Yesterday the en banc Third Circuit ruled (in Association of New Jersey Rifle and Pistol Clubs v. Attorney General) that New Jersey’s ban on so-called “assault firearms” and its restrictions on possession of “large capacity ammunition magazines” (LCMs) violate the Second Amendment. Judge Arianna J. Freeman, appointed by Joe Biden in 2022, wrote the impressive majority opinion for eight judges. (Or perhaps I should say for ten judges, since a ninth states that she “fully support[s] the majority opinion” and a tenth that he joins the majority opinion “in nearly every respect.”) Five judges dissented.
I am not going to summarize the 192 pages of opinions here. I’ll make just a few observations:
1. In addition to composing a powerful 60-page opinion, Judge Freeman demonstrated real courage in departing from the Left’s tenaciously held party line against Second Amendment rights. She could easily have voted to defer ruling on the matter on the ground that the issue will be decided by the Supreme Court next term (in the consolidated cases of Viramontes v. Cook County and Grant v. Higgins). But she refused to take that path.
Freeman also might have gone no further than to affirm the district court’s ruling that New Jersey’s ban on Colt AR-45s violates the Second Amendment. But she instead determined that “the record supports the same result for all semi-automatic rifles,” so she broadened the district court’s order to cover all semi-automatic rifles covered by the New Jersey ban. In concluding that the LCM restrictions violate the Second Amendment, she also rejected the district court’s conclusion.
As a young (47 or 48 years old) African American appellate judge with a Yale law school pedigree, Freeman has been touted as a strong candidate for a Supreme Court nomination by the next Democrat president. As Freeman surely knew, her ruling has destroyed her chances of ever being nominated to the Court. The Left is livid over the ruling, and its anger is intensified by Freeman’s lead role in it.
According to New Jersey attorney general Jennifer Davenport, who called the ruling “as unfortunate as it is legally incorrect,” “every other federal circuit court to consider the issue has come out the other way.” Any effort to depict the Second Amendment argument against bans on “assault firearms” as extreme is severely undercut not just by Freeman’s opinion but by who she is.
2. Judge Tamika Montgomery-Reeves, who joined Freeman’s opinion, likewise deserves special credit for courage. Judge Montgomery-Reeves is also young (45 or so), African American, and a Biden appointee. She too has forfeited her prospects of ever being nominated to the Supreme Court.
As she spells out in her concurring opinion, Montgomery-Reeves would actually have preferred to wait for the Supreme Court to rule: “I see little reason to decide this case now and get out in front of the Supreme Court.” She could easily have dissented on that ground. But because the majority concluded that it should decide the case, she instead “agree[d] with the majority’s well-reasoned opinion because current Supreme Court precedent dictates that outcome.”
3. On a related note: A few days ago, Linda Greenhouse wrote a New York Times op-ed on the Supreme Court’s Second Amendment decisions titled “Are We Still Supposed to Take This Conservative Legal Theory Seriously?” I usually find Greenhouse’s writing easy to understand, even if wrong-headed. I tried to read this one a few times but couldn’t make any sense of it overall.
Toward the end, Greenhouse approvingly quotes Justice Ketanji Brown Jackson’s assertion that Bruen’s “history and tradition” test is “unworkable.” But Freeman, Montgomery-Reeves, and the other Third Circuit judges in the majority certainly didn’t find it to be.
Greenhouse then discusses the Supreme Court’s upcoming case on “assault weapons bans” and observes that “Every federal appeals court to have reviewed such a law” agrees that the Second Amendment permits it. No longer true, after yesterday’s ruling. Greenhouse also charges that if the Supreme Court strikes down the law, “the result will not be simply a failure of constitutional method” (whatever that means) but also “a failure of democracy” (whatever that means).