PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-3142

_____________

ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL 

CLUBS INC; 

BLAKE ELLMAN; ALEXANDER DEMBOWSKI, 

Appellants

v.

ATTORNEY GENERAL NEW JERSEY; 

SUPERINTENDENT NEW JERSEY STATE POLICE; 

THOMAS WILLIVER, in his official capacity as 

Chief of Police of the Chester Police Department; 

JAMES B. O’CONNOR, in his official capacity as

Chief of Police of the Lyndhurst Police Department 

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-18-cv-10507)

District Judge: Hon. Peter G. Sheridan

_______________

Argued

June 16, 2020

Before: JORDAN, MATEY and ROTH, Circuit Judges.
2

(Filed: September 1, 2020)

_______________

Marc A. Nardone

John P. Sweeney [ARGUED]

Bradley Arant Boult Cummings

1615 L Street, NW – Suite 1350

Washington, DC 20036

James W. Porter, III

Bradley Arant Boult Cummings

1819 Fifth Avenue North

One Federal Place

Birmingham, AL 35203

Daniel L. Schmutter

Hartman & Winnicki

74 Passaic Street – Suite 101

Ridgewood, NJ 07650

 Counsel for Appellants

Joseph Fanaroff [ARGUED]

Stuart M. Feinblatt

Office of Attorney General of New Jersey

 Division of Law

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625
3

Jeremy Feigenbaum

Office of Attorney General of New Jersey

 Division of Criminal Justice

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Bryan E. Lucas

Evan A. Showell

Office of Attorney General of New Jersey

124 Halsey Street

P.O. Box 45029

Newark, NJ 07102

 Counsel for Appellees, Attorney General New Jersey,

 and Superintendent New Jersey State Police

George C. Jones

John H. Suminski

McElroy Deutsch Mulvaney & Carpenter

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962

 Counsel for Appellee, Thomas Williver

Carmine Richard Alampi

Jennifer Alampi

Alampi & Demarrais

One University Plaza – Suite 404

Hackensack, NJ 07601

 Counsel for Appellee, James B. O’Connor
4

Joseph G.S. Greenlee

Firearms Policy Coalition

1215 K Street – 17th Floor

Sacramento, CA 95814

 Counsel for Amicus Appellants

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

We are asked to determine whether a New Jersey statute

that makes it illegal to possess large capacity magazines

(“LCMs”) – defined as magazines capable of holding more 

than ten rounds of ammunition – violates the Second 

Amendment, the Fifth Amendment’s Takings Clause, or the 

Fourteenth Amendment’s Equal Protection Clause. But we 

cannot answer that question, since it has already been 

answered. A prior panel of our court reviewed that statute, 

known as Assembly Bill No. 2761 and codified at N.J. Stat. 

Ann. § 2C:39-1 (“the Act”), on appeal from an earlier order of 

the District Court denying a preliminary injunction. It upheld 

the District Court’s order and, in doing so, went beyond simply

answering the question of the plaintiffs’ likelihood of success 

on the merits. It directly addressed the merits of the 

constitutionality of the Act, holding that the Act did not violate 

the Second, Fifth, or Fourteenth Amendments. 

On remand, the District Court ruled on summary 

judgment that it was bound by that earlier decision and so 

upheld the constitutionality of the Act. The plaintiffs have now

appealed again, arguing that the District Court erred in treating 
5

the prior panel’s opinion as binding and arguing again that the 

Act is unconstitutional. Because they are wrong on the first 

point, we do not reach the second. We will affirm.

I. BACKGROUND

In 2018, New Jersey enacted Assembly Bill No. 2761, 

a law making it illegal to possess a magazine capable of 

holding more than ten rounds of ammunition. N.J. Stat. Ann. 

§ 2C:39-1(y), 2C:39-3(j). Prior to that, it had been illegal in 

New Jersey to possess magazines capable of holding more than 

15 rounds of ammunition. Owners of LCMs had several 

options for complying with the new Act: 

Specifically, the legislation g[ave] LCM owners 

until December 10, 2018 to (1) modify their 

LCMs “to accept ten rounds or less,” id. at 

2C:39-19(b); (2) render firearms with LCMs or 

the LCM itself inoperable, id.; (3) register 

firearms with LCMs that c[ould not] be 

“modified to accommodate ten or less 

rounds,” id. at 2C:39-20(a); (4) transfer the 

firearm or LCM to an individual or entity entitled 

to own or possess it, id. at 2C:39-19(a); or (5) 

surrender the firearm or LCM to law 

enforcement, id. at 2C:39-19(c).

Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney Gen. of N.J., 

910 F.3d 106, 111 (3d Cir. 2018) (“Prior Panel Opinion”)

(footnote omitted). The statute exempts active military 
6

members and active and retired law enforcement officers. N.J. 

Stat. Ann. § 2C:39-3(g), 2C:39-17.

On the day the bill was signed into law, the plaintiffs 

filed this action,1 naming certain state and local law 

enforcement officials as defendants. (For ease of reference, we 

refer to the defendants collectively as “the State.”) The 

complaint alleges that the Act violates the Second Amendment, 

the Fifth Amendment’s Takings Clause, and the Fourteenth 

Amendment’s Equal Protection Clause. Prior Panel Opinion, 

910 F.3d at 111. With their complaint, the plaintiffs also filed 

a motion for a preliminary injunction. Ass’n of N.J. Rifle & 

Pistol Clubs, Inc. v. Grewal, No. 3:18-cv-10507 (PGS) (LHG), 

2018 WL 4688345, at *1 (D.N.J. Sept. 28, 2018) (“Preliminary 

Injunction Opinion”). 

The District Court held a three-day hearing on the

motion, during which the parties presented conflicting expert 

testimony on the use of LCMs in mass shootings, including the 

number of casualties involved and whether the Act would save 

lives during a mass shooting by forcing the shooter to pause 

1 The plaintiffs are the Association of New Jersey Rifle 

and Pistol Clubs, Inc. (“ANJRPC”), Blake Ellman, and 

Alexander Dembowski. ANJRPC is “an eighty-year old 

membership organization, representing tens of thousands of 

members, many of whom possess large capacity magazines for 

self-defense.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. 

Grewal, No. 3:18-cv-10507 (PGS) (LHG), 2018 WL 4688345, 

at *2 (D.N.J. Sept. 28, 2018). Ellman and Dembowski are 

members of ANJRPC who possess LCMs. Id. The plaintiffs’ 

standing is not in question.
7

and reload ammunition, thus allowing individuals time to 

escape or subdue the shooter. Id. at *4-8. The Court also heard 

testimony on whether LCMs are used in self-defense. Id. To 

distinguish law enforcement officers from the general public, 

the State offered expert testimony that both active and retired 

police officers who possess firearms are required to pass a 

qualification course bi-annually, using a weapon equipped 

with a 15-round magazine. Id. at *5. Ultimately, the District 

Court denied the preliminary injunction, remarking that “the 

expert testimony [wa]s of little help in its analysis.” Id. at *8. 

In rejecting the plaintiffs’ contention that the Act 

violated the Second Amendment, the District Court applied the 

two-step analytical approach we set out in United States v. 

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). Preliminary 

Injunction Opinion, 2018 WL 4688345, at *9. Marzzarella

requires a court to ask first whether the challenged law imposes 

a burden on conduct falling within the scope of the Second 

Amendment’s guarantee of the right to bear arms. If it does, the 

second step is to evaluate that law under some form of 

heightened scrutiny.

2

 614 F.3d at 89. The level of scrutiny to

2 There are three levels of scrutiny: rational basis 

review, intermediate scrutiny, and strict scrutiny. In Binderup 

v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), we 

explained the three levels of scrutiny by saying:

Depending on the importance of the rights 

involved and the nature of the burden on them, a 

law’s purpose may need to be only legitimate and 

the means to achieve it rational (called rational 

basis scrutiny); the purpose may need to be 

important and the means to achieve it 

substantially related (called intermediate 
8

be applied is determined by whether the law burdens the core of 

the Second Amendment guarantee. Id. The “core ... [of] the 

Second Amendment protects the right of law-abiding citizens to 

possess non-dangerous weapons for self-defense in the home.” 

Id. at 92. See also District of Columbia v. Heller, 554 U.S. 570,

635 (2008) (explaining that the Second Amendment “elevates 

above all other interests the right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.”). Laws that 

do burden that core receive strict scrutiny, whereas those that 

do not burden it receive intermediate scrutiny. Marzzarella, 

614 F.3d at 89, 96-97. 

The District Court concluded that the New Jersey Act 

imposes a burden on the Second Amendment because 

magazines, including LCMs, are integral components of guns. 

Preliminary Injunction Opinion, 2018 WL 4688345, at *9-11. 

Having answered the step-one question from Marzzarella, the 

Court proceeded to the second step and determined that the law 

should be evaluated under intermediate scrutiny because the

core of the Second Amendment right to keep and bear arms is 

not burdened by the Act. As the Court saw it, the Act “does not 

prohibit the possession of the quintessential self-defense 

weapon, the handgun,” nor does it “effectively disarm 

individuals or substantially affect their ability to defend 

scrutiny); or the purpose may need to be 

compelling and the means to achieve it narrowly 

tailored, that is, the least restrictive (called strict 

scrutiny). The latter two tests we refer to 

collectively as heightened scrutiny to distinguish 

them from the easily met rational basis test.

836 F.3d at 341.
9

themselves.” Id. at *12 (internal quotation marks and citation 

omitted).

Then, applying intermediate scrutiny, the District Court 

upheld the Act. Id. at *12-13. Intermediate scrutiny requires 

the government to prove that the objective of the government

regulation is “significant, substantial, or important[,]” and that 

“the fit between the challenged regulation and the asserted 

objective [is] reasonable[.]” Marzzarella, 614 F.3d at 98 

(internal quotation marks omitted). “The regulation need not

be the least restrictive means of serving the interest, but may

not burden more [conduct] than is reasonably necessary.” Id.

(citations omitted). The District Court concluded that New 

Jersey has a significant, substantial, and important interest in 

the safety of its citizens. Preliminary Injunction Opinion, 2018 

WL 4688345, at *12. While the Court did not make a 

definitive finding that the Act will significantly reduce 

casualties in a mass shooting by limiting the number of shots 

that can be fired from a single gun, it did decide that there was 

a reasonable fit between the Act and its stated object. It said,

“the expert testimony established that there is some delay 

associated with reloading, which may provide an opportunity 

for potential victims to escape or for a bystander to intercede 

and somehow stop a shooter.” Id. at *12. Finally, the Court 

concluded that the Act places a minimal burden on lawful gun 

owners because it does not impose a restriction on the number 

of magazines an individual may own and instead limits only

the lawful capacity of a single magazine. Id. at *13. 

