-15 platform. Id. § 54-211(7)(A).
Grant likewise involves a challenge to Connecticutâs
ban on âsemiautomatic, centerfire rifle[s].â Conn. Gen. Stat.
§ 53-202a(1)(E) (2023). The statute defines those to include
rifles that have âan ability to accept a detachable magazineâ
and at least one of â[a] folding or telescoping stock,â any grip
or stock âwhich would allow an individual to grip the weapon,
resulting in any finger on the trigger hand in addition to the
trigger finger being directly below any portion of the action of
the weapon when firing,â â[a] forward pistol grip,â â[a] flash
suppressor,â or â[a] grenade launcher or flare launcher.â Id.
§ 53-202a(1)(E)(i). The statute further prohibits âsemiauto-
matic, centerfire rifle[s]â that have âa fixed magazine with the
ability to accept more than ten rounds.â Id. § 53-
202a(1)(E)(ii). And, like Cook Countyâs ordinance, the statute
also lists more than 70 prohibited semiautomatic firearms, in-
cluding several built on the AR-15 platform. Id. § 53-
202a(1)(A)â(C).
In other words, the Supreme Court has granted certiorari
in two cases considering constitutional challenges to statutes
nearly identical to the one now before us. Compare Cook
Cnty., Ill., Ordinances § 54-211, and Conn. Gen. Stat. § 53-
202a, with Maj. Op. 4â7 & nn.2â3. All three cases concern the
same Second Amendment challenge to AR-15 platform fire-
arms. And all three cases concern substantially similar statu-
tory schemes. I would therefore hold this case c.a.v. pending
the Supreme Courtâs resolution of Viramontes and Grant.
2
Indeed, we have done so in the past when the Supreme Court
grants certiorari on dispositive issues pending before us.1
For good reason. Under our system of vertical stare de-
cisis, we are bound to follow the Supreme Court. When the
Supreme Court has granted certiorariâno easy taskâit has
signaled its willingness to bind us. Judicial restraint thus coun-
sels in favor of sitting tight. Otherwise, we risk issuing a con-
flicting ruling, likely subjecting us to later vacatur or en banc
proceedings. And even if we should soothsay what the Su-
preme Court will later hold, no meaningful impact will likely
come of it. Before the ink dries in the majorityâs minted opin-
ion, the District Court will likely stay proceedings pending the
outcome in Viramontes and Grant. And once those cases are
decided, they will carry the day.
I see little reason to decide this case now and get out in
front of the Supreme Court. But because the majority has de-
cided to do so, I respectfully concur.
1
E.g., United States v. Smith, 165 F.4th 751, 756 (3d Cir. 2026);
Wilson v. Warden Canaan USP, 86 F.4th 536, 537 (3d Cir.
2023); Khan v. Attây Gen., 979 F.3d 193, 197 n.3 (3d Cir. 2020);
Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61, 63 n.3 (3d Cir.
2016); In re Messina, 687 F.3d 74, 79 (3d Cir. 2012). In addi-
tion, at least one other court of appeals has vacated submission
of a case to wait for the Courtâs guidance in Viramontes and
Grant. Order at 1, Miller v. Bonta, No. 23-2979 (9th Cir. July
1, 2026), Dkt. No. 94.
3
MASCOTT, Circuit Judge, concurring in part and concurring in
the judgment.
Like my colleague Judge Matey, I fully support the ma-
jority opinion and join its judgment. I join Judge Mateyâs con-
curring opinion rather than the majority opinion of the en banc
court principally because I agree with Judge Matey that it is
unnecessary to remand New Jerseyâs laws to the district court
for further consideration at this point. Maj. Op. at 64. Those
laws are inconsistent with the Second Amendment, as Judge
Mateyâs opinion insightfully explains.
The majority opinion is a thoughtful tour de force. That
said, I would decline today to reach the majorityâs hardline se-
lection between 1791 and 1868 in identifying the appropriate
starting point for Second Amendment historical analysis. See
Maj. Op. at 22-23. The State has not made a sufficient eviden-
tiary showing that its laws would be supported by historical
practice during either era and, thus, picking one date for con-
stitutional analysis of a broad-based longstanding right is un-
necessary here. Cf. Wolford v. Lopez, 609 U.S. ___, 2026 WL
1825723, **11-13 (2026) (analyzing but then rejecting each of
Hawaiiâs attempts to justify its modern firearms restrictions
with examples of laws dating back as far as an 1833 Hawaii
law and 1720s statutes in Pennsylvania, New Jersey, and Mar-
yland).
Additionally, I would not go so far as the majority opin-
ion in cementing the label âdangerous and unusualâ uses of
firearms as âmutually exclusiveâ of firearms that are âin com-
mon use for lawful purposes.â See Maj. Op. at 28. Cf., e.g.,
New York State Rifle & Pistol Assân, Inc. v. Bruen, 597 U.S. 1,
47 (2022) (affirmatively describing the Second Amendment
standard as protective of the âcarrying of weapons that are . . .
âin common use at the timeââ with a weaponâs âdangerous and
unusualâ history providing informative but not dispositive con-
text). As the Supreme Court and the majority opinion explain,
there is significant historical precedent for government regula-
tion of âdangerous and unusualâ firearm uses. See, e.g,, United
States v. Rahimi, 602 U.S. 680, 684, 701-02 (2024) (upholding
restrictions disarming threatening individuals); District of Co-
lumbia v. Heller, 554 U.S. 570, 626-27 (2008) (noting that the
Second Amendment is consistent with âlongstanding prohibi-
tions on the possession of firearms by felons and the mentally
illâ); Maj. Op. at 25-29. But turning that designation into an
antitype risks signaling to assertive State regulators that estab-
lishing a Second Amendment basis for regulation can be ac-
complished simply by labeling a firearm use âdangerous and
unusualâ rather than affirmatively demonstrating historical ev-
idence for the regulation as commanded by the Supreme Court.
See Bruen, 597 U.S. at 33-38 (describing a practice within the
scope of Second Amendment protection as presumptively con-
stitutional unless the regulating government is able to produce
historical evidence supporting the restriction).
That said, both the majority and concurring opinions
masterfully demonstrate the significant depth of Second
Amendment protections under the U.S. Constitution and how
far afield New Jerseyâs laws stray from them. Therefore, I con-
cur.
2
CHUNG, Circuit Judge, concurring in part and dissenting in
part.
I respectfully dissent in part from the judgment. I write
separately for two reasons:1 1) I disagree with the Majorityâs
1
I note that while some of the sources I cite herein were not
cited by the parties or amici, they have been, or are consistent
with authorities, cited by the Supreme Court in Majority and
Dissenting opinions. See United States v. Miller, 307 U.S. 174,
179 (1939) (citing Blackstone's Commentaries, Vol. 2, Ch. 13,
p. 409).
See also District of Columbia v. Heller, 554 U.S. 570 (2008)
(citing 3 Bird Wilson, Works of the Honourable James Wilson
(1804); John Dunlap, The New York Justice (1815); 4
Blackstone 55 (1769); Timothy Cunningham, A New and
Complete Law Dictionary (âarmsâ) (1771); William Hawkins,
A Treatise of Pleas of the Crown 26 (1771); Granville Sharp,
Tracts, Concerning The Ancient And Only True Legal Means
Of National Defence, By A Free Militia 17-18, 27 (3d ed.
1782); 1 Blackstoneâs Commentaries 145â146, n. 42 (St.
George Tucker ed. 1803) (âTuckerâs Blackstoneâ); OâNeil v.
State, 16 Ala. 65, 67 (1849); State v. Huntly, 25 N.C. 418
(1843) (per curiam); Richard Burn, The Justice of the Peace
and Parish Officer (29 ed. 1845)).
See also New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597
U.S. 1 (2022) (citing Huntly, 25 N.C. at 421-22; 4 Blackstone
249; 1 Hawkins 136; Theodore Barlow, The Justice of Peace:
A Treatise 11-12 (1745); Burn, The Justice of the Peace and
Parish Officer 243 (11th ed. 1769); George Webb, The Office
and Authority of a Justice of Peace 92 (1736); OâNeil, 16 Ala.
at 67; Michael Dalton, The Country Justice 282-283 (1690);
conclusion that the question of âcommon useâ is determined at
Step Two of the Bruen analysis, but for different reasons than
my dissenting colleagues; and 2) at Step Two, when
considering the sources of the history and tradition of
regulating dangerous and unusual firearms, another principle
underpinning that regulatory tradition must be considered; to
wit, a weapon not commonly worn in public causes a terror to
the people.
A. âIn Common Useâ is Derived from the Text of the Second
Amendment, not Historical Regulations
1. The phrase âin common useâ is derived from the
operative clause as clarified by the prefatory clause of
the Second Amendment, and therefore, whether a
weapon is âin common useâ is a Step One question
In United States v. Miller, the Supreme Court examined
the text of the Second Amendment and, based upon that text,
concluded that the Second Amendment protected weapons âof
Edward Coke, The Third Part of the Institutes of the Laws of
England 160 (1797)).
See also United States v. Rahimi, 602 U.S. 680 (2024) (citing
2 Edw. 3 c. 3 (1328); 4 Blackstone Commentaries (10th ed.
1787); Huntly, 25 N.C. 418; Dalton, The Country Justice 140â
44 (1619); Burn, The Justice of the Peace, and Parish Officer
(2d ed. 1756); 1 Hawkins 253; Barlow, Justice of Peace at 11;
OâNeil, 16 Ala. at 67)).
See also United States v. Hemani, 608 U.S. â, 2026 WL
1751710, *9 (2026) (citing A Gentleman of the Law, The
Conductor Generalis (1788)).
2
the kind in common useâ by ordinary citizens.2 Citing the
prefatory clause, the Supreme Court remarked that the Second
Amendmentâs purpose was to protect against the tyranny of
standing armies and preserve the ability of the people to form
a militia.3 It noted that thus âordinarily when called for
[militia] service [] men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the
time.â4 Accordingly, the Miller Court held that the Second
Amendment did not protect weapons beyond these âkind[s]â.
Because this understanding is not dependent on the history of
regulating dangerous and unusual weapons, but on the text of
the Second Amendment itself, whether a weapon is in common
2
307 U.S. at 178-182.
3
Id. at 179-182. See also Tuckerâs Blackstone Note D 300
(Second Amendment allayed concerns that Article 1, Section
8, would impact statesâ abilities to control militias); id.
(addressing Second Amendment and stating that, âWherever
standing armies are kept up, and the right of the people to keep
and bear arms is, under any colour or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of
destructionâ); Sharp, Tracts at Part 1 (opining that militias
were rooted in the need to defend vicinages, leading to
principle that âthe people are required to have âarms of defence
and peaceâ for mutual as well as private defence; for a standing
army of regular soldiers is entirely repugnant to the
constitution of England and the genius of its inhabitantsâ)
(quote at 27); see also Heller, 554 U.S. at 594 (citing Sharp
when discussing meaning of militia and individual right to bear
arms at the time of Founding).
4
Miller, 307 U.S. at 179.
3
use is a question at Step One.5
Relying on Bruen, the Majority concludes that the
question of common use arises at Step Two and its reasoning
makes sense. I do not join that conclusion, though, because
such treatment relegates part of the text of the Second
Amendment to the same status as historical analogues.6 But
the prefatory clause has a âclarifying functionâ that helps
âresolve an ambiguity in the operative clause.â7 In Miller, the
Court addressed the third part of Step One, whether a ban on
short-barreled shotguns âplace[d] any restrictionsâ on
âkeeping and bearing arms.â8 The ban did not do so because
the Second Amendment protects weapons âin common use.â9
The Supreme Court later explained Millerâs holding by reading
the operative and prefatory clause together, noting that â[t]he
traditional militia was formed from a pool of men bringing
arms âin common use at the timeâ for lawful purposes like self-
5
See Wolford v. Lopez, â U.S. â, 2026 WL 1825723, *14
(2026)(Barrett, J., concurring) (âEach step [of the Bruen
analysis] requires a court to look at different evidenceâplain
text at the first, tradition at the secondâ).
6
See Wolford, 2026 WL 1825723 at *14 (Barrett, J.,
concurring) (âWe look to history that âelucidates how
contemporaries understood the textâfor example, the meaning
of the phrase âbear Armsâ â at Bruenâs first step. We save
âhistorical gun regulations,â however, for Bruenâs second
step.â (internal citations omitted)).
7
Heller, 554 U.S. at 577-578.
8
Wolford, 2026 WL 1825723 at *6.
9
Miller, 307 U.S. at 178-182.
4
defense[.]â10 That reading did not cast the prefatory clause in
a role of impermissibly limiting the Second Amendment right.
To the contrary, it reflected âprecisely the way in which the
Second Amendmentâs operative clause furthers the purpose
announced in its preface.â11 That is, reading the clauses
together confirmed the Supreme Courtâs interpretation of the
operative clauseâs plain text as establishing the self-defense
right to âpossess and carry weapons in case of
confrontation[,]â12 not a right to âcarry arms for any sort of
confrontation[,]â13 and the clause clarified that âwhatever its
nature, [the right] extends only to certain types of weapons.â14
10
Heller, 554 U.S. at 624.
11
Id. at 625.
12
Id. at 592.
13
Heller, 554 U.S. at 595 (emphasis in original). Nor does the
right encompass the right to levy war. U.S. Const. Art. III, Sec.
3 (prohibiting treason, that is, levying war against the United
States); 3 Bird Wilson, Works of the Honourable James Wilson
at 100-103 (discussing treason and âlevy[ing] warâ, i.e.
offensive war); compare id. with id. at 83-84 (referring to
militia service as âthat kind of war that is defensiveâ) (emphasis
added); id. at 102 (highlighting difference between affray and
treason, stating that âif [perpetrators] have no military arms,
nor march or continue together in the posture of war, they may
be great rioters, but their conduct does not amount to a levying
of war.â (emphasis added)).
14
Heller, 554 U.S. at 623. After performing its textual
analysis, the Supreme Court moved to Step Two and listed a
number of constitutional limitations on the Second
Amendment right. It included Millerâs holding, which it noted
5
In light of its textual grounding, âin common useâ is a Step One
question.
2. Because âin common useâ is derived from the Second
Amendment, the weapons encompassed by that phrase
are not defined in opposition to âdangerous and
unusualâ weapons
Although I agree with the Majority that, as a functional
matter, a limitation on a weapon that is not âin common useâ
is consistent with the tradition of regulating âdangerous and
unusualâ weapons, it remains that the two phrases are defined
by different considerations.15 âIn common useâ is a phrase
was âfairly supported by the historical tradition of prohibiting
the carrying of âdangerous and unusualâ weapons.â Id. at 627.
While this could be read as linking the meaning of âin common
useâ to âdangerous and unusualâ weapons, and divorcing the
phrase from the text of the Second Amendment, it should not.
In discussing Miller in this section, the Court continued to
connect Millerâs holding to the prefatory and operative clauses
of the Second Amendment and continued to characterize that
holding as the Courtâs âinterpretation of the rightâ addressing
âthe sorts of weapons protected[.]â Id. at 627.
15
For this reason, I do not join my dissenting colleagues in
concluding that âunusually dangerousâ is part of the definition
of the phrase âin common use[.]â I agree, though, that the
historical tradition of regulating dangerous and unusual
weapons may help illuminate the meaning of âin common
use,â to the extent that the definitions in those laws shed light
on the types of weapons individuals were expected to have at
home in defense of themselves and their homes. See, e.g.,
6
rooted in the Second Amendmentâs text and is concerned with
the âsorts of lawful weapons that [a person would] possess[] at
home [to bring] to militia duty.â16 In contrast (and as further
discussed below), the tradition of regulating âdangerous and
unusual weaponsâ addresses the terror that dangerous and
unusual weapons cause the public. That difference matters
because a weapon in common use is protected by the Second
Amendment, yet a limitation on the right to bear that arm may
still be consistent with the history of regulating dangerous and
unusual weapons.
Finally, based on the text of the Second Amendment,
history, and precedent, I agree with my dissenting colleagues
that âin common useâ does not include weapons âmost useful
in military service,â meaning a type of weapon one would
expect to be used for modern warfare; nor does the term
embrace weapons most commonly used for criminal ends.17
Heller, 554 U.S. at 581-82 (relying on various sources
including treatises and historical laws to interpret text of the
Second Amendment); id. at 582-83 (citing Blackstone and
English laws, as well as brief citing laws of Delaware, New
Jersey, and Virginia); see also Wolford, 2026 WL 1825723 at
*14 (Barrett, J., concurring).
16
Heller, 554 U.S. at 627.
17
Id.; see also id. at 625 (â[The] Second Amendment does not
protect those weapons not typically possessed by law-abiding
citizens for lawful purposes[.]â); id. at 627-28 (âfact that
modern developments have limited the degree of fit between
the prefatory clause[,] e.g, weapons to defend the country in
war, âand the protected right[,]â e.g., weapons to defend the
7
âIn common useâ instead refers to the weapons that an ordinary
person would have at home for purposes like protecting oneself
against violent interpersonal confrontation, protecting the
home, and hunting.18
person and the home, âcannot change our interpretation of the
right.â).
Sharp suggests that only weapons of âdefence and peaceâ were
expected to be kept at home for service in the militia. Sharp,
Tracts at 2-20 (reviewing sources reflecting individuals were
expected to be armed and competent in their use); cf. 3 Bird
Wilson 102 (difference between affray and treason, includes
bearing âmilitary armsâ and taking âthe posture of warâ). The
laws he cites indicate that these were typically weapons over a
certain length, as shorter weapons were better suited for
criminal purposes. Id. at 16 (limitation on types of weapons by
length of firearm); id. at 18 (noting restrictions were on âsuch
arms as were liable to be concealed, or otherwise favour the
designs of murderers, [such] as âcross-bows, little short hand-
guns, and little hag-butsâ and all guns under certain lengthsââ).
I cite Sharp not as a source that interprets the text of the Second
Amendment, but as one reflecting the history of militias and
the types of weapons expected to be possessed at home. His
view of the militia is consistent with that articulated in Miller,
Heller, and American sources like St. George Tucker. See
supra note 3; see also Heller, 554 U.S. at 594 (citing Sharp).
18
Heller, 554 U.S. at 584 (âbear armsâ means readiness in case
of âconflict with another person (emphasis added))(quoting
Muscarello, 524 U.S. at 143); id. at 592 (Second Amendment
âguarantee[s] the individual right to possess and carry weapons
in case of confrontation.â); Bruen, 597 U.S. at 22 (same);
8
Turning to the Act, I would remand because the
evidence in the record, and analysis by the District Court, did
not address this standard. The District Court reasonably
focused its analysis on the number of AR-15s possessed and
whether or not experts had deemed them useful for self-
defense.19 The District Court relied upon Plaintiffsâ expert
evidence and concluded that AR-15s can be useful in
defending the home from invasion and for repelling assailants
at a certain distance.20 That finding is not clearly erroneous
and is relevant to establishing that AR-15s are in common use.
