PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-3170

_____________

ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL 

CLUBS, INC.; 

BLAKE ELLMAN; ALEXANDER DEMBROWSKI,

 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.N.J. No. 3:18-cv-10507)

District Judge: Hon. Peter G. Sheridan 

______________
2

Argued November 20, 2018*

______________

Before: GREENAWAY, JR., SHWARTZ, and BIBAS, 

Circuit Judges.

(Opinion Filed: December 5, 2018)

______________

OPINION

______________

David H. Thompson [Argued]

Jose J. Alicea

Peter A. Patterson

Haley N. Proctor

Cooper & Kirk

1523 New Hampshire Avenue, N.W.

Washington, DC 20036

Daniel L. Schmutter

Hartman & Winnicki

74 Passaic Street

Suite 101

Ridgewood, NJ 07650

Counsel for Appellants

 

* Because of recording issues on the original date for 

argument, the panel convened a second argument session to 

allow the parties to re-present their oral arguments. 
3

Jeremy Feigenbaum [Argued]

Stuart M. Feinblatt

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 Andrew Showell

Office of Attorney General of New Jersey

124 Halsey Street

P.O. Box 45029

Newark, NJ 07102

George C. Jones

John H. Suminski

McElroy Deutsch Mulvaney & Carpenter

1300 Mount Kemble Avenue 

P.O. Box 2075

Morristown, NJ 07962

Jennifer Alampi

Carmine Richard Alampi

Alampi & Demarrais

One University Plaza

Suite 404

Hackensack, NJ 07601

Counsel for Appellees
4

John P. Sweeney

Bradley Arant Boult Cummings 

Suite 1350

1615 L Street, N.W.

Suite 1350

Washington, DC 20036

Counsel for Amicus National Rifle 

Association of America

Timothy M. Haggerty

Friedman Kaplan Seiler & Adelman

7 Times Square

28th Floor

New York, NY 10036

Counsel for Amicus Giffords Law Center 

to Prevent Gun Violence

Loren L. AliKhan

Office of Attorney General of District of Columbia

Office of the Solicitor General

441 4th Street, N.W.

One Judiciary Square, Suite 630 South

Washington, DC 20001

Counsel for Amici District of Columbia, 

State of California, State of Connecticut, 

State of Delaware, State of Hawaii, State 

of Illinois, State of Iowa, State of 

Maryland, State of Massachusetts, State 

of New York, State of Oregon, 

Commonwealth of Pennsylvania, State of 
5

Rhode Island, State of Vermont, State of 

Virginia, and State of Washington

Lawrence S. Lustberg

Jessica Hunter, Esq.

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Amicus Everytown for Gun 

Safety

SHWARTZ, Circuit Judge.

Today we address whether one of New Jersey’s 

responses to the rise in active and mass shooting incidents in 

the United States—a law that limits the amount of ammunition 

that may be held in a single firearm magazine to no more than 

ten rounds—violates the Second Amendment, the Fifth 

Amendment’s Takings Clause, and the Fourteenth 

Amendment’s Equal Protection Clause. We conclude that it 

does not. New Jersey’s law reasonably fits the State’s interest 

in public safety and does not unconstitutionally burden the 

Second Amendment’s right to self-defense in the home. The 

law also does not violate the Fifth Amendment’s Takings 

Clause because it does not require gun owners to surrender

their magazines but instead allows them to retain modified 

magazines or register firearms that have magazines that cannot 

be modified. Finally, because retired law enforcement officers 

have training and experience that makes them different from 

ordinary citizens, the law’s exemption that permits them to 

possess magazines that can hold more than ten rounds does not 

violate the Fourteenth Amendment’s Equal Protection Clause. 
6

We will therefore affirm the District Court’s order denying 

Plaintiffs’ motion to preliminarily enjoin enforcement of the 

law. 

I

A

Active shooting and mass shooting incidents have 

dramatically increased during recent years. Statistics from 

2006 to 2015 reveal a 160% increase in mass shootings over

the prior decade. App. 1042. Department of Justice and 

Federal Bureau of Investigation (“FBI”) studies of active 

shooter incidents (where an individual is actively engaged in 

killing or attempting to kill people with a firearm in a confined, 

populated area) reveal an increase from an average of 6.4 

incidents in 2000 to 16.4 incidents in 2013. App. 950, 953. 

These numbers have continued to climb, and in 2017, there 

were thirty incidents. App. 1149, 1133. In addition to 

becoming more frequent, these shootings have also become 

more lethal. App. 906-07 (citing 2018 article noting “it’s the 

first time [in American history] we have ever experienced four 

gun massacres resulting in double-digit fatalities within a 12-

month period”). 

In response to this trend, a number of states have acted.

In June 2018, New Jersey became the ninth state to pass a new

law restricting magazine capacity.1 New Jersey has made it

 

1 As of spring 2018, eight states and the District of 

Columbia had adopted bans on large capacity magazines. Cal.

Penal Code § 16740 (ten rounds); Conn. Gen. Stat. § 53-202w 
7

illegal to possess a magazine capable of holding more than ten 

rounds of ammunition (“LCM”).2 N.J. Stat. Ann. 2C:39-1(y), 

2C:39-3(j) (“the Act”). 

Active law enforcement officers and active military

members, who are “authorized to possess and carry a 

handgun,” are excluded from the ban. N.J. Stat. Ann. 2C:39-

3(g). Retired law enforcement officers are also exempt and 

may possess and carry semi-automatic handguns with 

magazines that hold up to fifteen rounds of ammunition.3Id.

at 2C:39-17.

 

(ten rounds); D.C. Code § 7-2506.01(b) (ten rounds); Haw. 

Rev. Stat. § 134-8(c) (ten rounds); Md. Code Ann., Crim. Law 

§ 4-305(b) (ten rounds); Mass. Gen. Laws ch. 140 §§ 121,

131M (ten rounds); N.Y. Penal Law § 265.00(23) (ten rounds); 

13 Vt. Stat. Ann. 4021(e)(1)(A), (B) (ten rounds for a “long 

gun” and fifteen rounds for a “hand gun”); Colo. Rev. Stat. § 

18-12-301(2)(a)(I) (fifteen rounds). 

2 Under the New Jersey statute, a “[l]arge capacity 

ammunition magazine” is defined as “a box, drum, tube or 

other container which is capable of holding more than 10 

rounds of ammunition to be fed continuously and directly 

therefrom into a semi-automatic firearm. The term shall not 

include an attached tubular device which is capable of holding 

only .22 caliber rimfire ammunition.” Id. at 2C:39-1(y). Prior 

to the 2018 Act, New Jersey had prohibited LCMs holding 

more than 15 rounds of ammunition. See id. (Jan. 16, 2018); 

id. (1990). 

3 To be exempt from the Act’s prohibition, a retired law 

enforcement officer must, among other things, follow certain 

procedures, qualify semi-annually in the use of the handgun he 
8

The Act provides several ways for those who are not 

exempt from the law to comply. Specifically, the legislation 

gives LCM owners until December 10, 20184to (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 cannot 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).

B

On the day the bill was signed, Plaintiffs Association of 

New Jersey Rifle and Pistol Clubs and members Blake Ellman

and Alexander Dembrowski (collectively, “Plaintiffs”)5filed

this action under 42 U.S.C. § 1983, alleging that the Act 

violates the Second Amendment, the Fifth Amendment’s

Takings Clause, and the Fourteenth Amendment’s Equal 

Protection Clause. App. 46-64. Plaintiffs also sought a 

preliminary injunction to enjoin Defendants Attorney General 

of New Jersey, Superintendent of New Jersey State Police, and 

the Chiefs of Police of the Chester and Lyndhurst Police 

Departments from enforcing the law. 

 

is permitted to carry, and pay costs associated with the semiannual qualifications. Id. at 2C:39-6(l). 

4 The law gave 180 days from its June 13, 2018 effective 

date to comply.

5 Both Ellman and Dembrowski have worked at gun 

ranges, and Dembrowski is a Marine Corps veteran. App. 470, 

476.
9

The District Court held a three-day evidentiary hearing 

on the preliminary injunction request. The Court considered 

declarations from witnesses, which served as their direct 

testimony, and then these witnesses were thoroughly 

examined.

6

 The parties also submitted various documents, 

including declarations presented in other cases addressing 

LCM bans, books and journal articles on firearm regulations, 

reports on the efficacy of the 1994 federal assault weapons ban, 

statistics about gun ownership and use, news articles about 

shooting incidents, FBI reports on active shooter incidents, 

historical materials on LCMs, and police academy training 

materials.7 The evidence disclosed the purpose of LCMs, how 

they are used, and who uses them.

A magazine is an implement that increases the 

ammunition capacity of a firearm. App. 128. An LCM refers 

to a particular size of magazine. App. 159. LCMs allow a 

 

6 Plaintiffs offered expert witness Gary Kleck, Professor 

Emeritus at Florida State University. Defendants offered three 

expert witnesses: (1) Lucy Allen, Managing Director of NERA 

Economic Consulting; (2) Glen Stanton, State Range Master 

for the New Jersey Office of the Attorney General Division of 

Criminal Justice; and (3) John Donohue, Professor of Law at 

Stanford Law School. 

7 The exhibits include writings from Christopher Koper, 

Professor of Criminology, Law, and Society at George Mason 

University, see App. 663-67, 768-72, 1047-50, 1051-59, 1060-

65, 1247-53, 1254-85, and David Kopel, Research Director at 

the Independence Institute, Associate Policy Analyst at the 

Cato Institute, and Adjunct Professor at Denver University 

Sturm College of Law, App. 654-59, 1233-46. 
10

shooter to fire multiple shots in a matter of seconds without 

reloading. App. 225, 865. Millions of LCMs have been sold

since 1994, App. 1266, and 63% of gun owners reported using

LCMs in their modern sporting rifles, App. 516, 753. LCMs 

often come factory standard with semi-automatic weapons. 

App. 656, 994-95. 

Gun owners use LCMs for hunting and pest control. 

App. 655. LCMs have also been used for self-defense. App. 

225, 844-51, 915-16, 1024. The record does not include a 

reliable estimate of the number of incidents where more than 

ten shots were used in self-defense,8 but it does show that

 

8 Allen testified that most defensive gun use involves 

the discharge of between two and three rounds of ammunition.