The District Court also rejected the plaintiffs’ Fifth and 

Fourteenth Amendment claims. It concluded that there had 

been no taking of property in violation of the Fifth Amendment 

because the Act allows for gun owners to permanently modify 
10

their magazines to accept ten rounds, and, if those magazines 

or guns cannot be modified, they can be kept as long as the 

owner registers them. Id. at *16. As to the plaintiffs’ argument 

that the Act violates the Fourteenth Amendment’s Equal 

Protection clause because it treats active and retired law 

enforcement officers differently than other individuals, the 

District Court concluded that law enforcement officers are not 

similarly situated to other New Jersey citizens for a number of 

reasons.3 Officers are required to pass gun safety

requalification tests, which are not required of other 

individuals; officers have “an unusual ethos of public service 

... and are expected to act in the public’s interest[;]” and 

“retired police officers face special threats that private citizens 

do not[.]” Id. at *14 (internal quotation marks and citations 

omitted). 

Dissatisfied with the denial of their motion for a 

preliminary injunction, the plaintiffs appealed, but a divided 

panel of our Court affirmed. Prior Panel Opinion, 910 F.3d at 

110. The panel announced its holding in these straightforward 

words: “Today we address whether [the Act] violates the 

Second Amendment, the Fifth Amendment’s Takings Clause, 

and the Fourteenth Amendment’s Equal Protection Clause. 

We conclude that it does not.” Id. While the panel explained 

3 The plaintiffs did not argue that the Act’s exemption 

for active military personnel violates the Equal Protection 

Clause but did argue that there was disparate treatment 

between retired police officers and military veterans. The 

Court rejected that, saying, “there is no evidence to suggest that 

military veterans receive equivalent training [to law 

enforcement officers].” Preliminary Injunction Opinion, 2018 

WL 4688345, at *14.
11

that its task was to “decide whether Plaintiffs have a reasonable 

probability of showing that the Act violates [these 

constitutional rights,]” id. at 115, it nevertheless immediately 

went beyond that task, reached the merits, and determined that 

the Act withstands the plaintiffs’ constitutional challenge. 

Addressing the Second Amendment claim, the panel

applied the analytical approach from Marzzarella, as had the 

District Court. Id. at 116-24. First, it assumed without 

deciding that LCMs are “typically possessed by law-abiding 

citizens for lawful purposes and that they are entitled to Second 

Amendment protection.” Id. at 117. It then turned to the 

second step of Marzzarella and determined that intermediate 

scrutiny should apply because the Act does not burden the core 

Second Amendment guarantee, for five reasons: (1) it does not 

categorically ban a class of firearms but is rather a ban on a 

subset of magazines; (2) it is not a prohibition of a class of arms 

overwhelmingly chosen by Americans for self-defense in the 

home; (3) it does not disarm or substantially affect Americans’ 

ability to defend themselves; (4) New Jersey residents can still 

possess and use magazines, just with fewer rounds; and (5) “it 

cannot be the case that possession of a firearm in the home for 

self-defense is a protected form of possession under all 

circumstances. By this rationale, any type of firearm possessed 

in the home would be protected merely because it could be 

used for self-defense.” Id. at 117-18 (citations and internal 

quotation marks omitted).

The panel also agreed with the District Court that the 

Act survives intermediate scrutiny. It recognized New Jersey’s 

significant, substantial, and important interest in protecting its 

citizens’ safety. Id. at 119. And, the panel said, the Act 

reasonably fits the State’s interest because, by reducing the 
12

number of shots that can be fired from one gun, victims will be 

able to flee, bystanders to intervene, and numerous injuries will 

be avoided in a mass shooting incident. Id. at 119. The panel

further decided that the Act did not burden more conduct than 

is reasonably necessary because it imposes no limit on the 

number of firearms, magazines, or ammunition an individual 

may possess, and there is no record evidence that LCMs are 

“well-suited or safe for self-defense.” Id. at 122. The panel

also rejected the plaintiffs’ Fifth Amendment and Equal 

Protection Clause claims, for the same reasons as did the 

District Court. Id. at 124-26. 

In ruling for the State, the panel’s decision was in line 

with the decisions of at least four other circuits that have 

decided that laws regulating LCMs are constitutional. See 

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) 

(affirming grant of summary judgment upholding Maryland’s 

ten round limit); N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 

F.3d 242 (2d Cir. 2015) (upholding, on review from summary 

judgment, New York and Connecticut’s laws imposing a ten 

round limit); Friedman v. City of Highland Park, Illinois, 784 

F.3d 406 (7th Cir. 2015) (affirming grant of summary 

judgment upholding City of Highland Park’s ten round limit); 

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) 

(“Heller II”) (affirming grant of summary judgment upholding 

D.C.’s ten round limit).4

4 Since the prior panel opinion was issued, the First 

Circuit has also concluded that Massachusetts’s ten round limit 

is constitutional. See Worman v. Healey, 922 F.3d 26 (1st Cir. 

2019) (affirming grant of summary judgment upholding 

Massachusetts ten round limit). The Ninth Circuit, however, 

has very recently held that California’s ban on LCMs of more 
13

The decision was not, however, unanimous. The 

dissenting member of the panel said that, in two ways, the 

majority treated the Second Amendment differently from other 

parts of the Bill of Rights: first, the majority weighed the merits 

of the case in order to pick a tier of scrutiny, and second, the 

majority, while purporting to use intermediate scrutiny, 

actually applied rational basis review. Id. at 126 (Bibas, J., 

dissenting). Among other things, the dissent was concerned 

that the majority failed to demand actual proof to justify the 

State’s regulation, as heightened scrutiny demands in other 

contexts, and that the majority had likewise failed to put the 

burden of proof on the State to demonstrate that the regulation 

was sufficiently tailored. Id. 

When the case was remanded to the District Court, the 

parties promptly filed cross-motions for summary judgment, 

and the State’s motion won. Although the Court recognized that 

different standards apply at the summary judgment stage than 

at the preliminary injunction stage, it said that it was granting 

summary judgment because “the Third Circuit has issued a 

precedential decision that resolves all legal issues in this case 

and there remains no genuine disputes of material fact.” (App. 

at 8.) The District Court noted that the prior panel opinion said

the Act does not violate the Second, Fifth, or Fourteenth 

Amendments, so there was “binding Third Circuit precedent 

that the New Jersey law is constitutional[.]” (App. at 8-9.)

than ten rounds is unconstitutional under either strict scrutiny 

or intermediate scrutiny. Duncan v. Becerra, --- F.3d ---, No. 

, 2020 WL 4730668, at *25 (9th Cir. Aug. 14, 2020).
14

This timely appeal followed. 

II. DISCUSSION5

“It is the tradition of this court that the holding of a panel 

in a precedential opinion is binding on subsequent panels.” (3d 

Cir. I.O.P 9.1.) The plaintiffs argue, however, that we are not 

under that restriction here, for two reasons. First, they contend 

the outcome can differ here because this appeal arises in a 

different procedural posture than did the earlier one, with

different standards and different inferences in play. Second, 

they say that the prior panel decision was clearly wrong and 

should be disregarded, to prevent manifest injustice. Neither

argument succeeds.

True enough, the standards for obtaining a preliminary 

injunction and summary judgment are different. Under the 

well-known standard for obtaining a preliminary injunction, 

the moving party must show “both a likelihood of success on 

the merits and a probability of irreparable harm. Additionally, 

the district court should consider the effect of the issuance of a 

preliminary injunction on other interested persons and the 

public interest.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 

1172, 1175 (3d Cir. 1990) (citations omitted). On summary 

judgment, by contrast, the moving party must establish that 

“there is not a genuine dispute with respect to a material fact 

5 The District Court had jurisdiction under 28 U.S.C. 

§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. “It 

is well established that we employ a plenary standard in 

reviewing orders entered on motions for summary judgment,

applying the same standard as the district court.” Blunt v. 

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
15

and thus the moving party is entitled to judgment as a matter 

of law.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 

(3d Cir. 2014). Our standards of review are also different. We 

will affirm a district court’s order on a preliminary injunction, 

“unless the court abused its discretion, committed an obvious 

error of law, or made a serious mistake in considering the 

proof.” Bradley, 910 F.2d at 1175. On the other hand, we

exercise plenary review over an order on summary judgment. 

Blunt, 767 F.3d at 265.

But despite the differing standards pertaining to the 

differing procedural postures, a panel of our Court reviewing a 

decision on a preliminary injunction motion can indeed bind a 

subsequent panel reviewing an appeal from an order on 

summary judgment. As then-Judge Alito explained in Pitt 

News v. Pappert, 379 F.3d 96 (3d Cir. 2004), 

although a panel entertaining a preliminary 

injunction appeal generally decides only whether 

the district court abused its discretion in ruling 

on the request for relief and generally does not 

go into the merits any farther than is necessary to 

determine whether the moving party established 

a likelihood of success, a panel is not always 

required to take this narrow approach. If a 

preliminary injunction appeal presents a question 

of law and the facts are established or of no 

controlling relevance, the panel may decide the 

merits of the claim.

Id. at 105 (internal quotation marks and citations omitted). 

Thus, “[i]n the typical situation—where the prior panel stopped 

at the question of likelihood of success—the prior panel’s legal 
16

analysis must be carefully considered, but it is not binding on 

the later panel.” Id. “On the other hand, if the first panel does 

not stop at the question of likelihood of success and instead 

addresses the merits, the later panel, in accordance with our 

Court’s traditional practice, should regard itself as bound by 

the prior panel opinion.”6 Id. “We have recognized, however, 

that reconsideration is justified in extraordinary circumstances 

such as where: (1) there has been an intervening change in the 

law; (2) new evidence has become available; or (3) 

reconsideration is necessary to prevent clear error or a manifest 

6 There are sound reasons why a panel reviewing a 

ruling on a preliminary injunction should focus on the question 

of likelihood of success on the merits rather than reaching the 

merits of the claim before them. Given the already-mentioned 

different standards on a motion for preliminary injunction and 

motion for summary judgment and our different standards of 

review, going to the merits on a preliminary record, under 

hurried circumstances, can lead to premature and less informed 

decisions. On review at the preliminary injunction stage, a 

panel may conclude that the district court did not abuse its 

discretion or commit obvious errors of law or serious mistakes 

in its findings of fact. But a subsequent panel reviewing an 

order on summary judgment may, in its plenary review of the 

record, identify errors the district court committed that, while 

not obvious or serious, impact the analysis or outcome of a 

case. We therefore make it a general practice to proceed 

cautiously, to avoid ending a case on review from a preliminary 

injunction when the record could be more developed on 

summary judgment and we can conduct a plenary review of 

that record. 
17

injustice.” Council of Alt. Political Parties v. Hooks, 179 F.3d 

64, 69 (3d Cir. 1999). 