But the District Court did not consider the evidence regarding
military purpose and design. Although many military weapons
may be highly effective in a civilian setting, that consideration
does not address whether they are the type of weapon one
would instead expect to be wielded in modern warfare.21
Moreover, in assessing whether AR-15s were âin common
Rahimi, 602 U.S. at 708 (Gorsuch, J., concurring) (same); 3
Bird Wilson, Works of the Honourable James Wilson at 84
(âbear armsâ addresses self-preservation); see also Heller, 554
U.S. at 585, citing Wilson; see also Sharp, Tracts at 14-16
(laws ârequired EVERY MAN to be exercised in the use of the
then fashionable weaponsâ which did not include weapons
under certain lengths)(emphasis in original).
19
Assân of N.J. Rifle & Pistol Clubs, Inc. v. Platkin (âANJRPC
Vâ), 742 F. Supp. 3d 421, 444 (D.N.J. 2024); id. at 443, n. 19.
I would remand with respect to LCMs as well, for the same
reason.
20
See, e.g., JA336-40.
21
ANJRPC V, 742 F. Supp. 3d at 444-45.
9
useâ the District Court relied upon survey evidence22 of which
the methodology and reliability is disputed.23 For instance,
although the record contains statistics that 24.4 million AR-15s
are possessed in the United States, this number comes from a
survey alleged to use incompletely disclosed questions24 and
methods,25 and the figure was extrapolated from just 4,665
responses (approximately)26 by a âcultivate[d]â pool of
individuals.27 The survey nonetheless asserts the extrapolation
is a reliable product of âwell-powered, statistically informative
inferences[.]â28 That may well be the case. But the lack of a
fuller record hampers the ability of any court to agree with that
conclusion and, in my view, a genuine dispute exists that
22
Id. (citing survey wherein respondents reported they
possessed AR-15-type rifles for self-defense); see also
JA5226-27.
23
State Defendantsâ Response to Cheeseman Plaintiffsâ
Statement of Undisputed Material Facts Âś 61.
24
Response Br. at 38 (citing to Louis Klarevas Rpt. Âś 29 n. 31,
noting methodological concerns and that English survey failed
to disclose source of sponsorship funding and measurement
tools rendering it impossible for âindependent observers and
researchers to assess, if ⌠question order, question wording,
or answer options biased responses.â).
25
Id.
26
JA5194, noting that 30.2% of respondents, JA5195, of
15,450 identified gun owners who fully completed the survey,
JA5197, reported owning AR-15s, JA5195.
27
JA5197.
28
Id.
10
cannot be resolved on this record. Finally, I agree with the
Majority and my dissenting colleagues that the record lacks
information addressing other assault firearms. Given the
foregoing, I would remand in full.
B. The English Tradition of Regulating Dangerous and
Unusual Weapons Addressed the Terror to People Caused
When Encountering Weapons Not Commonly Worn in
Public
I now turn to the separate question of whether a
limitation on assault firearms is consistent with the Second
Amendmentâs regulatory history and tradition. The Supreme
Court has recognized that the regulation of âdangerous and
unusualâ weapons is a part of the history and tradition of the
Second Amendment.29 Pre-Founding English sources indicate
that dangerous and unusual weapons were regulated, as a kind
of affray,30 by surety and going armed laws (I will refer to these
types of surety and going armed laws collectively as âgoing
29
Bruen, 597 U.S. at 47 (limits on exercise of Second
Amendment rights includes prohibitions on the carrying of
dangerous and unusual weapons); Rahimi, 602 U.S. at 691
(2024) (addressing history of banning the carrying of
âdangerous and unusualâ weapons); Heller, 554 U.S. at 624-
25 (âWe think that limitation [on arms not in âcommon useâ] is
fairly supported by the historical tradition of prohibiting the
carrying of âdangerous and unusual weapons.â).
30
Bruen, 597 U.S. at 46; Rahimi, 602 U.S. at 697-98 (going
armed laws part of the tradition of affray).
11
armedâ laws for ease).31 In reviewing this history, there are
two important metrics to consider: âhowâ the right to bear
31
Michael Dalton, The Country Justice 141-42 (1619)(surety
for person who âgoe or ride Armed offensivelyâ and who âgoe
or ride armed (offensively) in Faires, Markets, or elsewhere; or
shall weare or carry any guns dagges, or pistols chargedâ) and
1746 ed. Dalton, The Country Justice at 267-268 (same); 1746
ed. Dalton, The Country Justice at 30 (noting it is an offense to
âride or go armed offensivelyâ and that sureties may be
required for those âas shall carry any Guns, Daggs or Pistols
that be charged, or that shall go apparelled with privy Coats or
Doubletsâ); Edward Coke, The Third Part of the Institutes of
the Laws of England 159 (1644) (âCoke, Institutesâ); 4
William Blackstone, Commentaries on the Laws of England
149 (1769) (Chapter 11, Offenses Against the Public Peace,
riding or going armed with dangerous or unusual weapons); id.
at 254 (justice may bind someone to peace who makes affray,
or goes about with unusual weapons); 1 William Hawkins, A
Treatise of the Pleas of the Crown 126 (1716) (providing for
surety of the peace when Justice of Peace observes an affray);
id. at 135 (defining affray to include when âa Man arms himself
with dangerous and unusual weapons, in such a Manner as will
naturally cause a Terror to the Peopleâ); Thomas Wood, An
Institute of the Laws of England 726, 739 (1720) (surety and
offense against public peace) and 1772 ed. at 415-24 (same);
Giles Jacob, A New Law Dictionary (âRiding Armâdâ);
Barlow, The Justice of Peace 11-12, 528 (affray and surety);
Richard Burn, Justice of the Peace and Parish Officer 8-10
(1758) (5th edition)(same); 1 John Lord Viscount Dudley, John
Ward, and Timothy Cunningham, Law of a Justice of Peace
and Parish Officer 6-7 (1769) (âAn affray is a publick offence
12
arms was limited and âwhyâ the limitation was placed. The
âhowâ imposed by going armed laws is straightforward:
curbing the public carry of dangerous and unusual weapons or
requiring (or forfeiting) sureties from those who did.32 The
âwhyâ was to prevent a terror to the people and is particularly
important here to understand the principle underpinning these
regulations.
1. âIf A Man Shall Shewe Him Selfe Furnished With
Armour Or Weapon, Which Is Not Usually Worne And
Borne, It Will Strike A Feare In To Others That Be Not
Armed As He Isâ
William Hawkins, in his work A Treatise of the Pleas of
the Crown (1716), noted that an affray need not involve actual
violence, such âas where a Man arms himself with dangerous
and unusual Weapons, in such a Manner as will naturally cause
a Terror to the People[.]â33 Hawkins explained though that,
to the terror of the Kingâs subjects and so called, because it
affrighteth and maketh men afraidâ and includes bearing
unusual weapons)(quoting Coke, Institutes at 158); id. at 950
(surety âmay be forfeited by the number of a manâs company,
or by his or their weapons or harnessâ); Cunningham, Law
Dictionary at 82 (1771)(âaffrayâ); Gentleman of the Middle
Temple, The New Universal Parish Officer 2-3
(1774)(same)(citing Hawkins); Gentleman of the Lincolnâs
Inn, The Modern Parish Officer 2-3 (1774)(same).
32
See supra note 31.
33
1 Hawkins 135 (citing Lambard at 126). Other English
sources repeat this principle. See, e.g., 2 Wood, An Institute of
the Laws of England at 739 (1720) (but noting âthese statues
13
âno wearing of Arms is within the meaning of this Statute,
unless it be accompanied with such Circumstances as are apt
to terrify the Peopleâ (hereinafter, âterrifying
34
circumstancesâ). He then detailed a situation in which no
terrifying circumstances were present: âPersons of Quality âŚ
wearing common Weapons, or having their usual Number of
Attendants with them, for their Ornament or Defence, in such
Places, and upon such Occasions, in which it is the common
are seldom put in Executionâ); 1772 ed. Wood, An Institute of
the Laws of England at 423 (same)(citing Coke, Institutes at
160, and 1 Hawkins 135); Jacob, A New Law Dictionary
(âRiding armâd)(citing Coke, Institutes at 162); Barlow, The
Justice of Peace at 11 (citing William Lambard, Eirenarcha:
Or of the Office of the Justices of Peace 126 (1602); Coke,
Institute at 162; 1 Hawkins 118); Burn, Justice of the Peace
and Parish Officer at 13; 4 Blackstone 149; 1 Dudley, Law of
a Justice of Peace and Parish Officer at 7 (citing 1 Hawkins
135); Gentleman of the Middle Temple, The New Universal
Parish Officer at 3 (citing 1 Hawkins 135); Gentleman of
Lincolnâs Inn, The Modern Parish Officer at 2; see also 2
Lambard 118 (affray includes wearing âarmor or weapon,
which is not usually worn and borneâ); Dalton, The Country
Justice at 140, 142 (1619) (none shall âride or go armed
offensivelyâ and surety may be required of those âso armed or
weaponed for their defenceâ)(citing Statute of Northampton);
1746 ed. Dalton, The Country Justice at 267-68 (same).
34
1 Hawkins 136. See also Barlow, The Justice of Peace at 12;
Burn, Justice of the Peace and Parish Officer at 8-9; 1 Dudley,
Law of a Justice of Peace and Parish Officer at 8.
14
Fashion to make use of them[.]â35 In the absence of terrifying
circumstances, Hawkins wrote, a person would not âcaus[e]
the least Suspicion of an Intention to commit any Act of
violence or Disturbance of the Peace.â36
From this, two things can be discerned: 1) carrying a
dangerous and unusual weapon is a terrifying circumstance;37
35
Id. See also supra note 31; 2 Wood, An Institute of the Laws
of England at 739 (1720); Cunningham, Law Dictionary at 82
(1771)(âRiding armedâ).
36
Id. See also supra note 31.
37
See supra note 31. From Hawkinsâs list of non-terrifying
circumstances, and from other passages in his work and other
authorities, one can deduce a corresponding list of terrifying
circumstances. For example, other authorities note arms
restrictions based on social station. See, e.g., Bruen, 597 U.S.
at 119-20(Breyer, J., dissenting)(âPersons of Qualityâ refers to
nobility); Sharp, Tracts at 10 (reviewing 13 Edw. I which
mandated different kinds of arms for different levels of
wealth); 2 Wood, An Institute of the Laws of England at 726.
(recognizance may be broken by âgoing armed in an unusual
Manner and Above his Degreeâ); 1772 ed. Wood, An Institute
of the Laws of England at 417 (same). Going around with an
unusual number of attendants also appeared as a terrifying
circumstance in surety, forcible entry, and forcible detainer
passages, see supra note 31 and infra discussion of forcible
entry, as was going armed in sensitive places. Coke, Institute
at 159 (âwheresoever the parliament is holden proclamation
should be made forbidding wearing of armorâ); 2 Edw. 3 c. 3
(1328); McDonald v. City of Chicago, Ill., 561 U.S. 742, 786
(2010) (restrictions in schools and government buildings);
15
and 2) a key element of going armed laws was the effect on the
public; namely, the perception by the public that the bearer
intended violence.38 In other words, carrying a dangerous and
unusual weapon was recognized to induce a fear of violent
intent by the bearer. For instance, when noting that dangerous
and unusual weapons could cause a terror to the people,
Hawkins cited William Lambardâs work Eirenarcha: Or of the
Office of the Justices of Peace in Two Books 126 (1581).39
There, Lambard explained that, âif a man shall shewe him selfe
furnished with armour or weapon, which is not usually worne
and borne, it will strike a feare in to others that be not armed
as he is: and therefore, [the laws] doe speake of it, by the
wordes, effray del pais, and interrorem populi.â40 Stated
differently, if people were not accustomed to seeing the
weapon worn in public, the wearing of it, in and of itself,
prompted fear. This emphasis on wearing and custom was
reflected a short time later by John Hawles, Solicitor General
to King William III, when commenting upon the trial of
Heller, 554 U.S. at 626-27 (same); Bruen, 597 U.S. at 30
(restrictions in legislative assemblies, polling places, and
courthouses).
38
The Supreme Court has likewise highlighted that the Statute
of Northampton focused on arms âgenerally worn or carried
only when one intended to engage in lawful combat or ⌠to
breach the peace,â reflecting that the mere wearing of such
weapons signaled the required intent. Bruen, 597 U.S. at 41
(emphasis added).
39
Id.; see also 1746 Dalton, The Country Justice at 30 (citing
Lambard, Eirenarcha at 126); Barlow, The Justice of Peace at
11 (citing Lambard, Eirenarcha at 126).
40
2 Lambard, Eirenarcha at 118 (first emphasis added).
16
Algernon Sidney.41 In criticizing evidence of an overt act in
breaking a recognizance for good behavior, he remarked that,
It hath been said that, if a man be bound to his
good behavior, it is a breach of his good behavior
to wear a sword; and perhaps, heretofore, when
swords were not usually worn but by soldiers, it
might be so, because it struck a terror in other
people as much as a blunderbuss, or the like
unusual weapon or the going armed in a coat of
mail, for any person but a soldier, doth at this
day. Yet no man will say that, now swords are
usually worn by all sorts of people, it is a breach
of the good behavior; and so that which
heretofore was a crime, by custom now is
become none. It is therefore the unusualness and
the unaccountableness of the circumstances
make it evidence, which cannot be assigned as
reason in the overt-act mentioned.42
41
See A Compleat Collection of State-Tryals and Proceedings
Upon Impeachment for High Treason and Other Crimes and
Misdemeanours 645 (1719) (Vol. III) (Remarks on Trial of
Algernon Sidney, John Hawles, Solicitor General to William
III). This trial took place in 1685, but the commentary was
published in 1719, shortly after the publication of Pleas of the
Crown by Hawkins in 1716.
42
Id. To be clear, I do not contend that the concept of âcommon
wearâ discussed herein wholly encompasses the tradition of
regulating âdangerous and unusualâ and do not write
separately to suggest that my dissenting colleagues are
17
This passage suggests that the types of weapons to cause a
terror to the people were those customarily worn by soldiers,
but not by ordinary citizens. Because such weapons were
typically borne in the context of lawful combat, a person seeing
them out of that context feared ill intent.43
That such wearing engendered fear that the bearer
intended violence is also reflected in discussions of the
conceptually similar crimes of forcible entry and forcible
detainer. Like going armed, Hawkins explained that forcible
incorrect in their interpretation of that phrase. Hawlesâs
inclusion of the blunderbuss, a weapon very similar to the
sawed-off shotgun in Miller and which he does not say was
commonly worn, suggests that the phrase also encompasses
âunaccountableâ weapons; i.e., weapons that are unusually
dangerous. See also Barlow, The Justice of Peace at 229
(discussing forcible entry and noting that terrifying
circumstance includes âunusual dangerous Weaponsâ).
43
See Bruen, 597 U.S. at 41 (going armed laws regulated
weapons âgenerally worn or carried only when one intended to
engage in lawful combat or ⌠to breach the peaceâ)(emphasis
added).
Matthew Hale also indicated that the wearing of certain
weapons could signal intent. In discussing what it meant to
âlevy war,â he noted that, among other things, an assembly
âarm[ing] with military weapons, as swords, guns, bills,
halberds, pikes,â could lead one to âreasonably conclude[] they
are in a posture of war[.]â 1 Matthew Hale, Historia placitorum
coronĂŚ. The history of the pleas of the Crown 151 (1736).
Although Haleâs work was published in 1736, it was written
before his death in 1676.
18
entry onto anotherâs property only occurred when
âaccompanied with some Circumstances of actual Violence or
Terror[.]â44 âCircumstances of Terrorâ were those that âa
Man, either by his Behaviour or Speech⌠[gives] just cause to
fear, that he will do [the possessor] some bodily Hurt.â45 These
included âcarrying with him such an unusual Number of
Servants, or by arming himself in such a Manner, as plainly
intimates a Design to back his Pretensions by Force, or by
actually threatening to kill, maim, or beat those[.]â46 The
âmannerâ in which one âarming himselfâ communicated an
intent to do harm was wearing unusual weapons,47 which in
cases of forcible detainer, included when a squatter âkeeps in
his House ⌠unusual Weapons [.]â48 Bearing the unusual
weapon was listed separately, in the disjunctive, from other
44
1 Hawkins 145, ch. 64, § 25.
45
1 Hawkins 145, ch. 64, § 27.
46
Id.
47
See Barlow, The Justice of Peace at 229 (discussing
âCircumstances of Terrorâ and stating that âTerror may be
caused by an unusual Attendance, unusual dangerous
Weapons, or by threatening Force against the Person of those
who shall make Resistanceâ); 4 Blackstone 146 (entry
prohibited when it is âcarried on and maintained with force,
with violence, and unusual weaponsâ); 2 Cunningham, A New
and Complete Law Dictionary (âForcible entryâ must be âwith
a strong hand, unusual weapons, or with menace of life or
limbâ).
48
Id. (âthe same Circumstances of Violence or Terror, which
will make an Entry forcible, will make a Detainer forcible
also.â).
19
terrifying circumstances such as threatening to do harm,
indicating that the wearing need not be accompanied by
additional conduct to cause the person encountering the
weapon to fear the bearerâs intent.49
In sum, the English authorities reflect that the principle
underpinning the going armed laws was that weapons not
commonly worn were a terror to the people (âcommon
wearâ).50
2. Common Use was not Dispositive on the Question of
Common Wear
The question of common use should not be conflated
with the question of common wear. First, as noted above, the
concept of common use is derived from the text and purpose of
the Second Amendment, not the going armed laws. Second,
the going armed laws concerned themselves with the terror
caused by âwearingâ or âgoingâ in public. This is readily
apparent from Hawkinsâs statement that self-defense was no
excuse for wearing dangerous and unusual weapons,51 but that,
49
Id. (listing terrifying circumstances for forcible entry and
detainer in the disjunctive and including âgiving out such
Speeches as plainly imply a Purpose of using Forceâ (forcible
entry) and âthreaten[ing]s to do some bodily Hurt to the former
Possessorâ (forcible detainer)).
50
Bruen, 597 U.S. at 29.
51
1 Hawkins 136 (âA man cannot excuse the wearing such
Armour in publick, by alledging that such a one threatened
him, and that he wears it for the safety of his person from his
assault[.]â); see also Jacob, A New Law Dictionary (âRiding
20
nonetheless, âno one shall incur the Penalty of the said Statute
for assembling his Neighbors and Friends in his own House,
against those who threaten to do him any Violence therein[.]â52
Put simply, the relevant question was not whether the weapon
was the kind an ordinary citizen would have to protect against
home invasion and confrontation with another, but whether
wearing the particular weapon in public would yet still terrify
people.
