Third Circuit (en banc): Common-Use Addressed at Bruen Step Two; New Jersey’s De Facto Bans on Semi-Automatic Rifles and >10-Round Magazines Unconstitutional

I. Introduction

In Association of New Jersey Rifle and Pistol Clubs I v. Attorney General New Jersey (Third Circuit, en banc, July 17, 2026), the Court reviewed two long-running pillars of New Jersey firearm regulation enacted in 1990 and amended in 2018: (1) the “Assault Firearm Provisions,” which criminalize possession of enumerated “assault firearms” and firearms “substantially identical” to them, and (2) the “LCM Provisions,” which restrict “large capacity ammunition magazines,” defined since 2018 as magazines holding more than 10 rounds.

The consolidated appeals arose from three suits by gun owners and gun-rights organizations (including the Association of New Jersey Rifle & Pistol Clubs and Firearms Policy Coalition) against New Jersey officials. Plaintiffs raised Second Amendment challenges to both sets of provisions; one case also asserted a Fifth Amendment Takings Clause challenge to the LCM restrictions.

The District Court’s post-New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) merits decision, Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Platkin ("ANJRPC V"), 742 F. Supp. 3d 421 (D.N.J. 2024), held the Colt AR-15 ban unconstitutional under the Second Amendment but upheld the LCM Provisions under both the Second Amendment and the Takings Clause. The Third Circuit (en banc) largely agreed on assault rifles but expanded the relief; it disagreed on magazines and reversed.

II. Summary of the Opinion

  • Assault Firearm Provisions: The Court agreed that New Jersey’s ban violates the Second Amendment, but modified the judgment to reach all semi-automatic rifles (not merely Colt AR-15s), based on the record and the statute’s own “substantially identical” approach. The case was remanded for further proceedings on other covered weapons (e.g., certain pistols, shotguns, other categories) where the record was inadequate.
  • LCM Provisions: The Court held the >10-round restriction violates the Second Amendment and reversed the District Court’s contrary ruling.
  • Takings Clause: Because the LCM Provisions failed under the Second Amendment, the Court found it unnecessary to reach the Fifth Amendment Takings Clause claim.
  • Methodological holding: The Court located the “in common use” inquiry primarily at Bruen step two (historical-tradition/analogue analysis), not as a step-one textual gatekeeper.

III. Analysis

A. Precedents Cited

1. District of Columbia v. Heller, 554 U.S. 570 (2008)

Heller is the opinion’s anchor for two propositions. First, the Second Amendment protects an individual right centered on self-defense, particularly in the home. Second, and most consequential here, flat bans on a class of arms “overwhelmingly chosen” for lawful self-defense cannot stand. The Third Circuit treated New Jersey’s assault-rifle scheme as functionally comparable because licensure is effectively unattainable and civilian exemptions are vanishingly narrow—rendering the statute a de facto ban.

2. New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

Bruen supplied the governing two-step framework: (i) whether the Second Amendment’s plain text covers the conduct, and (ii) whether the regulation is consistent with the Nation’s historical tradition of firearm regulation. The Third Circuit emphasized Bruen’s rejection of means-end scrutiny and its instruction that governments must justify modern restrictions through appropriate historical analogues, comparing “how” and “why” regulations burden the right. The Court also leaned on Bruen’s teaching that historical “dangerous and unusual” restrictions cannot justify modern restrictions on arms “in common use today.”

3. McDonald v. City of Chicago, 561 U.S. 742 (2010)

McDonald grounded the opinion’s premise that the Second Amendment applies to states through Fourteenth Amendment incorporation, making New Jersey’s laws subject to federal constitutional review.

4. United States v. Miller, 307 U.S. 174 (1939)

Miller was used primarily for the “in common use at the time” lineage and the idea that arms rights historically contemplated citizens appearing with arms commonly possessed. The Court treated “common use” as relevant to whether historical “dangerous and unusual” restrictions are valid analogues at step two.

5. United States v. Rahimi, 602 U.S. 680 (2024)

Rahimi was central to the Court’s articulation of step two as a search for regulations consistent with “the principles that underpin our regulatory tradition,” not “a law trapped in amber.” The Court adopted Rahimi’s “why” and “how” focus, but applied it against New Jersey by characterizing the challenged provisions as broad, class-based disarmament rather than individualized, threat-based regulation of the kind upheld in Rahimi.