Here, the prior panel’s opinion immediately went 

beyond the question of likelihood of success and declared a 

holding on the merits. Again, it held very plainly that the Act 

does not violate the Second Amendment, the Fifth 

Amendment’s Takings Clause, and the Fourteenth 

Amendment’s Equal Protection Clause. Prior Panel Opinion, 

910 F.3d at 110. In short, it addressed the ultimate merits of 

the dispute, as the plaintiffs rightly admit.

7

 (Oral Arg. At 2:02-

40, https://www2.ca3.uscourts.gov/oralargument/audio/19-

3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.) And the 

panel did so primarily on the basis of facts that are 

uncontested.8

 

7 See Prior Panel Opinion, 910 F.3d at 122 (“[W]e hold 

that laws restricting magazine capacity to ten rounds of 

ammunition do not violate the Second Amendment.”); id. at 

125 (“In short, the Act does not result in a taking.”); id. at 126 

(“[R]etired law enforcement officers are not similarly situated 

to retired military personnel and ordinary citizens, and 

therefore their exemption from the LCM ban does not violate 

the Equal Protection Clause.”). 

8 The case-determinative facts here centered on 

reloading. The District Court’s conclusion that the Act 

survived intermediate scrutiny relied on its finding that “there 

is some delay associated with reloading, which may provide an 

opportunity for potential victims to escape or for a bystander 

to intercede[.]” Preliminary Injunction Opinion, 2018 WL 

4688345, at *12. The prior panel also relied heavily on that 

finding. Prior Panel Opinion, 910 F.3d at 119-20. The 
18

To avoid the conclusion that the law of the case has been 

set and a precedent established,9 the plaintiffs do not argue that 

there has been an intervening change in the law or the 

discovery of new evidence, but they do point out an intervening 

procedural step in our Court. They note that the State asked a 

motions panel of our Court to summarily affirm the District 

Court’s grant of summary judgment on remand but that the 

motions panel denied that request. According to the plaintiffs, 

that means “the motions panel necessarily rejected [the State’s] 

argument that the prior merits panel’s denial of a preliminary 

injunction binds the outcome of this appeal.” (Reply Br. at 2.) 

Not so. According to our Internal Operating 

Procedures, we “may take summary action ... if it clearly 

appears that no substantial question is presented or that 

subsequent precedent or a change in circumstances warrants 

such action.” (3d Cir. I.O.P 10.6 (emphasis added)). Thus, 

although we may choose to summarily affirm, a decision of a 

motions panel declining to affirm is not the same as a

plaintiffs’ own witness before the District Court acknowledged 

that there would be some pause while a shooter reloaded. 

Preliminary Injunction Opinion, 2018 WL 4688345, at *6-7. 

And, on appeal, the plaintiffs have presented only legal, not 

factual, arguments.

9 We have explained that “[u]nder the law of the case 

doctrine, once an issue is decided, it will not be relitigated in 

the same case, except in unusual circumstances.” Hayman 

Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982). 

Thus, the prior panel’s opinion is both the law of the case and 

binding precedent.
19

determination that there is a substantial question left in the

case. It often means nothing more than that the presentation

made by motion has left that particular motions panel 

wondering whether there is a substantial question. 

Moreover, we do not afford the same deference to 

decisions made by a motions panel that we afford to opinions 

by a merits panel. Although “a merits panel does not lightly 

overturn a decision made by a motions panel during the course 

of the same appeal, we do not apply the law of the case doctrine 

as strictly in that instance as we do when a second merits panel 

is asked to reconsider a decision reached by the first merits 

panel on an earlier appeal.” Council Tree Commc’ns, Inc. v. 

FCC, 503 F.3d 284, 292 (3d Cir. 2007). That is in part because 

litigants can seek en banc review and review by certiorari of 

merits panel decisions but do not have similar opportunities 

with respect to a motions panel decision. Id. at 291-92. Here, 

the order denying the motion for summary affirmance does not 

explain why the motion was being denied. Thus, even if the 

decisions of the merits panel and the motions panel were in

conflict (which they are not), the merits panel is the one owed 

deference.

The plaintiffs next argue that we need not follow the 

prior panel’s decision because it is clearly wrong and would 

work a manifest injustice. The burden that accompanies that 

contention is heavy. The plaintiffs must “persuade us not only 

that our prior decision was wrong, but that it was clearly 

wrong[.]” See In re City of Phila. Litig., 158 F.3d 711, 720-21 

(3d Cir. 1998) (emphasis added). Similarly, a manifest 

injustice occurs only when there is “direct, obvious, and 

observable error[.]” Manifest Injustice, Black’s Law 

Dictionary (11th ed. 2019). “The law of the case will be 
20

disregarded only when the court has a clear conviction of 

error[.]” Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) 

(internal quotation marks and citation omitted). “Mere doubt 

on our part is not enough to open the point for full 

reconsideration.” Id. (internal quotation marks omitted). 

There is certainly room for vigorous debate about the 

prior decision. The thorough dissent shows that. But whether 

we agree with the majority’s opinion or not, we cannot say that 

it is clearly wrong or manifestly unjust. Even if we ignore that

many other circuit courts have reached the same conclusion as 

the prior panel, with respect to very similar laws, there is

evident in the prior panel’s work thoughtful consideration of 

the record and the relevant legal principles. Whether the prior 

panel ultimately got things wrong is not the question now. The 

question is whether it went so far astray that its decision can be 

called clearly wrong and manifestly unjust. The answer to that 

is no. We are therefore bound to respect the decision rendered 

by the prior panel, which ends this appeal.10

10 The dissent concludes that the law of the case doctrine 

does not bar our consideration of the merits of the parties’ 

dispute, for two reasons: first, the prior panel assumed without 

deciding that magazines holding more than ten rounds are 

protected under the Second Amendment, and, second, the prior 

panel was imprecise and interchangeably used the terms 

“magazines,” “LCMs,” and “large capacity magazines” to refer 

to magazines of different capacities and to magazines and 

firearms with different capabilities. In our view, neither of 

those considerations affects whether we are bound by the prior 

panel’s decision. Even though the prior panel assumed without 

deciding that magazines holding more than ten rounds are 

protected under the Second Amendment, that assumption did 
21

III. CONCLUSION

For the foregoing reasons, we will affirm the District 

Court’s grant of summary judgment in favor of the State and 

its denial of the plaintiffs’ cross-motion for summary 

judgment.

 

not leave the parties’ rights unsettled. That assumption was in 

plaintiffs’ favor, and, under that assumption, the prior panel 

clearly held that the Act does not violate the Second 

Amendment. That holding settled the parties’ 

rights. Similarly, the prior panel’s language describing 

magazines, even if not as precise as our dissenting colleague 

would like, does not, in our opinion, create anything that we 

can call clear error or manifest injustice and thus that would 

permit us to disregard the prior panel’s case dispositive 

holdings and reach the merits afresh.
1

MATEY, Circuit Judge, dissenting.

The majority concludes that a prudential principle bars 

our consideration of the meaning of the Constitution. But 

“[t]he interpretation of the laws is the proper and peculiar 

province of the courts,” The Federalist No. 78, at 525 

(Alexander Hamilton) (J. Cooke ed., 1961), and a judicially 

created tool for case management does not, in my opinion, 

supersede the expectation that the judiciary will decide cases 

and controversies arising under the Constitution. No doubt, 

there are rational reasons behind the “law-of-the-case 

doctrine.” Allowing courts to repeatedly consider questions 

already decided would undermine the stability and 

predictability of the law. In contrast, where issues remain 

undecided, or the assumptions underlying those decisions are 

unclear, then the opposite conclusion holds. And in such cases, 

the twin aims of finality—constancy and certainty—do not 

support limiting the judicial power granted in the Constitution 

and extended by Congress. 

This case, in my view, is an example of the latter

category for two reasons. First, in Association of New Jersey 

Rifle and Pistol Clubs, Inc. v. Attorney General of New Jersey, 

910 F.3d 106 (3d Cir. 2018) (“NJ Rifle I”),1the panel did not 

decide whether all “magazines” enjoy the guarantee of the 

Second Amendment under United States v. Marzzarella, 614 

F.3d 85 (3d Cir. 2010); and second, the decision did not define 

what constitutes a “large capacity magazine.” Because both 

issues are central to the resolution of this case, I would decline 

to apply the law-of-the-case doctrine and would consider the

issues raised by the appellant. Doing so, I would reverse the 

1 For convenience, I sometimes refer to the NJ Rifle I 

panel as “the prior panel.”
2

order of the District Court and remand this matter to permit the 

State to provide evidence that N.J. Stat. Ann. § 2C:39-1(y) 

(“New Jersey Magazine Act” or “the Act”) is narrowly tailored 

to advance the State’s interests. 

Finally, given the difficulty applying our existing 

framework in cases implicating the Second Amendment—

illustrated by the deeply reasoned, but still deeply divergent 

opinions in NJ Rifle I—I believe we should reconsider our 

decision in Marzzarella in favor of a standard that draws on the 

text, history, and original meaning of the constitutional 

guarantee of “the right of the people to keep and bear Arms.”

U.S. Const. amend. II.

I. LAW-OF-THE-CASE DOCTRINE

A. Background

Under the law-of-the-case doctrine, “one panel of an 

appellate court generally will not reconsider questions that 

another panel has decided on a prior appeal in the same case.” 

In re City of Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998).

The doctrine does not appear in statute. Instead, it is a 

prudential limitation that “directs courts to refrain from redeciding issues that were resolved earlier in the litigation.” 