C. Regulating Weapons not Commonly Worn is Part of the
History and Tradition of Firearms Regulation in America
The next consideration is whether regulating weapons
that caused a terror to the people, that is, common wear, is part
of the history and tradition of firearms regulation at the
Founding. American colonial and Founding-era American
authorities on the common law indicate that it is. As with the
English sources, many American sources continued to state
armâdâ); Burn, Justice of the Peace and Parish Officer at 9;
Barlow, The Justice of Peace at 12 (and noting that âpersons
armed with privy Coats of Mail for their Defence, seem not
within this Statuteâ)(emphasis added); 2 Wood, An Institute of
the Laws of England at 739 (1720)(same in 1724 and 1772
eds.); Dudley, Law of a Justice of Peace and Parish Officer at
8; 2 Cunningham New Law Dictionary (âRiding armedâ);
Gentleman of the Middle Temple, The New Universal Parish
Officer at 4. See also Dalton, The Country Justice at 140, 142
(1619) (none shall âride or go armed offensivelyâ and surety
may be required of those âso armed or weaponed for their
defenceâ)(citing Statute of Northampton); 1746 ed. Dalton,
The Country Justice at 267-68 (same).
52
1 Hawkins 136 (emphasis added).
21
that affray occurred when going with or wearing dangerous and
unusual weapons53 and did not occur when âwearing []
53
Bruen, 597 U.S. at 47 (limits on exercise of Second
Amendment rights includes prohibitions on the carrying of
dangerous and unusual weapons); Rahimi, 602 U.S. at 691
(2024) (addressing history of banning the carrying of
âdangerous and unusualâ weapons); Heller, 554 U.S. at 624-
25 (âWe think that limitation [on arms not in âcommon useâ] is
fairly supported by the historical tradition of prohibiting the
carrying of âdangerous and unusual weapons.â); William
Simpson, The Practical Justice of the Peace and Parish-
Officer 13 (1761) (affray); Richard Starke, The Office and
Authority of a Justice of Peace 14 (1774) (addressing
âuncommon or offensive Weaponsâ); A Gentleman of the
Law, The Conductor Generalis at 10; Burnâs Abridgment, or
the American Justice 22 (Eliphalet Ladd ed. 1792) (affray);
Zephaniah Swift, A System of the Laws of the State of
Connecticut, vol. 2 343 (1795) (breaches of the public peace
included when a justice observed, among other things,
someone âgo[ing] about with unusual weapons[.]â); 4
Blackstoneâs Commentaries 148 (St. George Tucker ed. 1803);
A Gentleman of the Law, A New Conductor Generalis 27
(affray); Wilson, Works of the Honourable James Wilson, at 79
(affray); id. at 150 (surety for those going about with unusual
weapons); William Hening, The New Virginia Justice 7 (1810)
(2d edition) (affray); id. at 572 (surety for those going about
with unusual weapons); Dunlap, The New York Justice at 8
(affray); id. at 391 (surety). Many states also codified these
laws. See, e.g., 1692 Mass. Acts and Laws no. 6, pp. 11â12;
1699 N. H. Acts and Laws ch. 1; 1761 Acts and Laws of His
Majesty's Province of New-Hampshire in New-England 2;
22
common weapons, or having the usual number of attendants,
merely for ornament or defence, where it is customary to make
use of them.â54 Many further stated that self-defense was not
a license to wear âdangerous and unusual weapons,â but that
using them at home was no offense.55 These sources reflect
that limitations on dangerous and unusual weapons continued
and do not reflect an elimination of the principle that wearing
such weapons terrified people.56 This makes sense given that
1771 An Act for the Punishing of Criminal Offenders, N. H.
Acts and Laws ch. 11, § 5, p. 17; 1786 Va. Acts ch. 21; 1794
Collection of All Such Acts of the General Assembly of
Virginia ch. 21, p. 33; 1795 Mass. Acts 436, ch. 25; 1801 Tenn.
Acts pp. 260â261; 1821 Me. Laws p. 285.
54
Starke, The Office and Authority of a Justice of Peace at 5-6
(emphasis added); A Gentleman of the Law, The Conductor
Generalis at 11; Burnâs Abridgment, or the American Justice
at 23 (Ladd ed.); Hening, The New Virginia Justice at 50.
55
Starke, The Office and Authority of a Justice of Peace at 6; A
Gentleman of the Law, The Conductor Generalis at 11 (also
included in subsequent versions); Burnâs Abridgment, or the
American Justice at 23-24 (Ladd ed.); Hening, The New
Virginia Justice at 50.
56
See supra note 53 (all retaining language referencing terror
to the people); see also Starke, The Office and Authority of a
Justice of Peace at Preface (noting that he endeavored to
present a current view of the law, due to the âRepeal of a great
Number of our Acts of Assemblyâ and to correct other errors,
since the publication of Webbâs Justice of the Peace in 1736);
A Gentleman of the Law, The Conductor Generalis at Preface
(update published because the usefulness of prior versions âhas
23
the principle underpinning the tradition was to prevent a terror
to the people, a risk that only occurred in public from wearing.
Examining these sourcesâ treatment of forcible entry
and forcible detainer, which required a terrifying circumstance,
further indicates that common wear remained a part of firearms
regulatory tradition. George Webb, who wrote one of the
earliest American handbooks for justices of the peace,57 listed
not been lessened by the Change of Governmentâ and
explaining selective incorporation of English common law);
Burnâs Abridgment, or the American Justice at iv-v (Ladd ed.)
(intent in printing the American edition of Burnâs Justice of the
Peace manual was to eliminate passages that were âtotally
inapplicable to the situation of this countryâ due to statutory
and common law differences in the United States, and was
directed at those in New Hampshire, Massachusetts, and
Vermont); Swift, Laws of the State of Connecticut vol. 1 at 2-
3 (intent of work is to âexhibit a compleat Systematic view of
our constitution and laws: to select and extract from the
common law of England, that portion of it which has been
received approved from time immemorial, and has become
valid and binding in this State [Connecticut]â); Hening, The
New Virginia Justice at Preface (explaining that no per se
principle applied when considering English common law,
accepting some principles both pre-dating and post-dating the
American Revolution); Dunlap, The New York Justice at
Preface (noting desire to avoid defect of incorporating English
traditions not applicable in some states).
57
David Flaherty, An Introduction to Early American Legal
History, published in Essays in the History of Early American
Law 24 (United States, Omohundro Institute and UNC
24
two separate terrifying circumstances when discussing the
crime of forcible entry.58 âComing with weaponsâ was only
considered terrifying if accompanied by words âthreatening
life or limbâ but â[e]ntering with unusual Armour or Weapons,
the doors being openâ alone sufficed.59 Richard Starke, in his
1774 handbook, reiterated the relationship between wear and
terror, stating that security could be demanded of âany Person
who shall go armed with such uncommon or offensive
Weapons as to betray an Intention to Commit Violence[.]â60
The New Conductor Generalis explained that forcible entry is
Press, 2014)(listing also The Conductor Generalis, published
in 1722 and periodically updated); see also Bruen, 554 U.S. at
49 n.14 (citing Webb).
58
Webb, Justice of the Peace at 155 (discussing circumstances
involving force, include, âEntering with Force to commit
Trespass, thoâ the Party doth not quit Possession; Coming with
Weapons threatning Life or Loss of Limbs; Breaking upon
Doors; Entering with unusual Armour or Weapons, the Doors
being open; Coming attended with Many People, or unusual
Company, threatning, or using terrifying Menaces; Ejecting, or
disstraining for Rent, with Force: These, and such like shall be
taken to be a Forcible Entry.â)(citing Coke on Littleton, l. 3.,
s. 431).
59
Id.; Hening, The New Virginia Justice at 262 (forcible entry);
Dunlap, The New York Justice at 107 (forcible entry).
60
Starke, The Office and Authority of a Justice of Peace at 14
(set forth in section addressing âARMSâ); see id. at 6 (Affray
may be committed âwhere a Man goes armed in such Manner,
and accompanied with such Circumstances, as naturally
occasion Terrour, or Apprehensions of Violence[.]â)(citing
Statute of Northampton).
25
committed when someone âcauses such a terror by ⌠arming
himself in such a manner as plainly intimates a design to back
his pretensions of force[.]â61 That work further detailed that
these âcircumstances of violence or terrourâ included
âkeep[ing] in his house ⌠unusual weapons[.]â62 While this
addressed an intruder keeping unusual arms in a home he
unlawfully possessed, not public wear, the âterrourâ came from
the rightful property possessor viewing the weapon.63
The North Carolina Supreme Court took this analytical
approach in State v. Huntly, 25 N.C. 418 (1843) (per curiam).
There, the Huntly Court found that a gun is âunusualâ because
it was not customarily worn on the person in public, despite the
fact that as to âa double-barrelled gun, or any other gun, âŚ
there is scarcely a man in the community who does not own
61
A Gentleman of the Law, A New Conductor Generalis at
169.
62
Id. at 170 (â[T]he same circumstances of violence or terrour,
which will make an entry forcible, will make a detainer forcible
also; from whence it will follows, that whoever keeps in his
house an unusual number of people, or unusual weapons, or
threatens to do some bodily hurt to the former possessor, if he
dare returnâ uses force); Dunlap, The New York Justice at 109
(same).
63
See also Comm. v. Dudley, 10 Mass. 403, 409 (1813)
(forcible entry must include âsome apparent violence offered,
in deed or in word, to the person of another; or the party must
be furnished with unusual offensive weapons, or attended by
an unusual multitude of people; all which circumstances would
tend to excite terror in the owner, and prevent him from
claiming or maintaining his right.â).
26
and occasionally use a gun[.]â64 It went on to conclude,
however, that publicly wearing an unusual gun did not run
afoul of the common law unless accompanied by âwicked
purposeâ to âterrify or alarm.â 25 N.C. at 423.65 But the
Huntly Court did not meaningfully discuss the common law
when reaching this conclusion and the âwicked intentâ
contemplated is misaligned with earlier American common
law authorities as the Huntly Court focused on whether the
bearer had wicked purpose. Yet in common law, an intent to
breach the public peace or cause a terror was not required, just
participation in an action that the public could interpret to
reflect an intent to do violence.66
64
Huntly, 25 N.C. at 422.
65
See also OâNeil, 16 Ala. at 67 (affray may occur when
âcarrying deadly or unusual weapons for the purpose of an
affrayâ)(emphasis added).
66
If the Huntly Courtâs approach is correct, and prohibitions
relied solely on the possessorâs intent rather than the publicâs
reasonable fear when seeing the possessor, the historical
distinction between regulating unusual weapons and regulating
common weapons would be meaningless. See, e.g., Webb,
Justice of the Peace at 155 (two separate terrifying
circumstances include âComing with Weapons threatning Life
or Loss of Limbsâ and âEntering with unusual Armour or
Weapons, the Doors being openâ). This would also call into
question the current differential treatment between unusual
weapons and common weapons based on this history and
tradition, if one accepts that âcommon useâ is a Step Two
question. See, e.g., Rahimi, 602 U.S. 680 (holding that a law
temporarily restricting the possession of all firearms, when
27
D. The Present Challenge
1. Plaintiffs Bring a Facial Challenge
A facial challenge is âthe most difficult challenge to
mount successfully, since the challenger must establish that no
set of circumstances exists under which the [challenged law]
would be valid.â67 Therefore, if New Jersey demonstrates a set
of circumstances under which the law is consistent with the
accompanied by the terrifying circumstance of a demonstrated
threat of physical harm, was consistent with the history and
tradition of regulation embodied by surety and going armed
laws); Miller, 307 U.S. 174 (permitting regulation of weapons
not in common use, without any accompanying terrifying
circumstance).
While the Supreme Court cited Huntly with approval in Bruen
when discussing the âwhyâ of going armed laws, casting doubt
on the argument I make here, Bruen, 507 U.S. at 51-52, I note
that the handguns considered in Bruen were both in common
use and commonly worn. See, e.g., Bruen, 507 U.S. at 45
(stating that, by the 1700s in England, âdomestic gun culture
softened any terror that firearms might once have conveyed)
(emphasis added)(quoting Lois Schwoerer, Gun Culture in
Early Modern England 4); id. (âRespondents do not offer any
evidence showing that, in the early 18th century or after, the
mere public carrying of a handgun would terrify people.â).
67
United States v. Salerno, 481 U.S. 739, 745 (1987); see also
Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024) (for a
plaintiff to succeed on a facial challenge, there must be no
circumstance in which the challenged law would be valid).
28
history and tradition of firearms regulation, the facial challenge
fails.
2. The Record is Insufficient to Determine whether
Assault Firearms are Commonly Worn
The Act prohibits knowingly possessing an assault
firearm, N.J. St.2C:39-5(f), which would include possessing an
assault firearm in public, i.e., public carry. This portion of the
Act is consistent with the âhowâ of the going armed laws. As
noted above, such laws prohibited the public carry of
dangerous and unusual weapons. The âwhyâ addressed by the
Act is also consistent with the historical tradition of regulating
dangerous and unusual weapons. As the Majority notes, the
Act aims to stop âmilitary-style assault weaponsâ because
âguns capable of wholesale destructionâ and âdesigned to wipe
out the greatest number of people in the shortest possible timeâ
are a âdirect threat to our police, our citizens and especially our
children[.]â App. 4651â52; Majority Op. 5. In other words,
the Act is meant to address the fear and threat posed when
people bear assault firearms outside of the home, a âwhyâ that
is consistent with the principle of common wear underlying the
going armed laws: the terror to the people felt by those
encountering such weapons in public that the bearer intended
and would commit violence.68 Thus, even assuming that
assault firearms are in common use, if not commonly worn, the
Act could be constitutionally applied in the circumstances of
public carry.
68
The Act also aims to address the danger posed by weapons
suited for modern warfare, e.g., weapons not in common use
for self-defense.
29
Like the question of common use, the question of
common wear appears to be, at least in part, one of degree.
Weapons cease to be terrifying in public when they âby
customâ become âusually worn by all sorts of people[.]â69
There is no reason to assume, however, that a weapon becomes
commonly worn simply by being in common use; it may be
that the public considers some weapons to be appropriate to
repel home-intruders yet frightening (and meant to frighten) in
the context of activities outside the home.70
I would remand because there is understandably no
evidence in the record, nor analysis by the District Court, that
assault firearms are commonly worn. While the record
contains statistics that 24.4 million AR-15-type rifles are
possessed in the United States, this number does not establish
common wear and its reliability is unknown.71 In addition the
number is dwarfed by the hundreds of millions of people who
make up the American public and who would view assault
firearms when worn. The number is also dwarfed by the
statistic, also of unknown reliability, that there are 461.9
million handguns in possession which the public has become
69
The Supreme Court included a similar sentiment in Bruen,
stating that, by the 1700s in England, âdomestic gun culture
softened any terror that firearms might once have conveyed.â
Bruen, 597 U.S. at 45.
70
See, e.g., Wolford, 2026 WL 1825723 at *16-17(Barret, J.
concurring) (risks addressed by poaching laws are associated
with specific locations).
71
See JA1649-50.
30
accustomed to viewing.72 Turning to why people report
owning assault firearms, even if reliable, the survey results also
do not establish common wear. Indeed, of the locations in
which those surveyed stated they defensively fired, displayed,
or stated they had a firearm,73 over 90% were non-public
locations.74 And this statistic referenced self-reports regarding
all firearms, not assault firearms. Furthermore, the actual uses
of assault firearms for self-defense in the record involved
possession at home, and likewise do not involve public
wearing.75 There is other record data, though, that does
directly address common wear. The record contains evidence
regarding the frequency that AR-15s are worn in public to
commit mass murder (but none regarding the wear for other
types of crime) and that AR-15s are capable of piercing police
ballistic vests â circumstances that may well cause people to
72
JA1635, 1647; see also Bruen, 597 U.S. at 83 (Breyer, J.,
dissenting)( â[i]n 2017, there were an estimated 393.3 million
civilian-held firearms in the United States[.]â).
73
JA5207 (for this question, respondents were not asked to
specify the type of firearm referenced).
74
See, e.g., JA5207-08.
75
JA422-44. Two articles reported the defensive use of an AR-
15 outside of the home, where the bearer heard gunfire and ran
with the weapon to respond to the scene. JA429-33; see also
https://perma.cc/6TP4-C2HV (JA432, cited by ANJRPC and
Ellman Plaintiffsâ Expert Emanuel Kapelsohn at JA338-39).
These instances did not involve public carry for self-defense.
31
fear public wearing of AR-15s and the intentions of those who
wear them.76
Finally, the question of common wear might be
addressed by evidence that could be provided upon remand.
Currently, the record does not contain data regarding the
frequency assault firearms are worn in public by common
citizens for lawful purposes, nor evidence of public reaction
when such wear occurred. Similarly, the record does not
contain self-reports by owners regarding public wear of assault
firearms in particular, nor from the public regarding whether
encountering assault firearms in public would make them fear
that the bearer intended violence.
Accordingly, I would remand in full because, even if the
District Court were to find that assault firearms are in common
use, the Act could be constitutionally applied to public carry if
assault firearms are not commonly worn.77
* * *
âIn common useâ is derived from the text of the Second
Amendment and is a Step One question. At Step Two, it is part
of this countryâs regulatory tradition to place restrictions on
weapons not commonly worn. When analyzing whether a law
fits within the tradition of regulating unusual weapons,
76
See JA1512-25, 1637, 1642, 1819, 1867, 3312, 3330-31,
3334, 3345-77; see also Cheeseman Plaintiffsâ Response to
State Defendantsâ Counter-Statement of Undisputed Material
Facts Âś 71.
77
The facial challenge would therefore fail. Salerno, 481 U.S.
at 745; NetChoice, LLC, 603 U.S. at 723.
32
focusing only on common use, while ignoring common wear,
will result in failure to contemplate whether the law is
âconsistent with [one of] the principles that underpin our
regulatory traditionâ78 â the terror to the people. Like the
sword and the handgun,79 perhaps assault firearms are âby
customâ âworn by all sorts of peopleâ for lawful purposes.
Because the parties and District Court did not have the
opportunity to address the Step One and Step Two principles
set forth herein, though, I would remand in full. I thus join in
the portion of the judgment ordering remand.
78
Rahimi, 602 U.S. at 692.
79
A Compleat Collection of State-Tryals and Proceedings
Upon Impeachment for High Treason and Other Crimes and
Misdemeanours 645 (1719) (Vol. III) (Remarks on Trial of
Algernon Sidney, John Hawles, Solicitor General to William
III) (noting that âswords are usually worn by all sorts of
peopleâ so wearing one âby customâ now eliminates any terror
to the people); see also Bruen, 597 U.S. at 45 (âRespondents
do not offer any evidence showing that, in the early 18th
century or after, the mere public carrying of a handgun would
terrify people.â); id. at 47 (âWhatever the likelihood that
handguns were considered âdangerous and unusualâ during the
colonial period, they are indisputably in âcommon useâ for self-
defense today.â).
33
SHWARTZ, Circuit Judge, dissenting, with whom KRAUSE,
RESTREPO, and SMITH, Circuit Judges, join.