6. Wolford v. Lopez, No. 24-1046, --- S. Ct. ----, 2026 WL 1825723 (U.S. June 25, 2026)

Wolford supplied the opinion’s most concrete doctrinal refinements: step one includes (a) “the people,” (b) “Arms,” and (c) “keep” (possession) and “bear” (carrying); step two evaluates analogues by breadth of adoption, acceptance, and relevant similarity in “how” and “why.” The Third Circuit used Wolford to support a broad textual definition of “Arms,” while reserving “common use” work for step two.

7. United States v. Hemani, 146 S. Ct. 1677 (2026)

Hemani functioned as a cautionary example: the Supreme Court rejected the government’s claimed analogues when the proffered historical laws did not match the modern law’s “why” or “how.” The Third Circuit invoked Hemani to underscore that analogical reasoning is constrained, not free-form.

8. Lara v. Commissioner Pennsylvania State Police, 125 F.4th 428 (3d Cir. 2025)

Lara mattered for temporal methodology. Faced with potential conflict between Founding-era and Reconstruction-era practice, the Third Circuit previously held that Founding-era understanding controls when irreconcilable. Here, that choice drove the Court’s skepticism toward 19th-century regulations (e.g., Bowie knife and pistol carry laws) as too late or too exceptional to establish a Founding-era tradition supporting New Jersey’s modern bans.

9. The ANJRPC LCM litigation history (ANJRPC I–IV) and United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010)

The opinion carefully traced the pre-Bruen pathway: Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal ("ANJRPC I"), Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y Gen. N.J. ("ANJRPC II"), 910 F.3d 106 (3d Cir. 2018), Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal ("ANJRPC III"), and Ass'n of N.J. Rifle & Pistol Clubs Inc. v. Att'y Gen. N.J. ("ANJRPC IV"), 974 F.3d 237 (3d Cir. 2020). Those decisions relied on the then-prevailing two-step scrutiny regime rooted in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). After Bruen, the Supreme Court vacated and remanded (sub nom. Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Bruck, 142 S. Ct. 2894 (2022)), removing the law-of-the-case barrier that had previously held the LCM restrictions constitutional.

B. Legal Reasoning

1. Scope and remedy: from “Colt AR-15” to “all semi-automatic rifles”

The en banc Court accepted the District Court’s practical observation that the record centered on AR-15s, but rejected the District Court’s manufacturer-specific narrowing. Because the Assault Firearm Provisions regulate not only enumerated rifles but also those “substantially identical,” and because the record showed interchangeability among AR-15-platform rifles, the Court treated “Colt” as an evidentiary happenstance rather than a legally meaningful boundary and extended the constitutional ruling to the broader class of semi-automatic rifles. At the same time, it refused to decide constitutionality of other covered categories (certain pistols, shotguns, parts-conversion provisions, bump stocks) on an underdeveloped record, remanding for those questions.

2. Step one (text): broad coverage of firearms and magazines

For rifles, the Court held the step-one question was straightforward: semi-automatic rifles are “Arms” because they are firearms, and “Arms” is defined broadly in Heller and refined in Wolford. For magazines, the Court reaffirmed ANJRPC II that magazines are “Arms” because they feed ammunition and facilitate (and often enable) firearm function; “large capacity” is a statutory label that cannot control constitutional text.

3. Step two (history/tradition): “common use” as part of “how” the burden operates

The Court’s methodological move is significant: it held that “in common use” is best understood at step two as part of assessing “how” a regulation burdens the right, because “common use” does not appear in the Second Amendment’s text and instead functions to distinguish modern arms from historical “dangerous and unusual” regulation in the analogue inquiry.

4. Semi-automatic rifle prohibition: de facto ban + common use + lack of Founding-era analogues

The Court treated New Jersey’s scheme as a de facto ban on possession by ordinary civilians: licensing requires a judicial finding that “public safety and welfare” require issuance, and the record reflected no civilian licenses ever granted; the registration carveout is limited to pre-1990 owners meeting club-membership timing restrictions. With rifles found to be in common use for lawful purposes (including self-defense, hunting, target shooting, pest control), the Court analogized the case to the handgun ban struck in Heller.