Pub. Int. Rsch. Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 

123 F.3d 111, 116 (3d Cir. 1997). But “[t]he law of the case 

doctrine does not limit a federal court’s power; rather, it directs 

its exercise of discretion.” Id. It is, in short, a judicially created

self-direction on when to choose to limit further judicial 

review. And the reasoning is simple: declining to reconsider 

issues in the same case “promotes the finality and efficiency of 

the judicial process by protecting against the agitation of 

settled issues.” Christianson v. Colt Indus. Operating Corp., 
3

486 U.S. 800, 816 (1988) (internal quotation marks and 

citation omitted). So a “settled” issue is the key and, in this 

case, I do not find the rights of the parties settled.

B. The NJ Rifle I Decision

NJ Rifle I concluded that “laws restricting magazine 

capacity to ten rounds of ammunition do not violate the Second 

Amendment.”NJ Rifle I, 910 F.3d at 122. That conclusion rests

on assumptions about the scope of the constitutional right to 

keep and bear arms, and the technical operation of self-loading 

firearms.

1. NJ Rifle I Did Not Decide That Magazines 

Holding More Than Ten Rounds Are Arms 

Protected under the Second Amendment

I start by asking what constitutional question NJ Rifle I 

answered. We know the Second Amendment confers “an 

individual right to keep and bear arms.” District of Columbia 

v. Heller, 554 U.S. 570, 595, 598, 622 (2008). We have also

read Heller to require “a two-pronged approach to Second 

Amendment challenges.” Marzzarella, 614 F.3d at 89. “First, 

we ask whether the challenged law imposes a burden on 

conduct falling within the scope of the Second Amendment’s 

guarantee.” Id. “If it does not, our inquiry is complete. If it 

does, we evaluate the law under some form of means-end 

scrutiny. If the law passes muster under that standard, it is 

constitutional. If it fails, it is invalid.” Id.

I do not read NJ Rifle I to have fully applied this 

framework. To begin, the majority opinion held that “a 

magazine is an arm under the Second Amendment.” NJ Rifle I, 

910 F.3d at 116. But it did not view “magazines” as the relevant 
4

“arm” regulated by New Jersey in the Act. Quite differently, 

the opinion focused on what it viewed as a narrower category 

of magazines called “Large Capacity Magazines” or “LCMs.” 

Id. at 116–17. And then, the opinion “assume[d] without

deciding that LCMs . . . are entitled to Second Amendment 

protection.” Id. at 117 (emphasis added). So are “LCMs” an 

“arm” under the Second Amendment? It is doubtful New 

Jersey thinks so. Indeed, when pressed at oral argument, the 

State declined to characterize NJ Rifle I as holding that such 

magazines enjoy constitutional protection.

2 That waffling is no 

small matter. It would of course be significant that some 

twenty-two million individuals residing in our Circuit are left 

to wonder whether they have, since the Founding, surrendered 

a fundamental right. But that unanswered question takes 

sharper focus when coupled with a second: what, exactly, is a 

“Large Capacity Magazine?”

2. NJ Rifle I’s Alternating Technical Definitions

Narrowing the issue presented from “magazines” to a 

specific kind of magazine appears, in my reading, to have 

obscured the reasoning in NJ Rifle I. Consider a few examples 

in which the terms “magazines,” “LCMs,” and “large capacity 

magazines” interchangeably refer to 1) magazines within the 

New Jersey Magazine Act because they can hold more than ten 

rounds of ammunition, id. at 110; 2) magazines subject to laws 

in other states limiting the amount of rounds of ammunition, 

id. at 110 n.1; 3) firearms with “combat-functional ends” 

capable of “rapidly” discharging ammunition, id. at 117 n.16; 

and 4) magazines used in fully-automatic firearms, id. at 119 

2

(Oral Arg. Tr. at 28:13, 

https://www2.ca3.uscourts.gov/oralargument/audio/19-

3142_AssnNJRiflePistolClubsv.AttyGenNJ.mp3.)
5

(citing NJ Rifle I App. at 1057, 1118–26). Each of these four 

concepts is different, yet they blend together throughout NJ 

Rifle I. For instance, early on the decision defines the term 

“LCM” to be coterminous with the object regulated by the New 

Jersey Magazine Act: magazines for semi-automatic firearms 

able to hold more than ten rounds of ammunition. Id. at 110 

(citing N.J. Stat. Ann. § 2C:39-1(y)). A few pages later, the 

opinion states that “LCMs are used in mass shootings,” citing 

portions of the record that describe a host of different types of 

firearms—repeaters, semi-automatic, and automatic—and 

various sizes of magazines used in both automatic and semiautomatic firearms. See id. at 119 (citing NJ Rifle I App. at 

1057 (defining “LCM firearms” to include “assault weapons” 

and “high-capacity semiautomatic firearms” and stating that 

those “LCMs” jointly “appear to account for 22 to 36% of gun

crimes in most places”); NJ Rifle I App. at 1118–26 (describing 

sixty-one mass shootings and the weapons used, including 

repeaters, semi-automatic firearms, and automatic firearms, 

along with magazines of varying capacities, ranging from 13-

round magazines to 100-round magazines)). So the reader is 

left with the impression that the “LCMs” regulated in New 

Jersey are the same devices involved in a host of criminal acts 

across the country. 

But they are not. Yet blending together this wide 

assortment of firearms and regulatory structures is critical to 

the prior panel’s conclusion that “[n]ot only will the LCM ban 

reduce the number of shots fired and the resulting harm, it will 

present opportunities for victims to flee and bystanders to 

intervene.” Id. at 119. I do not see how the current record 

supports that inference. At best, the record could be read to 

suggest that criminals use a variety of firearms to commit an 
6

array of violent acts some, all, or none of which are impacted

by the New Jersey Magazine Act. 

3. The Cumulative Result

It is the combination of these two unanswered questions 

that gives me greatest pause. The collective effect of declining 

to confirm that “large capacity magazines” enjoy constitutional 

protection while defining those same magazines to include 

sizes greater than the New Jersey Magazine Act allows leaves 

me unable to predict how the Second Amendment will apply 

in future cases. I do not believe the constitutional character of 

a “magazine” rises and falls on a single extra round of 

ammunition. Nor do I imagine the Second Amendment allows 

any government to diminish an individual’s rights through 

nomenclature. I am, however, confident that new restrictions 

on firearms will continue to flourish throughout our Circuit. 

Under NJ Rile I, that leaves District Court judges with the 

difficult task of determining whether a magazine is small 

enough to satisfy the Second Amendment or large enough to 

slip outside its guarantee. And it leaves this Court with the 

certainty that we will need to address those unanswered 

questions.

Respectfully, we need not wait. “[T]he law of the case 

doctrine bars courts from reconsidering matters actually 

decided[;] it does not prohibit courts from revisiting matters 

that are ‘avowedly preliminary or tentative.’” Council of Alt. 

Pol. Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (quoting 

18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, 

Federal Practice and Procedure: Jurisdiction § 4478 (3d ed. 

1981)). So we have taken care to “to prevent the doctrine from 

being used to prevent a properly raised argument from being 

considered even once.” United Artists Theatre Cir., Inc. v. 
7

Township of Warrington, 316 F.3d 392, 398 (3d Cir. 2003) 

(emphasis in original). And that is why we have recognized 

that “[w]here there is substantial doubt as to whether a prior 

panel actually decided an issue, the later panel should not be 

foreclosed from considering the issue.” Id. 

Here, there is substantial doubt about whether all 

magazines enjoy the guarantee of the Second Amendment or 

if, instead, that protection turns on the number of rounds of 

ammunition inside. In my opinion, it is necessary to address 

that issue to settle the rights of the parties here. Given that 

uncertainty, I would decline to apply the law-of-the-case 

doctrine, as I do not believe it applies to these circumstances. 

For that reason, I would, and therefore do, consider the full 

question presented by the appellants.

II. APPLICATION OF THE SECOND AMENDMENT 

A. The Scope of the Second Amendment

I begin with Heller and the Supreme Court’s 

consideration of the text, history, and tradition of firearms 

regulations in the United States to best understand the meaning 

of the Second Amendment. 

Naturally, the Court began with the “operative clause” 

which provides that “the right of the people to keep and bear 

Arms, shall not be infringed.” Heller, 554 U.S. at 576, 578–79. 

The Court observed that “[t]he 18th-century meaning [of 

‘arms’] is no different from the meaning today.” Id. at 581 

(citing 1 S Johnson, Dictionary of the English Language 106

(4th ed. 1773) (reprinted 1978) (defining “arms” as “[w]eapons 

of offence, or armour of defence”)); 1 Timothy Cunningham, 

A New and Complete Law Dictionary (1771) (defining “arms” 
8

as “any thing that a man wears for his defence, or takes into his 

hands, or useth in wrath to cast at or strike another.”); see also

N. Webster, American Dictionary of the English Language 

(1828) (reprinted 1989) (similar)). With this foundation, the 

Court held that “the Second Amendment extends . . . to all 

instruments that constitute bearable arms, even those that were 

not in existence at the time of the founding.” Heller, 554 U.S. 

at 582. In so holding, the Court rejected the “frivolous” 

argument “that only those arms in existence in the 18th century 

are protected by the Second Amendment.” Id. An unsurprising 

observation, because “[w]e do not interpret constitutional 

rights that way. Just as the First Amendment protects modern 

forms of communications, e.g., Reno v. Am. C.L. Union, 521 

U.S. 844, 849 (1997), and the Fourth Amendment applies to 

modern forms of search, e.g., Kyllo v. United States, 533 U.S. 

27, 35–36 (2001), the Second Amendment extends” to modern 

bearable arms. Id.

Next, the Court held that “the most natural reading of 

‘keep Arms’ in the Second Amendment is to ‘have weapons.’” 

Id. As to “bear,” the Court held that “[w]hen used with ‘arms’ 

. . . the term has a meaning that refers to carrying for a 

particular purpose—confrontation.” Id. at 584; see id. (“From 

our review of founding-era sources, we conclude that this 

natural meaning was also the meaning that ‘bear arms’ had in 

the 18th century.”). “Putting all of these textual elements 

together,” and drawing on historical context, the Court held 

“that they guarantee the individual right to possess and carry 

weapons in case of confrontation.” Id. at 592, 595. 

But the Court acknowledged that “[l]ike most rights, the 

right secured by the Second Amendment is not unlimited.” Id. 

at 626. For example, it did “not read the Second Amendment 

to protect the right of citizens to carry arms for any sort of 
9

confrontation, just as we do not read the First Amendment to 

protect the right of citizens to speak for any purpose.” Id. at 

595 (emphasis in original). “From Blackstone through the 

19th-century cases, commentators and courts routinely 

explained that the right was not a right to keep and carry any 

weapon whatsoever in any manner whatsoever and for 

whatever purpose.” Id. at 626. Rather, the Court acknowledged 

the propriety of “longstanding prohibitions on the possession 

of firearms by felons and the mentally ill, or laws forbidding 

the carrying of firearms in sensitive places such as schools and 

government buildings, or laws imposing conditions and 

qualifications on the commercial sale of arms.” Id. at 626–27. 