The right secured by our Founders in the Second
Amendment is ânot unlimited.â District of Columbia v. Heller,
554 U.S. 570, 626 (2008). It has never been understood to
guarantee a citizen the right to âkeep and carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.â Id. Instead, the Second Amendment allows states
to ban certain types of firearms. The Majority, however, holds
that states cannot regulate weapons that are currently popular.
This approach adopts a contemporary lens, even though the
Supreme Court tells us that we are to keep our eye on the
history and tradition of banning dangerous and unusual
weapons, like the semi-automatic rifles equipped with large
capacity magazines (âLCMsâ) that gunmen have continued to
use to commit crimes and mass shootings. Focusing on the text
of the Amendment and its history, I conclude, unlike the
Majority, that New Jerseyâs ban on AR-15s and restriction on
LCMs, N.J.S.A. § 2C:39-1 et seq. (the âActâ), are
constitutional under New York State Rifle & Pistol Assân v.
Bruen, 597 U.S. 1 (2022). As a result, I would reverse the
District Courtâs contrary holding concerning AR-15s and
affirm its holding that the LCM restriction complies with the
Second and Fifth Amendments.
I
Before proceeding to the substance of the Plaintiffsâ
challenge, a word on its scope. Article III of the Constitution
requires federal courts to pass on only âCasesâ and
âControversies.â U.S. Const. art. III, § 2, cl. 1. As a result,
âour adversarial system of adjudicationâ generally requires us
to âfollow the principle of party presentationâ and ârely on the
parties to frame the issuesâ that are genuinely in dispute or in
need of resolution. United States v. Sineneng-Smith, 590 U.S.
371, 375 (2020) (citation omitted).
As a âcourt of review, not of first view,â OâHanlon v.
Uber Techs., Inc., 990 F.3d 757, 762 n.3 (3d Cir. 2021)
(quoting Frank v. Gaos, 586 U.S. 485, 493 (2019) (per
curiam)), we should be particularly hesitant to expand the
scope of our analysis beyond the issues presented to and
identified by the District Court, because âappellate judges
enjoy no comparative expertiseâ in determining âthe existence,
or nonexistence, of a triable issue of fact,â including whether a
party has offered sufficient evidence on a hotly contested issue,
Ziccardi v. City of Philadelphia, 288 F.3d 57, 62 (3d Cir. 2002)
(citing Johnson v. Jones, 515 U.S. 304, 316 (1995)).
Here, the issues squarely presented by the parties were
whether the Actâs prohibition on AR-15sâas defined in the
Act, regardless of manufacturerâand restriction on LCMs
were constitutional. The Plaintiffs nominally challenged the
Act in its entirety, yet the Cheeseman and Ellman Plaintiffs
stated explicitly that they were not challenging all weapons
listed therein, carving out, for example, grenade launchers and
bump stocks.1 Based on the briefing and record before the
District Court, the parties further limited their arguments to
1
See Bianchi v. Brown, 111 F.4th 438, 452-54 (4th Cir.
2024) (en banc) (addressing a similar statuteâs constitutionality
only as applied to AR-15s despite nominal facial challenge
where the parties only adequately briefed the issue with respect
to that firearm), cert. denied sub nom., Snope v. Brown, 145 S.
Ct. 1534 (2025).
2
LCMs and AR-15s, which the Plaintiffs discussed in far more
detail in their briefs than any other prohibited weapon. This
focus is particularly notable in the record evidence on firearm
circulation and ownership data, on which the Plaintiffs heavily
relied for their argument that the Act violates the Second
Amendment. Accordingly, the District Court properly limited
its review of the Act to AR-15s and LCMs, see Assân of N.J.
Rifle & Pistol Clubs, Inc. (ANJRPC), v. Platkin, 742 F. Supp.
3d 421, 424-25 (D.N.J. 2024).2
The Majorityâs ruling goes far beyond the scope of the
arguments presented to the District Court, instead addressing
all semi-automatic rifles listed in the Act and announcing that
their prohibition violates the Second Amendment. The
Majority does so partly based on its observation that the Act
says semi-automatic rifles share common features. That these
weapons share some common features does not relieve the
Plaintiffs of their burden to affirmatively raise the argument
and marshal sufficient evidence that the Actâs prohibitions on
semi-automatic rifles other than the AR-15 are
unconstitutional, especially given there are still âexponential
differences in firepowerâ and other features among different
models of semi-automatic rifles regulated by the Act. See
Bianchi v. Brown, 111 F.4th 438, 460 (4th Cir. 2024) (en
2
While the District Court properly focused its review
on AR-15s, it erred in limiting the scope of its review to only
Colt AR-15s. The Armalite Corporation originally patented
the AR-15 and sold the rights to Colt. The patents have since
expired. Many manufacturers sell AR-15s, and there is no
meaningful difference between the AR-15s Colt produced and
the AR-15s other manufacturers produce. See Bianchi, 111
F.4th at 454-55.
3
banc), cert. denied sub nom., Snope v. Brown, 145 S. Ct. 1534
(2025) (contrasting a small-bore rimfire rifle and a .50 caliber
sniper rifle, both of which are banned semi-automatic rifles
under the New Jersey law).
The scope of the Majorityâs decision therefore exceeds
what the parties presented and is contrary to the party-
presentation rule and the necessary restraint demanded by
Article III. I limit the discussion below to what the Plaintiffs
actually argued was unconstitutional: the ban on AR-15s and
the regulation of LCMs.
II
The Second Amendment provides, â[a] well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.â
U.S. Const. amend. II. In Heller, the Supreme Court
recognized that the Second Amendment confers an individual
right to keep and bear arms for self-defense, 554 U.S. at 622,
and in Bruen, it announced a two-step framework to analyze
whether a regulation infringes that right. 597 U.S. at 24.
Bruen sets forth a two-part test. At Bruen Step One, we
must determine whether âthe Second Amendmentâs plain text
covers an individualâs conduct.â Id. at 24. If so, âthe
Constitution presumptively protects that conduct,â and we
move to Bruen Step Two, where we ask whether the State can
âjustify its regulation by demonstrating that it is consistent with
the Nationâs historical tradition of firearm regulation.â Id. If
the State cannot do so, the regulation is unconstitutional. Id.
We have applied this framework to statutes prohibiting classes
4
of individuals from possessing firearms3 and places where
firearms may be carried.4 In this case, we apply it to a law that
prohibits possession of specific firearms and parts. N.J.S.A.
§ 2C:39-1, et seq.
A
Bruen Step One requires us to determine whether the
prohibited or restricted weapons are among the âArmsâ that the
people presumptively have the right to keep and bear. Wolford
v. Lopez, No. 24-1046, 2026 WL 1825723, at *6 (U.S. June
25, 2026) (explaining that, at Bruen Step One, courts must
assess whether the restriction at issue âconcern[s] any form of
âArms,â i.e., any weapon customarily used for offensive or
defensive purposesâ). The Supreme Court has instructed us to
3
E.g., Lara v. Commâr Pa. State Police, 125 F.4th 428,
435-38 (3d Cir. 2025) (invalidating a law prohibiting eighteen-
to-twenty-year-olds from carrying firearms); Range v. Attây
Gen., 124 F.4th 218, 232 (3d Cir. 2024) (en banc) (holding
felons may not be barred from possessing firearms absent a
showing they pose a danger); United States v. Moore, 111
F.4th 266, 271-72 (3d Cir. 2024) (holding individuals on post-
conviction court-ordered supervision may be barred from
possessing firearms).
4
Koons v. Attây Gen. N.J., 156 F.4th 210, 219 (3d Cir.
2025), as amended (Sep. 17, 2025) (holding that the
ârestriction of firearms in discrete locations set aside for
particular civic functions and where the presence of firearms
was historically regulated as jeopardizing the peace or posing
a physical danger to othersâ may be permissible), en banc
granted, opinion vacated, 162 F.4th 100 (3d Cir. 2025).
5
construe âthe Second Amendmentâs text, as informed by
history,â Bruen, 597 U.S. at 19, and to ascertain whether the
relevant weapons fall âwith[in] the historical understanding of
the scope of the rightâ the Second Amendment protects, Heller,
554 U.S. at 625; see also Bruen, 597 U.S. at 25 (requiring
âreliance on history to inform the meaning of constitutional
textâespecially text meant to codify a pre-existing rightâ)
(emphasis omitted).
The Supreme Court has observed that the historical
context surrounding the ratification of the Second Amendment
reveals that the Founders sought to âcodif[y] a pre-existingâ
right for an individual to keep and bear arms, Bruen, 597 U.S.
at 20 (emphasis omitted) (quoting Heller, 554 U.S. at 592), the
âcentral componentâ of which was self-defense, Heller, 554
U.S. at 595, 599. Specifically, the Founders understood âthe
common-law right to self-defense . . . mean[t] the right of âa
citizen to ârepel force by forceâ when âthe intervention of
society in his behalf, may be too late to prevent an injury.â
Bianchi, 111 F.4th at 448-49 (quoting Heller, 554 U.S. at 595).
This right has limitations, including that the threat be
imminent, the object of the force be the person posing the
threat, not a bystander, and the force be proportional. Id. at
449-50. Thus, Heller recognized that only arms proportional
to self-defense are protected, and those better-suited for
criminal use, like sawed-off shotguns, or military purposes,
like M16 rifles, may be banned. 554 U.S. at 625, 627; Bianchi,
111 F.4th at 450-51. Accordingly, the Second Amendment
does not guarantee âa right to keep and carry any weapon
6
whatsoever in any manner whatsoever and for whatever
purpose.â Heller, 554 U.S. at 626.
Beyond this proportionality analysis, Heller also
clarifies that the Second Amendment extends only to weapons
âin common useâ for âlawful purposesâânamely, self-defense
or hunting. Id. at 625-27 (quoting United States v. Miller, 307
U.S. 174, 179 (1939)). Conversely, âdangerous and unusual
weaponsâ that are not in âcommon useâ for lawful purposes
may be prohibited. Id. at 627.5
Plaintiffsâ suggestion that Bruenâs Step One analysis is
simple because âall firearms are armsâ and are thus
5
Heller (and Blackstone) describe a âhistorical tradition
of prohibiting the carrying of âdangerous and unusual
weapons,ââ using the conjunction âand.â 554 U.S. at 627
(citing 4 William Blackstone, Commentaries *148-49).
However, because all weapons are inherently dangerous,
construing âdangerousâ according to its standard dictionary
definition would render the word meaningless in this context.
For that reason, I agree with the Court of Appeals for the
District of Columbia Circuit that the phrase âdangerous and
unusualâ is better understood as a figure of speech that conveys
a single expression, which here would be âunusually
dangerous.â See Hanson v. District of Columbia, 120 F.4th
223, 238 n.7 (D.C. Cir. 2024), cert. denied, 145 S. Ct. 2778
(2025); Samuel L. Bray, âNecessary and Properâ and âCruel
and Unusualâ: Hendiadys in the Constitution, 102 Va. L. Rev.
687, 695 (2016) (explaining that the Constitution employs
âhendiadysâ: figures of speech involving âtwo terms, separated
by a conjunction, [that] are melded together to form a single
complex expressionâ).
7
presumptively protected by the Second Amendment is
unconvincing. Cheeseman Pls. Br. at 24. Heller instructs that
we must confirm that the arm is among the âsorts of weapons
protectedâ by the Second Amendment. 554 U.S. at 627.
Indeed, the Heller Court need not have stated that handguns
were a âclass of âarmsâ . . . overwhelmingly chosen by
American society for th[e] lawful purposeâ of self-defense
before turning to the relevant historical evidence if the mere
fact that they were firearms alone was sufficient to draw them
into the Second Amendmentâs protection. See id. at 628.
Bruen proceeded similarly. 597 U.S. at 32 (acknowledging the
handguns at issue were ââin common useâ today for self-
defenseâ before conducting its historical analysis at Step Two).
Thus, at Bruen Step One, we must determine whether
AR-15s and LCMs as defined under the Act are suitable, and
in common use, for self-defense and therefore presumptively
protected under the Second Amendment, or whether they are
unusually dangerous and therefore outside the Amendmentâs
protection. Bruen, 597 U.S. at 24; Heller, 554 U.S. at 625-27;
Bianchi, 111 F.4th at 445 (stating âdangerous and unusual
weaponsâ that are not in âcommon useâ may be prohibited
(citing Heller, 544 U.S. at 627)). If Plaintiffs demonstrate that
these weapons fall within the Amendmentâs textâmeaning
they are both suitable and commonly used for self-defenseâ
the burden shifts to the State to show that the Act is consistent
with the Nationâs historical regulatory tradition under Bruen
Step Two. 597 U.S. at 24.
Bruen makes clear that its first step requires considering
whether the âSecond Amendmentâs plain text covers an
individualâs conductâ because it began its analysis by
recognizing, among other things, that âhandguns are weapons
8
âin common useâ today for self-defense.â Id. at 24, 31-32
(citations omitted). Only after making those statements did the
Bruen Court move to Step Two. Id. at 32. This sequence
shows that the Court considered common use at Bruen Step
One.6 See id. Heller also examined common use as part of its
analysis of the weapons the Second Amendment protects. 544
U.S. at 624-28. Indeed, the Heller Court need not have stated
that handguns were a âclass of âarmsâ . . . overwhelmingly
chosen by American society for th[e] lawful purposeâ of self-
defense before turning to the relevant historical evidence if the
mere fact that they were bearable weapons alone was sufficient
to draw them into the Second Amendmentâs protection. See
id. at 628.7 Wolford similarly indicated that whether âArmsâ
are protected by the Second Amendment based on their
âcustomar[]yâ use for âdefensiveâ purposes must be assessed
6
This is the view our sister courts of appeals have
adopted, see, e.g., United States v. Gomez, 159 F.4th 172, 177-
78 (2d Cir. 2025) (considering common use at Bruen Step
One); Bianchi, 111 F.4th at 447-52 (same); Hanson, 120 F.4th
at 232 (same); United States v. Alaniz, 69 F.4th 1124, 1128
(9th Cir. 2023) (same).
7
Moreover, it makes little sense to consider
contemporary uses of firearms at Bruen Step Two because that
step focuses on historical regulations from which we divine
principles to apply in the modern day. 597 U.S. at 24. In other
words, Step Twoâs timeframe and analytical object are
mismatches for the common use inquiry. See id. at 24, 34.
Considering common use at Step Two also dodges Hellerâs
instructions that we must confirm that the weapon at issue is
among the âsorts of weapons protectedâ by the Second
Amendment. 554 U.S. at 627.
9
at Step One.8 2026 WL 1825723, at *6 (listing âsubsidiary
questionsâ courts must analyze to determine whether a
restriction implicates the âplain textâ of the Second
Amendment).
Accordingly, it is at Bruen Step One that we must
determine whether AR-15s and LCMs as defined under the Act
are objectively suitable and used for self-defense and therefore
presumptively protected under the Second Amendment, or
whether their objective lethality makes them unusually
dangerous and therefore outside the Amendmentâs protection.
Bruen, 597 U.S. at 24; Heller, 554 U.S. at 625-27; Bianchi, 111
F.4th at 445 (stating âdangerous and unusual weaponsâ that are
not in âcommon useâ may be prohibited (citing Heller, 544
U.S. at 627)); United States v. Wilson, 164 F.4th 380, 384 (5th
8
While Wolford defines âArmsâ as âany weapon
customarily used for offensive or defensive purposes,â 2026
WL 1825723, at *6, the rest of the opinion makes clear that
these âpurposesâ do not include uses best suited to military
force. Instead, because the opinion later emphasizes that âself-
defenseâ was âthe right Bruen recognized,â id. at *9-10
(describing a âhypothetical womanâ who sought to carry a
concealed handgun for self-defense against a âviolent ex-
boyfriendâ), the use of âoffensiveâ here merely acknowledges
the principle that, in some situations, an individual may
âreasonablyâ fire the first shot âto protect his own life.â
Pellegrino v. United States, 73 F.3d 934, 938 (9th Cir. 1996)
(Wallace, C.J., concurring in part). This reading is consistent
with the definition of âoffensiveâ as â[o]f, relating to, or
designed for attack.â Blackâs Law Dictionary (12th ed. 2024).
10
Cir. 2026) (stating that dangerous and unusual weapons are not
in common use and therefore âfall outside the Second
Amendmentâ); see also Krause Op. at 4-11 (explaining why
the common use inquiry is an objective, rather than subjective,
test).
B
Applying Bruenâs objective test, I consider whether
AR-15s and LCMs are âArmsâ under the Second Amendment.
Doing so, I conclude that the objective features of AR-15s and
LCMs render them disproportionate to âordinary self-defense
needsâ and thus outside the scope of the Second Amendmentâs
protection. Bruen, 597 U.S. at 71.
Starting with the AR-15 prohibition, as Heller
explained, the term âArmsâ in the Second Amendment context
applies âto weapons that were not specifically designed for
military use and were not employed in a military capacity.â
554 U.S. at 581. As stated previously, the Second Amendment
does not cover weapons that are âdangerous and unusual.â Id.
at 627. We are therefore required to determine whether, based
on the AR-15âs history, features, and uses, it is objectively
more akin to unusually dangerous military weapons than those
in common use for self-defense and thus not the âsort[] of
weapon[] protectedâ by the Second Amendment. Id.; see
Bianchi, 111 F.4th at 454-61 (considering these factors to
determine whether certain arms are protected at Bruen Step
One). For the following reasons, the AR-15 is not protected by
the Second Amendment.
Beginning with history, the AR-15 has âintertwined
originsâ with âits military version,â the M-16. Bianchi, 111
11
F.4th at 454; see also Staples v. United States, 511 U.S. 600,
603 (1994) (âThe AR-15 is the civilian version of the militaryâs
M-16 rifle . . . .â). In the late 1950s, the Army sought a weapon
that could âpenetrate a steel helmetâ from a long distance, and
the Armalite Corporation responded with the AR-15, which
originally had both semi-automatic and automatic capabilities.
Bianchi, 111 F.4th at 454. The military combat-tested the AR-
15 in Vietnam, and both the military and CIA performed
additional tests, concluding it âwas superior in virtually all
respects to theâ popular military-grade weapons including the
M-1 rifle, Thompson sub-machine gun, and Browning
automatic rifle. Id. (citation and internal quotation marks
omitted). After demonstrating its capacity to inflict
âcatastrophic injuries to Viet Cong Combatants . . . including
severing of limbs and decapitation,â the military designated the
AR-15 rifle as the âM-16â and it âwas adopted as standard
issue by the U.S. army in the mid 1960âs.â JA1833.
Colt created a semi-automatic version for the civilian
market, lacking âselect fire capability,â or the ability to
âswitch[] between and function[] in either full- or semi-
automatic fire mode.â9 JA1825, 1839. However, both
9
Though significant, this difference is not dispositive
for our analysis. As the United States Army recognizes, â[t]he
most important firing technique during modern, fast moving
combat is rapid semi[-]automatic fire,â JA1868, because it âis
the most accurate technique of placing a large volume of fire
on . . . multiple, or moving targets,â Bianchi, 111 F.4th at 456
(alteration in original) (citation omitted); accord Natâl Assân
for Gun Rts. v. Lamont (âNAGRâ), 153 F.4th 213, 241 (2d Cir.
