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January 3, 2019 by Joseph J. DePalmaDownload PDF

Mass Shootings, Magazines and the Second AmendmentJoseph J. DePalma

We all know that mass shooting incidents have increased exponentially in recent years. In June 2018, New Jersey passed a law limiting to 10 rounds the amount of ammunition a magazine can hold. Previously, the limit was 15 rounds. In doing so, New Jersey became the ninth state to pass a law restricting magazine capacity. A magazine is a chamber, that stores bullets and is inserted into the handle of a semi-automatic weapon. A magazine enables the user to quickly reload a weapon by inserting another magazine into the firearm.

A gun club filed suit challenging the constitutionality of the law alleging, among other things, that it violates the Second Amendment. The gun club argued that a state’s imposition of such a restriction is unconstitutional because it bans an entire class of firearms protected by the Second Amendment, that there is no empirical evidence supporting the ban, and that the ability of law-abiding citizens to protect themselves at home is impinged. Countering, the State argued that it has a significant interest in protecting its citizens and that a law designed to reduce the impact of mass shootings while allowing law abiding citizens to possess these firearms (albeit with 10 rounds instead of 15) passes constitutional muster.

The Third Circuit issued a 2-1 decision on December 5, 2018 upholding the constitutionality of the law. In Association of New Jersey Rifle and Pistol Club, Inc. v. Attorney General New Jersey, 910 F.3d 106 (3d Cir. 2018), the Court, applying an intermediate scrutiny test, held that New Jersey’s law reasonably fits the State’s interest in public safety and does not burden a citizen’s constitutional right to self-defense at home.

The Second Amendment states that “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.” The Court easily disposed of a threshold issue, finding that a magazine is an “arm.” Trickier was what level of scrutiny had to be applied to determine whether the law burdens a Second Amendment right. It is here that the Court split. The majority applied an intermediate scrutiny test; the dissent, a strict scrutiny one. The majority stated that laws that “severely burden a core Second Amendment right” are subject to strict scrutiny. The majority listed five reasons why the law does not severely burden that right. Among them, the law does not ban weapons, it merely restricts the number of rounds a weapon can hold in a magazine. And it does not render the weapon incapable of operating.

Accordingly, the Court applied the intermediate scrutiny test, one where the government must assert a “significant, substantial, or important interest and that there be a reasonable fit between that interest and the challenged law. The Court found that test to be met because the law is intended to reduce active, mass shootings, and the law reasonably fits the State’s interest in maintaining safety.

Stay tuned, as a 2-1 decision involving gun rights is surely not over.