An en banc panel of Third Circuit judges heard oral arguments on Wednesday morning in two cases challenging New Jersey’s ban on so-called assault weapons and large capacity magazines. A district court judge declared that the ban violates the Second Amendment, at least as it applies to the Colt AR-15, but inexplicitly declined to apply that same logic to other so-called assault weapons.
During today’s oral arguments, the judges seemed to wrestle with what makes an arm “in common use.” Is iti just a numbers game, or is there another way to figure out whether an arm is commonly owned for lawful purposes?
One judge asks if there’s a historic connection between guns used “to the terror of the people” and being considered “dangerous and unusual”
The plaintiffs say they don’t see one because it would give people a heckler’s veto over which guns are protected
— Firearms Policy Coalition (@gunpolicy) October 15, 2025
Judge Bibas says there’s only 100,000 machine guns. If they use this test, would machine guns be next? We say that whether the people consider this dangerous and unusual is a factor, and mention how full-auto guns are very different than the semi-auto guns in this case.
— Firearms Policy Coalition (@gunpolicy) October 15, 2025
New Jersey’s attorney contends that, regardless of the difference between semi-auto and full auto, deciding that semi-automatic long guns are in common use for lawful purposes would inevitably open the door to legalizing machineguns. It’s ironic that gun control activists chide Second Amendment supporters for being concerned about a slippery slope, but that’s exactly the position that New Jersey is taking here.
New Jersey also contends that, despite the Supreme Court’s statements about arms that are in common use for “lawful purposes”, the only purpose that matters is how common a particular arm is used in self-defense. By that metric, commonly owned hunting rifles, pistols used in competitive shooting, and the single-shot .22 Crickett rifle I used to teach my kids how to be safe and responsible shooters could all be banned without violating the right to keep and bear arms; an absolutely absurd argument, but not the only absurdity put forth by New Jersey.
The judge asks NJ: Can you trace the “unusually dangerous” language to any Supreme Court Cases? Is “dangerous and unusual” and “dangerous or unusual” the same thing? NJ says yes.
— Firearms Policy Coalition (@gunpolicy) October 15, 2025
The phrase “unusually dangerous” appears nowhere in the Heller, McDonald, and Bruen decisions, so of course New Jersey couldn’t trace that phrase back to SCOTUS. That phrase is as meaningless as “assault weapon”, frankly. Can New Jersey define what is a “usual” level of danger when it comes to bearable arms?
That phrase appears to have been created out of thin air by judges in order to uphold bans on modern sporting rifles so they can claim that arms that are owned by millions of Americans for lawful purposes somehow fall beyond the scope of the Second Amendment’s protections.
NJ says that under a “dangerous or unusual” test, it could ban all new models of guns. An interesting argument considering California’s handgun roster
— Firearms Policy Coalition (@gunpolicy) October 15, 2025
It’s not “dangerous or unusual” anymore than it’s “unusually dangerous.” The Supreme Court has said that arms that are “dangerous and unusual” may fall outside the scope of the Second Amendment. But New Jersey’s argument also shows yet again that the anti-gunners will try to ban specific makes and models of firearms if they can’t ban an entire category of bearable arms, which is exactly what California is doing with its Glock ban (and handgun roster).
I didn’t have an opportunity to listen to the oral arguments in their entirety, but Second Amendment Foundation Director of Legal Research and Education Kostas Moros did, and came away feeling good about the outcome.
You can read through the whole live thread from today’s en banc oral arguments on New Jersey’s AWB and magazine laws here.
As for predictions (with the usual asterisk that oral arguments can be misleading): I think we are finally getting our circuit split. The judges appeared… https://t.co/jKHlMYN2Nb
— Kostas Moros (@MorosKostas) October 15, 2025
If Moros is right, then maybe the Supreme Court will take up an AWB case “in a term or two,” as Justice Brett Kavanaugh suggested after the Snope case was denied earlier this year. There’s no deadline for the Third Circuit to release its opinion, and we’ve seen some appellate courts take well over a year before ruling on similar challenges, but if the appellate court acts reasonably quickly then a decision could come down early next year and a cert petition filed shortly after… though if New Jersey loses it will be interesting to see if the gun control lobby pressures Attorney General Matthew Platkin to take the loss and keep the case away from SCOTUS, as they did when Illinois lost its bid to completely ban bearing arms in self-defense more than a decade ago.
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