2025). Thus, commercially available semi-automatic AR-15s
12
weapons still âshare the same core design,â ârely on the same
patented operating system,â Bevis v. City of Naperville, 85
F.4th 1175, 1195-96 (7th Cir. 2023), cert. denied sub nom.,
Harrel v. Raoul, 144 S. Ct. 2491 (2024), and offer the same
âeffective range, muzzle velocity[,] semiautomatic rate of
fire,â JA1839, and kinetic energy on impact, Bevis, 85 F.4th at
1196.
Moreover, like its military counterpart, the version of
the AR-15 sold on the civilian market is âmost useful in
military service,â not in self-defense. Heller, 554 U.S. at 627;
Barnett v. Raoul, -- F.4th --, 2026 WL 1982951, at *14 (7th
Cir. July 9, 2026) (âAR-15s . . . are dangerous not only in the
sense that all firearms are dangerous but also relative to the
semiautomatic handguns that Heller confirmed are
protected.â). It has combat features such as barrel shrouds,10
are still well-suited for combat but not for Second Amendment
protected purposes, like self-defense or hunting. The same can
be said of other semi-automatic weapons. NAGR, 153 F.4th at
241.
10
A barrel shroud is a covering that âencircles and
protects the end of the barrel, keeping the barrel safe from
damage caused by collision with objects and giving the [user]
an auxiliary grip on the barrel without burning his hand.â
JA1830.
13
flash suppressors,11 threaded barrels,12 and the capacity to hold
large magazines useful for uninterrupted firing during
âprolonged firefights.â13 Bianchi, 111 F.4th at 455. Given
these features, such weapons can be and have been used to fire
at long distances and spray bullets through a crowd, neither of
which is required for self-defense when an intruder enters a
home.14 Additionally, as compared to handguns, bullets fired
by AR-15s have âthree times the velocity,â penetrating the
target and points well beyond it, which puts bystanders at risk
and causes catastrophic wounds and internal damage that
trauma surgeons often cannot repair. Bianchi, 111 F.4th at 455
(citation omitted). In addition to their extensive range, AR-
15sâ muzzle velocity allows them to âinflict[] enormous
damage on the human body, especially . . . children.â JA1562.
None of these features are objectively suitable or required for
the situation envisioned in the common-law right of self-
11
A flash suppressor is a fixture attached to the end of
a rifleâs barrel that âreduces the muzzle flash, allowing the
operator to more easily maintain vision in low light conditions
and also helps to conceal the flash from view.â JA1858.
12
Threaded barrels are barrels built with internal threads
that allow for attachments to be screwed onto a muzzle, such
as sound suppressors (also known as âsilencersâ) or flash
suppressors, which aid in concealability.
13
The AR-15âs firing rate can âmimicâ its fully
automatic military counterpart with devices like bump stocks.
Bianchi, 111 F.4th at 456 (citation omitted).
14
Although hunting is also a lawful purpose to possess
a firearm, semiautomatic weapons are unlikely to aid in
hunting for food or trophies given the destruction they cause to
the target.
14
defense: neutralizing an intruder or assailant in close
proximity.
Not only are AR-15s historically tied to, and designed
with, features useful for combat and crime, but they are
frequently used for those purposes. In fact, AR-15s and similar
weapons have been disproportionately used as the weapons of
choice for mass shooters, employed in around twenty-four
percent of the mass shootings in this country.15 Bianchi, 111
F.4th at 456. Assault weapons (coupled with LCMs) were used
to commit some of the deadliest mass murders in this country
in recent history, including those in Aurora, Colorado (12
killed), Newtown, Connecticut (27 killed), San Bernardino,
California (14 killed), Orlando, Florida (49 killed), Las Vegas,
Nevada (60 killed), Sutherland Springs, Texas (26 killed),
Parkland, Florida (17 killed), Pittsburgh, Pennsylvania (11
killed), El Paso, Texas (23 killed), and Uvalde, Texas (21
killed).16 See also Worman v. Healey, 922 F.3d 26, 39 (1st Cir.
2019) (noting that âAR-15s equipped with LCMs have been
the weapons of choice in many of the deadliest mass shootings
in recent history,â including those in Pittsburgh, Parkland, Las
Vegas, Sutherland Springs, Orlando, Newtown, and Aurora),
abrogated on other grounds by Bruen, 597 U.S. 1
(2022); Kolbe v. Hogan, 849 F.3d 114, 120 (4th Cir. 2017)
(listing mass shootings caused by âmilitary-style rifles and
detachable magazines,â as well as âhandguns equipped with
15
These firearms have been used âin fatal mass
shootings at percentages five to ten times higher than would
[have been] by chance or if weapon features played no role in
these acts of violence.â JA1754.
16
This list does not account for mass shootings that
occurred after 2022.
15
magazines holding more than ten roundsâ), abrogated on other
grounds by Bruen, 597 U.S. 1 (2022); Natâl Assân for Gun Rts.
v. Lamont, 685 F. Supp. 3d 63, 100 n.38 (D. Conn. 2023)
(listing mass shootings caused by assault weapons and LCMs,
respectively), affâd, 153 F.4th 213 (2d Cir. 2025); Silvia
Foster-Frau et al., Terror on Repeat: A Rare Look at the
Devastation Caused by AR-15 Shootings, Wash. Post (Nov.
16, 2023 at 06:00 ET),
https://www.washingtonpost.com/nation/interactive/2023/ar-
15-force-mass-shootings/ (describing âthe repeating pattern of
destruction wrought by the AR-15â in eleven mass killings
between 2012 and 2023).
Meanwhile, semiautomatic rifles are rarely employed in
self-defense, including in active-shooter scenarios. Statistics
show that riflesâa category of weapons inclusive of but far
broader than AR-15sâwere used in just two to four percent of
recorded defensive gun incidents. JA1490-92.17 According to
the FBI, only once in 456 active shooter scenarios from 2000
17
Those who keep and bear AR-15s for the purpose of
self-defense might not be fully captured through data tracking
incidents in which weapons are discharged against an attacker
because, thankfully, most people are never faced with such a
situation. See Duncan v. Bonta, 83 F.4th 803, 815 (9th Cir.
2023) (en banc) (Bumatay, J., dissenting). All the same, when
the relevant question is whether the weapons are âunusually
dangerous,â the fact that those who do discharge AR-15s are
almost never individuals defending themselves proves
dispositive of whether those firearms are protected under the
Second Amendment.
16
to 2022 did an âarmed civilian interven[e] with an assault
weapon.â JA1646.18
In sum, the AR-15âs history, features, and uses indicate
it is an unusually dangerous tool used by the military and not
an arm in common use by civilians for self-defense.19 As such,
18
It is of no moment that weapons frequently owned for
lawful use may be disproportionately used to commit crimes.
See Assân of N.J. Rifle & Pistol Clubs, Inc., v. Attây Gen. N.J.
(âANJRPC Iâ), 910 F.3d 106, 116 n.17 (3d Cir. 2018) (citing
N.Y. State Rifle & Pistol Assân, Inc. v. Cuomo, 804 F.3d 242,
256 (2d Cir. 2015)). Due to semi-automatic riflesâ
disproportionate criminal use, military history, and combat-
oriented features, they are unusually dangerous weapons
outside the Second Amendmentâs protection.
19
Like Plaintiffs, the Majority focuses on popularity,
namely that millions of Americans have purchased AR-15s and
other semiautomatic firearms. As an initial matter, this focus
on the number of firearms purchased conflates ownership with
use. Watson v. United States, 552 U.S. 74, 76 (2007)
(explaining that âpossession does not amount to âuseââ of a
firearm under âordinary or naturalâ meaning of âuseâ (quoting
Bailey v. United States, 516 U.S 137, 145 (1995))). While
there is no question that the Second Amendment protects the
right âto keep and bear Arms,â U.S. Const. ament. II, rather
than the right to âuseâ Arms, the distinction between
ownership and use is relevant to whether a weapon is in
common use. Moreover, the fact that many own these weapons
does not immunize them from constitutional scrutiny. Bianchi,
111 F.4th at 460-61; Hanson, 120 F.4th at 232-33; Ocean State
Tactical, LLC v. Rhode Island (âOSTâ), 95 F.4th 38, 50-51 (1st
17
AR-15s are not Arms that the Second Amendment protects,
and the State may ban them.
C
I reach a similar conclusion about the LCM restriction.20
I do so by first re-examining a statement we made in Assân of
New Jersey Rifle & Pistol Clubs, Inc., v. Attorney General New
Jersey (âANJRPC Iâ) that magazines are âArms.â 910 F.3d 106,
116 (3d. Cir. 2018).21 This statement was made before Bruen
Cir. 2024), cert. denied, 145 S. Ct. 2771 (2025). If we adopt
Plaintiffsâ view, then a manufacturer could simply flood the
market with a type of gun to foment a constitutional challenge
against its regulation. That cannot be correct. The scope of
constitutional protection is not defined by a popularity poll.
See Bianchi, 111 F.4th at 460-61; OST, 95 F.4th at 50-51.
20
See, e.g., Owner Operator Indep. Drivers Assân v. Pa.
Tpk. Commân, 934 F.3d 283, 294 n.13 (3d Cir. 2019) (noting,
in the context of a constitutional challenge to a state statute,
that we may affirm a district courtâs grant of summary
judgment on any grounds supported by the record).
21
Some courts have concluded that LCMs are
âaccessoriesâ or âaccoutrementsâ rather than arms because,
alone, they pose no harm. E.g., Duncan v. Bonta, 133 F.4th
852, 867-69 (9th Cir. 2025). The State points to this fact as a
separate reason for concluding that LCMs are not protected by
the Second Amendment. Magazines, however, are necessary
components for the use of certain firearms, as they supply
bullets to the gunâs chamber. Thus, the right to bear magazines
that are not unusually dangerous could be viewed as part and
parcel of the right to bear arms, much like the right to possess
18
and captures only part of what became Bruenâs Step One
analysis. Because we did not address in that opinion whether
LCMs are arms in common use for self-defense such that they
fall within the Second Amendmentâs protection, I do so today
and conclude that they are not covered.
To determine whether LCMs are the âsorts of weapons
protectedâ by the Second Amendment, as with AR-15s, I look
to the history, features, and uses of LCMs, and conclude that
they are neither objectively suited nor actually used for self-
defense. Heller, 554 U.S. at 627; see also Bianchi, 111 F.4th
at 454-59. LCMs carry a âmilitary heritageâ similar to AR-
15s. JA1846. Emerging during World War II, these magazines
were originally âintended for military use,â JA1855,22 and
âallowed soldiers to fire without pausing to reload,â Or.
Firearms Fedân v. Kotek, 682 F. Supp. 3d 874, 910 (D. Or.
2023). Even after they were introduced to civilians, their
âmilitary character and appearanceâ were âkeyâ to their
successful marketing. JA1094.
The main feature of LCMs is that they allow users to
fire many bullets before having to reload. This is particularly
important in the military contextâespecially for the infantryâ
because such capacity allows servicemen to shoot at enemy
ammunition. See ANJRPC I, 910 F.3d at 116 (citing Jackson
v. City & County of San Francisco, 746 F.3d 953, 967 (9th Cir.
2014)); Miller, 307 U.S. at 180 (citing historical sources
acknowledging that â[t]he possession of arms also implied the
possession of ammunitionâ).
22
Detachable magazines with an ammunition capacity
greater than ten rounds did not appear until the early-to-mid-
twentieth century.
19
combatants for longer periods without pause. In this way,
LCMs âincrease[] the lethality and effectiveness of small arms
in combat.â JA1855; Ocean State Tactical, LLC v. Rhode
Island (âOSTâ), 95 F.4th 38, 47 (1st Cir. 2024) (â[M]agazine
capacity directly corresponds to lethality.â), cert. denied, 145
S. Ct. 2771 (2025); see also Barnett, 2026 WL 1982951, at *14
(â[L]arge-capacity magazines amplify each and every one of
the AR-15âs dangerous characteristics by allowing a shooter to
fire more of these lethal rounds without breaking to reload.â).
Such magazines are ârarelyâ used in âcivilian self-defenseâ
because âthe rapid and uninterrupted discharge of many shots,
much less more than tenâ is not required in such situations. Id.
at 45; accord ANJRPC I, 910 F.3d at 118 (âLCMs are not well-
suited for self-defense.â).23 Indeed, based on National Rifle
Association data, civilian defenders fire only â2.2 shots on
average.â JA1482-83; accord ANJRPC I, 910 F.3d at 121 n.25
(â[M]ost homeowners only use two to three rounds of
ammunition in self-defense.â). In contrast, âsemi[-]automatic
firearms equipped with LCMs can rapidly hit very many
human targets[, which] empirically . . . is not a useful feature
for self-defense, [but] is presumably conducive to combat in
war zones.â OST, 95 F.4th at 49. Accordingly, LCMs, like
AR-15s, are unusually dangerous âweapons that are most
useful in military service,â rather than for self-defense, and are
not Arms under the Second Amendment. Heller, 554 U.S. at
23
Rather, LCMs are favored by mass shooters, having
been âdeployed in many of the deadliest mass shootings in
recent history.â OST, 95 F.4th at 46 (internal quotation marks
and citation omitted); accord JA1498 (LCMs were used in up
to sixty-three percent of mass shootings).
20
627. Thus, the Actâs restriction on LCMs does not violate the
Second Amendment.
III
Even if AR-15s and LCMs were âArmsâ under the
Second Amendment, the State has shown that the Actâs
restrictions are consistent with the Nationâs historical
regulatory tradition and thus are constitutionally permissible
under Bruen Step Two. 597 U.S. at 24. At this step, courts
compare challenged regulations to ârelevantly similarâ
historical predecessors, if any exist, focusing on âhow and why
the regulations burden a law-abiding citizenâs right to armed
self-defense.â Bruen, 597 U.S. at 29. The âhowâ portion of
the analysis examines how the regulations burden the right, and
the âwhyâ portion looks at the justification for that burden. Id.;
see also United States v. Rahimi, 602 U.S. 680, 692 (2024).
A historical analogue need not be a âhistorical twinâ or
âdead ringer.â Bruen, 597 U.S. at 30 (emphasis omitted).
Rather, the State must put forth evidence of a ârepresentativeâ
historical analogue to the present regulation, id., to
demonstrate the present-day statuteâs consistency with the
principles animating our Nationâs historical regulatory
tradition stretching back to (and before) the Second
Amendmentâs ratification, see Rahimi, 602 U.S. at 692. The
focus on âprinciplesâ reminds us to analogize at the proper
level of generality: we need not conduct an element-matching
exercise between modern and historical statutes, but rather, we
consider whether the âprinciples embodied in different strands
of historical firearm regulations, â[t]aken together,ââ support
21
contemporary restrictions.24 Pitsilides v. Barr, 128 F.4th 203,
210 (3d Cir. 2025) (alteration in original) (quoting Rahimi, 602
U.S. at 698).
Bruen instructs that we should look for âa distinctly
similar historical regulationâ when âa challenged regulation
addresses a general societal problem that has persisted since
the 18th century,â but that âcases implicating unprecedented
societal concerns or dramatic technological changes may
require a more nuanced approach.â 597 U.S. at 26-27. AR-
15s and LCMs are textbook examples of weapons warranting
such an âapproach.â Firearms of the past did not have the
capacity to accomplish the mass shootings that occur today,
and thus legislatures of the past would not have needed to
consider laws to protect against them. Hanson v. District of
Columbia, 120 F.4th 223, 241-42 (D.C. Cir. 2024) (citing
Congressional Research Service study finding that mass
shootings that are growing increasingly common each year in
the United States), cert. denied, 145 S. Ct. 2778 (2025). Given
the âdramatic technological changes,â Bruen, 598 U.S. at 27,
since the founding, there would be no relevantly similar
analogues addressing these weapons. Bianchi, 111 F.4th at
464 (observing that â[t]hese are not our forebearsâ arms, and
these are not our forebearsâ calamitiesâ); Hanson, 120 F.4th at
240 (noting that given the extent of changes in firearm
technology, âthere simply is no relevantly similar historical
analogue to a modern, semi[-]automatic handgun equipped
with an [LCM]â); Barnett, 2026 WL 1982951, at *17
(explaining that âdramatic technological change . . . has given
24
That said, we must ânot [] read a principle at such a
high level of generality that it waters down the right.â Rahimi,
602 U.S. at 740 (Barrett, J., concurring).
22
rise to the unprecedented societal concern of mass shootings,
especially those with high fatality counts carried out by lone
shootersâ). The dramatic âtechnological changesâ therefore
warrant a more nuanced, flexible approach at Bruen Step Two
to evaluate potential analogues. 597 U.S. at 27.
The State has identified relevant historical analogues
revealing a tradition of regulating instruments once
disproportionately used by criminals and rarely used in self-
defense, just as semi-automatic rifles and LCMs are used
today. This tradition dates back to pre-colonial England, which
prohibited âriding or going armed, with dangerous or unusual
weapons, [to] terrify[] the good people of the land,â Rahimi,
602 U.S. at 697 (alteration in original) (quoting 4 William
Blackstone, Commentaries *149), including launcegays,
shorter and lighter versions of a full knightâs lance, which were
âgenerally worn or carried only when one intended to . .
. breach the peace,â Bruen, 597 U.S. at 41. Since the
Founding, our Nation, in turn, has long accepted the principle
that states may inhibit âunprecedentedly lethal criminal
activity by restricting or banning weapons that are particularly
susceptible to, and were widely used for, multiple homicides[,]
mass injuries,â and other criminal purposes. Hanson, 120 F.4th
at 240. As our sister circuits have confirmed, this tradition is
evident in prohibitions and restrictions of Bowie knives,25
25
E.g., 1820 Ind. Acts 39; 1837 Ga. Acts 90 (1838); Act
of Jun. 30, 1837, ch. 77, § 2, 1837 Ala. Laws 7, 7; 1837-1838
Tenn. Pub. Acts 200, ch. 137, §§ 1, 2; 1838 Va. Acts 76; 1871
Tex. Laws 1st Sess. 25; 1878 Miss. Laws 175; 1879 N.C. Sess.
Laws 231; 1880 S.C. Acts 448; 1881 Ark. Acts 191; 1889 Ariz.
Sess. Laws 30.
23
slungshots, and clubs26 in the early nineteenth century, as well
as of machineguns and sawed-off shotguns27 in the twentieth
century.28 See OST, 95 F.4th at 47-49; Bevis, 85 F.4th at 1200-
02; Bianchi, 111 F.4th at 464-72; accord Natâl Assân for Gun
Rts. v. Lamont (âNAGRâ), 153 F.4th 213, 243-44 & nn.34-36
(2d Cir. 2025).29
26
E.g., 1850 Mass. Acts & Resolves 401; 1868 Fla.