It also “recognize[d] another important limitation”: that “the 

sorts of weapons protected were those ‘in common use at the 

time.’” Id. at 627 (quoting United States v. Miller, 307 U.S. 

174, 179 (1939)). The Court held that this “limitation is fairly 

supported by the historical tradition of prohibiting the carrying 

of ‘dangerous and unusual weapons.’” Id. (citation omitted). 

As a result, the Court held that “the Second Amendment does 

not protect those weapons not typically possessed by lawabiding citizens for lawful purposes, such as short-barreled 

shotguns. That accords with the historical understanding of the 

scope of the right.” Id. at 625.

With this foundation, the Court turned to the handgun 

ban at issue, which prohibited keeping operable handguns in 

the home. Id. at 628. Rather than cabining the standard of 

review to a balancing of interests, the Court held that the law 

was unconstitutional because it banned an entire class of 

firearms commonly owned by citizens for the lawful purpose 

of self-defense in the home. Id. at 628–29. Although Heller 

focused its holding on the handgun ban before it, the Court 

acknowledged that “whatever else it leaves to future 
10

evaluation,” the Second Amendment “surely elevates above all 

other interests the right of law-abiding, responsible citizens to 

use arms in defense of hearth and home.” Id. at 635. Heller

makes clear that judicial review of Second Amendment 

challenges proceeds from text, history, and tradition. This is 

because “[c]onstitutional rights are enshrined with the scope 

they were understood to have when the people adopted them, 

whether or not future legislatures or (yes) even future judges 

think that scope too broad.” Id. at 634–35.3

B. Applying Heller and This Court’s Interpretative 

Framework

Since Heller, circuit and district courts have varied in 

their approaches to evaluating the Second Amendment. Most 

have now settled on some version of the two-pronged approach 

we created in Marzzarella.

4 As noted, we first “ask whether the 

3 Two years later, in McDonald v. City of Chicago, the 

Supreme Court reiterated that the right to keep and bear arms 

is a “fundamental” constitutional right “deeply rooted in this 

Nation’s history and tradition.” 561 U.S. 742, 767–68, 778 

(2010) (citation omitted).

4 See David B. Kopel, Joseph G.S. Greenlee, The 

Federal Circuits’ Second Amendment Doctrines, 61 St. Louis 

U. L. J. 193, 212 n.105 (2017) (citing N.Y. State Rifle & Pistol 

Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United 

States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); NRA v. 

Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 

F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 

F.3d 510, 518 (6th Cir. 2012); United States v. Chovan, 735 

F.3d 1127, 1136–37 (9th Cir. 2013); United States v. Reese, 

627 F.3d 792, 800–01 (10th Cir. 2010) (“Heller thus suggests 
11

challenged law imposes a burden on conduct falling within the 

scope of the Second Amendment’s guarantee,” and, if it does, 

“we evaluate the law under some form of means-end scrutiny.”

Marzzarella, 614 F.3d at 89. I apply both steps, concluding that 

the New Jersey Magazine Act does not satisfy the rigorous 

scrutiny required for the fundamental rights of the Second 

Amendment.

1. Step One: Determining Whether the Challenged 

Law Imposes a Burden on Conduct Falling 

Within the Second Amendment

The “threshold inquiry, then, is whether [the Act] 

regulates conduct that falls within the scope of the Second 

Amendment.” Id. at 89. That analysis turns on “whether the 

type of arm at issue is commonly owned,” id. at 90–91, and 

“‘typically possessed by law-abiding citizens for lawful 

purposes,’ Heller, 554 U.S. at 625.” NJ Rifle I, 910 F.3d at 116.

I conclude the magazines, including those regulated by the 

New Jersey Magazine Act, are protected arms under the 

Second Amendment as best understood by history and 

tradition. 

i. Defining the Regulated Arms

I begin by defining the kinds of arms controlled by the 

New Jersey Magazine Act, which prohibits the possession of 

magazines “capable of holding more than 10 rounds of 

a two-pronged approach to Second Amendment challenges to 

federal statutes.”) (internal quotations omitted); 

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1261 n.34 

(11th Cir. 2012); Heller v. District of Columbia (Heller II), 670 

F.3d 1244, 1252 (D.C. Cir. 2011)).)
12

ammunition to be fed continuously and directly therefrom into 

a semi-automatic firearm.” N.J. Stat. Ann. § 2C:39-1(y).5 As 

ordinarily understood, a “magazine” is “a device that holds 

cartridges or ammunition.” NJ Rifle I, 910 F.3d at 116 (citing 

Magazine, Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/magazine (last 

visited Nov. 21, 2018)). What is more, this contemporary 

definition tracks the ordinary understanding of magazines 

since at least the 1800s.6 Having defined what a magazine is, I 

5 At issue in this appeal are only magazines for semiautomatic firearms. A “semi-automatic” firearm is “a weapon 

that fires only one shot with each pull of the trigger, and which 

requires no manual manipulation by the operator to place 

another round in the chamber after each round is fired.” Staples 

v. United States, 511 U.S. 600, 602 n. 1 (1994). This is distinct 

from an “automatic” firearm, which “fires repeatedly with a 

single pull of the trigger. That is, once its trigger is depressed, 

the weapon will automatically continue to fire until its trigger 

is released or the ammunition is exhausted.” Id. Individual 

ownership of automatic firearms is prohibited in New Jersey. 

See N.J. Stat. Ann. § 2C:39-5(a) (making unlawful the 

possession of “a machine gun or any instrument or device 

adaptable for use as a machine gun”); N.J. Stat. Ann. § 2C:39-

1(i) (defining “machine gun” as “any firearm, mechanism or 

instrument not requiring that the trigger be pressed for each 

shot and having a reservoir, belt or other means of storing and 

carrying ammunition which can be loaded into the firearm, 

mechanism or instrument and fired therefrom”).

6 Compare Noah Webster, An American Dictionary of 

the English Language 510 (1842) (defining “magazine” as “[a] 

store of arms, ammunition or provisions; or the building in 
13

next consider whether a magazine is an arm within the Second 

Amendment. 

As the Supreme Court explained in Heller, regulation 

requiring “that firearms in the home be rendered and kept 

inoperable at all times” is unconstitutional as it necessarily 

makes “it impossible for citizens to use them for the core 

lawful purpose of self-defense[.]” Heller, 554 U.S. at 630. 

From this holding flows the logical conclusion that the Second 

Amendment’s use of the term “arms” should be ordinarily 

understood as “operable arms,” meaning that the Second 

Amendment likewise guarantees components required to make 

a protected firearm work for self-defense. See Heller, 554 U.S. 

at 581.

That necessarily includes ammunition and, by 

extension, magazines that hold ammunition, as components of 

an operable firearm. See Miller, 307 U.S. at 180 (observing that 

in the context of the colonial militia system, “[t]he possession 

which such store is deposited; New Illustrated Edition of Dr. 

Webster’s Unabridged Dictionary of All the Words in the 

English Language 799 (1864) (defining “magazine” as “[t]o 

store up or accumulate for future use”); Webster’s Condensed 

Dictionary 336 (1887) (expanding the definition of “magazine” 

to include a “cartridge chamber of a repeating rifle”); 

Webster’s Collegiate Dictionary 590 (3d ed. 1917) (defining 

“magazine” to include “[a] chamber in a gun for holding 

cartridges to be fed automatically to the piece”); MerriamWebster Unabridged Dictionary (2020) (defining “magazine” 

to include “a supply chamber: such as . . . a holder that is 

incorporated in or attachable to a gun and that contains 

cartridges to be fed into the gun chamber by the operation of 

the piece”).
14

of arms also implied the possession of ammunition, and the 

authorities paid quite as much attention to the latter as to the 

former”) (quoting The American Colonies In The 17th 

Century, Osgood, Vol. 1, ch. XIII). For these reasons, the best 

reading of “arms” in the Second Amendment includes

magazines because “[a] regulation eliminating a person’s 

ability to obtain or use ammunition could thereby make it 

impossible to use firearms for their core purpose.” Jackson v. 

City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 

2014). 

ii. History and Tradition: The Development 

of Magazine-Operated Firearms and the 

Regulations That Followed 

That a magazine is an “arm” does not foreclose 

governmental regulation because “the right secured by the 

Second Amendment is not unlimited.” Heller, 554 U.S. at 626. 

So I next consider what, if any, restrictions on magazines 

satisfy the history and tradition of the Second Amendment.

Answering that question begins with a review of magazines 

and magazine-operated firearms to understand: 1) the use and 

ownership of these arms over time, 2) traditional regulations, 

and 3) common use.

a. The Development of Repeating Firearms

“The desire for . . . repeating weapons is almost as old 

as the history of firearms, and there were numerous attempts to 

achieve this goal, beginning at least as early as the opening 

years of the 16th century.” Harold L. Peterson, Arms and 

Armor in Colonial America, 1526–1783, at 215 (1956). 

“Successful systems [of repeating arms] definitely had 

developed by 1640, and within the next twenty years they had 
15

spread throughout most of Western Europe and even to 

Moscow.” Harold L. Peterson, The Treasury of the Gun 229 

(1962). “[T]he two principal magazine repeaters of the era 

[were] the Kalthoff and the Lorenzoni. These were the first 

guns of their kind to achieve success . . . .” Id. The Kalthoff 

repeater magazines held between six and thirty charges, and 

“were undoubtedly the first magazine repeaters ever to be 

adopted for military purposes.” Id. at 230. Also developed 

during the 17th century, the Lorenzoni was “a magazine-fed 

Italian repeating pistol that ‘used gravity to self-reload’” and 

held about seven shots. (Brief of Amici Curiae Professors of 

Second Amendment Law, et al. in Support of Appellants and 

Reversal (“Amici Professors”) at 12 (quoting Martin 

Dougherty, Small Arms Visual Encyclopedia 34 (2011)).) See 

also Gerald Prenderghast, Repeating and Multi-Fire Weapons: 

A History from the Zhuge Crossbow Through the AK-47, at 97 

(2018) (“The Lorenzoni is also referred to as the Cookson rifle 

by American collectors[.]”); David Westwood, Rifles: an 

Illustrated History of Their Impact 71 (2005).

