Bruen Step-Two “Common Use” and the Unconstitutionality of De Facto Bans on Semi-Automatic Rifles and >10-Round Magazines

Case: Association of New Jersey Rifle and Pistol Clubs I v. Attorney General New Jersey (consolidated appeals)
Court: United States Court of Appeals for the Third Circuit (en banc)
Date: July 17, 2026

1. Introduction

This en banc Third Circuit decision addresses two pillars of New Jersey’s 1990 firearms statute (as amended in 2018): (i) the “Assault Firearm Provisions,” which criminalize possession of “assault firearms,” and (ii) the “LCM Provisions,” which restrict “large capacity ammunition magazines,” now defined as magazines holding more than 10 rounds.

The plaintiffs—individual gun owners and gun-rights organizations (including the Association of New Jersey Rifle & Pistol Clubs, members Ellman and Weinberg, and the Firearms Policy Coalition group of plaintiffs)—challenged both sets of provisions under the Second Amendment; one suit also asserted a Fifth Amendment Takings Clause claim against the magazine restrictions.

The litigation’s posture matters: earlier Third Circuit decisions had upheld New Jersey’s magazine restrictions under the now-superseded means-end scrutiny approach (e.g., intermediate scrutiny) derived from United States v. Marzzarella. After the Supreme Court’s methodological reset in New York State Rifle & Pistol Association v. Bruen, the Supreme Court vacated the prior judgment and remanded for re-evaluation under the “text-and-history” framework.

The consolidated appeals therefore presented three core issues:

• Whether New Jersey’s “assault firearm” ban is constitutional under Bruen (and if so, for which firearms).
• Whether New Jersey’s >10-round magazine restrictions are constitutional under Bruen.
• Whether the magazine restrictions effect a Fifth Amendment taking (an issue the court ultimately did not reach because it found a Second Amendment violation).

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited (and How They Shaped the Result)

• New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)
  The opinion is anchored in Bruen’s two-step method: (1) whether the Second Amendment’s plain text covers the conduct; if so, (2) whether the regulation is consistent with the Nation’s historical tradition of firearm regulation. The Third Circuit treats the second step as an analogical inquiry keyed to “how” and “why” historical regulations burdened armed self-defense, rejecting the pre-Bruen scrutiny regime.
• District of Columbia v. Heller, 554 U.S. 570 (2008)
  Heller supplies the decision’s central anti-ban principle: a “prohibition of an entire class of ‘arms’” commonly chosen for lawful purposes—especially in the home—fails. The Third Circuit treats New Jersey’s semi-automatic rifle restrictions as a de facto ban given the unattainable licensing standard and narrow exemptions, and then treats that ban-like character as dispositive absent historical support.
• McDonald v. City of Chicago, 561 U.S. 742 (2010)
  Establishes that the Second Amendment applies to states through the Fourteenth Amendment, making New Jersey’s state-law scheme subject to the same federal constitutional constraints.
• United States v. Rahimi, 602 U.S. 680 (2024)
  Provides the court’s articulation that the Second Amendment is not “trapped in amber” and reinforces the analogical inquiry through “principles underpinning our regulatory tradition,” emphasizing “why” and “how.” The Third Circuit uses Rahimi to acknowledge that regulation aimed at preventing misuse of weapons fits within traditional regulatory purposes, but it distinguishes New Jersey’s categorical, population-wide prohibitions from historically individualized disarmament mechanisms.
• Wolford v. Lopez, No. 24-1046, --- S. Ct. ----, 2026 WL 1825723 (U.S. June 25, 2026)
  The court relies heavily on Wolford for two clarifications: (i) Bruen step one has “three subsidiary questions” (the people / arms / keep-bear), and (ii) step two evaluates historical analogues by breadth of adoption, acceptance, and relevant similarity, with “how” and “why” as the key comparators. The Third Circuit also draws from Wolford to reject late, isolated historical statutes as weak evidence of constitutional meaning.
• United States v. Hemani, 146 S. Ct. 1677 (2026)
  Cited as a recent application of Bruen rejecting analogues that mismatch the “why” or “how.” It underscores the court’s insistence that government cannot prevail with high-level generalities untethered to relevantly similar historical practice.
• United States v. Miller, 307 U.S. 174 (1939)
  Used for two propositions: (i) the founding understanding that militia members appeared with arms “in common use at the time,” and (ii) that the “possession of arms also implied the possession of ammunition,” supporting the conclusion that magazines (as functional ammunition-feeding devices) fall within the Second Amendment’s ambit.
• Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y Gen. N.J. ("ANJRPC II"), 910 F.3d 106 (3d Cir. 2018)
  The court reaffirms ANJRPC II’s textual conclusion that magazines are “Arms.” But it repudiates ANJRPC II’s intermediate-scrutiny path as inconsistent with Bruen, and it ultimately reaches the opposite result on constitutionality under the historical-tradition test.
• United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010)
  Serves as the emblem of the pre-Bruen two-step scrutiny framework that the Supreme Court later rejected. The opinion uses it as context for why earlier outcomes (upholding magazine limits) cannot control after Bruen.
• Ass'n of N.J. Rifle & Pistol Clubs Inc. v. Att'y Gen. N.J. ("ANJRPC IV"), 974 F.3d 237 (3d Cir. 2020) and Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Bruck, 142 S. Ct. 2894 (2022)
  Illustrate the procedural pivot: ANJRPC IV had treated the earlier merits holding as law of the case; Bruck vacated and remanded after Bruen, clearing the way for a fresh, history-based constitutional analysis.
• Lara v. Commissioner Pennsylvania State Police, 125 F.4th 428 (3d Cir. 2025)
  Controls the “which historical period” question in this circuit: where Founding-era and Reconstruction-era evidence conflict, the court looks primarily to Founding-era tradition. That choice shapes the court’s skepticism toward many 19th-century knife and carry restrictions offered as analogues.
• Nunn v. State, 1 Ga. 243 (1846)
  Used to illustrate that one of the few near-outright bans on Bowie knives was deemed unconstitutional, supporting the Third Circuit’s view that bans of common arms lack historical support.
• Staples v. United States, 511 U.S. 600 (1994), Garland v. Cargill, 602 U.S. 406 (2024), and Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025)
  Cited to distinguish semi-automatic firearms from machineguns (and to recognize AR-15 popularity in other doctrinal contexts), reinforcing that the weapons at issue here are not automatically assimilated to historically proscribable “machineguns.”