App. 844-48. Kleck acknowledged that there is no current 

estimate of the number of incidents where more than ten shots 

were used in self-defense, App. 240, but then relied on data 

from Allen to assert that 4,663 incidents of defensive gun use 

have involved more than ten rounds. App. 239, 328. This 

figure is based on an extrapolation. As Amicus Everytown for 

Gun Safety explained,

That number was reached by taking 

Kleck’s . . . out-of-date, 2.5 million defensivegun-uses number, multiplying that by his 

estimate of the percentage of defensive gun uses 

in the home, and then multiplying that by the 

percentage of such incidents found in the NRA’s 

[Armed Citizen] defensive-gun-use database in 

which more than ten shots were reportedly fired 

(2 of 411). [App. 328.] This approach takes 411 
11

LCMs “are not necessary or appropriate for self-defense,” 

App. 861, and that use of LCMs in self-defense can result in 

“indiscriminate firing,” App. 863, and “severe adverse 

consequences for innocent bystanders,” App. 1024.

There is also substantial evidence that LCMs have been 

used in numerous mass shootings,

9 App. 851-53, 909-10, 914, 

 

of what are certainly some of the most extreme 

and newsworthy cases of defensive gun [use] 

across a period of more than six years, [App. 69], 

and assumes that they are representative of all

defensive gun uses. 

Amicus Everytown for Gun Safety Br. at 23-24 (footnote 

omitted) (emphasis in original). Plaintiffs attempt to embrace 

a figure based on data they themselves challenged because the 

expert did not know the data compilation method, the data may 

not have been representative, and the search criteria were 

limited. Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Grewal, No. 

18-1017, 2018 WL 4688345, at *5, *12 (D.N.J. Sept. 28, 

2018). App. 73-81. 

9 As the District Court observed, some of the studies and 

articles use different definitions for the term “mass shootings,” 

which led it to give less weight to these materials. See Ass’n 

of N.J. Rifle & Pistol Clubs, 2018 WL 46888345, at *5, *8. 

For instance, Mother Jones has changed its definition of a mass 

shooting over time, setting a different minimum number of 

fatalities or shooters, and may have omitted a significant 

number of mass shooting incidents. App. 90-102, 1037-38 

(noting deficiencies in Mother Jones report). While it 

questioned the reliability of the statistics, the District Court did 
12

967-88, 1024, 1042, 1057, 1118-26, 1165-71, and that the use 

of LCMs results in increased fatalities and injuries, App. 562. 

“[W]hen you have a high capacity magazine it allows you to 

fire off a large number of bullets in a short amount of time, and 

that gives individuals much less opportunity to either escape or 

to try to fight back or for police to intervene; and that is very 

valuable for mass shooters.” App. 225, 865. The record 

demonstrates that when there are pauses in shooting to reload 

or for other reasons, opportunities arise for victims to flee, as 

evidenced by the 2017 Las Vegas and 2013 D.C. Navy Yard 

shootings, App. 114, 914, 1045, or for bystanders to intervene, 

as in the 2018 Tennessee Waffle House shooting and 2011 

Arizona shooting involving Representative Gabrielle Giffords, 

App. 830, 1113.

While a trained marksman or professional speed shooter 

operating in controlled conditions can change a magazine in 

two to four seconds, App. 109, 263-67, 656, 1027, an 

inexperienced shooter may need eight to ten seconds to do so, 

App. 114. Therefore, while a ban on LCMs does not restrict 

the amount of ammunition or number of magazines an 

individual may purchase, App. 231, without access to LCMs, 

a shooter must reload more frequently.

“[S]hooters in at least 71% of mass shootings in the past 

35 years obtained their guns legally,” App. 853, or from a 

family member or friend (as was the case with the Newtown 

shooter who took his mother’s lawfully-owned guns), App. 

190, 195, 486, and gun owners in lawful possession of firearms 

 

consider the specific incidents of LCM use described in the 

record. Id. at *3. 
13

are a key source of arming criminals through loss and theft of 

their firearms, App. 221-22, 800-01, 924-25.

New Jersey law enforcement officers regularly carry 

LCMs, App. 116, 1102, and along with their retired 

counterparts, are trained and certified in the use of firearms, 

App. 143-46, 1101-02. Law enforcement officers use certain 

firearms not regularly used by members of the military and use 

them in a civilian, non-combat environment.10 App. 137, 140,

1103.

After carefully considering all of the evidence and the 

parties’ arguments, the District Court denied the motion to 

preliminarily enjoin the Act. The Court found the expert 

witnesses were credible but concluded that the testimony of 

certain experts was “of little help in its analysis . . . . [because] 

their testimony failed to clearly convey the effect this law will 

have on reducing mass shootings in New Jersey or the extent 

to which the law will impede gun owners from defending 

themselves.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. 

Grewal, No. 18-1017, 2018 WL 4688345, at *8 (D.N.J. Sept. 

28, 2018). Specifically, the Court stated that although it found 

both Kleck and Allen credible, their testimony “relied upon 

questionable data and conflicting studies,” suggesting that both 

of the experts’ methodologies and conclusions were flawed.

11

 

Id.

 

10 Because their duties require access to LCMs, active 

military members and active law enforcement officers are 

exempt from the ban. N.J. Stat. Ann. 2C:39-3(g).

11 Our dissenting colleague is of the view that the 

District Court rejected all of the expert testimony offered 
14

The District Court, however, considered other evidence 

in the record to reach its conclusion, see, e.g., id. at *6, *6 n.7, 

*12, that the Act was constitutional. The District Court held 

that a “ban on magazines capable of holding more than ten 

rounds implicates Second Amendment protections,” id. at *11, 

but that it does not violate the Second Amendment. 

Specifically, the District Court held that the Act (1) should be 

examined under intermediate scrutiny because it “places a 

minimal burden on lawful gun owners,” id. at *13, and (2) “is 

reasonably tailored to achieve [New Jersey’s] goal of reducing 

the number of casualties and fatalities in a mass shooting,” id., 

based in part on evidence showing that “there is some delay 

associated with reloading, which may provide an opportunity 

for potential victims to escape or for a bystander to intercede,” 

id. at *12.

The District Court also held that the Fifth Amendment 

Takings and Fourteenth Amendment Equal Protection claims 

lacked merit. The Court concluded that the Takings claim

failed because the modification and registration options

“provided property owners with . . . avenue[s] to comply with 

the law without forfeiting their property.” Id. at *16. The 

Court also determined that the Act’s exemption for retired law 

enforcement officers did not violate Plaintiffs’ right to equal 

 

during the preliminary injunction hearing. This does not 

accurately reflect the Court’s opinion. The Court’s opinion

shows that while it found the testimony of Kleck and Allen 

unhelpful, Ass’n of N.J. Rifle & Pistol Clubs, 2018 WL 

4688345, at *5, *7-8, it did not similarly critique Donohue and 

Stanton, id. at *5-7. The Court relied upon evidence from 

Donohue, Stanton, and a myriad of other sources to reach its 

conclusion. Id. at *3.
15

protection because law enforcement officers, in light of their 

“extensive and stringent training” and experience “confronting 

unique circumstances that come with being a police officer,”

are different from, and hence not similarly situated to, other 

residents. Id. at *14.

After concluding that Plaintiffs failed to demonstrate a 

likelihood of success on their claims, the District Court stated

that Plaintiffs did not satisfy the other requirements for a 

preliminary injunction, id. at *16, and denied their motion. 

Plaintiffs appeal.

Plaintiffs do not advocate an absolutist view of the 

Second Amendment but believe that the State’s ability to 

impose any restriction on magazine capacity is severely 

limited. Plaintiffs argue that the Act is categorically 

unconstitutional because it bans an entire class of arms 

protected by the Second Amendment, there is no empirical 

evidence supporting the State ban, and the rights of law abiding 

citizens are infringed and their ability to defend themselves in 

the home is reduced. 

On the other hand, the State asserts that it is imperative 

to the safety of its citizens to take focused steps to reduce the 

devastating impact of mass shootings. The State argues that

the Act does not hamper or infringe the rights of law abiding 

citizens who legally possess weapons.
16

II12

The decision to grant or deny a preliminary injunction 

is within the sound discretion of the district court. Winter v. 

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 33 (2008). “We 

employ a tripartite standard of review for . . . preliminary 

injunctions. We review the District Court’s findings of fact for 

clear error. Legal conclusions are assessed de novo. The 

ultimate decision to grant or deny the injunction is reviewed 

for abuse of discretion.” K.A. ex rel. Ayers v. Pocono 

Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (internal 

quotation marks and citations omitted).

13

 

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

§ 1331. We have jurisdiction pursuant to 28 U.S.C. 

§ 1292(a)(1). 

13 Plaintiffs’ argument that the clear error standard does 

not apply to legislative facts and that the Court is not limited to 

the record below in adjudicating questions of legislative fact is 

unpersuasive. 

Legislative facts have been described as: (1) general 

facts or things “knowable to the industry at all relevant times,” 

In re Asbestos Litig., 829 F.2d 1233, 1245, 1248, 1252 n.11 

(3d Cir. 1987) (Becker, J., concurring); (2) facts that underlie 

a policy decision and “have relevance to legal reasoning and 

the lawmaking process, whether in the formulation of a legal 

principle or ruling by a judge or court in the enactment of a 

legislative body.” Id. at 1248 (quoting Fed. R. Evid. 201, 

advisory committee note to subsection (a)); (3) facts not 

limited to the activities of the parties themselves that a 

government body may rely upon to reach a decision, see

Omnipoint Communc’ns Enters., LP v. Zoning Hearing Bd. of 
17

To obtain a preliminary injunction, the movants must:

demonstrate (1) that they are reasonably likely to 

prevail eventually in the litigation and (2) that 

they are likely to suffer irreparable injury 

 

Easttown Twp., 248 F.3d 101, 106 (3d Cir. 2001); and (4) in 

the words of one academic, “social facts” known to society at 

large related to individual constitutional rights, Caitlin E. 

Borgmann, Appellate Review of Social Facts in Constitutional 

Rights Cases, 101 Cal. L. Rev. 1185, 1186-87 (1994).

To the extent the record includes legislative facts, 

Plaintiffs have not met their burden of showing that the 

legislative facts New Jersey relied upon “could not reasonably 

be conceived to be true.” In re Asbestos Litig., 829 F.2d at 

1252 n.11 (holding that “[i]n an equal protection case, those 

challenging state law must convince the court that the 

legislative facts on which the classification is apparently based 

could not reasonably be conceived to be true by the 

governmental decisionmaker.”) (internal quotation marks and 

citations omitted)). Moreover, many of the facts in this record 

do not fall into the category of legislative facts as they are not 

known to the general public. For example, the amount of time 

needed to reload a magazine or the details of various active 

shooter incidents are not facts known to the general public. 

Accordingly, clear error review applies.