New Jersey’s proposed analogues failed:

  • Founding-era gunpowder storage laws were rejected because the “why” differed (fire-safety, not preventing interpersonal firearm violence).
  • Trap gun restrictions did not analogize to possession bans because they targeted indiscriminate automatic discharge rigs rather than mere ownership.
  • 19th-century Bowie knife, slungshot, pistol/revolver carry laws were too late in time under Lara and, in any event, primarily regulated carriage (especially concealed carry) rather than imposing broad possession bans on a common class of arms.
  • Western territorial laws were treated as “exceptional” outliers under Bruen.

5. LCM restrictions: severe restriction / de facto ban on arms in common use

The Court characterized the LCM Provisions as, in practice, a de facto ban on magazines >15 rounds and a severe restriction on 11–15 round magazines, given the narrow civilian exemptions tied to “assault firearm” licensure/registration and a small grandfathering carveout for certain nonmodifiable firearms. It found LCMs in common use for lawful purposes, relying on record evidence that AR-15 platform rifles commonly come standard with 20- or 30-round magazines and that over 100 million 30-round AR-15 magazines are in circulation.

New Jersey’s proffered historical analogues failed for the same structural reasons as in the rifle analysis: gunpowder-storage laws were aimed at fire prevention; later-era knife and carry regulations were temporally weak and not comparable in “how” to a broad restriction on possession of common magazines. The Court thus held the LCM Provisions violate the Second Amendment.

C. Impact

  • Immediate doctrinal effect in the Third Circuit: The opinion establishes (i) an en banc holding that New Jersey’s de facto ban on semi-automatic rifles and its >10-round magazine regime violate the Second Amendment under Bruen, (ii) that “common use” is primarily a step-two concept tied to how a restriction burdens the right, and (iii) that lawful purposes include self-defense and (per the majority) other lawful uses such as hunting.
  • Remedial and litigation impact: By limiting merits resolution to semi-automatic rifles and magazines while remanding the rest, the Court both expands relief beyond the District Court’s Colt-only order and preserves future district-court factfinding for other “assault firearm” categories.
  • Inter-circuit and Supreme Court dynamics: The opinion expressly recognizes that other circuits have taken different approaches to where “common use” belongs in the Bruen framework. The separate writings also highlight pending Supreme Court review of AR-15 bans (e.g., grants noted in the opinion), making this decision a likely vehicle for further high-court guidance and a potential focal point in an emerging circuit split.
  • Legislative design consequences: The Court’s emphasis on “de facto” bans signals that states cannot avoid Heller/Bruen constraints through nominal licensing regimes that function as categorical prohibitions for ordinary civilians.

IV. Complex Concepts Simplified

  • Bruen’s two steps: Step one asks whether the Second Amendment’s text covers the conduct (keeping/bearing “Arms” by “the people”). Step two asks whether the government can justify the regulation through sufficiently analogous historical firearm regulations.
  • “In common use”: A doctrinal marker used by the Supreme Court to distinguish arms broadly possessed for lawful purposes today from historically regulable “dangerous and unusual weapons.” The majority treats it as part of step two (how the law burdens the right).
  • Historical “analogue” (not “twin”): The government need not find a historically identical law, but must identify a well-established and representative predecessor that is relevantly similar in “how” and “why.”
  • “De facto ban”: A law that formally allows possession (e.g., via licensing) but sets conditions so restrictive that ordinary civilians cannot realistically obtain lawful access.
  • Why the Takings Clause was not decided: Courts often avoid constitutional questions unnecessary to resolve the case; once the LCM Provisions were held unconstitutional under the Second Amendment, the Takings analysis became nonessential to the judgment.

V. Conclusion

The en banc Third Circuit held that New Jersey’s Assault Firearm Provisions are unconstitutional as applied to the class of semi-automatic rifles and that New Jersey’s >10-round magazine restrictions violate the Second Amendment. The opinion’s most durable doctrinal contributions are (i) its treatment of “common use” as a step-two consideration tied to the “how” of a regulation’s burden, (ii) its insistence that licensing and exemptions cannot mask a de facto ban on a class of arms in common use for lawful purposes, and (iii) its application of Founding-era primacy under Lara v. Commissioner Pennsylvania State Police to discount late-developed analogues. Substantial questions remain for remand regarding other firearms covered by the “assault firearm” definition, and the multiple concurrences and dissents underscore both the methodological stakes and the likelihood of near-term Supreme Court clarification.