3.2 Legal Reasoning

A. The Assault Firearm Provisions: from “Colt AR-15” to the broader class of semi-automatic rifles

The district court had limited its ruling to the Colt AR-15 based on record development. The Third Circuit agreed that the record was too thin to decide the constitutionality of the Assault Firearm Provisions as to all covered weapons (notably semi-automatic pistols and shotguns), but held it was adequate to decide the issue for the “largely interchangeable” class of semi-automatic rifles. Accordingly, it modified the district court’s judgment to reach the entire class of semi-automatic rifles.

B. Step One (Text): rifles and magazines are “Arms”

For rifles, the court treated the step-one inquiry as straightforward: semi-automatic rifles are firearms, and firearms are “Arms” as used in Heller and Wolford. For magazines, the court reaffirmed ANJRPC II: magazines “feed ammunition into certain guns,” and because ammunition is required for many firearms to function “as intended,” magazines are “Arms.”

Importantly, the court rejected an argument that magazine capacity could remove an item from the Second Amendment’s textual scope; it reasoned that the “large capacity” label is statutory and mutable (New Jersey moved from >15 rounds to >10), and constitutional coverage cannot turn on such shifting legislative categorization.

C. Step Two (History and Tradition): categorical, ban-like restrictions on commonly used arms fail

The court’s decisive move at step two was to characterize both challenged regimes as de facto bans (or severe restrictions) on arms in common use for lawful purposes.

• “How” the law burdens the right: The Assault Firearm Provisions criminalize possession absent a license that appears unattainable in practice (“no one in the State has ever received” one), with only narrow exemptions. The LCM Provisions allow civilian possession only in exceptionally narrow circumstances, producing an effective ban on >15-round magazines and severe restrictions on 11–15-round magazines.
• “Common use for lawful purposes” evidence: The court accepted findings that there are “around 24 million AR-15s and similar sports weapons in circulation,” and “over 100 million 30-round AR-15 magazines in circulation,” and credited evidence of lawful uses including self-defense, hunting, target shooting, and pest control.
• Analogue rejection:
  • Founding-era gunpowder storage/aggregation laws were rejected as not relevantly similar in “why” (fire safety vs. preventing gun violence).
  • 19th-century Bowie-knife/slungshot/pistol carry limits were discounted both as temporally weak under Lara and as mismatched in “how” (often carry restrictions rather than possession bans) and/or “common lawful use” evidence.
  • The opinion emphasized that isolated or late laws cannot establish a tradition, echoing Wolford’s skepticism toward “a lone statute adopted nearly a century after” ratification and toward narrow territorial outliers.