Even if it were within this Court’s discretion to refrain 

from applying the clearly erroneous standard to legislative 

facts, we are not compelled to do so. See Lockhart v. McCree, 

476 U.S. 162, 168 n.3 (1986) (declining to reach the standard 

of review issue for legislative facts at issue). We therefore 

decline Plaintiffs’ invitation to review the District Court’s 

factual findings de novo. 
18

without relief. If these two threshold showings 

are made the District Court then considers, to the 

extent relevant, (3) whether an injunction would 

harm the [defendants] more than denying relief 

would harm the Appellants and (4) whether 

granting relief would serve the public interest.

Id. (alteration in original) (quoting Tenafly Eruv Ass’n v. 

Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)); Fed.

R. Civ. P. 65. A plaintiff’s failure to establish a likelihood of 

success on the merits “necessarily result[s] in the denial of a 

preliminary injunction.” Am. Express Travel Related Servs., 

Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012) 

(internal quotation marks and citation omitted). On this factor,

“a sufficient degree of success for a strong showing exists if 

there is ‘a reasonable chance or probability, of winning.’” In 

re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir. 2015) (quoting 

Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 

(3d Cir. 2011) (en banc)). Here, we must decide whether

Plaintiffs have a reasonable probability of showing that the Act 

violates the Second Amendment, the Fifth Amendment’s

Takings Clause, and the Fourteenth Amendment’s Equal 

Protection Clause. We consider each claim in turn.

III

The Second Amendment provides: “A well regulated 

Militia, being necessary to the security of a free State, the right 

of the people to keep and bear Arms, shall not be infringed.” 

U.S. Const. amend. II. In District of Columbia v. Heller, 554 

U.S. 570 (2008), the Supreme Court held that the Second 

Amendment protects the right of individuals to possess 

firearms and recognized that the “core” of the Second 
19

Amendment is to allow “law-abiding, responsible citizens to 

use arms in defense of hearth and home.” Id. at 628-30, 635

(invalidating a statute banning the possession of handguns in 

the home).

14

 

We therefore must first determine whether the regulated 

item is an arm under the Second Amendment. The law 

challenged here regulates magazines, and so the question is 

whether a magazine is an arm under the Second Amendment. 

The answer is yes. A magazine is a device that holds cartridges

or ammunition. “Magazine,” Merriam-Webster Dictionary, 

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

visited Nov. 21, 2018); App. 128 (describing a magazine as “an 

implement that goes into the weapon to increase the capacity 

of the weapon itself”). Regulations that eliminate “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). Because magazines feed ammunition into certain guns, 

and ammunition is necessary for such a gun to function as 

intended, magazines are “arms” within the meaning of the 

Second Amendment. Id.; see also United States v. Miller, 307 

U.S. 174, 180 (1939) (citing 17th century commentary on gun 

use in America that “[t]he possession of arms also implied the 

possession of ammunition.”). 

Having determined that magazines are arms, we next 

apply a two-step framework to resolve the Second Amendment 

challenge to a law regulating them. United States v. 

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). First, we consider 

 

14 Heller’s teachings apply beyond the handgun ban at 

issue there. 
20

whether the regulation of a specific type of magazine, namely 

an LCM, “imposes a burden on conduct falling within the 

scope of the Second Amendment’s guarantee.” Id. Second, if 

the law burdens conduct that is protected by the Second 

Amendment, “we evaluate the law under some form of meansend scrutiny.” Id. “If the law passes muster under that 

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

A

Under step one, we consider whether the type of arm at 

issue is commonly owned,

15 Marzzarella, 614 F.3d at 90-91, 

and “typically possessed by law-abiding citizens for lawful 

purposes,”

16 Heller, 554 U.S. at 625. The record shows that 

 

15 “Common use” is not dispositive since weapons 

illegal at the time of a lawsuit would not be (or at least should 

not be) in common use and yet still may be entitled to 

protection. Friedman v. City of Highland Park, 784 F.3d 406, 

409 (7th Cir. 2015).

16 This plain language from Heller makes clear that the 

Second Amendment, like all of the amendments in the Bill of 

Rights, is not limitless. Aside from requiring consideration of 

whether the arm is typically possessed by law-abiders for 

lawful purposes, Heller also examines whether the weapon is 

“dangerous and unusual.” 554 U.S. at 627; Marzzarella, 614 

F.3d at 91; see also United States v. One (1) Palmetto State 

Armory Pa-15 Machinegun, 822 F.3d 136, 142 (3d Cir. 2016) 

(holding machine guns not protected because they are 

“exceedingly dangerous weapons” that are “not in common use 

for lawful purposes”). While the record suggests that LCMs 

are not unusual, they have “combat-functional ends” given 
21

millions of magazines are owned, App. 516, 753, often come 

factory standard with semi-automatic weapons, App. 656, are 

typically possessed by law-abiding citizens for hunting, pestcontrol, and occasionally self-defense, App. 655, 554-55,

17 and 

there is no longstanding history of LCM regulation.

18

 We will

nonetheless assume without deciding that LCMs are typically 

possessed by law-abiding citizens for lawful purposes and that 

they are entitled to Second Amendment protection. See N.Y. 

State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 257

(2d Cir. 2015); Heller v. District of Columbia, 670 F.3d 1244,

1261 (D.C. Cir. 2011) [hereinafter Heller II].

 

their capacity to inflict “more wounds, more serious, in more 

victims,” and because a shooter can hit “multiple human 

targets very rapidly,” Kolbe v. Hogan, 849 F.3d 114, 137 (4th 

Cir. 2017) (en banc) (internal quotation marks and citation 

omitted).

17 We are also mindful of Heller’s admonition that 

disproportionate criminal use of a particular weapon does not 

mean it is not typically possessed for lawful purposes. N.Y. 

State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 256

(2d Cir. 2015).

18 LCMs were not regulated until the 1920s, but most of 

those laws were invalidated by the 1970s. App. 1242-44. The 

federal LCM ban was enacted in 1994, but it expired in 2004. 

App. 1244. While a lack of longstanding history does not mean 

that the regulation is unlawful, see Heller v. District of 

Columbia, 670 F.3d 1244, 1266 (D.C. Cir. 2011), the lack of 

such a history deprives us of reliance on Heller’s presumption 

that such regulation is lawful. 
22

B

Assuming that the Act implicates an arm subject to 

Second Amendment protection, we next address the level of 

means-end scrutiny that must be applied. Marzzarella, 614 

F.3d at 89. The applicable level of scrutiny is dictated by 

whether the challenged regulation burdens the core Second 

Amendment right. If the core Second Amendment right is 

burdened, then strict scrutiny applies; otherwise, intermediate 

scrutiny applies.19 See Drake v. Filko, 724 F.3d 426, 436 (3d 

Cir. 2013). “At its core, the Second Amendment protects the 

right of law-abiding citizens to possess non-dangerous 

weapons for self-defense in the home.” Marzzarella, 614 F.3d 

at 92 (citing Heller, 554 U.S. at 635); see Drake, 724 F.3d at 

431 (declining to definitively hold that Second Amendment 

core “extends beyond the home”). Thus, laws that severely 

burden the core Second Amendment right to self-defense in the 

home are subject to strict scrutiny. Drake, 724 F.3d at 436; 

Marzzarella, 614 F.3d at 97; see also Kolbe v. Hogan, 849 F.3d 

114, 138 (4th Cir. 2017) (en banc) (applying intermediate 

scrutiny where the law “does not severely burden the core 

protection of the Second Amendment”); N.Y. State Rifle & 

Pistol Ass’n, 804 F.3d at 260 (applying intermediate scrutiny 

where “[t]he burden imposed by the challenged legislation is 

real, but it is not ‘severe’” (citation omitted)); Fyock v. City of 

Sunnyvale, 779 F.3d 991, 998-99 (9th Cir. 2015) (determining 

appropriate level of scrutiny by considering “how severely, if 

at all, the law burdens [the Second Amendment] right”); Heller 

 

19 Rational basis review is not appropriate for laws that 

burden the Second Amendment. Heller, 554 U.S. at 628 n.27; 

Marzzarella, 614 F.3d at 95-96. 
23

II, 670 F.3d at 1261 (determining “the appropriate standard of 

review by assessing how severely the prohibitions burden the 

Second Amendment right”).

1

The Act here does not severely burden the core Second 

Amendment right to self-defense in the home for five reasons. 

First, the Act, which prohibits possession of magazines with 

capacities over ten rounds, does not categorically ban a class 

of firearms. The ban applies only to magazines capable of 

holding more than ten rounds and thus restricts “possession of 

only a subset of magazines that are over a certain capacity.” 

Fyock, 779 F.3d at 999 (describing LCM ban as a restriction); 

S.F. Veteran Police Officers Ass’n v. City & Cty. of San 

Francisco, 18 F. Supp. 3d 997, 1002-03 (N.D. Cal. 2014)

(emphasizing that the law was not “a total ban on all 

magazines” but “a total ban only on magazines holding more 

than ten rounds”); see also App. 159 (testimony explicitly 

addressing that the law “does not ban any particular class of 

gun” because “it just deals with the size of the magazine”).

Second, unlike the ban in Heller, the Act is not “a

prohibition of an entire class of ‘arms’ that is overwhelmingly 

chosen by American society for [self-defense in the home].” 

544 U.S. at 628. The firearm at issue in Heller, a handgun, is 

one that the Court described as the “quintessential self-defense 

weapon.” Id. at 629. The record here demonstrates that LCMs 

are not well-suited for self-defense. App. 225, 861, 863, 915, 

1024. 

Third, also unlike the handgun ban in Heller, a 

prohibition on “large-capacity magazines does not effectively 
24

disarm individuals or substantially affect their ability to defend 

themselves.” Heller II, 670 F.3d at 1262 (citing Marzzarella, 

614 F.3d at 97). Put simply, the Act here does not take firearms 

out of the hands of law-abiding citizens, which was the result 

of the law at issue in Heller. The Act allows law-abiding 

citizens to retain magazines, and it has no impact on the many 

other firearm options that individuals have to defend 

themselves in their home.

20

 Marzzarella, 614 F.3d at 97; App. 

230-32, 917-18. 

Fourth, the Act does not render the arm at issue here 

incapable of operating as intended. New Jersey citizens may 

still possess and utilize magazines, simply with five fewer 

rounds per magazine. Ass’n of N.J. Rifle & Pistol Clubs, 2018

WL 4688345, at *12; see also N.Y. State Rifle & Pistol Ass’n, 

804 F.3d at 260 (“[W]hile citizens may not acquire highcapacity magazines, they can purchase any number of 

magazines with a capacity of ten or fewer rounds. In sum, 

 

20 Heller stated that “[i]t is no answer to say, as 

petitioners do, that it is permissible to ban the possession of 

handguns so long as the possession of other firearms (i.e., long 

guns) is allowed.” 554 U.S. at 629 (emphasis omitted). 