By the mid-17th century, Americans also began 

developing repeaters. These repeaters “often employed a 

revolving cylinder that was rotated by hand.” (Amici 

Professors Br. at 15 (citing 2 Charles Winthrop Sawyer, 

Firearms in American History 5 (1939) (six-shot flintlock); 

Charles Edward Chapel, Guns of the Old West 202–03 (1961) 

(revolving snaphance)).) For example, the Boston Gazette 

advertised the American Cookson in 1756 and boasted that it 

could “fire 9 Times distinctly, as quick, or as slow as you 

please[.]” Peterson, The Treasury of the Gun 232. In 1777, the 

Continental Congress ordered Belton rifles able to discharge

sixteen or twenty rounds, but then later cancelled the order 

based on the extraordinary expense. (See Amici Professors Br. 
16

at 18.) See also 7 Journals of the Continental Congress 1774–

1789, at 324, 361 (1907) (describing the ordering of Belton 

rifles and later the cancellation of the same rifles over Belton’s 

request for “an extraordinary allowance”); Peterson, The 

Treasury of the Gun 197. All of which documents both the 

existence and public knowledge of repeating weapons. 

That public knowledge grew into private practice by at 

least the early 19th century, when repeaters began circulating 

for personal use. For instance, in 1821, the New York Evening 

Post described the invention of a new repeater as “importan[t], 

both for public and private use,” whose “number of charges 

may be extended to fifteen or even twenty.” Newly Invented 

Muskets, N.Y. Evening Post, Apr. 10, 1822, in 59 Alexander 

Tilloch, The Philosophical Magazine and Journal: 

Comprehending the Various Branches of Science, the Liberal 

and Fine Arts, Geology, Agriculture, Manufactures, and 

Commerce 467–68 (1822). Technical challenges, however, 

limited widespread adoption and “none achieved real 

popularity.” Peterson, The Treasury of the Gun 199.

Then, in the 1830s, Samuel Colt introduced the 

revolver, which fired repeating rounds using a rotating 

cylinder. Peterson, The Treasury of the Gun 202–03, 209–11 

(“The real father of the revolver in its modern sense, however, 

was Samuel Colt.”). See also Ian V. Hogg, The Complete 

Illustrated Encyclopedia of the World’s Firearms 40 (1978) 

(“[Colt] had developed a percussion revolver and patented it in 

England in 1835 and in America in 1836.”). By the mid- to late

19th century, some revolvers could fire up to twenty-one 

rounds. David B. Kopel, The History of Firearm Magazines 

and Magazine Prohibitions, 78 Alb. L. Rev. 849, 856 (2015) 

(“Pin-fire revolvers with capacities of up to twenty or twentyone entered the market in the 1850s[.]”). Around this time, 
17

repeating rifles could fire between fifteen and sixty shots per 

minute. Id. at 854. In addition, the lever-action repeating rifle 

arrived by the 1850s, and could fire thirty times per minute. Id.

at 854–55. The arms development during this time was “fueled

by the Civil War market.” Robert L. Wilson, Winchester: An 

American Legend (1991).

b. The Development of Semiautomatic 

Firearms and Magazines

The first commercially successful rifles holding more 

than ten rounds of ammunition appeared around 1866, with 

handguns holding more than ten rounds following by 1935. See

Kopel, The History of Firearm Magazines and Magazine 

Prohibitions, 78 Alb. L. Rev. at 849–50. And “[o]wing to their 

simplicity and ease of use, by the mid-twentieth century the use 

of detachable magazines loaded through the base of the grip far 

exceeded all other loading methods.” Jeff Kinard, Pistols: An 

Illustrated History of Their Impact 174 (2003). Given that easy 

operation, “semiautomatic handguns grew from 28% of 

handgun production in 1973 to 80% in 1993.” (NJ Rifle I App. 

at 1272.) As they became more readily available, 

semiautomatic handguns gradually became more predominant. 

“Pistol magazines manufactured before September 1994 

commonly [held] five to 17 bullets, and magazines produced 

for some models [held] as many as 30 or more bullets.” (NJ 

Rifle I App. at 1060.) As for rifles, the AR-15 semiautomatic 

rifle appeared in 1963 and sold with a standard twenty-round 

magazine. Kopel, The History of Firearm Magazines and 

Magazine Prohibitions, 78 Alb. L. Rev. at 859–60. Since that 

time it has become “[t]he most popular rifle in American 

history.” Id. at 859. 
18

Possession of magazines exceeding ten rounds grew 

rapidly “given the growing popularity of semi-automatic rifles 

and of large-capacity handguns. Nearly 80 percent of 

ammunition magazines owned by gun owners at the time of [a

1994] survey held fewer than 10 rounds.” Edward W. Hill, 

How Many Guns are in the United States: Americans Own 

between 262 Million and 310 Million Firearms, Urban 

Publications 3 (2013). By contrast, a market survey conducted 

in or around 2013 “of owners of semi-automatic assault

rifles . . . showed that 63 percent of owners of these guns had 

ammunition magazines that held more than 10 rounds.” Id. 

Today, “there are at least 58.9 million civilian-owned 

[magazines capable of holding more than ten rounds] in the 

United States.” (NJ Rifle I Opening Br. at 17 (emphasis 

omitted) (citing Gary Kleck, How Many Large Capacity 

Magazines (LCMs) Are Possessed By Americans?, SSRN 

(2018)); see also NJ Rifle I App. at 275 (Tr. 372:14–16 

(Kleck)) (percentage of firearms with capacity to hold eleven 

or more rounds); App. at 516–17 (Hill, How Many Guns are in 

the United States: Americans Own between 262 Million and 

310 Million Firearms, Urban Publications).) “Magazines 

capable of holding more than 10 rounds come standard on 

some of the most popular handguns and rifles, including the 

most popular rifle in America.” (NJ Rifle I, Opening Br. at 17–

18) (emphasis omitted) (citing NJ Rifle I, App. at 696–704 

(Gun Digest 2018); App. at 753 (National Shooting Sports 

Foundation, Modern Sporting Rifle Comprehensive Consumer 

Report 2013 (2013); App. at 500 (Dan Haar, America’s Rifle: 

Rise of the AR-15, Hartford Courant (Mar. 9, 2013)); App. at 

1239 (Kopel, The History of Firearm Magazines and Magazine 

Prohibitions, 78 Alb. L. Rev. 849).) 
19

The State does not appear to have rebutted the fact that 

magazines holding more than ten rounds are commonly 

owned.7 The commonality of magazines holding more than ten

rounds fits with findings by other courts as well. See, e.g., 

Heller II, 670 F.3d at 1261 (“We think it clear enough in the 

record that semi-automatic rifles and magazines holding more 

than ten rounds are indeed in ‘common use,’ as the plaintiffs 

contend” because “fully 18 percent of all firearms owned by 

civilians in 1994 were equipped with magazines holding more 

than ten rounds, and approximately 4.7 million more such 

magazines were imported into the United States between 1995 

and 2000.”). 

c. Regulating Magazine Capacity

With the history of magazines and magazine-equipped 

firearms as a guide, I next consider traditional regulation.

Heller, 554 U.S. at 627; McDonald, 561 U.S. at 786 

(reaffirming that Heller “did not cast doubt on . . . longstanding 

regulatory measures” and “does not imperil every law 

regulating firearms”). That analysis first requires answering 

how a prohibition can be “traditional” or “longstanding” when 

it regulates arms of the modern era. That is because Heller 

permits “[s]tate and local experimentation with reasonable 

firearms regulations.” McDonald, 561 U.S. at 785 (alteration 

in original). Logically, then, “when legislatures seek to address 

7 One of the State’s experts also conceded the readily 

available nature of “large capacity magazines.” (NJ Rifle I

App. at 195 (“Many of the mass shooters did not seek out large 

capacity magazines, they just used what was easily available, 

and it would have been hard or impossible for many of those 

mass shooters to seek out [smaller-capacity] magazines.”).) 
20

new weapons that have not traditionally existed or to impose 

new gun regulations because of conditions that have not 

traditionally existed, there obviously will not be a history or 

tradition of banning such weapons or imposing such 

regulations.” Heller II, 670 F.3d at 1275 (Kavanaugh, J. 

dissenting). 

Instead, I believe “the proper interpretive approach is to 

reason by analogy from history and tradition.” Id. (citing 

Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 

2007) (“[J]ust as the First Amendment free speech clause 

covers modern communication devices unknown to the 

founding generation, e.g., radio and television, and the Fourth 

Amendment protects telephonic conversation from a ‘search,’ 

the Second Amendment protects the possession of the modernday equivalents of the colonial pistol.”), aff’d sub nom. Heller,

554 U.S. 570; Tr. of Oral Arg. at 77, Heller, 554 U.S. 570

(Chief Justice Roberts: “[Y]ou would define ‘reasonable’ in 

light of the restrictions that existed at the time the amendment 

was adopted. . . . [Y]ou can’t take it into the marketplace was 

one restriction. So that would be—we are talking about lineal 

descendants of the arms but presumably there are lineal 

descendants of the restrictions as well.”); cf. Kyllo v. United 

States, 533 U.S. 27, 31–35 (2001) (applying traditional Fourth 

Amendment standards to novel thermal imaging technology); 

California v. Ciraolo, 476 U.S. 207, 213 (1986) (allowing 

government to view property from airplanes based on 

common-law principle that police could look at property when 

passing by homes on public thoroughfares)). So I turn to 

historical regulation of both magazines and other restrictions 

on ammunition capacity. 
21

Limits on ammunition capacity emerged during the 

Prohibition Era, when six states adopted restrictions.8 See also

Kopel, The History of Firearm Magazines and Magazine 

Prohibitions, 78 Alb. L. Rev. at 864–68 (internal footnotes and 

citations omitted). But all were repealed over time. Only the 

District of Columbia maintained an uninterrupted ban on semiautomatic magazines holding more than twelve rounds from 

1932 until 1975, when it banned all functional firearms in the 

home and handguns altogether. (See Amici Professors Br. at 33 

(citing Pub. L. No. 72-275, §§ 1, 8, 47 Stat. 650, 650, 652).) 

