On July 31, 2026, the State of New Jersey filed an emergency motion with the United States Court of Appeals for the Third Circuit, asking the full en banc court to stay its own mandate in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, consolidated with Cheeseman v. Davenport. That is the July 17, 2026 decision in which the en banc Third Circuit struck down, 10-5, New Jersey’s ban on semi-automatic rifles and its ban on magazines holding more than ten rounds. New Jersey wants the mandate frozen while it petitions the Supreme Court for certiorari, which would leave a thirty-six-year-old prohibition scheme in place for months longer, even though a majority of the very judges who will decide this motion have already held that scheme unconstitutional.
What New Jersey Is Seeking
New Jersey’s motion does not ask the en banc court to revisit the merits. It asks for a stay pending a certiorari petition due October 15, 2026, putting the earliest possible Supreme Court conference at October 22. New Jersey notes, correctly, that the Third Circuit has “repeatedly stayed issuance of its mandates, even after ruling against a movant in a published opinion on the merits,” while a cert petition is pending, and that doing so again would not require the court to revisit its decision. New Jersey leans hard on the fact that the Supreme Court has already granted certiorari in Viramontes v. Cook County and Grant v. Higgins, two cases consolidated for argument this coming term that will decide whether states may ban semi-automatic rifles and restrict magazine capacity. New Jersey cites Barnett v. Raoul, a divided Seventh Circuit panel decision upholding Illinois’s parallel ban, as the latest entry in a circuit split against it. New Jersey characterizes its own request as modest: to keep “a 36-year-old status quo in place for months.”
Lower-Court Consensus Has Never Predicted a Supreme Court Outcome
One potential issue with New Jersey’s reliance on lower-court headcounts is that the Supreme Court has twice ignored exactly that kind of consensus in this field. Before District of Columbia v. Heller, 554 U.S. 570 (2008), the overwhelming majority of lower courts had rejected the individual-rights reading of the Second Amendment. The Supreme Court did not defer to that consensus; it reversed it. Before New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), most lower courts had likewise rejected a right to carry firearms in public. The Court reversed that lower court consensus too. I have made this argument for years, and the pattern holds again here: the Supreme Court grants roughly seventy cases a year, and does not spend one of those slots affirming lower courts it already agrees with. It often grants cert to fix a body of law it thinks the lower courts have gotten wrong. That the Court reached out and took Viramontes and Grant before any circuit had sided with the Second Amendment on this question tells you what direction the Court intends to move.
The Vote Math Behind a Possible Stay
Even so, I think this is genuinely close, for reasons that have nothing to do with the merits. The en banc court split 10-5. Two of the ten judges in that majority — including Judge Arianna Freeman, who authored the opinion, and Judge Tamika Montgomery-Reeves — were appointed by President Biden. If those two judges, plus one additional judge from the majority, conclude that pausing the mandate makes sense as a matter of administrative housekeeping, that is three votes moving from the majority column into the stay column. Combined with the five original dissenters, that produces an 8-7 vote for a stay — a result that says nothing about whether those judges still believe New Jersey’s laws are unconstitutional, because pausing a mandate pending Supreme Court review is a different question from the merits.
New Jersey’s Fear: A Second Freedom Week
New Jersey’s irreparable-harm argument rests on preventing a repeat of what gun-rights advocates call “Freedom Week.” In 2019, Judge Roger Benitez of the U.S. District Court for the Southern District of California enjoined California’s ban on magazines holding more than ten rounds, in the case then styled Duncan v. Becerra and now known as Duncan v. Bonta. For roughly one week, until the ruling was stayed, California had no magazine cap, and by multiple contemporaneous accounts more than one million restricted magazines entered the state in that window. New Jersey invokes that episode directly in its brief:
“New Jersey would suffer profound practical irreparable harms too. If the mandate issues, but New Jersey later wins on further review, the harms to public safety and law enforcement will be permanent… allowing the mandate to issue would lead to a flood of currently restricted weapons entering New Jersey that will be near impossible to retrieve once within the state.”
New Jersey’s filing attaches social media posts from gun dealers advertising sales timed to the mandate, and notes that sales appeared to begin within hours of the July 17 opinion.
A Fundamental Right, Not a Contract Dispute
This is not a case where a stay merely delays a monetary judgment that interest payments can later cure. Every month the mandate stays frozen is a month New Jersey residents are denied a fundamental constitutional right this same court has already found the state violated for thirty-six years. That weighs against a stay. But I would not be honest if I predicted a clean outcome here. The administrative-housekeeping logic New Jersey is selling has worked before, on other courts, in other cases, and three votes is not a large number to find. Watch the Third Circuit’s order, not the merits panel’s opinion, for what happens next.
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.