However, as discussed above, the handgun ban at issue in 

Heller, which forbade an entire class of firearms, differs from 

the LCM ban here, which does not prevent law-abiding citizens 

from using any type of firearm provided it is used with 

magazines that hold ten rounds or fewer. In fact, at oral 

argument, Plaintiffs were unable to identify a single model of 

firearm that could not be brought into compliance with New 

Jersey’s magazine capacity restriction, and even if such 

firearms exist, they simply need to be registered for owners to 

legally retain them. N.J. Stat. Ann. 2C:39-20(a).
25

numerous alternatives remain for law-abiding citizens to 

acquire a firearm for self-defense.” (internal quotation marks 

and citation omitted)). 

Fifth, “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.” Marzzarella, 614 F.3d at 94. 

For these reasons, while the Act affects a type of 

magazine one may possess, it does not severely burden, and in 

fact respects, the core of the Second Amendment right. See

N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 258; Marzzarella, 

614 F.3d at 94 (observing that machine guns are not protected 

by the Second Amendment even though they may be used in 

the home for self-defense). As a result, intermediate scrutiny 

applies.21

 

21 No court has applied strict scrutiny to LCM bans, 

reasoning that the bans do not impose a severe or substantial 

burden on the core Second Amendment right. Kolbe, 849 F.3d 

at 138; N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 260; Fyock, 

779 F.3d at 999; Heller II, 607 F.3d at 1262; see also Duncan

v. Becerra, No. 17-56081, 2018 WL 3433828, at *2 (9th Cir. 

July 17, 2018) (holding district court did not abuse its 

discretion in applying intermediate scrutiny and considering 

whether the arm was in common use for lawful purposes). 

Four courts applied intermediate scrutiny, and one court upheld 

an LCM ban without applying any level of scrutiny. Instead, 

it considered whether the banned weapon was “common at the 

time of the ratification,” had a relationship to “the preservation 
26

2

“[U]nder intermediate scrutiny[,] the government must 

assert a significant, substantial, or important interest; there 

must also be a reasonable fit between that asserted interest and 

the challenged law, such that the law does not burden more 

conduct than is reasonably necessary.” Drake, 724 F.3d at 436; 

Marzzarella, 614 F.3d at 98 (requiring serial numbers on guns 

reasonably fits government interest). The law need not be the 

least restrictive means of achieving that interest. Drake, 614 

F.3d at 439.22

 

or efficiency of a well regulated militia,” and whether lawabiding citizens retained adequate means for self-defense. 

Friedman, 784 F.3d at 410.

22 Our dissenting colleague seems to misunderstand the 

analytical approach that we have adopted and which is 

consistent with our precedent. The dissent suggests that we 

engage in interest-balancing. Our analysis demonstrates that 

we do not. The scrutiny analysis described above is not the

interest-balancing approach advocated by Justice Breyer and 

rejected by the Heller majority, where a court, focused on 

proportionality, weighs the government interest against the 

burden on the Second Amendment right. 554 U.S. at 634. At 

the first step of Marzzarella, assessing the burden that this Act 

places on the core of the Second Amendment does not consider 

the government interest. At the second step of Marzzarella, we 

identify a substantial government interest and whether the 

legislation is a reasonable fit for that interest. There is no 

balancing at either step. 
27

“The State of New Jersey has, undoubtedly, a 

significant, substantial and important interest in protecting its 

citizens’ safety.” Id. at 437. Given the context out of which 

the Act was enacted, this clearly includes reducing the lethality 

of active shooter and mass shooting incidents. Thus, the State 

has asserted a qualifying interest.

New Jersey’s LCM ban reasonably fits the State’s

interest in promoting public safety. LCMs are used in mass 

shootings. App. 1057 (stating that “LCM firearms are more 

heavily represented among guns used in murders of police and 

mass murders”); see App. 269 (noting 23 mass shootings using 

LCMs), 1118-26 (describing weapons used in sixty-one mass 

shootings, eleven of which used fifteen-round magazines, two

of which used thirteen, and two of which used fourteen round 

magazines). LCMs allow for more shots to be fired from a 

single weapon and thus more casualties to occur when they are 

used. App. 562 (noting, however, that this does not imply that 

LCMs “caused shooters to inflict more casualties”), 865, 895-

98. By prohibiting LCMs, the Act reduces the number of shots 

that can be fired from one gun, making numerous injuries less 

likely. 

Not 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. App. 919-20. 

Reducing the capacity of the magazine to which a shooter has 

access means that the shooter will have fewer bullets

immediately available and will need to either change weapons 
28

or reload to continue shooting.

23

 Weapon changes and 

reloading result in a pause in shooting and provide an 

opportunity for bystanders or police to intervene and victims 

to flee. As the Commissioner of the Baltimore Police 

Department explained, if a shooter uses a ten-round magazine, 

rather than a 30, 50, or 100-round magazine, the chances to act 

increase: 

[u]se of ten-round magazines would thus offer 

six to nine more chances for bystanders or law 

enforcement to intervene during a pause in 

firing, six to nine more chances for something to 

go wrong with a magazine during a change, six 

to nine more chances for the shooter to have 

problems quickly changing a magazine under 

intense pressure, and six to nine more chances 

for potential victims to find safety during a pause 

in firing. Those six to nine additional chances 

can mean the difference between life and death 

for many people.

App. 865; see also Kolbe, 849 F.3d at 128 (same). 

 

23 While it is true that some active shooters carry 

multiple weapons, see App. 967-88 (describing active shooter 

incidents 2000-2013, some of which the shooter had rifles, 

handguns, and/or shotguns), 1141-46 (same for 2014-2015), 

1156-64 (same for 2016-2017), when those weapons are 

equipped with LCMs, there are more continuously-fired shots

from each gun, which means fewer interruptions in the 

shooting. 
29

This view is corroborated by other items in the record 

demonstrating that a delay occurs when a shooter needs to 

reload, see App. 114 (eight to ten seconds for inexperienced 

shooter or two to four seconds for trained shooter), and that 

such delay can be consequential. Videos from the Las Vegas 

shooting in 2017 show that “concert attendees would use the 

pauses in firing when the shooter’s high capacity magazines 

were spent to flee.” App. 914. During the Navy Yard shooting, 

one victim had a chance to escape when the shooter was forced

to reload. App. 1045 (describing Navy Yard shooting where 

shooter attempted to kill a woman, was out of ammunition, and 

left to reload, at which time she found a new hiding spot and 

ultimately survived); see also App. 658-59, 1027 (describing 

escape during reloading in 2012 Newtown shooting). There 

are multiple instances when individuals have intervened in 

mass shootings and active shooter incidents to stop the shooter. 

App. 830 (Waffle House shooting), 969 (Florida’s Gold Leaf 

Nursery shooting where “shooter was restrained by a citizen 

while attempting to reload his gun”), 1113 (Arizona’s Giffords 

shooting), 1142 (Seattle Pacific University shooting where

shooter was confronted/pepper-sprayed by student while 

reloading). While each incident may not have involved delay 

due to a need to reload, see App. 282 (distinguishing Waffle 

House incident on the basis that the intervener “said he didn’t 

know one way or another, and when he was interviewed the 

first possibility he offered was the guy’s – the shooter’s gun 

jammed”), it was the pause in shooting that allowed individuals

and bystanders to act. See App. 865, 979, 1142. In light of 

this evidence, the District Court did not clearly err when it 

concluded that the evidence “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.” Ass’n of N.J. Rifle 
30

& Pistol Clubs, 2018 WL 4688345, at *12. Therefore, the ban 

reasonably fits New Jersey’s interest.24 See Drake, 724 F.3d at 

437.

 

24 Our dissenting colleague says that our analysis has 

placed the burden of proof on Plaintiffs. That is incorrect. The 

State bears the burden of proving that the Act is constitutional 

under heightened scrutiny. Hassan v. City of New York, 804 

F.3d 227, 301 (3d Cir. 2015). It has done so with appropriate 

evidence. The record demonstrates concrete examples of 

intervention and escape permitted by pauses in reloading, 

including the episodes in Tennessee, Las Vegas, Florida, 

Newtown, D.C., Arizona, and Seattle. App. 830, 914, 969, 

1027, 1045, 1113, 1142. 

The dissent prefers, and in fact insists, on a particular 

type of evidence, namely empirical studies demonstrating a 

causal link between the LCM ban and a reduction in mass 

shooting deaths. This is not required. First, intermediate 

scrutiny requires not a causal link but a reasonable fit between 

the ban and the State’s goal, and the record supports this 

reasonable fit. As explained above, the LCM ban provides the 

circumstance that will enable victims to flee and bystanders to 

intervene, and thereby reduce harm. Second, while in some 

contexts empirical evidence may be useful to examine whether 

a law furthers a significant government interest, Fisher v. Univ. 

of Tex. at Austin, 136 S. Ct. 2198, 2212 (2016) (examining 

both statistical and anecdotal data in support of the 

University’s position), this is not the only type of evidence that 

can be used or is even necessary for a state to justify its 

legislation. To take the dissent’s suggestion concerning the 

need for empirical studies to its logical conclusion, the State 

would have to wait for studies analyzing a statistically 
31

 

significant number of active and mass shooting incidents 

before taking action to protect the public. The law does not 

impose such a stringent requirement. 

Moreover, the dissent criticizes us for reviewing the 

entire record to determine whether the District Court clearly 

erred in its factual determinations, but clear error review 

requires it. See In re Lansdale Family Rests., Inc., 977 F.2d 

826, 828 (3d Cir. 1992) (holding that clear error review 

“requires us to determine whether, although there is evidence 

to support it, we are left with the definite and firm conviction 

from the entire record” that the court “committed a mistake of 

fact”). When reviewing for clear error, we examine the record 

to determine if there is factual support for the District Court’s 

conclusion. Marxe v. Jackson, 833 F.2d 1121, 1125 (3d Cir. 

1987) (stating that “if a study of the record suggests the district 

court did not completely miss the mark in its conclusion that 

[the movant] is likely to succeed on the merits of her case, we 

must uphold the court’s finding on that criterion.”). Because 

we are tasked with reviewing the record, we are not limited to 

the facts the Court specifically mentioned to determine if the 

factual finding is erroneous. Indeed, it is often the case that a 

factual finding can be supported by various pieces of evidence, 

some of which may be mentioned and some of which may not. 

