On July 17, 2026, the United States Court of Appeals for the Third Circuit, sitting en banc, declared New Jersey’s ban on semi-automatic rifles — including the AR-15 — and its ban on magazines holding more than ten rounds unconstitutional under the Second Amendment. The decision in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, No. 24-2415, consolidated with Cheeseman v. Davenport, spans nearly 200 pages of opinions. It arrived exactly on the schedule I predicted: the court waited out the Supreme Court’s term so it could fold Wolford v. Lopez and United States v. Hemani into its analysis and issue a ruling built to last.
Not Just the Colt AR-15 — the Full Class of Semi-Automatic Rifles
The district court had struck the ban only as applied to the Colt AR-15. The en banc court went considerably further, holding that the record compelled the same result for every semi-automatic rifle New Jersey sweeps into its “assault firearms” definition, and that the large-capacity magazine provisions fall as well. The numbers made this straightforward. The court credited the district court’s finding that roughly 24 million AR-15s and similar rifles are in circulation — a figure, the court noted, “surpassed only by the number of registered handgun owners within the United States” — and observed that New Jersey offered no contrary data. An arm that ubiquitous is in common use for lawful purposes, and an arm in common use cannot be “dangerous and unusual.”
The court stopped short in one respect: because the factual record on semi-automatic pistols and shotguns was thinner, it remanded those categories to the district court. Judge Matey, joined by Judge Mascott, would have ended the litigation outright, writing that New Jersey “neither needs, nor deserves, yet another round of lengthy litigation on these same questions.”
Common Use Belongs at Step Two — Where the Government Bears the Burden
This is the doctrinal heart of the opinion, and it vindicates the argument I have pressed in the Harvard Journal of Law and Public Policy and elsewhere. The plain-text inquiry at Bruen’s first step is linguistic — a matter of Founding-era definitions — not historical. The court agreed:
“Bruen’s first step is fundamentally a textual inquiry… Yet ‘common use’ appears nowhere in the Second Amendment’s text.”
Quoting District of Columbia v. Heller, 554 U.S. 570, 582 (2008), the court reaffirmed that the Second Amendment extends, prima facie, “to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Common use instead does its work at step two, testing whether “dangerous and unusual” analogues apply — after the burden has shifted to the state. That allocation decides cases. New Jersey had to prove these rifles fall outside the American tradition, and it could not.
The court also rejected the effort to shrink “lawful purposes” down to armed self-defense alone. Hunting counts. When a dissent complained that recognizing hunting worked “an unfounded expansion of Second Amendment rights,” the majority answered that the objection “is incompatible with Supreme Court authority.”
Magazines Are Arms
On the magazine ban, the court reaffirmed its own precedent in Association of New Jersey Rifle & Pistol Clubs v. Attorney General New Jersey, 910 F.3d 106, 116 (3d Cir. 2018):
“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.”
Bruen itself teaches that the term “covers modern instruments that facilitate armed self-defense.” 597 U.S. 1, 28 (2022). Many modern firearms require a magazine to function at all; the rest are unquestionably aided by one. A state cannot ban the component and pretend the right survives.
No Trials, No Hired Historians
In footnote 28, the court confirmed a point I have hammered for years: Second Amendment litigation does not require battles of testifying experts, because the disputed questions are legislative facts, not adjudicative ones.
“We may resolve any disputes related to legislative facts, because those are facts subject to judicial notice.”
From Heller through McDonald, Caetano, Bruen, Rahimi, Wolford, and Hemani, the Supreme Court has never needed a historian on the witness stand to construe the Second Amendment. Rights organizations should absorb the lesson and stop pouring resources into dueling experts the doctrine does not require.
The Road to June 2027
Note the vocabulary. The court analyzed “semi-automatic rifles” — not “modern sporting rifles” — the same language then-Judge Brett Kavanaugh used in his dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), and the language that ties these rifles to the semi-automatic handguns Heller protects. As the court put it, New Jersey’s regulation “functions like the firearm ban at issue in Heller: It prohibits the possession of a class of weapons in common use for lawful purposes.”
The Seventh Circuit went the other way in Barnett v. Raoul on July 9. That split now lands at a Supreme Court that has already granted certiorari in Viramontes v. County of Cook and Grant v. Higgins. The confirmations of Judges Mascott and Bove before the October 2025 en banc argument mattered; elections matter. Brick by brick, precedent by precedent, the arms-ban question is arriving at the Supreme Court on our terms.
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.