Laws 95, Of Offenses Against the Public Peace, ch. 7, § 11;
1885 Ill. Stat. Ann. Crim. Code ch. 38, 88; 1888 Gen. Minn.
Law §§ 333, 334; 1890 Okla. Sess. Laws 475, § 18.
27
Bianchi, 111 F.4th at 470 n.14 (collecting examples
of laws regulating machineguns); National Firearms Act of
1934, Pub. L. No. 73-474, 48 Stat. 1236 (1934) (regulating
certain firearms including machineguns and short-barreled
shotguns).
28
Cf. Lara, 125 F.4th at 438-45 (holding that evidence of
a historical tradition after the Founding Era is relevant to the
extent that it does not contradict earlier evidence).
29
As compared to the LCM restriction, these earlier
statutes arguably imposed a greater burden on individualsâ
Second Amendment rights in that they categorically banned
classes of weapons whereas the LCM restriction merely limits
a firearmâs uninterrupted firing capacity, Hanson, 120 F.4th at
240, without limiting the amount of ammunition or number of
magazines a user may possess. In short, the Act only restricts
an individualâs right to shoot more than ten bullets without
reloading. Duncan, 133 F.4th at 879 (describing a similar
restrictionâs burden as resting on âonly one very specific use
of some firearms: the shooting of an eleventh (or successive)
round without a brief pauseâ).
24
An examination of Bowie knives, in particular, is
instructive.30 The knife became popular in the 1830s and had
a âdistinctive type of long-bladed and usually single-edged
knife with a hand guard,â JA1098, which, like the weapons at
issue here, âwreaked particularly bloody and gruesome
injuries,â NAGR, 153 F.4th at 243 (citation and internal
quotation marks omitted). Perhaps because of its distinctive
features, it quickly became popular among the public and was
âwidely used in fights and duels,â JA1099-1100, including a
high-profile act of violence involving multiple fatalities, see
NAGR, 153 F.4th at 243 (describing âColonel Jim Bowieâs
âSandbar Fightâ at the Mississippi River on September 19,
1827 that led to two deaths and multiple non-fatal casualties.â).
In response to this criminal use and out of concern for public
safety, states began to regulate the knife. Barnett, 2026 WL
1982951, at *9. These regulations were widespread and ranged
from restrictions to outright bans. âFrom the beginning of the
1830s through the early twentieth century, the District of
30
These weapons might not be firearms, but again, the
State need only point to a ârepresentativeâ historical analogue,
not a âhistorical twinâ or âdead ringer,â Bruen, 597 U.S. at 30,
to demonstrate its regulationâs consistency with âthe principles
underlying the Second Amendment,â Rahimi, 602 U.S. at 692.
Although not historical twins, these weapons are like AR-15s
and LCMs because they were disproportionately used to
commit crimes. Bianchi, 111 F.4th at 468 (explaining that
Founding-era laws restricting the use and ownership of Bowie
knives demonstrated historical tradition of regulating weapons
disproportionately used for crime); Bevis, 85 F.4th at 1197-
1202 (similar).
25
Columbia and every state except New Hampshire passed laws
restricting Bowie knives.â OST, 95 F.4th at 48.
Twentieth-century legislatures likewise regulated that
eraâs weapons that were disproportionately used for criminal
purposes or distinctly susceptible to such use, including
automatic firearms and sawed-off shotguns. The former, such
as the Thompson sub-machine gun, was developed for military
use but in the 1920s, civilians had access to these weapons,
which had âfirepower not seen before in civilian life.â Bianchi,
111 F.4th at 469. After machineguns were used to commit
several high-profile acts of mass violenceâsuch as the St.
Valentineâs Day and Kansas City massacresâCongress and
state legislatures responded. Id. Congress outlawed civilian
ownership of automatic weapons, sawed-off shotguns, short-
barreled rifles, and silencers in the National Firearms Act of
1934. See NAGR, 153 F.4th at 246; Bevis, 85 F.4th at 1202,31
and â[a]t least 29 states enacted anti-machine-gun laws
31
âFederal restrictions expanded in 1968, when [the]
sale and delivery of destructive devices (defined as an
âexplosive, incendiary, or poison gas bomb, grenade, mine,
rocket, missile, or similar deviceâ) and machineguns were
severely restrictedâ under the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. No. 90-351, § 921(a)(4),
§ 922(b), 82 Stat. 197, 227, 230 (1968), and â[m]achineguns
were banned by the Firearm Ownersâ Protection Act of 1986.â
Bevis, 85 F.4th at 1202.
26
between 1925 and 1934.â Bianchi, 111 F.4th at 470 (collecting
statutes).
Although some of these historic laws prohibited only
carrying these weapons, and others banned them entirely,32
they speak to a historical practice of regulating dangerous
weapons disproportionately used for criminal endsâas
opposed to those weapons in common use for self-defense.
Bianchi, 111 F.4th at 464-73; Bevis, 85 F.4th at 1198-1202;
see also Rahimi, 602 U.S. at 701 (observing that a âhistorical
twinâ is not required) (quoting Bruen, 597 U.S. at 30); id. at
739-40 (Barrett, J., concurring) (acknowledging there is no
need to âassume[] that founding-era legislatures maximally
exercised their power to regulateâ). Regulations of Bowie
knives, machine guns, and other weapons that did not exist at
the Founding but came later in time are not inconsistent with
the original meaning of the Second Amendment, and thus
âremain relevant in tracing the broader and consistent story of
our Nationâs regulation of excessively dangerous weaponryâ
that are disproportionately used and susceptible to being used
to commit crimes. Bianchi, 111 F.4th at 469-70; accord
Hanson, 120 F.4th at 239; cf. Lara v. Commâr Pa. State Police,
125 F.4th 428, 438-45 (3d Cir. 2025) (holding that evidence of
a historical tradition after the Founding Era is relevant to the
extent that it does not contradict earlier evidence). Indeed,
Miller upheld a ban on sawed-off shotguns as constitutional,
307 U.S. at 178, and Heller âimplicitly approvedâ a national
32
The Rahimi Court itself relied on both outright bans
and restrictions on use as historical analogues in reaching its
conclusion that an individual subject to a domestic violence
restraining order could be banned from possessing a firearm.
602 U.S. at 693-700.
27
ban on machineguns, Hanson, 120 F.4th at 239 (citing Heller,
554 U.S. at 627), even though those laws severely restricted
firearm ownership. Therefore, viewed under Bruenâs
ânuanced approach,â as detailed above, 597 U.S. at 27, âthe
lack of a precise match,â Hanson, 120 F.4th at 242 (internal
quotation marks omitted), in historical regulations does not
preclude our conclusion that the Act, which embodies the
principle of earlier laws, is constitutional.
Turning finally to the âhowâ and âwhyâ questions posed
in Bruen, I considered how these laws and the Act burden the
right to armed self-defense and reach one conclusion: they do
not burden that right. Like the banned Bowie knife, âbanning
[semi-automatic rifles and LCMs] imposes no meaningful
burden on the ability of [individuals] to defend themselvesâ
because both are âvirtually never used in self-defense.â OST,
95 F.4th at 45, 50; see also Hanson, 120 F.4th at 236
(describing the burden imposed by a similar restriction as
âmodestâ). In fact, there is a range of firearms New Jersey
residents can lawfully keep and bear for self-defense purposes.
The answer to âwhy?â is also clear: the regulation like the
historical ones described above, seeks to ârestrict arms . . . that
have spread in society and pose[] extreme safety threats
through characteristics that ma[k]e them particularly
dangerous or particularly susceptible to disproportionate
criminal misuse.â NJ Br. at 45. Thus, comparing the Actâs
âhowâ and âwhyâ to similar, or even more restrictive, historical
analogues, I conclude that the Stateâs regulation is consistent
with our history and tradition and does not offend the Second
Amendment.
In sum, because (1) AR-15s and LCMs are not among
the types of weapons protected by the Second Amendment, (2)
28
even if they were, restricting them imposes little to no burden
on the âright to armed self-defense,â Bruen, 597 U.S. at 29, and
(3) laws regulating them fit squarely in our Nationâs long
historical tradition of restricting unusually dangerous weapons
widely used for criminal purposes, Heller, 554 U.S. at 625-27,
the Act is constitutional. In reaching this conclusion, I join our
sister courts of appeals who have addressed challenges to
similar statutes, and note our Court is now an outlier. NAGR,
153 F.4th at 246 & n.40 (holding similarly and collecting cases
from the Courts of Appeals of the First, Fourth, Seventh, Ninth,
and D.C. Circuits cited elsewhere herein); Barnett, 2026 WL
1982951, at *8 (joining âthe unanimous circuit consensusâ
concluding that âa largely overlapping set of historical
regulations imposing targeted restrictions on weapons whose
danger and lethality stand out . . . justify restrictions on AR-
15s and large-capacity magazinesâ).
IV
I also conclude that the Actâs compliance provision
does not violate the Takings Clause. What we held in 2018
remains true: the Act âdoes not result in a taking.â ANJRPC I,
910 F.3d at 125; see Assân of N.J. Rifle & Pistol Clubs, Inc.,
v. Attây Gen. N.J (âANJRPC IIâ), 974 F.3d 237, 245-46 & n.7
(3d Cir. 2020) (determining that the ANJRPC I panelâs
conclusion on this issue represents the law of the case); see also
United States v. Jenkins, 68 F.4th 148, 152 n.6 (3d Cir. 2023)
(noting we are bound by a prior panelâs precedential decision
âabsent en banc intervention or additional clarification from
29
the Supreme Courtâ).33 Because no intervening precedent has
changed any of the legal principles underlying ANJRPC Iâs
conclusion that the compliance provision does not constitute
an unconstitutional taking,34 the ANJRPC Plaintiffsâ takings
claim again fails. Jenkins, 68 F.4th at 152 n.6.
V
For the foregoing reasons, I conclude that the Actâs ban
on AR-15s and restriction on LCMs do not violate the Second
Amendment, and the compliance provision does not violate the
Takings Clause. Therefore, I respectfully dissent.
33
Moreover, the Act represents a valid exercise of the
Stateâs police power, having been enacted in the interest of
public safety rather than for the public use of private property,
and thus is not a taking at all. Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1027-28 & n.14 (1992); Mugler v. Kansas, 123
U.S. 623, 668-69 (1887); Natâl Amusements Inc. v. Borough
of Palmyra, 716 F.3d 57, 63 (3d Cir. 2013).
Horne v. Department of Agriculture, 576 U.S. 350
(2015), does not require a different holding. That case dealt
with a per se taking where the Government took actual raisins
from raisin-growers for its own use. Id. at 361-62. Unlike
Horne, the Act does not mandate the Stateâs physical taking of
the ownersâ property because the compliance provision
provides alternatives for relinquishing possession of the
covered weapons and parts.
34
Our sister courts of appeals have reached similar
conclusions concerning such regulations. See Duncan, 133
F.4th at 864; OST, 95 F.4th at 52-53.
30
KRAUSE, Circuit Judge, joined by RESTREPO and SMITH,
Circuit Judges, dissenting.
For more than two centuries, Americans have understood
the Second Amendment to permit States to outlaw the
possession of certain types of weapons through the deliberative
legislative process. Following a horrific mass shooting at a
public school, the People of New Jersey, through their elected
representatives, chose to restrict civilians from possessing
AR-15s and other semi-automatic rifles, as well as
large-capacity magazines (LCMs)âweapons that are not
proportional to the needs of ordinary self-defense but, rather,
are designed to penetrate the steel helmets of enemy soldiers
and maximize combatant casualties on the battlefield. Since
New Jerseyâs Assault Firearms Law (the Act) was enacted,
gunmen have tragically continued to use semi-automatic rifles
equipped with LCMs, like those at issue in this case, to commit
mass shootings across the countryâat schools, grocery stores,
movie theaters, houses of worship, nightclubs, concerts, and
parades. Yet today, the majority disregards New Jerseyâs
decision to align its firearm regulations with the deeply rooted
regulatory tradition of proscribing these sorts of dangerous
weapons, those so lethal that every other Court of Appeals to
review a law regulating them has upheld it against
constitutional challenge.1 And in departing from this
1
See Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38
(1st Cir. 2024) (large-capacity magazines); Capen v.
Campbell, 134 F.4th 660 (1st Cir. 2025) (semi-automatic rifles
and large-capacity magazines); Natâl Assân for Gun Rts. v.
consensus, the majority isolates us as the only Court of Appeals
in the Nation to afford constitutional protection to AR-15s and
LCMs.
On what basis does the majority disregard the democratic
will of the People of New Jersey and conclude that these
weapons deserve constitutional protection? On the novel
theory that these weapons are âin common useâ because
modern-day manufacturers have pumped a sufficient (yet
undefined) number of them into nationwide circulation and
some (again, undefined) percentage of gunowners assert their
subjective intent to use them only for lawful purposes. The
majorityâs analysis contravenes the Supreme Courtâs repeated
instructions to evaluate modern laws regulating firearms by
comparing them with historical analogues enacted pursuant to
principles that have guided legislatures since the Founding.
Instead, the majority gives undue weight to todayâs market
trends and the idiosyncratic preferences of an ill-defined subset
of gunowners. And the majority does so despite the ground
Lamont, 153 F.4th 213 (2d Cir. 2025) (semi-automatic rifles
and large-capacity magazines), cert. granted sub nom., Grant
v. Higgins, --- S. Ct. ----, 2026 WL 1871312 (June 30, 2026);
Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024) (en banc)
(semi-automatic rifles); Barnett v. Raoul, --- F.4th ----, 2026
WL 1982951 (7th Cir. July 9, 2026) (semi-automatic rifles and
large-capacity magazines); Duncan v. Bonta, 133 F.4th 852
(9th Cir. 2025) (en banc) (large-capacity magazines), petition
for cert. filed, No. 25-198 (U.S. Aug. 15, 2025); Hanson v.
District of Columbia, 120 F.4th 223 (D.C. Cir. 2024) (per
curiam) (large-capacity magazines).
2
shifting beneath our feet: The Supreme Court has granted
certiorari to resolve within months one of the two questions
before us todayâthe constitutionality of laws prohibiting the
possession of AR-15s.2 The other question, the
constitutionality of regulations on LCMs, is presented by a
pending petition for certiorari that the Court has relisted for its
next conference.3
In these circumstances, principles of judicial restraint and
this Courtâs historical practice counsel that we stay our hand.
In addition, concern for this institution counsels that we seek
to achieve consensus to speak clearly and authoritatively. Yet
a majority of my colleagues press on, jumping ahead of the
Supreme Court to issue five separate opinions.4
In doing so, the majority also reaches the wrong result. As
explained in Judge Shwartzâs persuasive dissent, which I join
in full, New Jerseyâs ban on AR-15s and its restriction on
LCMs are constitutional under the two-step framework
articulated in New York State Rifle & Pistol Association v.
2
See Viramontes v. Cook County, No. 24-1437, 2025 WL
1553896 (7th Cir. June 2, 2025), cert. granted, --- S. Ct. ----,
2026 WL 1871322 (June 30, 2026); Lamont, 153 F.4th 213,
cert. granted sub nom., Grant v. Higgins, --- S. Ct. ----, 2026
WL 1871312 (June 30, 2026).
3
See Petition for Cert., Duncan v. Bonta, No. 25-198 (U.S.
Aug. 15, 2025).
4
Even a member of the majority urges that we hold this case
c.a.v. because, âonce those cases are decided, they will carry
the day.â Montgomery-Reeves Op. 3.
3
Bruen, 597 U.S. 1 (2022). The Plaintiffsâ challenge fails at
Step One because LCMs and AR-15sâthe only
semi-automatic rifles proscribed by the Act that the Plaintiffs
have actually challengedâare not protected âArmsâ under the
Second Amendment. And even if they were, taking us to
Bruen Step Two, our Nationâs history and tradition support the
firearm regulations adopted by the New Jersey Legislature.
The majority reaches the opposite conclusion by misconstruing
the test and its application at both steps of the Bruen analysis.
I write separately to delve further into the majorityâs errors and
to express my concern about their dangerous consequences for
the People of New Jersey.
I. Bruen Step One
A. The Objective Inquiry into Protected âArmsâ
In District of Columbia v. Heller, 554 U.S. 570 (2008), the
Supreme Court recognized that the âSecond Amendment
protects the right of âall Americansâ to keep and bear firearms
for self-defense,â United States v. Hemani, 608 U.S. ___, 146
S. Ct. 1677, 1685 (2026) (quoting Heller, 554 U.S. at 581), and
in Bruen, it gave courts a two-step framework to determine
whether a regulation infringes on that right, 597 U.S. at 24. At
Bruenâs first step, we analyze whether âthe Second
Amendmentâs plain text coversâ the conduct in question, id.,
which here requires us to ask whether the challenged weapons
are among the âArmsâ that the people presumptively have the
right to keep and bear under the Second Amendment. That
inquiry is undoubtedly objective. Indeed, the text of the
4
Second Amendment and Supreme Court precedent direct us to
ascertain at Step One if a weaponâs objective features and uses
make it proportional to the needs of, and customarily used in
service of, an individualâs right to keep and bear arms for
self-defense. Only then is the weapon âin common useâ for
âlawful purposes like self-defense,â and thus within the ambit
of the Second Amendment. Heller, 554 U.S. at 624.
As with other constitutional provisions, we construe the
term âArmsâ in the text of the Second Amendment âas
informed by history,â Bruen, 597 U.S. at 19, and thus consult
âcontemporaneous . . . sources of context to ensure that we are
understandingâ the term âin the way its drafters intended,â
Bevis v. City of Naperville, 85 F.4th 1175, 1194 (7th Cir. 2023),
cert. denied sub nom., Harrel v. Raoul, 144 S. Ct. 2491 (2024);
see also Wolford v. Lopez, 609 U.S. ___, 2026 WL 1825723,
at *14 (June 25, 2026) (Barrett, J., concurring) (stating that
Bruenâs first step calls for us to âlook to historyâ that
âelucidates how contemporaries understood the textâfor
example, the meaning of the phrase âbear Armsââ (quoting
United States v. Rahimi, 602 U.S. 680, 738-39 (2024) (Barrett,
J., concurring)).
On several occasions in the last few years, the Supreme
Court has set guardrails for courts interpreting the Second
Amendmentâs plain text. The Court has oft emphasized that,
âwhile the founding generation cherished the Second
Amendment right, they did not think it was absolute.â
Wolford, 609 U.S. ___, 2026 WL 1825723, at *5 (majority
5
opinion); see also, e.g., Heller, 554 U.S. at 626 (âLike most
rights, the right secured by the Second Amendment is not
unlimited.â); Rahimi, 602 U.S. at 737 (Barrett, J., concurring)
(âDespite its unqualified text, the Second Amendment is not
absolute.â).