For example, the factual finding that pauses in shooting permit 

escape and intervention is borne out in the record by various 

eyewitness accounts, the declarations of law enforcement 

officers, and the twelve-minute video of the Las Vegas 

shooting, which has images of individuals fleeing the area 

during breaks in the shooting. These are real events that 

provide real evidence that allow us to conclude that the District 

Court’s factual findings were not clear error.
32

Plaintiffs attempt to discount the need for the LCM ban 

by describing mass shootings as rare incidents, and asserting 

that the LCM ban burdens the rights of law-abiding gun owners

to address an infrequent occurrence.25 The evidence adduced 

before the District Court shows that this statement downplays 

the significant increase in the frequency and lethality of these 

incidents. See, e.g., App. 906, 1133-34; see also App. 1042-

43 (noting that pre-2015, there was never a year with more than 

five gun massacres, and 2015 had seven “massacres” as 

defined by Mother Jones, but acknowledging discrepancies

with Mother Jones’ definition of massacre or mass shooting). 

 

25 Plaintiffs also argue that the LCM ban burdens the 

rights of law-abiding gun owners by depriving them of the 

tactical advantage that LCMs provide to criminals and law 

enforcement officers. Transcript of Oral Argument at 11:17-

23, 13:3-19, 16:7-17:2, Ass’n of N.J. Rifle & Pistol Clubs, Inc.

v. Grewal, et al., No. 18-3170 (Nov. 20, 2018). Plaintiffs’

expert testified that, given the average citizen’s poor shooting 

accuracy and the potential for multiple assailants, LCMs are 

important for self-defense. App. 555, 655-56.

We recognize that Heller instructs that the Second 

Amendment “elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth 

and home.” 554 U.S. at 635. The Act here does not undermine 

this interest. The record reflects that most homeowners only 

use two to three rounds of ammunition in self-defense. App. 

626. Furthermore, homeowners acting in self-defense are 

unlike law enforcement officers who use LCMs to protect the 

public, particularly in gunfights, App. 1103-04, or active and 

mass shooters who use their weapons to inflict maximum 

damage. 
33

Despite Plaintiffs’ assertion to the contrary, New Jersey has not 

been spared from a mass shooting. Just days after the Act was 

passed, a mass shooter injured twenty-two individuals and 

killed one at an arts festival in Trenton. Ass’n of N.J. Rifle & 

Pistol Clubs, 2018 WL 4688345, at *3; App. 1288-95. Even if 

this event had not occurred, “New Jersey need not wait for its 

own high-fatality gun massacre before curtailing access to 

LCMs.” Giffords Law Ctr. Amicus Br. at 3; App. 247. 

Lastly, the Act does not burden more conduct than 

reasonably necessary. As we have already discussed, the 

prohibition on LCMs does not disarm an individual. While the 

Act does limit access to one tool—magazines that hold over 

ten rounds—it imposes no limit on the number of firearms or 

magazines or amount of ammunition a person may lawfully 

possess.26 In any event, the record does not show that LCMs 

are well-suited or safe for self-defense.

27

 App. 844-51, 861, 

 

26 The dissent incorrectly asserts that our analysis lacks 

a limiting principle. We have a limiting principle and have 

applied it, namely whether the law severely and substantially 

burdens the core right to self-defense in the home. See Drake, 

724 F.3d at 436; Marzzarella, 614 F.3d at 97; see also Kolbe, 

849 F.3d at 138. Moreover, the only issue we are deciding is 

whether New Jersey’s limit on the capacity of magazines to no 

more than ten rounds is constitutional. We rule on no other 

issue. 

27 Plaintiffs rely on evidence from Kleck to support their 

assertion that LCMs are needed for self-defense. He asserts 

that attacks by multiple offenders are common, postulates the 

number of shots an average citizen, as compared to a proficient 

police officer, needs to shoot an offender, and then multiplies 
34

863, 923, 1024. Thus, the Act is designed to “remove these 

especially lethal items from circulation so that they will be 

unavailable, or at least less available, to mass murderers,” S.F. 

Veteran Police Officers Ass’n, 18 F. Supp. 3d at 1004; see also

Friedman v. City of Highland Park, 784 F.3d 406, 412 (7th Cir. 

2015); App. 195, 221-22, 846, 800-01, 853, and it does not 

burden a gun owner’s right to self-defense, Drake, 724 F.3d at 

439 (upholding a gun law that “takes into account the 

individual’s right to protect himself from violence as well as 

the community at large’s interest in self-protection” and 

general public safety). 

For these reasons, the Act survives intermediate 

scrutiny, and like our sister circuits, we hold that laws 

restricting magazine capacity to ten rounds of ammunition do 

not violate the Second Amendment.

28

 See Kolbe, 849 F.3d 114 

 

that by four to conclude that average persons need more than 

ten rounds of ammunition to act in self-defense. App. 555. 

This calculation is speculative.

28 Plaintiffs argue that three First Amendment standards 

should be used to evaluate a Second Amendment challenge to 

a gun law, namely that: (1) the Act cannot regulate the 

secondary effects of gun violence by suppressing the right to 

possess firearms; (2) the Act must alleviate the harm it seeks 

to address; and (3) New Jersey was required to consider other 

less restrictive alternatives. The dissent also applies First 

Amendment, as well as Equal Protection, articulations of the 

intermediate scrutiny test to the case before us. The controlling 

case law, however, sets forth the governing law for evaluating 

Second Amendment challenges. 
35

 

While our Court has consulted First Amendment 

jurisprudence concerning the appropriate level of scrutiny to 

apply to a gun regulation, see Binderup v. Att’y Gen., 836 F.3d 

336, 345 (3d Cir. 2016) (en banc); Marzzarella, 614 F.3d at 89 

n.4, we have not wholesale incorporated it into the Second 

Amendment. This is for good reason: “[t]he risk inherent in 

firearms and other weapons distinguishes the Second 

Amendment right from other fundamental rights . . . .” Bonidy 

v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015). We 

said in Marzzarella that the First Amendment “is a useful tool 

in interpreting the Second Amendment,” but we are also 

“cognizant that the precise standards of scrutiny and how they 

apply may differ under the Second Amendment.” 614 F.3d at 

96 n.15. The Court of Appeals for the Second Circuit has also 

noted that there are “salient differences between the state’s 

ability to regulate” First and Second Amendment rights, and 

therefore, “it would be as imprudent to assume that the 

principles and doctrines developed in connection with the First

Amendment apply equally to the Second, as to assume that 

rules developed in the Second Amendment context could be 

transferred without modification to the First.” Kachalsky v. 

County of Westchester, 701 F.3d 81, 92 (2d Cir. 2012) 

(declining to adopt First Amendment prior restraint doctrine 

for public carriage restrictions). For the same reasons, the 

articulation of intermediate scrutiny for equal protection 

purposes is not appropriate here. Accordingly, we decline to 

deviate from the standards set forth in Drake and Marzzarella

for considering a Second Amendment challenge. 

Even if we evaluated the First Amendment 

considerations Plaintiffs advocate, they do not change the 

outcome. First, Plaintiffs rely on Justice Kennedy’s concurring 
36

 

opinion in City of Los Angeles v. Alameda Books, Inc., 535 

U.S. 425, 445 (2002) (Kennedy, J., concurring) (“[A] city may 

not regulate the secondary effects of speech by suppressing the 

speech itself.”), to assert that the State impermissibly seeks to 

regulate secondary effects of gun violence by banning LCMs. 

Unlike the zoning ordinance in Alameda Books, the Act has 

the “purpose and effect” of enhancing public safety and 

reducing the lethality of mass shootings, it does not suppress 

the Second Amendment right. Id. at 445. 

Second, Plaintiffs argue that the Act must “in fact 

alleviate the problem meant to be addressed,” Turner Broad. 

Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994), and may not 

simply be a predictive judgment to survive intermediate 

scrutiny. The record here provides a basis to conclude that the 

Act would achieve New Jersey’s goal to protect public safety 

and reduce the lethality of active and mass shootings. As we 

have already explained, the evidence shows that pauses in 

shooting, which would occur if a shooter needs to reload 

because he lacks an LCM, save lives. 

Third, Plaintiffs claim that New Jersey failed to 

consider any less restrictive alternatives in passing the Act and 

that this is fatal to the law’s survival. In Bruni v. City of 

Pittsburgh, 824 F.3d 353 (3d Cir. 2016), we examined a 

content-neutral speech regulation under intermediate scrutiny 

and considered whether the state “show[ed] either that 

substantially less-restrictive alternatives were tried and failed, 

or that the alternatives were closely examined and ruled out for 

good reason.” Id. at 369; see also McCullen v. Coakley, 134 

S. Ct. 2518, 2540 (2014). To the extent we must examine

whether the legislature considered less restrictive means, we 

can take into account that New Jersey has historically used gun 
37

(upholding Maryland ten round limit); N.Y. State Rifle & 

Pistol Ass’n, 804 F.3d at 263-64 (upholding New York and 

Connecticut’s ten-round limit); Friedman, 784 F.3d at 411-12

(upholding city’s ten-round limit); Fyock, 779 F.3d at 1000

 

regulations to address public safety. At the same time New 

Jersey enacted the LCM ban, it passed five other regulations, 

which focused on background checks, set mental health 

limitations, amended requirements for concealed carry, and 

prohibited armor piercing ammunition. See N.J. Stat. Ann.

2A:62A-16, 2C:39-1, 2C:39-3, 2C:58-3, 2C:58-4, 2C:58-20. 

A state is not required to choose a single avenue to achieve a 

goal and wait to see whether it is effective. Further, one of the 

alternatives Plaintiffs suggest, limiting magazines to the home, 

is already addressed by New Jersey’s concealed carry law. See

N.J. Stat. Ann. 2C:58-4. The other alternatives that Plaintiffs 

claim that New Jersey should have pursued, namely 

background checks and registration, Oral Argument Transcript 

at 9:7-19, would not address the fact that 71% of active and 

mass shooters were in lawful possession of the firearms that 

they used and thus these alternatives would have had no impact 

on them. 
38

same)29; Heller II, 670 F.3d at 1262-64 (upholding D.C.’s tenround limit).30

 

IV

Plaintiffs’ Fifth Amendment Takings claim also fails. 

The Takings Clause provides that “private property [shall not] 

be taken for public use, without just compensation.”31 U.S. 

Const. amend. V. “The paradigmatic taking requiring just 

 

29 In a more recent non-precedential opinion, a separate 

panel of the Court of Appeals for the Ninth Circuit affirmed 

the United States District Court for the Southern District of 

California’s order preliminarily enjoining California’s LCM 

ban, relying on the district court’s fact findings, which it 

properly recognized it could not reweigh. See Duncan, 2018 

WL 3433828, at *1-2. The district court had distinguished the 

evidentiary record before the Fyock panel, which issued a 

precedential opinion upholding analogous ban, as “credible, 

reliable, and on point.” Duncan v. Becerra, 265 F. Supp. 3d 

1106, 1120 (S.D. Cal. 2017) (quoting Fyock, 779 F.3d at 

1000). Thus, Duncan seems to reflect a ruling based upon the 

evidence presented and not a general pronouncement about 

whether LCM bans violate the Second Amendment.

