New Jersey Attorney General Jennifer Davenport just filed an emergency letter brief in the U.S. Court of Appeals for the Third Circuit, frantically urging the court to ignore the recent Benson v. United States decision out of the D.C. Court of Appeals. The Third Circuit is currently the most important Second Amendment battleground in the country — sitting on a pending en banc opinion in Cheeseman v. Platkin and Association of New Jersey Rifle and Pistol Clubs, Inc. v. Platkin, the consolidated challenges to New Jersey’s AR-15 ban and its ban on magazines holding more than 10 rounds. Oral argument happened in Philadelphia in October 2025. The opinion could drop any day. And New Jersey is terrified.
The Contradiction New Jersey Buried in Its Own Letter
The brief opens by calling Benson a “nonbinding outlier.” That’s New Jersey’s first word on the subject — nonbinding. But here’s where the brief falls apart immediately: the very next sentence urges the Third Circuit to embrace decisions from the First, Second, Fourth, Seventh, Ninth, and D.C. Circuits as persuasive authority supporting the magazine ban.
Think about that for a second. Every one of those out-of-circuit decisions is also nonbinding on the Third Circuit. They are geographically and institutionally no different in terms of precedential weight. New Jersey cannot simultaneously dismiss Benson as “nonbinding” while leaning on a stack of equally nonbinding decisions from other circuits. The contradiction is right there in the opening paragraph of their own filing.
Beyond that, calling a ruling an “outlier” gets you nowhere in Second Amendment litigation — and history proves it. Before District of Columbia v. Heller, 554 U.S. 570 (2008), the vast majority of inferior federal courts held that the Second Amendment protected only a collective right. The “outliers” were the ones correctly reading an individual right. Justice Scalia’s majority opinion in Heller swept all of that majority consensus into the dustbin. The same thing happened before New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) — most circuits had held there was no right to carry publicly for self-defense. Bruen erased all of it. Nose-counting lower-court opinions does not bind the Supreme Court. It never has.
The Hanson/Benson Distinction New Jersey Gets Dead Wrong
The most legally significant argument in New Jersey’s letter is the claim that Benson conflicts with Hanson v. District of Columbia, No. 23-7061 (D.C. Cir. Oct. 29, 2024). Both cases involve D.C.’s ban on magazines capable of holding more than 10 rounds. New Jersey says the D.C. Circuit upheld the ban in Hanson, Benson struck it down, so the two conflict and Benson should be discounted.
That argument is wrong, and here is exactly why.
Benson was decided by the D.C. Court of Appeals — the District’s highest local court — and it was a final judgment on the merits. The 2–1 panel reversed Benson’s criminal conviction and held the magazine ban unconstitutional. The constitutional question was fully decided.
Hanson was decided by the U.S. Court of Appeals for the D.C. Circuit — a separate federal court — and it was only a preliminary injunction ruling. The D.C. Circuit in Hanson did not decide whether D.C.’s magazine ban violates the Second Amendment. All it decided was whether the plaintiffs had cleared the high bar for a preliminary injunction. They had not. The merits in Hanson remain unresolved to this day.
A preliminary injunction ruling and a final merits judgment cannot conflict because they answer different legal questions. New Jersey is trying to put Hanson and Benson on equal legal footing, and that is false. I want Second Amendment advocates writing about this to get that distinction exactly right.
Heller Is the Binding Law on Arms Bans — Not Bruen
New Jersey’s brief cites Bruen and United States v. Rahimi, 602 U.S. 680 (2024), as the governing framework. That is the wrong law, and I have explained why at length in my article in the Harvard Journal of Law & Public Policy.
Heller is the binding precedent for arms-ban cases. It not only established the text-history-tradition methodology — it applied that methodology to arms-ban questions and answered them: the only historically grounded standard that can justify banning an arm is “dangerous and unusual.” If an arm is in common use by Americans for lawful purposes, it is not unusual, and the conjunctive test fails. That ends the analysis.
Notice what is conspicuously absent from New Jersey’s letter brief: the phrase “dangerous and unusual.” They do not use it. They cannot use it, because they cannot possibly show that AR-15s and standard-capacity magazines — owned by tens of millions of Americans, far exceeding the number of Ford F-150s on American roads — are unusual. The burden under Heller is on the government to establish that showing. New Jersey has no path.
Then-Judge Brett Kavanaugh saw all of this clearly in his 2011 dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), arguing that semi-automatic rifles are constitutionally indistinguishable from the semi-automatic handguns Heller protected. That dissent presaged Bruen’s methodology — and it is now the law of the land.
What Comes Next for Jennifer Davenport
The trend is against New Jersey, and Davenport knows it. When — not if — the Third Circuit strikes down the AR-15 and magazine bans, she faces the hardest call of her tenure: seek certiorari and risk a SCOTUS ruling that unravels similar bans nationwide, or absorb the loss and let the law die quietly in New Jersey.
My read is that she takes the loss. A cert grant and a full merits ruling on this record could become the decision that wipes out arms bans across the country. No rational state AG rolls those dice when the alternative is a circuit-level loss that stays local.
The panic in this letter brief is the tell. When your opening argument contradicts your second sentence, you are not writing from a position of legal confidence.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.