The Court has also underscored that, when adopting the
Second Amendment, our Founders âcodified a pre-existing
right,â Heller, 554 U.S. at 592, âone that carries the same
âscopeâ today that it was âunderstood to have when the people
adoptedâ it,â Rahimi, 602 U.S. at 709 (Gorsuch, J., concurring)
(quoting Heller, 554 U.S. at 592, 634-35); see also id. at 737
(Barrett, J., concurring) (explaining that the Second
Amendment âcodified a pre-existing right, and pre-existing
limits on that right are part and parcel of itâ (citing Heller, 554
U.S. at 570)); Hemani, 146 S. Ct. at 1685 (â[We]
demand . . . attention to history . . . because the Second
Amendment was designed to codify a pre-existing individual
right . . . .â (citation modified)).
That pre-existing, common-law right had self-defense as its
âcentral component.â Heller, 554 U.S. at 599.5 It was also
5
See also Wolford v. Lopez, 609 U.S. ___, 2026 WL 1825723,
at *4 (June 25, 2026) (â[T]he Second Amendment protects[]
the right of Americans to carry arms for self-defense . . . .â);
United States v. Hemani, 608 U.S. ___, 146 S. Ct. 1677, 1685
(2026) (âThe Second Amendment protects the right of all
Americans to keep and bear firearms for self-defense.â
(citation modified)); United States v. Rahimi, 602 U.S. 680,
690 (2024) (âDerived from English practice and codified in the
6
understood at the Founding to have âbaked-in prerogatives and
qualifications,â including that an individual may only ârepel
force by forceâ as a last resort to protect himself from an
imminent threat, and that such force must be proportional to
the circumstances. Bianchi v. Brown, 111 F.4th 438, 447, 448
(4th Cir. 2024) (en banc) (citation modified); accord Bevis, 85
F.4th at 1193-94.
These meaningful limitations on the right to self-defense
necessarily inform the scope of the individual right to keep and
bear arms, rooted in the Second Amendment and articulated in
Heller. As relevant here, because âthe right secured by the
Second Amendment is . . . not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose,â Heller, 554 U.S. at 626, these limitations
cabin the types of weapons that fall within the ambit of the term
âArmsâ in the Second Amendment, see id. at 595 (concluding
that the Second Amendment did not enshrine âthe right of
citizens to carry arms for any sort of confrontationâ).
The Supreme Court made clear in Heller that the âtypes of
weaponsâ to which the âSecond Amendment
right . . . extends,â id. at 623, are those âin common useâ for
âlawful purposes like self-defense,â id. at 624 (quoting United
States v. Miller, 307 U.S. 174, 179 (1939)), leaving federal,
state, and local governments free to regulate âdangerous and
Second Amendment, the right secures for Americans a means
of self-defense.â (citing N.Y. State Rifle & Pistol Assân v.
Bruen, 597 U.S. 1, 17 (2022))).
7
unusual weapons,â id. at 627 (citation modified); see also
Wolford, 609 U.S. ___, 2026 WL 1825723, at *6 (defining
âArmsâ as those instruments âcustomarily used for offensive
or defensive purposesâ (emphasis added)). We also look to
Heller to illustrate the ways in which the Supreme Court has
discerned the Founding-era understanding of the term
âArmsââadopting a narrower meaning than the plain text
would suggest on its face. There, the Court gave two
exemplars of proscribable weapons: (i) those ânot typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns,â 554 U.S. at 625, and (ii) âweapons
that are most useful in military serviceâM-16 rifles and the
like,â id. at 627; see also id. (acknowledging that such weapons
âmay be bannedâ); id. at 624 (clarifying that it would be
âstartlingâ to interpret âthe National Firearms Actâs restrictions
on machinegunsâ as violating the Second Amendment).
Meanwhile, the Heller Court held that handguns fall
squarely within âthe historical understanding of the scope of
the right.â Id. at 625. It reached that conclusion through a
functional analysis, focusing on handgunsâ various objective
features that make them particularly well-suited to be deployed
in and effective for âhome defense.â Id. at 629. Handguns, the
Court reasoned, were âthe quintessential self-defense
weapon,â noting, for instance, that they, as compared to long
guns, are âeasier to store in a location that is readily accessible
in an emergency . . . [and] can be pointed at a burglar with one
hand while the other hand dials the police.â Id. The Court also
emphasized both in Heller and later in Bruen that handguns
8
satisfy the standard self-defense needs of ordinary people. See
id. at 636 (striking down an âabsolute prohibition of handguns
held and used for self-defenseâ (emphasis added)); Bruen, 597
U.S. at 71 (striking down a statute regulating handgun use
because it âprevent[ed] law-abiding citizens with ordinary
self-defense needs from exercising their right to keep and bear
armsâ (emphasis added)).
The Supreme Court has thus made clear that whether a type
of weapon is âin common useâ for purposes of the Second
Amendment inquiryâand thereby falls within the scope of the
Amendmentâs presumptive protectionâturns on whether its
objective features and uses make it better suited for
self-defense, in contrast to those weapons best suited for
offensive military or criminal purposes like inflicting mass
casualties on enemy combatants or terrorizing victims while
committing a crime. Handguns fit the former category;
military-grade weapons, such as M-16s, and weapons ânot
typically possessed . . . for lawful purposes,â like
short-barreled shotguns, Heller, 554 U.S. at 625, fit the latter.
For other weapons not yet addressed by the Supreme Court, the
test should be a stable benchmark: whether the weaponâs
objective features and uses are such that the Founders would
have understood the weapon to fall within the pre-existing right
to bear âArmsâ for self-defense codified in the Second
Amendment. The test should not, as the majority would have
it, require measurement against an ever-changing yardstick
9
based on a declarantâs subjective intent to limit his own use to
self-defense.
Here, when we apply the correct test at Bruen Step One, it
is plain that the objective features and uses of the
semi-automatic rifles6 and LCMs regulated by the Act put them
outside the scope of the Second Amendment. Semi-automatic
rifles and LCMs, predominantly useful on the battlefield and
capable of âphenomenal lethality,â Bianchi, 111 F.4th at 455
(citation modified), are âmuch more like machineguns and
military-grade weaponryâ than handguns or other weapons that
are deployed in prototypical self-defense scenarios, Bevis, 85
F.4th at 1195; see Barnett, --- F.4th ----, 2026 WL 1982951, at
*14. While handguns are the âquintessential self-defense
weapon,â Heller, 554 U.S. at 629, and thus âfall squarely into
[the] categoryâ of âArms,â Wolford, 609 U.S. ___, 2026 WL
1825723, at *4, semi-automatic rifles and LCMs are not and
do not. The latter are undoubtedly designed for âprolonged
firefights,â Bianchi, 111 F.4th at 455 (citation modified),
shooting across far distances, and effectuating mass
6
I agree with Judge Shwartz that the scope of the majority
opinion, which reaches the constitutionality of New Jerseyâs
prohibition on a range of semi-automatic rifles, not just the
AR-15, goes beyond what the parties have presented. Accord
Barnett, --- F.4th ----, 2026 WL 1982951, at *7 (evaluating
ârestrictions on assault weapons . . . based on the
circumstances on which the parties have principally focused:
an AR-15â). Where the points I make here apply beyond
AR-15s, I refer to all semi-automatic rifles.
10
casualtiesânot for neutralizing an aggressor at close range.
They are also âstrongly correlatedâ with the âunprecedented
societal concern of mass shootings,â Barnett, --- F.4th ----,
2026 WL 1982951, at *18, not with the needs of âordinary
self-defense,â Bruen, 597 U.S. at 60.
In sum, semi-automatic rifles and LCMs simply do not
have the objective features and uses that lend them to being
customarily used for âsecuring the fundamental right of
self-defense,â which is undoubtedly the âcentral concernâ of
the Second Amendment. Wolford, 609 U.S. ___, 2026 WL
1825723, at *4 (citation modified). That should have been the
end of the road in todayâs analysis, and we should not be
proceeding to Bruenâs second step. The majority reaches that
step, but only because of a series of errors at Step One, as
described below.
B. The Majorityâs Misreading of Bruen Step One
At Step One, the majority sweeps LCMs and the
semi-automatic rifles regulated by the Act under the protection
of the Second Amendment by applying the wrong test. It
improperly transplants the inquiry of whether a weapon is âin
common useâ for self-defense and other lawful purposes from
Step One to Step Two, and it reduces the initial test to a mere
gut check of whether the weapon at issue can be picked up and
carried. That reasoning is flawed many times over.
For one thing, the majorityâs approach is inconsistent. It
declares that we must look simply at the literal definition of
11
âArmsâ when assessing the constitutional protections afforded
to semi-automatic rifles, yet it then ventures beyond this
dictionary definition to conclude that magazinesâsurely a
component of a firearm but otherwise harmless when not
properly inserted and loadedâfall within the scope of the
Second Amendment.
For another, the majority ignores Supreme Court guidance
in Heller and its progeny. As an example, Bruen instructed us
to focus at its second step on comparing modern regulations
with historical analogues and extrapolating principles
undergirding regulations from our Nationâs history and
tradition, see 597 U.S. at 24, which means that Step Twoâs
âtimeframe and analytical object are mismatchesâ for the
inquiry of whether weapons are in common use today, Shwartz
Op. 9 n.7. Heller clarified that the Second Amendment does
not protect âa right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose,â 554 U.S.
at 626, including machineguns, even though âa normal person
can certainly pick up and carry [one],â Bevis, 85 F.4th at 1193.
âBearableâ therefore âmust mean more than âtransportableâ or
âcapable of being heldââ to be consistent with Heller. Id.
Unsurprisingly, absurd and dangerous consequences follow
from the majorityâs formulation of the Step One inquiry, where
any bearable weapon is an âArmâ within the meaning of the
Second Amendment. For instance, not just machineguns, but
also flamethrowers or even some weapons of mass destruction,
as long as they may be grasped, hoisted, and shouldered, would
12
be presumptively constitutionally protected. Cf. Bevis, 85
F.4th at 1182 (âEveryone can . . . agree, we hope, that a nuclear
weapon such as the now-retired M388 Davy Crockett system,
with its 51-pound W54 warhead, can be reserved for the
military, even though it is light enough for one person to
carry.â).
In short, the majorityâs interpretation of Step One
misapplies Supreme Court precedent, diverges from five of our
sister circuits that have considered the same question,7 and
pushes us unnecessarily to Step Two of the Bruen inquiry.
II. Bruen Step Two
At Step Two of the Bruen analysis, we assess whether a
modern law is âconsistent with the Nationâs historical tradition
of firearm regulation,â Bruen, 597 U.S. at 24, by comparing it
to ârelevantly similarâ historical predecessors and analyzing
âhow and why the regulations burden a law-abiding citizenâs
right to armed self-defense,â id. at 29. As Judge Shwartz
observes, such relevant analogues here, including regulations
of Bowie knives, machineguns, and sawed-off shotguns,
âreveal[] a tradition of regulating instruments once
disproportionately used by criminals and rarely used in
7
See, e.g., United States v. Gomez, 159 F.4th 172, 177-78 (2d
Cir. 2025); Bianchi, 111 F.4th at 447-52; Bevis v. City of
Naperville, 85 F.4th 1175, 1192-94 (7th Cir. 2023), cert.
denied sub nom., Harrel v. Raoul, 144 S. Ct. 2491 (2024);
United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023);
Hanson, 120 F.4th at 232.
13
self-defense.â Shwartz Op. 23. The Actâs prohibition on
semi-automatic rifles and restriction on LCMs fit neatly within
that tradition.
The majority, however, having crafted a tautology to
conclude that semi-automatic rifles and LCMs are
presumptively protected at Step One of the Bruen framework,
largely reduces the Step Two inquiry to whether a weapon is
frequently purchased todayâa function of marketing and
subjective preferences unmoored from history and Supreme
Court precedent. And where the majority does undertake its
own historical analysis, it misapplies Bruenâs methodology.
I address both errors below.
A. Distorting the Common Use Inquiry
At Bruenâs second step, we are instructed to look to history
and tradition. Yet the majority adopts and extends the District
Courtâs reasoning that New Jersey cannot regulate LCM
possession or ban AR-15s (or, in the majorityâs view, any
proscribed semi-automatic rifles), on the grounds that each
weapon is âin common useâ today. Even as the majority
acknowledges that another case might present the âneed to
qualitatively examine a weaponâs features to determine
whether a weapon is in common use for lawful purposes,â
Majority Op. 44, it contends that such features are not relevant
to the âin common useâ inquiry here because the mere fact that
there are âmany millions of semi-automatic riflesâ and LCMs
âin circulation for lawful purposesâ today âplainlyâ answers
14
that question, Majority Op. 45.8 That decidedly circular
reasoning makes three critical errors.
First, the majority mistakenly treats Step Two as an
exercise in merely sorting weapons into one of two âmutually
exclusiveâ categories, Majority Op. 28: (1) âdangerous and
unusualâ weapons, which can be prohibited by federal, state,
and local jurisdictions, and (2) weapons that are âin common
use for lawful purposes,â which cannot. True, the Supreme
Court contrasted the phrases âdangerous and unusualâ and âin
common useâ when it explained âthat the Second Amendment
protects only the carrying of weapons that are those âin
8
The majority glancingly mentions some objective features of
the AR-15 and LCMs that the District Court cited as ostensibly
making these weapons well-suited for self-defenseânamely,
âtheir build and design features, such as their mild recoil,
ergonomics, and accuracy.â Majority Op. 44 (citation
modified). At this level of generality, the District Court could
have been describing many modern firearms, including those
banned by the Act that the majority chose not to address.
Those include semi-automatic shotguns, like the Franchi
SPAS-12 and USAS-12, as well as revolving cylinder
shotguns, like the Street Sweeper and Striker 12. The fact that
a weapon possesses some features that could conceivably be
useful in a self-defense scenario does not make it
constitutionally protected. As the First Circuit has observed, a
âsawed-off shotgun might be easier to wield in a self-defense
situation due to its shorter barrelâ than a semi-automatic rifle,
Ocean State Tactical, 95 F.4th at 48, but Heller places such
weapons outside the ambit of the Second Amendment, 554
U.S. 570, 623-24 (2008).
15
common use at the time,â as opposed to those that âare highly
unusual in society at large.ââ Bruen, 597 U.S. at 47 (quoting
Heller, 554 U.S. at 627). But that does not foreclose courts
from reviewing a popular weaponâs âpotentially unusually
dangerous character.â Natâl Assân for Gun Rts. v. Lamont, 153
F.4th 213, 233 (2d Cir. 2025), cert. granted sub nom., Grant v.
Higgins, --- S. Ct. ----, 2026 WL 1871312 (June 30, 2026). The
Supreme Court has never said that weapons owned by many
Americans are ânecessarily protect[ed]â by the Constitution,
such that banning them violates the Second Amendment. Id.;
see also Bianchi, 111 F.4th at 481 (Gregory, J., concurring)
(stating that the Supreme Court has never âeven
implied . . . that legislation that covers a weapon in common
use is per se unconstitutionalâ).
Second, after focusing its Step Two analysis on whether a
regulated weapon is either âdangerous and unusualâ or âin
common use,â the majority misconstrues the meaning of
âdangerous and unusual.â Its reliance on the number of
available semi-automatic rifles and LCMs as evidence that the
weapons are âin common useâ might make sense if âunusualâ
in the phrase âdangerous and unusualâ had a standalone
meaning and meant numerically rare. But neither premise is
supported.
For one thing, âunusualâ cannot be divorced from
âdangerous.â The phrase âdangerous and unusualâ does not
state two distinct criteria; as Judge Shwartz explains, it is better
read as a hendiadysâa single expression, denoted by two
16
terms linked by a conjunction, like ânecessary and properââ
here, meaning unusually dangerous. Accord Hanson v.
District of Columbia, 120 F.4th 223, 238 n.7 (D.C. Cir. 2024)
(per curiam). Otherwise, âdangerousâ would be meaningless
and âwould do no work delineating the categoryâ of
proscribable weapons, since all weapons are âself-evidently
dangerous.â9 Id. (citation modified).
For another, there is no support in Supreme Court caselaw
for interpreting âunusualâ to denote numerically scarce, such
that we should count how many of a particular type of weapon
are available to determine whether it receives constitutional
protection. The Supreme Court has not âintimated that a
weaponâs prevalence in society (as opposed to, say, the degree
of harm it causes) is the sole measure of whether it is
9
Interpreting âdangerous and unusualâ not as two separate
criteria, but as meaning unusually dangerous, is also consistent
with the fact that, in historical sources cited in Heller and
Rahimi, the hendiadys is sometimes phrased in the disjunctive,
not conjunctiveâi.e., as âdangerous or unusual.â See Rahimi,
602 U.S. at 697 (citation modified); Heller, 554 U.S. at 623
(citation modified). This cuts against the majorityâs
interpretation that a proscribable arm must be both dangerous
and unusual. See 4 William Blackstone, Commentaries on the
Laws of England 149 (1769) (âThe offense of riding or going
armed with dangerous or unusual weapons, is a crime against
the public peace . . . .â); see also Rahimi, 602 U.S. at 697
(discussing Blackstoneâs Commentaries when addressing
historical prohibitions on the carry of dangerous and unusual
weapons); Heller, 554 U.S. at 627 (same).
17
âunusual.ââ Ocean State Tactical, LLC v. Rhode Island, 95
F.4th 38, 50-51 (1st Cir. 2024), cert. denied, 145 S. Ct. 2771
(2025). Rather, by framing âdangerous and unusualâ as in
opposition to âin common useâ for lawful purposes like
self-defense, and by giving us an objective test for whether a
weapon is âin common use,â the Supreme Court has tied the
meaning of âunusualâ to whether, when faced with a
self-defense scenario, it is common or unusual for a civilian to
choose to employ that kind of weapon.
Third, even if the common use inquiry were dispositive at
Bruenâs second step, the majority errs in treating the following
factors as relevant to determining whether a weapon is âin
common use,â such that no regulation of the weapon can be
constitutional: (1) uses of the weapon besides self-defense,
(2) gunownersâ subjective preferences, and (3) the weaponâs
numerical prevalence in the marketplace. I discuss each metric
in turn.
In an unfounded expansion of Second Amendment rights,
the majority states that âweapons commonly used for hunting
fall under the protection of the Second Amendment,â Majority
Op. 27, and considers the use of semi-automatic rifles and
LCMs for hunting in concluding that these weapons are âin
common use.â Heller did mention hunting as another lawful
use of firearms besides self-defense and noted that hunting was
a key purpose for which âAmericans valued the ancient rightâ
to bear arms. 554 U.S. at 599; accord Wolford, 609 U.S. ___,
2026 WL 1825723, at *4 n.4. But not all lawful activities are
18
constitutionally protected. Heller set self-defense apart as âthe
core lawful purposeâ protected by the Second Amendment.