30 The United States District Court for the District of 

Massachusetts also rejected a Second Amendment challenge to 

Massachusetts’s LCM ban. Worman v. Healey, 293 F. Supp. 

3d 251, 264-66 (D. Mass. 2018), appeal docketed, Worman v. 

Baker, No. 18-1545 (1st Cir. June 19, 2018). 

31 The Takings Clause applies to the states through the 

Fourteenth Amendment. Chicago, B. & Q.R. Co. v. City of 

Chicago, 166 U.S. 226, 241 (1897).
39

compensation is a direct government appropriation or physical 

invasion of private property.” Lingle v. Chevron U.S.A., Inc., 

544 U.S. 528, 537 (2005). In addition, a government 

regulation “may, in some instances, be so onerous that its effect 

is tantamount to a direct appropriation or ouster,” and “such 

‘regulatory takings’ may be compensable under the Fifth 

Amendment.” Id. 

Here, the compliance measures in the Act do not result 

in either an actual or regulatory taking.32 There is no actual 

taking because owners have the option to transfer or sell their 

LCMs to an individual or entity who can lawfully possess 

LCMs, modify their LCMs to accept fewer than ten rounds, or 

 

32 New Jersey’s LCM ban seeks to protect public safety 

and therefore it is not a taking at all. A compensable taking 

does not occur when the state prohibits the use of property as 

an exercise of its police powers rather than for public use. See

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027-28, 1027 

n.14 (1992); Mugler v. Kansas, 123 U.S. 623, 668-69 (1887); 

Nat’l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 

63 (3d Cir. 2013). We, however, need not rest on this ground 

to conclude that the Act does not violate the Takings Clause

because it does not result in either an actual or regulatory 

taking. 

Plaintiffs assert that Horne v. Department of 

Agriculture, 135 S. Ct. 2419 (2015), dictates that the Act 

constitutes a taking. We disagree. Horne dealt with a taking 

involving property for government use. Id. at 2425 (addressing 

constitutionality of a reserve requirement that grape growers 

set aside a certain percentage of their crop for the government 

to sell in noncompetitive markets). The Act here does not 

involve a taking for government use in any way. 
40

register those LCMs that cannot be modified. See N.J. Stat.

Ann. 2C:39-19, 2C:39-20. With these alternatives, “[t]he ban 

does not require that owners turn over their magazines to law 

enforcement.” Wiese v. Becerra, 306 F. Supp. 3d 1190, 1198 

(E.D. Cal. 2018); see Rupp v. Becerra, No. 8:17-cv-00746, 

2018 WL 2138452, at *8 (C.D. Cal. May 9, 2018) (dismissing 

takings claim where “[t]he law offers a number of options to 

lawful gun owners that do not result in the weapon begin 

surrendered to the government”). 

The Act also does not result in a regulatory taking 

because it does not deprive the gun owners of all economically 

beneficial or productive uses of their magazines. See Murr v. 

Wisconsin, 137 S. Ct. 1933, 1942 (2017) (stating that “a

regulation which denies all economically beneficial or 

productive use of land will require compensation under the 

Takings Clause” (internal quotation marks and citation 

omitted)); see also Lucas v. S.C. Coastal Council, 505 U.S. 

1003, 1030 (1992) (describing a “total taking” where a 

regulation “declares ‘off-limits’ all economically productive or 

beneficial uses of land”). Simply modifying the magazine to 

hold fewer rounds of ammunition than before does not 

“destroy[] the functionality of the magazine.” Wiese, 306 F. 

Supp. 3d at 1198 (internal quotation marks omitted). Indeed, 

there is no assertion that a gun owner cannot use a modified 

magazine for its intended purpose. A gun owner may also

retain a firearm with a fixed magazine that is “incapable of 

being modified to accommodate 10 or less rounds” or one that 

only “accepts a detachable magazine with a capacity of up to 

15 rounds which is incapable of being modified to 

accommodate 10 or less rounds” so long as the firearm is 

registered. N.J. Stat. Ann. 2C:39-20(a). Thus, owners may 

keep their unmodifiable LCMs and modified versions. These 
41

magazines may be used in the same way expected: to hold 

multiple rounds of ammunition in a single magazine. In short, 

the Act does not result in a taking.

V

Finally, Plaintiffs’ Equal Protection claim fails. The 

Equal Protection Clause provides that no state shall “deny to 

any person within its jurisdiction the equal protection of the 

laws.” U.S. Const. amend. XIV, § 1. “This is essentially a 

direction that all persons similarly situated should be treated 

alike.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 

F.3d 141, 151 (3d Cir. 2005) (citing City of Cleburne v. 

Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Thus, to 

establish an equal protection claim, Plaintiffs “must 

demonstrate that they received different treatment from that 

received by other individuals similarly situated.” Id. (citations 

omitted). 

Plaintiffs assert that the Act violates the Fourteenth 

Amendment’s Equal Protection Clause because it allows 

retired law enforcement officers to possess LCMs while 

prohibiting retired military members and ordinary citizens 

from doing so. N.J. Stat. Ann. 2C:39-3(g), 2C:39-17. 

Plaintiffs have not shown that retired law enforcement officers

are similarly situated to other New Jersey residents. Retired 

law enforcement officers have training and experience not 

possessed by the general public. Kolbe, 849 F.3d at 147 

(holding that retired law enforcement officers “are not 

similarly situated to the general public with respect to the 

assault weapons and large-capacity magazines banned”). 

Police officers in New Jersey must participate in firearms and 

defensive tactics training, including mandatory range and 
42

classroom training, under a variety of simulated conditions. 

App. 144; see, e.g., App. 1361, 1369, 1368, 1383. Law 

enforcement officers are also tested on a periodic basis after 

initial qualification and must re-qualify twice a year and meet 

certain shooting proficiency requirements. App. 144-45; see

App. 1322-410 (describing standards, requirements, and full 

courses for law enforcement firearms qualification). Retired

law enforcement officers must also satisfy firearms 

qualification requirements. N.J. Stat. Ann. 2C:39-6(l). 

Moreover, because the standard-issue weapon for many New 

Jersey law enforcement officers is a Glock 19 with a loaded 

fifteen round magazine, App. 116-17, these officers have

experience carrying and using LCMs. Thus, law enforcement 

officers, both active and retired, have training and experience

that distinguishes them from the general public.

 

Law enforcement officers are also different from 

members of the military. Unlike military personnel trained for 

the battlefield, law enforcement officers are trained for and 

have experience in addressing volatile situations in both public 

streets and closed spaces, and they operate in noncombat zones 

where the Constitution and other rules apply. App. 148-49. 

Even if some military members receive firearms training 

comparable to the training law enforcement officers receive, 

App. 140-41, the scope and nature of their training and 

experience are different, App. 141, 147-49.

For these reasons, retired 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. 
43

VI

For the foregoing reasons, we will affirm the order 

denying Plaintiffs’ motion for a preliminary injunction. 
BIBAS, Circuit Judge, dissenting.

The Second Amendment is an equal part of the Bill of 

Rights. We must treat the right to keep and bear arms like other 

enumerated rights, as the Supreme Court insisted in Heller. We 

may not water it down and balance it away based on our own 

sense of wise policy. 554 U.S. at 634-35.

Yet the majority treats the Second Amendment differently 

in two ways. First, it weighs the merits of the case to pick a tier 

of scrutiny. That puts the cart before the horse. For all other 

rights, we pick a tier of scrutiny based only on whether the law

impairs the core right. The Second Amendment’s core is the 

right to keep weapons for defending oneself and one’s family

in one’s home. The majority agrees that this is the core. So 

whenever a law impairs that core right, we should apply strict 

scrutiny, period. That is the case here. 

Second, though the majority purports to use intermediate 

scrutiny, it actually recreates the rational-basis test forbidden 

by Heller. It suggests that this record favors the government, 

but make no mistake—that is not what the District Court found. 

The majority repeatedly relies on evidence that the District 

Court did not rely on and expert testimony that the District 

Court said was “of little help.” 2018 WL 4688345, at *8. It 

effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government.

Whether strict or intermediate scrutiny applies, we should 

require real evidence that the law furthers the government’s 

aim and is tailored to that aim. But at key points, the majority 
2

substitutes anecdotes and armchair reasoning for the concrete 

proof that we demand for heightened scrutiny anywhere else. 

New Jersey has introduced no expert study of how similar 

magazine restrictions have worked elsewhere. Nor did the District Court identify any other evidence, as opposed to armchair 

reasoning, that illuminated how this law will reduce the harm 

from mass shootings. Id. at *12-13. So New Jersey cannot win 

unless the burden of proof lies with the challengers. It does not.

The majority also guts heightened scrutiny’s requirement 

of tailoring. Alternatives to this ban may be less burdensome 

and as effective. New Jersey has already gone further than most 

states. It has a preexisting fifteen-round magazine limit and a

restrictive permitting system. These laws may already do much 

to allay its public-safety concerns. New Jersey needs to show 

that these and other measures will not suffice.

The majority stands in good company: five other circuits 

have upheld limits on magazine sizes. These courts, like the 

New Jersey legislature, rightly worry about how best to reduce 

gun violence. But they err in subjecting the Second Amendment to different, watered-down rules and demanding little if 

any proof. So I would enjoin this Act until New Jersey provides 

real evidence to satisfy its burden of proving the Act constitutional.

I. STRICT SCRUTINY APPLIES TO LAWS THAT IMPAIR 

SELF-DEFENSE IN THE HOME

Unlike the majority, I would apply strict scrutiny to any law 

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

home. This law does so. And it fails strict scrutiny.
3

A. Other core constitutional rights get strict scrutiny

The Supreme Court has not set up tiers of scrutiny for gun 

regulations. Heller, 554 U.S. at 634. That may be intentional: 

many rights do not have tiers of scrutiny. E.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (jury trial); Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause). But our precedent mandates them for the Second Amendment, at least for 

laws that do not categorically ban commonly used weapons. 

See Marzzarella, 614 F.3d at 96-97.

As the majority recognizes, if we apply tiers of scrutiny, we 

apply strict scrutiny to the right’s core. Maj. Op. at 22. For 

other rights, that is the end of the question. The “bedrock principle” of the Free Speech Clause forbids limiting speech just 

because it is “offensive or disagreeable.” Texas v. Johnson, 491 

U.S. 397, 414 (1989). So content-based speech restrictions get 

strict scrutiny. Id. at 412. The Free Exercise Clause was designed as a bulwark against “religious persecution and intolerance.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (internal quotation marks omitted). So laws that target religion or religious conduct get strict 

scrutiny. Id. at 533. And the Equal Protection Clause targets 

classifications that historically were used to discriminate. See 

Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 236 (1995). 