New Jersey first limited magazine capacity to fifteen 

rounds in 1990. Kopel, The History of Firearm Magazines and 

Magazine Prohibitions, 78 Alb. L. Rev. at 867 (citing Act of 

May 30, 1990, ch. 32, §§ 2C:39-1(y), -3(j), 1990 N.J. Laws 

8 These states include California, Michigan, Minnesota, 

Ohio, Rhode Island, and Virginia. (See Amici Professors Br. at 

31–32 (citing 1927 R.I. Pub. Laws 256, §§ 1, 4 (banning sales 

of guns able to fire more than twelve shots without reloading); 

1927 Mich. Pub. Acts ch. 372, § 3 (banning sales of firearms 

“which can be fired more than sixteen times without 

reloading”); 1933 Minn. Laws ch. 190 (banning “machine 

gun[s],” including semi-automatics “which have been 

changed, altered or modified to increase the magazine capacity 

from the original design as manufactured by the 

manufacturers”); 1933 Ohio Laws 189 (requiring a license for 

semi-automatics with capacity of more than 18); 1933 Cal. 

Laws, ch. 450 (requiring license for machine guns, which were 

defined to include semi-automatics with detachable magazines 

of more than ten rounds); 1934 Va. Acts ch. 96 s137, §§ 1(a), 

4(d) (defining machine guns as anything able to fire more than 

sixteen times without reloading).))
22

217, 221, 235 (codified at N.J. Stat. Ann. § 2C:39-1(y), -3(j) 

(West 2014)). Around the same time, Hawaii enacted a 

limitation of ten rounds. (See NJ Rifle I App. at 9 (citing Haw. 

Rev. Stat. Ann. § 134-(8)).) A few years later, Congress passed 

the Violent Crime Control and Law Enforcement Act of 1994

prohibiting the possession or transfer of magazines holding 

more than ten rounds. See Pub. L. 103-322, § 110103 (Sep. 13, 

1994). But that law expired in 2004 and has never been 

reauthorized. Since then, states including California, Colorado, 

Connecticut, Hawaii, Maryland, Massachusetts, and New 

Jersey have enacted or maintained regulations limiting 

magazine capacity. See Kopel, The History of Firearm 

Magazines and Magazine Prohibitions, 78 Alb. L. Rev. at 867–

68. 

This history reveals a long gap between the 

development and commercial distribution of magazines, on the 

one hand, and limiting regulations, on the other hand. The State 

reasons, “It is logical that state limits on such weapons do not 

predate their popularity.” (NJ Rifle I Response Br. at 22.) That 

is doubtful, as New Jersey has actively regulated firearms 

lacking any popular use. See, e.g., N.J. Stat. Ann. §§ 2C:39-

3(m) (prohibiting “[c]overt or undetectable firearms,” such as 

3D printed firearms); Guidelines Regarding the “Substantially 

Identical” Provision in the State’s Assault Firearms Laws, N.J.

Att’y Gen. Op. (August 1996) (prohibiting “bayonet mounts” 

on rifles). At any rate, the State concedes that magazineequipped rifles first achieved “mass-market success” in the 

1860s and magazine-equipped handguns achieved similar 

success in the 1930s. (NJ Rifle I Response Br. at 22.) Yet 

regulations did not grow until the 1990s and 2000s, and even

today, only a handful of states limit magazine capacity. Given 

that the “success” of magazine-equipped firearms predated 
23

these first regulations by at least fifty years, I do not see 

evidence of the longstanding tradition required under Heller to 

remove magazines from the protection of the Second 

Amendment. Cf. Drake v. Filko, 724 F.3d 426, 432 (3d Cir. 

2013) (holding New Jersey’s permit requirement was 

longstanding because its origins dated to 1924). Nor is it clear 

that there is a longstanding tradition of regulating magazines

as “dangerous and unusual.” For one thing, more than eight 

states would have rushed to regulate magazine capacity 

following the end of the federal ban in 2004.

Some will argue there must be an outer boundary to this 

analysis that, when crossed, renders a magazine dangerous and 

unusual. If so, it does not appear in the history and traditions 

of our Nation. But in any event that question is not before us. 

So while “[t]here may well be some capacity above which 

magazines are not in common use . . . the record is devoid of 

evidence as to what that capacity is.” Heller II, 670 F.3d at 

1261 (Kavanaugh, J., dissenting). As a result, and limited to 

this record, I would hold that magazines are arms protected by 

the Second Amendment and an act limiting magazine capacity 

to ten rounds burdens the Appellants’ Second Amendment 

rights. 

2. Step Two: Evaluating the Challenged Law 

Under Means-End Scrutiny

Although not required by Heller, our precedent uses 

some form of means-end scrutiny. See Marzzarella, 614 F.3d 

at 96–97. Marzzarella does not insist on a uniform standard in 

all cases. Rather, we observed that if, like the First 

Amendment, “the Second Amendment can trigger more than 

one particular standard of scrutiny,” then intermediate scrutiny 

should be applied when the challenged law does not burden the 
24

“fundamental interest protected by the [Second 

Amendment]—the defense of hearth and home.” Id. at 97. By 

extension, strict scrutiny should be applied when a challenged 

law does burden such a fundamental interest. I conclude that 

the New Jersey Magazine Act burdens the right to maintain 

operable protected arms without regard to location or 

circumstances, warranting strict scrutiny. But regardless of the 

level of scrutiny applied, the state does not satisfy its burden 

on this record.

i. Strict Scrutiny

As the Supreme Court has not applied the tiers of 

scrutiny to gun regulations, see Heller, 554 U.S. at 634, “we 

look to other constitutional areas for guidance in evaluating 

Second Amendment challenges.” Marzzarella, 614 F.3d at 89 

n.4. Using this rationale, we concluded “the First Amendment 

is the natural choice. Heller itself repeatedly invokes the First 

Amendment in establishing principles governing the Second 

Amendment.” Id.

Cases considering restrictions on speech and expression 

hold the appropriate level of scrutiny is a fact-specific inquiry 

tied to the type of regulation at issue. See, e.g., Ward v. Rock 

Against Racism, 491 U.S. 781, 791 (1989) (applying 

intermediate scrutiny to content-neutral time, place, and 

manner restrictions in a public forum); Zauderer v. Off. of 

Disciplinary Couns. of Sup. Ct. of Oh., 471 U.S. 626, 651 

(1985) (applying rational basis review to disclosure 

requirements for commercial speech). Strict scrutiny applies to 

content-based restrictions that infringe on the First 

Amendment’s core guarantee. See, e.g., Citizens United v. 

FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny in the 

context of infringement on “political speech”); United States v. 
25

Playboy Ent. Grp., 529 U.S. 803, 813 (2000) (applying strict 

scrutiny in context of content-based speech restriction). So 

following the direction of Marzzarella, strict scrutiny applies 

to restrictions burdening rights at the core of the Second 

Amendment. See NJ Rifle I, 910 F.3d at 134 (Bibas, J., 

dissenting).

One of the Second Amendment’s core purposes is to 

protect the “use [of] arms in defense of hearth and home.”

Heller, 554 U.S. at 591, 636. For that reason, prohibiting 

operable firearms in the home violates the Second 

Amendment. Id. The same result applies here, because the New 

Jersey Magazine Act prohibits the possession of magazines 

exceeding ten rounds at all times, including inside the home for 

defense. The State argues that the Act “does not ban 

magazines; it imposes a restriction on the capacity of a single 

magazine that can be inserted into a firearm” and does not 

restrict the number of magazines an individual may possess. 

(NJ Rifle I Response Br. at 34–35.) That is only partially 

correct, as it leaves owners of a “noncompliant” magazine 

without an operating firearm. But even assuming the Act is not 

a categorical ban on all magazines, it still burdens a core 

Second Amendment right without exception or limitation, 

including the defense of “hearth and home” specifically noted 

in Heller. Following our prior analogy to decisions applying 

the First Amendment jurisprudence, this “ban on a class of 

arms is not an ‘incidental’ regulation. It is equivalent to a ban 

on a category of speech.” See Heller II, 670 F.3d at 1285 

(Kavanaugh, J., dissenting); see also NJ Rifle I, 910 F.3d at 127

(Bibas, J., dissenting) (“I would apply strict scrutiny to any law 

that impairs the core Second Amendment right to defend one’s 

home.”).
26

New Jersey has not offered record evidence meeting 

that test. “Strict scrutiny asks whether the law is narrowly 

tailored to serve a compelling government interest.” 

Marzzarella, 614 F.3d at 96 n.14. When “a less restrictive 

alternative would serve the Government’s purpose, the 

legislature must use that alternative.” Playboy Ent. Grp., 529 

U.S. at 813. As Judge Bibas observed, “[h]ere, the government 

has offered no concrete evidence that magazine restrictions 

have saved or will save potential victims. Nor has it made any 

showing of tailoring.” NJ Rifle I, 910 F.3d at 134 (Bibas, J., 

dissenting). New Jersey once imposed a fifteen-round limit on 

magazine capacity. Now it claims ten is essential for public 

safety. The Second Amendment demands more than back-ofthe-envelope math. At a minimum, it asks the government to 

explain, to offer but one example, why eleven rounds is too 

many while nine remains fine. Unless competent evidence 

answers those questions, New Jersey cannot show why a tenround limit is the least restrictive means of achieving public 

safety. For this reason, I would hold that the Act fails to satisfy 

strict scrutiny.

ii. Intermediate Scrutiny

For largely the same reasons, the New Jersey Magazine 

Act does not satisfy intermediate scrutiny where “the 

government’s asserted interest must be more than just 

legitimate but need not be compelling. It must be ‘significant, 

substantial, or important.’” Drake, 724 F.3d at 436 (quoting

Marzzarella, 614 F.3d at 98). “‘[T]he fit’ between the asserted 

interest and the challenged law need not be ‘perfect,’ but it 

must be ‘reasonable’ and ‘may not burden more [conduct] than 

is reasonably necessary.’” Id. (quoting Marzzarella, 614 F.3d 

at 98). 
27

Here, the record does not show the State reasonably 

tailored the regulation to serve its interest in public safety

without burdening more conduct than reasonably necessary.

First, the State rests on the ambiguous argument that “when

LCM-equipped firearms are used, more bullets are fired, more 

victims are shot, and more people are killed than in other gun 

attacks.” (NJ Rifle I Response Br. at 28.) Perhaps, but “this still 

begs the question of whether a 10-round limit on magazine 

capacity will affect the outcomes of enough gun attacks to 

measurably reduce gun injuries and death.” (NJ Rifle I App. at 

1280 (Christopher S. Koper, An Updated Assessment of the 

Federal Assault Weapons Ban 89 (2004)).) In fact, “studies 

suggest that state-level [assault-weapon] bans have not reduced 

crime[.]” (NJ Rifle I App. at 1272, Koper, supra at 81 n.95.)