554 U.S. at 630 (emphasis added). The Supreme Court has
repeatedly reaffirmed, as recently as this Term, that what â[t]he
Second Amendment protects [is] the right of âall Americansâ
to keep and bear firearms for self-defense.â Hemani, 146 S. Ct.
at 1685 (emphasis added) (quoting Heller, 554 U.S. at 581);
see also Bruen, 597 U.S. at 28 (noting that âthe Second
Amendmentâs definition of âarmsâ . . . covers modern
instruments that facilitate armed self-defenseâ (citation
modified)); Wolford, 609 U.S. ___, 2026 WL 1825723, at *4
(â[T]he Amendmentâs central concern [is] securing the
fundamental right of self-defense.â (citation modified)); id. at
*15 (Barrett, J., concurring) (âThe Second Amendment secures
the pre-existing right of the people to have and carry weapons
for their defense.â).
And where the Supreme Court has invalidated regulations
on weapon possession or use, it has done so because the law
infringed the individual right to self-defense, not other
peripheral, lawful purposes. See Heller, 554 U.S. at 628-29
(holding that the handgun ban at issue âfail[ed] constitutional
musterâ because the handgun is the âpreferred firearmâ for
âprotection of oneâs home and familyâ (citation modified)); see
also Bruen, 597 U.S. at 71 (explaining that the regulation is
unconstitutional because it overly burdened âordinary
self-defense needsâ of âlaw-abiding citizensâ). The Supreme
Court has ânever recognizedâ hunting, target shooting, or pest
control âas core purposes protected by the Second
19
Amendment,â and â[u]ntil it might do so, the bearable arms
presumptively protected by the Second Amendment are limited
to weapons used explicitly for self-defense.â Del. State
Sportsmenâs Assân v. Del. Depât of Safety & Homeland Sec.,
108 F.4th 194, 211 (3d Cir. 2024) (Roth, J., concurring)
(citation modified). The majorityâs consideration of hunting
data to assess the constitutional status of semi-automatic rifles
and LCMs is therefore improper.
The majority further departs from Heller and Bruen in
ascribing significance to subjective reports from individuals
who attest that they would buy semi-automatic rifles and
LCMs for a lawful purpose. Whether a particular weapon falls
within the ambit of the Second Amendment does not turn on
whether a gunowner can offer a conceivable lawful use for that
weapon.10 Consider, for instance, if plaintiffs in a different
lawsuit attested that they wanted to buy machineguns for
self-defenseâor, in the majorityâs conception of the Second
Amendment, simply for hunting or pest control. Those
declarations apparently would satisfy the majorityâs test for
10
For this reason, the surveys on which Plaintiffs rely are
irrelevant, as well as scientifically questionable in their
methodologies. The â2021 National Firearms Surveyâ cited in
the Plaintiffsâ briefing, for instance, âis an unpublished,
non-peer-reviewed summary of an online surveyâ completed
by gunowners. Br. for Amicus Curiae Giffords Law Center to
Prevent Gun Violence et al. at 15; see also App. 4371-72 n.31
(discussing biases in the 2021 study, including hidden
sponsorship funding and failure to âfully and openly disclose
the measurement toolsâ).
20
whether the weapons were typically possessed for lawful
purposes, even though Heller specifically tells us that bans on
machineguns are constitutional. See 554 U.S. at 624.
Subjective preferences are not the touchstone of constitutional
protections, nor can they be used to transform idiosyncratic
behaviors into protected exercises of constitutional rights.
Even if the majorityâs mistaken premise that a weaponâs
popularity is critical evidence of its constitutionality were true,
it defies a common-sense reading of the phrase âin common
useâ to measure that popularity by the metric the majority
citesâthe number of LCMs and âsemi-automatic rifles in
circulation.â Majority Op. 45. Focusing on the number of
circulating and purchased semi-automatic rifles or LCMs does
not shed light on actual use of those weapons in self-defense.
See Bianchi, 111 F.4th at 460 (â[T]he [Supreme] Courtâs
choice of the phrase common use instead of common
possession suggests that only instances of active employment
of the weapon should count . . . .â (citation modified));
Barnett, --- F.4th ----, 2026 WL 1982951, at *12 n.12 (refusing
to equate consumer survey evidence âabout why Americans
buy AR-15sâ with evidence that Americans âin fact use
AR-15s for self-defenseâ (emphasis added) (citation
modified)). Circulation data reveals only how many units of a
weapon manufacturers have pumped into the marketplace, not
how many people have actually chosen to keep and bear the
weapon, and it thus sheds no light on whether a weapon is âin
common use,â under any reasonable reading of those terms. A
weaponâs prevalence in the modern firearms market has never
21
held constitutional significanceânor does Heller suggest that
it should.
Using circulation data as a benchmark also has perverse
policy implications. Weapons manufacturers could define the
scope of the Second Amendment and thwart restrictions on
new weapons by flooding the market with enough of a new,
potentially highly lethal weapon to secure constitutionally
protected status for that weapon before legislators had the
chance to regulate it. Correspondingly, legislators would be
motivated to regulate hastily, out of fear that they would lose
their chance to regulate a weapon if it becomes sufficiently
âcommon,â potentially hindering the development of useful
technologies before their risks could be assessed.
Finally, over and above the majorityâs array of assumptions
detailed above, its approach is unadministrable for our district
courts. Neither the majority nor the Plaintiffs offer a threshold
for how many of a type of weapon in circulation would render
that weapon âin common use.â Nor do they clarify which
weapons models courts must consider in the counting exercise,
or suggest a referent for what we mean by âin common useââ
for instance, if courts should assess the absolute number of a
firearm in circulation or the prevalence of that firearm relative
to all firearms in circulation, to the U.S. population, or to some
other denominator. Semi-automatic rifles would flunk most of
those tests in any event: While there may be millions of
semi-automatic rifles in circulation, studies in the record
suggest that less than eight percent of civilian gunowners have
22
modern sporting rifles, including AR-15s and AK-47s, and
modern sporting rifles account for just three to five percent of
firearms in circulation. App. 1647-48, 1754. So the majority
gives up on any administrable test, pronouncing that
â[r]egardless of where those lines may be drawnâ between
weapons afforded constitutional protection and those that are
not, semi-automatic rifles and LCMs are protected by the
Constitution. Majority Op. 45.
That provides little direction here, and even less in other
contexts. Consider, for instance, that civilians are estimated to
own around 176,000 machineguns, see Duncan v. Bonta, 133
F.4th 852, 882-83 (9th Cir. 2025) (en banc), petition for cert.
filed, No. 25-198 (U.S. Aug. 15, 2025),11 which the Supreme
Court has definitively told us are not protected by the Second
Amendment, see Heller, 554 U.S. at 624 (noting that it would
be âstartlingâ to interpret the Second Amendment to foreclose
restrictions on machineguns). How far above 176,000 does the
majorityâs âin common useâ threshold lie? This is,
unfortunately, just one of the high-stakes questions the
majority neglects to answer, declining to engage in a
meaningful way with the consequences of its reasoning.
11
The Sixth Circuit clarified in United States v. Bridges that
the 176,000 estimate excludes machineguns in the possession
of law enforcement and refers to the number of machineguns
that are lawfully owned because they were grandfathered into
lawful registration before 18 U.S.C. § 922(o)(2)(A) was
enacted in 1986. 150 F.4th 517, 526 (6th Cir. 2025).
23
Under the majorityâs logic, a ban on any weapon would
violate the Second Amendment, so long as manufacturers sold
and distributed the weapon faster than legislatures could
respond and prospective owners reported that they considered
the weapon to be useful for self-defense, hunting, target
practice, or the like. At every step, this logic strays from
common sense and Supreme Court guidance, with devastating
consequences.
B. Misapplying the Historical Analysis
Where the majorityâs opinion does engage with history and
tradition, its comparison of modern weapon regulations to
historical analogues warps the methodology the Supreme
Court instructs us to undertake at Bruen Step Two.
Time and again, the Court has instructed, at Step Two, that
the State need not offerâand we need not locateââhistorical
twin[s],â Bruen, 597 U.S. at 30, or undertake âa doomed quest
for historical dead ringers,â Range v. Attây Gen. U.S., 124 F.4th
218, 278 (3d Cir. 2024) (en banc) (Krause, J., concurring in the
judgment); see Hemani, 146 S. Ct. at 1685-86 (disavowing the
need for âa historical twin or precise historical precursorsâ
(citation modified)). Rather, we must consider whether the
âprinciples embodied in different strands of historical firearm
regulations, taken together, support contemporary
restrictions.â Pitsilides v. Barr, 128 F.4th 203, 210 (3d Cir.
2025) (citation modified) (quoting Rahimi, 602 U.S. at 698).
The required degree of similarity between a modern regulation
and a historical analogue depends on the novelty of the issues
24
addressed by the modern law: Bruen directs us to identify âa
distinctly similar historical regulationâ when âa challenged
regulation addresses a general societal problem that has
persisted since the 18th century,â but cautions that âcases
implicating unprecedented societal concerns or dramatic
technological changes may require a more nuanced approach.â
Bruen, 597 U.S. at 26-27; see Wolford, 609 U.S. ___, 2026 WL
1825723, at *7 (explaining that where a challenged law
concerns âdistinctively modernâ conduct that could not have
âoccurred when the Second and Fourteenth Amendments were
adopted,â the âapplication of step two of the Bruen framework
call[s] for a more difficult exercise of judgmentâ).
Based on two errors in reasoning, the majority effectively
jettisons the more nuanced approach and demands âdistinctly
similar historical regulation[s].â Bruen, 597 U.S. at 27. First,
it characterizes the Act as implicating a Founding-era societal
concern, which it can only do by operating at a stratospheric
level of generality. The majority does acknowledge that the
Act has a specific, targeted focusânamely, regulating
weapons based on the features that make them uniquely
lethalâand it even notes that the Act was âaimed at restricting
the possession of guns capable of wholesale destruction or that
are designed to wipe out the greatest number of people in the
shortest possible time.â Majority Op. 39 (quoting Rahimi, 602
U.S. at 693). But the majority then disregards the Actâs focus
on limiting possession of the most harmful weapons and likens
the statute to the âregulations at issue in Rahimi, Bruen, and
Heller,â framing the purpose of the Act as merely seeking to
25
prohibit people âfrom misusing weapons to harm or menace
others.â Majority Op. 39-40 (citation modified).
By framing the problem that the Act aims to address at the
highest level of generality, the majority strips the language and
reasoning of Rahimi of its context. When the Supreme Court
commented there on the history of firearm regulations âbarring
people from misusing weapons to harm or menace others,â 602
U.S. at 693, it was merely affirming that our Nation has a long
history of regulating firearms, not anchoring a principle from
which its entire analysis sprung. It was a more specific
principle that arose from the Courtâs review of surety and
affray laws: âWhen an individual poses a clear threat of
physical violence to another, the threatening individual may be
disarmed.â Id. at 698. That principle, crafted at a more
appropriate level of generality, supported the constitutionality
of 18 U.S.C. § 922(g)(8), which had the targeted purpose of
addressing âconduct that was distinctively modern: the
possession of a firearm by a person against whom a domestic
violence restraining order had been issued.â Wolford, 609
U.S. ___, 2026 WL 1825723, at *7.12
12
The Supreme Court in Bruen similarly defined the relevant
problem facing legislators at a lower level of generality than
the majority opts for hereâthe purpose of the New York law
at issue there was to address âhandgun violence, primarily in
urban areas,â 597 U.S. at 27 (citation modified).
26
Nearly any firearm regulation could be understood to share
the purpose of preventing firearm misuse. Just as we must
ânot . . . read a principle at such a high level of generality that
it waters down the right,â Rahimi, 602 U.S. at 740 (Barrett, J.,
concurring), we also must not read the societal problem facing
legislators at such a high level of generality that we, who are
unelected judges, trespass on the duty and prerogative of state
legislatures to protect their residents, see Barnett, --- F.4th ----,
2026 WL 1982951, at *14 (âBecause every firearm regulation
is at some level about public safety, that justification operates
at such a high level of generality that it waters down the right.â
(citation modified)).
New Jerseyâs stated purpose for the Act is to ârestrict arms,
like [semi-automatic rifles] and LCMs, that have spread in
society and pose[] extreme safety threats through
characteristics that ma[k]e them particularly dangerous or
particularly susceptible to disproportionate criminal misuse.â
N.J. Br. at 45. Notwithstanding the majorityâs concerns, that
purpose is not so narrow that we need fear defining âthe âwhyâ
of a modern weapon regulation [so] narrowly, [that] every case
could present an âunprecedentedâ concern [such that] the
exception would swallow the rule.â Majority Op. 40-41 n.26.
In fact, it is a âwhyâ that the Supreme Court recognized when
discussing sawed-off shotguns in Heller. See 554 U.S. at
622-24. The majorityâs decision to paint the far-too-frequent
civilian deployment of weapons designed for war to commit
mass murder as just a continuation of the age-old problem of
individuals âmisusing weapons to harm or menace others,â
27
Majority Op. at 40 (quoting Rahimi, 602 U.S. at 693), thus
elides the contemporary problem facing the New Jersey
Legislature.
Second, even if the Act did address a problem that the
Founders also confronted, the majority still ignores the
Supreme Courtâs directive in Bruen that a âmore nuancedâ
approach to comparing modern and historical regulations is
warranted when the modern regulation is enacted in response
to âdramatic technological changes,â 597 U.S. at 27, which is
certainly the case here, see Barnett, --- F.4th ----, 2026 WL
1982951, at *15 (recognizing that a challenge to AR-15s and
LCMs âimplicates both of the grounds Bruen identifiedâ as
requiring a âmore nuanced approachâ (citation modified)).
Founding-era firearms âcould not fire more than one shot
without being reloaded,â Friedman v. City of Highland Park,
784 F.3d 406, 410 (7th Cir. 2015), and it took time, âacumen[,]
and experienceâ to reload them, Bianchi, 111 F.4th at 464. No
civilian firearm could be used to, âin minutes, murder several
dozen individuals,â Ocean State Tactical, 95 F.4th at 49, unlike
todayâs AR-15s fitted with LCMs, which gunmen used to kill
9 people and injure 17 others in a mere 32 seconds in Dayton,
Ohio, see Bianchi, 111 F.4th at 463, and kill 60 concertgoers
and injure 850 others in 11 minutes at the Las Vegas Route 91
28
Music Festival, see Br. for Amicus Curiae Giffords Law Center
et al. at 9.13
Firearms from the Founding era are about as closely related
to semi-automatic rifles as a horse and buggy is to an F-150
truck: While the historic and modern inventions share the
same, general purpose (firing ammunition and transporting
goods and people, respectively), it would be absurd to elide
their modern and historic technologies and capabilities. See
Barnett, --- F.4th ----, 2026 WL 1982951, at *16 (detailing how
âa shooterâ with an AR-15 and LCM âcan discharge thirty
roundsâeach of which travels five football fields in
half-a-second and releases ten times the energy of a musket ball
upon impactâas quickly as he can pull the triggerâ). Indeed,
if the âtechnological changesâ that brought about the AR-15
and other semi-automatic rifles do not qualify as âdramatic,â it
is hard to see what would warrant a more nuanced approach at
Step Two of Bruen. 597 U.S. at 27.
13
Those weapons which, at the Founding, were technically
capable of repeat fire were collectorsâ items or prototypes. It
was not until the mid-nineteenth century that guns capable of
repeat fire became more widely available. See Bianchi, 111
F.4th at 465; see also Barnett, --- F.4th ----, 2026 WL 1982951,
at *16 (detailing that, throughout most of the nineteenth
century, arms capable of repeat fire remained âexceedingly
rareâ and ânever penetrated the commercial or military
markets,â making it difficult âto see how [these weapons]
could have posed a regulatory challenge for historical
legislaturesâ (citation modified)).
29
* * *
The New Jersey Legislature chose to prohibit
semi-automatic rifles and regulate LCMs pursuant to its
obligations to protect its residents. Its legislative scheme is
consistent with our Nationâs long-held tradition of regulating
particularly dangerous weapons and was responsive to
dramatic technological changes and horrific uses of that
technology, which legislatures of the past could not have
foreseen. The majority disregards democratic will and
Supreme Court precedent, risking a dangerous aftermath for
the People of New Jersey and those beyond. Because I
disagree with the majorityâs methodology, its outcome, and its
needless creation of a circuit split when the Supreme Court
stands poised to provide dispositive instruction, I respectfully
dissent.
30
SMITH, Circuit Judge, dissenting.
I join Judge Shwartzâs incisive dissent in its entirety.
I add only that my views in this matter are fortified by the
persuasive reasoning of Judge Wilkinson in his
comprehensive opinion in Bianchi v. Brown, 111 F.4th 438
(4th Cir. 2024) (en banc). I also join the persuasive
dissenting opinion of Judge Krause.
Counsel for Mark Cheeseman, Timothy Connelly, and
Firearms Policy Coalition, Inc.
William V. Bergstrom [Argued to Merits Panel]
Peter A. Patterson [Argued to en banc court]
David H. Thompson
COOPER & KIRK, PLLC
Bradley Lehman
WHITEFORD TAYLOR & PRESTON
Counsel for Blake Ellman, Thomas R. Rogers, Marc
Weinberg, and Association of New Jersey Rifle and
Pistol Clubs
Erin E. Murphy [Argued]
Matthew D. Rowen
Nicholas A. Aquart
CLEMENT & MURPHY, PLLC
Daniel L. Schmutter
HARTMAN & WINNICKI, P.C.
Counsel for Attorney General New Jersey, Bradley D.
Billhimer, Christine A. Hoffman, and Superintendent
New Jersey State Police
Jeremy M. Feigenbaum [Argued]
Angela Cai
Timothy Sheehan
Daniel M. Vannella
Christopher J. Ioannou
OFFICE OF THE NEW JERSEY ATTORNEY GENERAL
Counsel for Kenneth Brown, Jr.
Mitchell B. Jacobs
CLEARY GIACOBBE ALFIERI & JACOBS
Counsel for Amicus Curiae United States of America
David N. Goldman
Jason Manion
UNITED STATES DEPARTMENT OF JUSTICE
Counsel for Amicus Curiae Everytown for Gun Safety
Janet Carter
EVERYTOWN LAW
Counsel for Amici Curiae Brady Center to Prevent
Gun Violence, March for Our Lives, BlueWaveNJ,
Ceasefire NJ Project of the Princeton-based Coalition
for Peace Action, National Council of Jewish Womenâ
Essex County Section, Unitarian Universalist
FaithAction New Jersey, and United Mercer Interfaith
Organization
Timothy P. Harkness
FRESHFIELDS US
Counsel for Amici Curiae States of Massachusetts,
California, Colorado, Connecticut, Delaware, the
District of Columbia, HawaiĘťi, Illinois, Maine,
Maryland, Michigan, Minnesota, Nevada, New York,
Oregon, Pennsylvania, Rhode Island, Vermont, and
Washington
Tasha Bahal
OFFICE OF ATTORNEY GENERAL OF MASSACHUSETTS
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Case Information
- Decision Date
- July 17, 2026
- Citation
- Status
- Precedential