So laws that classify based on race get strict scrutiny. Id. at

235.
4

B. The Second Amendment’s core is self-defense in the 

home

The Second Amendment merits the same level of scrutiny. 

As Heller and McDonald confirm, and the majority acknowledges, its core turns on the weapon’s function and its location: 

self-defense and the home. Maj. Op. 18-19, 22. Laws that tread

on both warrant strict scrutiny.

Self-defense is the quintessential protected function of 

weapons. As Heller stressed, “it [i]s the central component of 

the right itself.” 554 U.S. at 599 (emphasis in original); accord 

id. at 628. Heller thus focused on laws that deprive people of 

weapons commonly used for self-defense. Id. at 624, 629. And 

McDonald focused on the history of colonists’ and freedmen’s 

defending themselves, whether from King George’s troops or 

the Ku Klux Klan. 561 U.S. at 768, 772 (majority opinion); id.

at 857 (Thomas, J., concurring in part and concurring in the 

judgment).

Not every gun law impairs self-defense. Our precedent applies intermediate scrutiny to laws that do not affect weapons’ 

function, like serial-number requirements. Marzzarella, 614 

F.3d at 97. But for laws that do impair self-defense, strict scrutiny is apt.

And the home is the quintessential place protected by the 

Second Amendment. In the home, “the need for defense of self, 

family, and property is most acute.” McDonald, 561 U.S. at 

767 (quoting Heller, 554 U.S. at 628). So the core is about using weapons in common use for self-defense in the home.
5

C. This Act burdens the core right

A ban on large magazines burdens that core right. Large 

magazines, unlike machineguns, are in common use. The ban 

extends to the home. Indeed, that is the main if not only locale 

of the law, as New Jersey can already deny most people permits to carry large magazines publicly. See N.J. Stat. Ann. 

§2C:58-4(c). And the ban impairs using guns for self-defense. 

The government’s entire case is that smaller magazines mean 

more reloading. That may make guns less effective for ill—but 

so too for good. The government’s own police detective testified that he carries large magazines because they give him a 

tactical “advantage[],” since users must reload smaller magazines more often. App. 116-18. And he admitted that “lawabiding citizens in a gunfight” would also find them “advantageous.” App. 119. So the ban impairs both criminal uses and 

self-defense. 

The law does not ban all magazines, so it is not per se unconstitutional. But it does impair the core Second Amendment 

right. We usually would stop there. How much the law impairs

the core or how many people use the core right that way does

not affect the tier of scrutiny. So like any other law that burdens 

a constitutional right’s core, this law warrants strict scrutiny.

D. The majority’s responses are unconvincing

The majority tries to justify using intermediate scrutiny. 

But it errs twice over. 

1. Forbidden interest-balancing. First and most fundamentally, the majority weighs the merits of the right to possess 

large magazines. It extends a passing phrase from Marzzarella
6

into a requirement that a burden “severely burden the core Second Amendment right to self-defense in the home” before it 

will receive strict scrutiny. Maj. Op. at 22 (emphasis added) 

(citing Marzzarella, 614 F.3d at 97); accord id. at 25. It demands evidence that people commonly fire large magazines in 

self-defense. The challengers offer some data, and the government offers different data. The majority observes that the record is unclear on how many people fire more than ten rounds 

in self-defense. Maj. Op. at 10 & n.8. And it argues that people 

can use smaller magazines and “many other firearm options” 

anyway. Id. at 23-24; accord id. at 25, 33.

But the Second Amendment provides a right to “keep and 

bear Arms.” U.S. Const. amend. II (emphasis added). It protects possessing arms, not just firing them. So the majority

misses a key part of the Second Amendment. The analysis cannot turn on how many bullets are fired. 

And we never demand evidence of how severely a law burdens or how many people it hinders before picking a tier of 

scrutiny. That demand is backwards and explicitly forbidden 

by Heller. We should read our precedent in keeping with the 

Supreme Court’s instructions. Polling defensive gun uses and 

alternatives to set a level of scrutiny, as the majority does, boils 

down to forbidden interest-balancing. Any gun regulation limits gun use for both crime and self-defense. And any gun restriction other than a flat ban on guns will leave alternative 

weapons. So the majority’s test amounts to weighing benefits 

against burdens.

That balancing approach is a variant of the position of Justice Breyer’s dissent in Heller; the Heller majority rejected it. 
7

Compare 554 U.S. at 634-35 (majority), with id. at 689-90 

(Breyer, J., dissenting). It makes no difference whether we

break out the balancing into two steps or one. Maj. Op. at 26 

n.22. And looking to smaller magazines and other options is 

the same argument, adapted to magazines, that the Court dismissed in Heller: “It is no answer to say ... that it is permissible 

to ban the possession of [large magazines] so long as the possession of other []arms [like small magazines] is allowed.” Id.

at 629. In picking a tier of scrutiny, our job is to ask only 

whether the ban extends to the home and impairs the gun’s selfdefense function.

Otherwise, we put the cart before the horse. Deciding the 

severity of the burden before picking a tier of scrutiny is deciding the merits first. It is backwards. That upends Heller’s careful approach. The Supreme Court insisted that the Second 

Amendment has already made the basic policy choice for us. 

Id. at 634-36. By enacting it, the Framers decided that the right 

to keep and bear arms is “really worth insisting upon.” Id. at 

634 (emphasis in original). So the Court needed no data on how 

many people wield handguns defensively. It did not evaluate 

alternatives. It was enough that banning handguns impaired 

self-defense in the home. Id. at 628.

That is how we approach other constitutional rights. The 

level of scrutiny for speech restrictions does not change if 

speech is unpopular or hateful. See Snyder v. Phelps, 562 U.S. 

443, 458 (2011). Nor does it change if a content-based burden 

is modest. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2224-

27 (2015). Our scrutiny of classifications does not depend on 
8

how many people the law burdens. See United States v. Virginia, 518 U.S. 515, 531-34, 542 (1996) (VMI) (noting that 

“most women would not choose VMI”). So it should not 

change our scrutiny of gun laws, no matter how unclear the 

record is on how many times “more than ten shots were used

in self-defense.” Maj. Op. at 10 & n.8. 

Nor does the availability of alternatives lower our tier of

scrutiny. Bans on flag-burning get strict scrutiny even though 

there are other ways to express one’s views. See Johnson, 491 

U.S. at 412. Racial preferences for college applicants face the 

toughest scrutiny even though applicants can always go to 

other colleges. See Gratz v. Bollinger, 539 U.S. 244, 270 

(2003). The availability of alternatives bears on whether the 

government satisfies strict scrutiny, not on whether strict scrutiny applies in the first place. We focus on whether the government can achieve its compelling goal by using other restrictions, not on whether the rights-holder still has other avenues to exercise the right.

So the only question is whether a law impairs the core of a 

constitutional right, whatever the right may be. Any other approach puts the cart before the horse by weighing the merits of 

the case to pick a tier of scrutiny.

2. Limiting Heller’s core to handgun bans. Second, though 

it denies it, the majority effectively cabins Heller’s core to bans 

on handguns. Compare Maj. Op. at 19 n.14 (denying that Heller is so limited), with id. at 23-24 (stressing that this law, unlike the law in Heller, “does not take firearms out of the hands 

of law-abiding citizens” and leaves them with “many other 
9

firearm options”). But that is like cabining VMI to military institutes. Heller never limited its reasoning to handguns or complete bans, and for good reason. No other right works that way. 

Strict scrutiny applies to laws that burden speech or religion 

even if they do not nearly eliminate the right to speak or believe. E.g., Trinity Lutheran Church of Columbia, Inc. v. 

Comer, 137 S. Ct. 2012, 2021 (2017); Reed, 135 S. Ct. at 2225-

27.

People commonly possess large magazines to defend themselves and their families in their homes. That is exactly why

banning them burdens the core Second Amendment right. For 

any other right, that would be the end of our analysis; for the 

Second Amendment, the majority demands something much 

more severe.

So I would apply strict scrutiny to this Act, at least insofar 

as it limits keeping magazines to defend one’s home. But as

discussed below, the government has not shown that this Act 

can survive even intermediate scrutiny.

II. EVEN UNDER INTERMEDIATE SCRUTINY, ON THIS RECORD, THE LAW FAILS

Our precedent holds that intermediate scrutiny governs limits on weapons outside the home. Drake v. Filko, 724 F.3d 426, 

436 (3d Cir. 2013). The majority purports to apply that test. 

But its version is watered down—searching in theory but feeble in fact. It takes a record on which the District Court did not 

rely and construes everything in favor of the government, effectively flipping the burden onto the challengers. Even then, 

its analysis boils down to anecdotes and armchair reasoning. 
10

And the majority overlooks tailoring. None of that would be 

enough for other rights. I would apply true intermediate scrutiny, demanding evidence for the government’s assertions and 

some showing of tailoring. Under either strict or true intermediate scrutiny, the law fails.

A. Intermediate scrutiny must be searching, not feeble

Though the Supreme Court has yet to specify a tier of scrutiny for gun laws, it forbade rational-basis review. Heller, 554 

U.S. at 628 n.27. So our scrutiny must not be so deferential that 

it boils down to a rational-basis test.

Intermediate scrutiny requires much more. As the majority 

concedes, the government bears the burden of proof. Maj. Op. 

at 30 n.24; Binderup, 836 F.3d at 353 (Ambro, J., controlling

opinion). This is true even for preliminary injunctions. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 

U.S. 418, 429 (2006). It must prove that the Act advances a 

substantial governmental interest. Marzzarella, 614 F.3d at 98. 

And though we may give some deference to the legislature’s 

predictive judgments, those judgments must rest on real, hard 

evidence. Compare Drake, 724 F.3d at 436-37 (“accord[ing] 

substantial deference to the [legislature’s] predictive judgments”) (internal quotation marks omitted), with Frontiero v. 

Richardson, 411 U.S. 677, 689-90 (1973) (castigating government’s armchair, supposedly empirical reasoning unsupported 

by “concrete evidence”). 

It is not enough to base sex classifications on armchair reasoning. Frontiero, 411 U.S. at 689-90 (applying intermediate 

scrutiny); see VMI, 518 U.S. at 541-43 (same). So that should 
11

not be enough for gun laws either. Almost any gun law would 

survive an armchair approach; there are always plausible reasons to think that limiting guns will hinder criminals. That 

starts to look like rational-basis review. 

The government must also prove that its law does not “burden more [conduct] than is reasonably necessary.” Marzzarella, 614 F.3d at 98. To be sure, intermediate scrutiny does 

not demand the least restrictive means possible. But the government may not impair a constitutional right simply because 

doing so is convenient. McCullen v. Coakley, 134 S. Ct. 2518, 

2534 (2014). It must make some showing that alternatives will 

not work. Id. at 2540. True intermediate scrutiny thus requires 

proof of tailoring.