The court also declined to treat this as a case requiring Bruen’s “more nuanced approach” for “unprecedented societal concerns or dramatic technological changes.” It reasoned that interpersonal gun violence is longstanding, and even if nuance were appropriate, carry restrictions are not comparable to a possession ban-like regime.

D. A notable doctrinal clarification: where “common use” fits in the Bruen structure

The court confronted a live inter-circuit disagreement and held that “common use” belongs at Bruen step two, not step one, because (in its view) “common use” is not found in the Second Amendment’s text and operates most naturally as part of the “how” inquiry when judging relevant similarity to historical analogues.

E. Takings Clause avoided

Because the magazine restrictions were held unconstitutional under the Second Amendment, the court declined to reach the Fifth Amendment Takings Clause challenge.

3.3 Impact

• Immediate effect in New Jersey: The court invalidated New Jersey’s Assault Firearm Provisions as applied to the class of semi-automatic rifles and invalidated the LCM Provisions. The cases return to the district court to address remaining categories (notably semi-automatic pistols and shotguns) under the Assault Firearm Provisions.
• Doctrinal impact within the Third Circuit:
  • Positions “common use” as a step-two consideration in this circuit.
  • Elevates the practical effect (“de facto ban”) as constitutionally salient under Heller/Bruen.
  • Reaffirms that magazines are “Arms,” and rejects capacity-based line-drawing at step one.
  • Reinforces Lara’s Founding-era primacy for historical analogues when eras conflict.
• National significance and Supreme Court shadow: The opinion explicitly notes the Supreme Court’s grants of certiorari in challenges involving “AR-15 platform and similar semiautomatic rifles” (citing Viramontes v. Cook County and Nat'l Ass'n for Gun Rts. v. Lamont, cert. granted sub nom. Grant v. Higgins). This Third Circuit ruling thus both (i) anticipates imminent Supreme Court guidance on rifle bans and (ii) resolves a separate question the panel emphasized the Court had “not committed to addressing”: constitutionality of >10-round magazine limits—an area with active certiorari activity (noted by dissents).
• Regulatory design going forward: The reasoning suggests that broad, population-wide possession prohibitions of widely owned arms are constitutionally vulnerable; the decision implicitly points regulators toward historically grounded tools that operate through individualized threat assessments (as in United States v. Rahimi) or narrower, historically supported place/manner regulations rather than categorical possession bans.

4. Complex Concepts Simplified

• Bruen’s two-step test:
  1. Text: Does the Second Amendment cover the conduct (keeping/bearing “Arms” by “the people”)?
  2. History/tradition: If yes, the government must show a historical analogue demonstrating the modern regulation fits within the Nation’s tradition—focusing on “how” (the burden) and “why” (the justification).
• “Historical analogue” vs. “historical twin”: The government does not need an identical old law, but it must identify a representative, well-accepted historical regulatory practice that is relevantly similar in how and why it restricted the right.
• “De facto ban”: A law may not say “ban,” but if licenses are effectively unattainable and exemptions are vanishingly narrow, the practical result can be a ban—treated as constitutionally significant under Heller.
• “In common use for lawful purposes”: A weapon (or magazine) widely possessed for lawful activities (the majority includes self-defense plus hunting and other lawful purposes) is treated as outside the historical category of “dangerous and unusual” weapons and therefore harder to ban consistent with historical tradition.
• Law-of-the-case vs. vacatur: Prior Third Circuit rulings had bound later stages of the same litigation, but the Supreme Court’s vacatur and remand after Bruen removed that constraint and required reanalysis under the new methodology.

5. Conclusion

The Third Circuit’s en banc opinion establishes two consequential propositions in this circuit: (1) New Jersey’s Assault Firearm Provisions are unconstitutional as applied to the class of semi-automatic rifles because they operate as a ban on arms in common lawful use, unsupported by a relevantly similar historical tradition; and (2) New Jersey’s >10-round magazine restrictions likewise violate the Second Amendment, with the court reaffirming that magazines are “Arms” and rejecting historical analogues that do not match in “why” or “how.”

The ruling is simultaneously a practical invalidation of two long-standing New Jersey restrictions and a methodological marker: it places “common use” within Bruen’s step-two tradition inquiry, emphasizes the constitutional salience of ban-like effects, and re-centers Founding-era tradition (per Lara) as the benchmark for state firearm regulations—setting the stage for further district-court litigation on other covered weapon categories and for imminent Supreme Court engagement with the broader national dispute over AR-15 bans and magazine limits.