Second, as Judge Bibas observed, “since 1990 New 

Jersey has banned magazines that hold more than fifteen 

bullets. The ban affects everyone. The challengers do not 

contest that ban. And there is no evidence of its efficacy, one 

way or the other.” NJ Rifle I, 910 F.3d at 132 (Bibas, J., 

dissenting). Third, statistics in the record report that out of 

sixty-one “mass shootings,”9eleven used fifteen-round 

9 The term “mass shootings” does not appear to have an 

objective definition. See, e.g., NJ Rifle I App. at 1042, Louis 

Klarevas, Rampage Nation: Securing America From Mass 

Shootings (2016) (defining mass shootings as “attacks that 

resulted in six or more people—not including the 

perpetrator(s)—dying as a result of gunshot wounds”) 

(emphasis in original); App. at 1067, Cong. Rsch. Serv., Mass 

Murder with Firearms: Incidents and Victims, 1999-2013 

(2015) (defining “mass shooting” as “a multiple homicide 
28

magazines, two used fourteen-round magazines, and two used 

thirteen-round magazines. That alone casts doubt on the tenround tailoring. As does the declaration of the Commissioner 

of the Baltimore Police Department’s stating that the use of a 

ten round magazine offers more opportunities to intervene in a 

shooting incident than if “30- or 50-round magazines, or 100-

round drums” are used. (NJ Rifle I App. at 865.) (emphasis 

added). So too, of course, would use of a magazine holding 

eleven or twenty-nine rounds. That is why narrow tailoring 

requires more than a ninety-round spread in logic.10

incident in which four or more victims are murdered with 

firearms—not including the offender(s)—within one event, 

and in one or more locations in close geographical proximity); 

App. at 1118, Violence Pol’y Ctr., High-Capacity Ammunition 

Magazines are the Common Thread Running Through Most 

Mass Shootings in the United States (defining “mass shooting” 

as “3 or more fatalities”).

10 Diving deeper, the record evidence casts doubt on the 

State’s intervention theory. For example, “it takes two to four 

seconds for shooters to eject an expended magazine from a 

semi-automatic gun, insert a loaded magazine, and make the 

gun ready to fire.” (NJ Rifle I App. at 1197, Declaration of 

Gary Kleck in Support of Plaintiffs’ Motion for a Preliminary 

Injunction at 12). Investigations from criminal attacks show 

“that the killers typically do not fire at high rates, instead firing 

deliberately, at rates far below the fastest rates that can be 

maintained with semiautomatic weapons.” (NJ Rifle I App. at 

1203, Kleck Decl. at 18.) In fact, “[t]he average interval 

between shots in mass shootings . . . is nearly always more than 

two to four seconds, which means that magazine changes do 
29

All of this leads to one conclusion: “the Government 

bears the burden of proof on the appropriateness of the means 

it employs to further its interest[,]” but “the Government falls 

well short of satisfying its burden—even under intermediate 

scrutiny.” Binderup v. Att’y Gen., 836 F.3d 336, 353 (3d Cir. 

2016) (en banc). New Jersey must “present some meaningful 

evidence, not mere assertions, to justify its predictive [and here 

conclusory] judgments[,]” and it failed to meet that burden 

here. Id. at 354 (alteration in original) (citing Heller II, 670 

F.3d at 1259); see also N.Y. State Rifle & Pistol Ass’n, Inc, 804 

F.3d 242, 264 (2d Cir. 2015) (“[O]n intermediate scrutiny 

review, the state cannot ‘get away with shoddy data or 

reasoning.’ To survive intermediate scrutiny, the defendants 

must show ‘reasonable inferences based on substantial

evidence’ that the statutes are substantially related to the 

governmental interest.”) (emphasis in original) (internal 

citations omitted).

For these reasons, I would hold that the Act cannot 

satisfy intermediate, or any applicable level of, scrutiny.

III. RECONSIDERING MARZZARELLA AND TIERED SCRUTINY

not even slow the shooter’s rate of fire.” (NJ Rifle I App. at 

1203, Kleck Decl. at 18.) Shooters can “avoid the necessity of 

reloading by carrying several firearms, carry[ing] several 

magazines which can be exchanged quickly, or simply tak[ing] 

the time to reload.” (NJ Rifle I App. at 748, Carlisle E. Moody, 

Large Capacity Magazines and Homicide, 160 C. Wm. & Mary 

Working Paper 6, 6 (2015).) Crediting all of this testimony 

seems to undermine the State’s theory, and suggests that 

reducing magazine does not meaningfully assist intervention. 
30

Decided two years after Heller, our decision in 

Marzzarella ushered in a two-part framework for analyzing the 

Second Amendment. That test has proved popular, and is now 

used by a majority of circuit courts. But our approach has come 

into question, and I have serious doubts that it can be squared

with Heller. See, e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1867 

(2020) (mem.) (Thomas, J., dissenting) (criticizing the twopart framework as “rais[ing] numerous concerns” that “yield[] 

analyses that are entirely inconsistent with Heller”); N.Y. State 

Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 

1540 (2020) (Alito, J., dissenting) (explaining that Heller is 

based “on the scope of the right to keep and bear arms as it was 

understood at the time of the adoption of the Second 

Amendment”); id. at 1527 (Kavanaugh, J., concurring) (“I 

share Justice Alito’s concern that some federal and state courts 

may not be properly applying Heller and McDonald.”). I reach 

that conclusion on two grounds. 

First, the widespread popularity of the two-step 

balancing test does not address the clear repudiation of interestbalancing by the Supreme Court in Heller and McDonald.

When twice presented with the opportunity to import tiered 

scrutiny from decisions considering the First Amendment, the 

Supreme Court instead focused on text, history, and tradition.

See Heller, 554 U.S. at 634 (declining to apply a specified level 

of scrutiny and observing that “[w]e know of no other 

enumerated constitutional right whose core protection has been 

subjected to a freestanding ‘interest-balancing’ approach.”); 

McDonald, 561 U.S. at 785 (“[W]e expressly rejected the 

argument that the scope of the Second Amendment right 

should be determined by judicial interest balancing”); 

Binderup, 836 F.3d at 378 (Hardiman, J., concurring)

(“Applying some form of means-end scrutiny in an as-applied 
31

challenge against an absolute ban—after it has already been 

established that the individual has a right to keep and bear 

arms—eviscerates that right via judicial interest balancing in 

direct contravention of Heller.”).

Second, this historical approach is significant because, 

as Heller explains, “it has always been widely understood” that 

“[t]he very text of the Second Amendment implicitly 

recognizes the pre-existence of the right and declares only that 

it ‘shall not be infringed.’” Heller, 554 U.S. at 592

(quoting United States v. Cruikshank, 92 U.S. 542, 553 (1876))

(“This is not a right granted by the Constitution. Neither is it in 

any manner dependent upon that instrument for its 

existence.”); see also Robertson v. Baldwin, 165 U.S. 275, 281 

(1897) (“The law is perfectly well settled that the first 10 

amendments to the constitution . . . were not intended to lay 

down any novel principles of government, but simply to 

embody certain guaranties and immunities which we had 

inherited from our English ancestors[.]”). And rather than 

turning to the reservoir of decisions, doctrines, and debates 

flowing from generations of First Amendment cases and tiered 

tolerance of governmental speech restraints, Heller “pores over 

early sources to show that while preventing Congress from 

eliminating state militias was the ‘purpose that prompted the 

[Amendment’s] codification,’” that purpose did not limit the 

right’s substance. Wrenn v. District of Columbia, 864 F.3d 650, 

658 (D.C. Cir. 2017) (quoting Heller, 554 U.S. at 600). At its 

core, the Second Amendment recognizes the widely accepted 

principle at the Founding that the right to self-defense derived 

directly from the natural right to life, giving the people 

predictable protections for securing the “Blessings of Liberty.” 

U.S. Const. pmbl.; see also Declaration of Independence para. 
32

2.11 So “[t]he very enumeration of the right takes out of the 

hands of government—even the Third Branch of 

Government—the power to decide on a case-by-case basis 

whether the right is really worth insisting upon.” Heller, 554 

U.S. at 634 (emphasis in original).

For those reasons, I would follow what I believe to be 

the direction of the Supreme Court and focus our approach 

“based on text, history, and tradition” rather “than under an 

interest-balancing test.” Heller II, 670 F.3d at 1275 

(Kavanaugh, J. dissenting).

IV. CONCLUSION

The law-of-the-case doctrine can serve important, 

practical purposes in litigation. But it remains a prudential rule 

11 Several Founding Era documents reflect this 

sentiment. Hamilton wrote in Federalist Paper 28 that the 

“original right of self-defense” is “paramount to all positive 

forms of government.” The Federalist No. 28, at 146 

(Alexander Hamilton) (Colonial Press, ed., 1901). Similarly, 

Samuel Adams listed self-preservation under “Natural Rights 

of the Colonists as Men”: “First, a right to life; Secondly, to 

liberty; Thirdly, to property; together with the right to support 

and defend them in the best manner they can.” Samuel Adams, 

The Rights of the Colonists: The Report of the Committee of 

Correspondence to the Boston Town Meeting Nov. 20, 1772 

reprinted in Old South Leaflets no. 173 (Directors of the Old 

South Work 1906). Those sentiments, in turn, echo the 

classical understanding that “[s]elf-defence, therefore, as it is 

justly called the primary law of nature, so it is not, neither can 

it be in fact, taken away by the law of society.” 3 William 

Blackstone, Commentaries *4.
33

that “merely expresses the practice of courts generally to refuse 

to reopen what has been decided, not a limit to their power.” 

Messenger v. Anderson, 225 U.S. 436, 444 (1912). I would 

decline to invoke that discretion here, as I conclude that 

determining whether magazines enjoy the guarantees of the 

Second Amendment, and whether that protection varies based 

on their capacity, would “not reopen issues decided in earlier 

stages of the same litigation.” Agostini v. Felton, 521 U.S. 203, 

236 (1997). Both issues affect the rights of individuals 

throughout our Circuit. Likewise, resolving those questions 

will allow state governments to design public safety solutions 

that respect the freedoms guarded by the Second Amendment. 

So I would reverse the order of the District Court, hold that 

magazines are arms under the Constitution, and remand this 

matter to permit the State to provide evidence that the Act is 

narrowly tailored to advance the State’s interests. For these 

reasons, I respectfully dissent.