So we must require that the government introduce substantial proof. We may not reflexively defer to its justifications. 

And we must look for tailoring. None of these requirements is 

met here.

B. The government has not met its burden of proof

New Jersey has not met its burden to overcome intermediate scrutiny, let alone strict scrutiny. True, the government has 

a compelling interest in reducing the harm from mass shootings. No one disputes that. But New Jersey has failed to show 

how the ban advances its interest. Nor does it provide evidence 

of tailoring. 

1. The record lacks evidence that magazine restrictions reduce mass-shooting deaths. This record lacks any evidence tying that interest to banning large magazines. The reader could 

be forgiven for any surprise at that statement: the majority acts 
12

as if the record abounds in this evidence. But that is not what 

the District Court found. That Court offered three rationales for 

upholding the ban. None of them withstands scrutiny.

First, the District Court, like the majority here, reasoned 

that people can still own many, smaller magazines. 2018 WL 

4688345, at *13. But Heller rejected that very argument. See 

554 U.S. at 629. 

Second, the District Court stressed its deference to the legislature’s judgment about the local needs of densely populated 

urban states. 2018 WL 4688345, at *13. In doing so, it relied 

not on the majority opinion in Heller but on Justice Breyer’s 

dissent. Id. (quoting 554 U.S. at 705 (Breyer, J., dissenting)). 

That citation alone shows how the deferential decision below 

conflicts with our governing instructions from above.

Third, the District Court detailed the testimony and evidence of all four expert witnesses. But it then “f[ou]nd the expert testimony is of little help in its analysis.” Id. at *8. It found 

that evidence “of little help” in figuring out how the law would 

impair self-defense and how it would reduce the harm from

mass shootings. Id. So none of this satisfied the government’s 

burden of proof. 

The only expert finding on which the District Court could 

rely was a vague and general one: “[T]he 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. In other words, it rested on the armchair 

proposition that smaller magazines force shooters to pause 
13

more often to reload. When shooters must reload, potential victims should have more chances to escape or tackle the shooter. 

This speculation is plausible. But the Court cited no concrete 

causal link between that plausible speculation and its effect on 

mass-shooting deaths.

So with no support from the District Court, the majority 

digs through the record to link large magazines with the harm 

from mass shootings. By construing a record that the District 

Court found unhelpful in favor of the government, the majority 

effectively flips the burden of proof onto the challengers. It 

cites many portions of the record never mentioned by the District Court. It details the rise of mass shootings. It cites reports 

of mass shootings to show that people can escape when the 

shooter stops shooting. And it quotes a police chief as evidence 

that smaller magazines require more reloading. 

The District Court was admirably clear about the state of 

the record. It did not rely on any of this “anecdotal evidence.” 

Compare 2018 WL 4688345, at *3 (noting “anecdotal evidence”), with id. at *12 (not relying on it). And rightly so. The 

majority cannot tell us how many mass shooters use large magazines. It cannot tell us how often mass shooters use magazines 

with ten to fifteen rounds. And it cannot tell us any specifics 

about the increase in reload time. In short, the majority has no 

record citation, let alone evidence relied on by the District 

Court, that specifically links large magazines to mass-shooting

deaths. 

It has no citation because there isn’t one. The government’s 

own experts never examined the causal link between these 

magazines and crime. Its best evidence came from a lone CNN 
14

article that mentioned a study linking large magazines to mass 

shootings. But the government never introduced the actual 

study, the expert, or the underlying data. Nor was the study 

ever peer-reviewed. Without examination or cross-examination of the study, we cannot rely on it. 

So to link reports of mass shootings to generalities about 

reload times, the majority resorts to saying: “[T]here is some 

delay associated with reloading, which may provide an opportunity for potential victims to escape or for a bystander to intercede.” Maj. Op. at 29-30 (quoting 2018 WL 4688345, at 

*12). With no support for this analysis, the majority’s case thus

boils down to the same armchair reasoning that the District 

Court relied on, plus some “anecdotal evidence.” 2018 WL 

4688345, at *3. Though the majority insists otherwise, finding 

for the government on this basis alone effectively flips the burden of proof. Maj. Op. at 30 n.24. And the majority offers no 

limiting principle: its logic would equally justify a one-round 

magazine limit.

This reasoning would be enough for rational-basis review. 

And it could be enough for intermediate scrutiny too. But the 

government has produced no substantial evidence of this link. 

It could compile that evidence by, for example, studying other 

jurisdictions that have restricted magazine size. Until it does 

so, we should grant the preliminary injunction.

2. There is no evidence of tailoring. The majority does not 

even demand evidence of tailoring. But tailoring is not limited 

to the First Amendment, as our precedent makes clear. Marzzarella, 614 F.3d at 98. Tailoring is fundamental to intermediate scrutiny, wherever applied. McCullen, 134 S. Ct. at 2534; 
15

Caban v. Mohammed, 441 U.S. 380, 392 & n.13 (1979) (illegitimacy).

If anything, the evidence shows that other effective laws are 

already on the books. In a footnote, the majority suggests that 

these other laws prove tailoring. Maj. Op. at 36-37 n.28. But 

far from it. If other laws already restrict guns, New Jersey has 

to show that the laws already on the books will not suffice. See 

McCullen, 134 S. Ct. at 2538-39. It has not done so. 

To start, 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. Though the government 

cites mass shootings involving large magazines, these shooters 

often used magazines with thirty or more rounds. So we do not 

know if a ten-round limit is tailored.

New Jersey also has a may-issue permitting law, requiring 

people to show a “justifiable need” before they may carry 

handguns outside the home. Drake, 724 F.3d at 428. We have 

upheld that law. Id. at 440. So the only people who can carry 

large magazines outside the home are those who face “specific 

threats or previous attacks which demonstrate a special danger” to their lives. Id. at 428 (quoting N.J. Admin. Code 

§13:54-2.4(d)(1)). This limited universe of people includes

abused women, those being stalked, and those fleeing gangs. 

Banning large magazines thus harms those who need the Second Amendment most.

Given its may-issue law, the government offers nothing to 

explain why this added ban is necessary, let alone tailored to 
16

its interests. If only those with a justifiable need can carry these 

magazines, why is New Jersey’s law not tailored enough already? The government’s only answer is that the may-issue requirement does not currently extend to the home. And the majority’s only response is that many previously law-abiding citizens commit crime. But these arguments run up against strict 

scrutiny in the home. At most, they would warrant extending a 

may-issue permit requirement to the home, rather than banning 

large magazines entirely. And once again, the majority lacks a 

limiting principle: since anyone could commit crime, the government could forbid anyone to have a gun.

3. The majority muddles defensive gun uses. Instead of a 

real tailoring analysis, the majority again demands evidence of 

how often people use large magazines for self-defense. But tailoring does not depend on how many times a right is impaired.

The majority cannot even decide what the evidence shows. 

In places, it concedes that large magazines “have also been 

used for self-defense.” Maj. Op. at 10; accord id. at 21. If so, 

this undercuts the ban. Elsewhere, it notes that the record is 

unclear on how often people shoot more than ten rounds in selfdefense. Maj. Op. at 10 & n.8; accord id. at 33-34 n.27. If so, 

then New Jersey has not borne its burden of proof. Relying on 

unclearness amounts to flipping the burden of proof onto the 

challengers. Lastly, the majority most often concludes—even 

in the same breath—that large magazines are not appropriate 

for self-defense. Maj. Op. at 10-11, 23. But that is not what the 

District Court found. That Court specifically observed that the 

evidence “failed to clearly convey ... the extent to which the 

law will impede gun owners from defending themselves.” 2018 
17

WL 4688345, at *8. These contradictory assertions cannot bolster the law, nor satisfy the government’s burden of proof.

4. The majority’s watered-down “intermediate scrutiny” 

is really rational-basis review. This law would never survive 

the intermediate scrutiny applied by the Supreme Court in 

speech or sex-discrimination cases. Those cases demand compelling evidence and tailoring. See McCullen, 134 S. Ct. at 

2534; VMI, 518 U.S. at 524.

In a footnote, the majority candidly admits that it is not applying intermediate scrutiny as we know it. It concedes that its 

approach does not come from the First Amendment or the 

Fourteenth Amendment (or any other constitutional provision,

for that matter). Maj. Op. at 34-35 n.28. It offers only one reason: guns are dangerous. Id. (quoting and relying on the Tenth 

Circuit’s decision in Bonidy, 790 F.3d at 1126). But as Heller

explained, other rights affect public safety too. The Fourth, 

Fifth, and Sixth Amendments often set dangerous criminals 

free. The First Amendment protects hate speech and advocating violence. The Supreme Court does not treat any other right 

differently when it creates a risk of harm. And it has repeatedly 

rejected treating the Second Amendment differently from other 

enumerated rights. Heller, 554 U.S. at 634-35; McDonald, 561 

U.S. at 787-91. The Framers made that choice for us. We must 

treat the Second Amendment the same as the rest of the Bill of 

Rights.

So the majority’s version of intermediate scrutiny is too lax.

It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before 

the government may restrict any constitutional right, period.
18

* * * * *

I realize that the majority’s opinion aligns with those of five 

other circuits. But Heller overruled nine, underscoring our independent duty to evaluate the law ourselves. And unlike most 

other states, New Jersey has layered its law on top of not only 

a previous magazine restriction, but also a may-issue permit

law that greatly limits public carrying. Those laws may have 

prevented or limited gun violence. That cuts against the law’s 

necessity and its tailoring.

The majority’s concerns are understandable. Guns kill people. States should be able to experiment with reasonable gun 

laws to promote public safety. And they need not wait for mass 

shootings before acting. The government’s and the majority’s 

position may thus be wise policy. But that is not for us to decide. The Second Amendment is an equal part of the Bill of 

Rights. And the Supreme Court has repeatedly told us not to 

treat it differently. 

So we must apply strict scrutiny to protect people’s core 

right to defend themselves and their families in their homes. 

That means holding the government to a demanding burden of 

proof. Here, 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.

I would thus enjoin the law and remand to let the government provide evidence that the Act will advance its interests 

and is tailored to do so. On remand, the government would be 

free to introduce real studies of any causal evidence that large-
19

magazine limits prevent harm from mass shootings or gun violence in general. It could also introduce proof of tailoring and 

discuss its existing laws and alternatives. The challengers 

could try to rebut those studies. And we could then find 

whether the government has met its burden to justify this law. 

But it has not yet done that. So the law may well irreparably 

harm the challengers by infringing their constitutional rights. I 

respectfully dissent.