ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS, INC.; BLAKE ELLMAN; ALEXANDER DEMBROWSKI, Appellants
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
November 20, 2018 [*]
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
H. Thompson Jose J. Alicea Peter A. Patterson Haley N.
Proctor Cooper & Kirk, Daniel L. Schmutter Hartman &
Winnicki Counsel for Appellants
Feigenbaum Stuart M. Feinblatt Office of Attorney General of
New Jersey Division of Criminal Justice, Bryan E. Lucas Evan
Andrew Showell Office of Attorney General of New Jersey,
George C. Jones John H. Suminski McElroy Deutsch Mulvaney
& Carpenter Jennifer Alampi Carmine Richard Alampi Alampi
& Demarrais Counsel for Appellees
P. Sweeney Bradley Arant Boult Cummings Suite 1350 Counsel
for Amicus National Rifle Association of America
Timothy M. Haggerty Friedman Kaplan Seiler & Adelman
Counsel for Amicus Giffords Law Center to Prevent Gun
L. AliKhan Office of Attorney General of District of Columbia
Office of the Solicitor General 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 Rhode
Island, State of Vermont, State of Virginia, and State of
Lawrence S. Lustberg Jessica Hunter, Esq. Gibbons Counsel for
Amicus Everytown for Gun Safety
Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges.
SHWARTZ, CIRCUIT JUDGE.
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. We will
therefore affirm the District Court's order denying
Plaintiffs' motion to preliminarily enjoin enforcement of
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").
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. New Jersey has made it
illegal to possess a magazine capable of holding more than
ten rounds of ammunition ("LCM"). N.J. Stat. Ann.
2C:39-1(y), 2C:39-3(j) ("the Act").
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. Id. at 2C:39-17.
provides several ways for those who are not exempt from the
law to comply. Specifically, the legislation gives LCM owners
until December 10, 2018 to (1) modify their LCMs "to
accept ten rounds or less," id. at 2C:39-19(b);
(2) render firearms with LCMs or the LCM itself inoperable,
id.; (3) register firearms with LCMs that 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).
day the bill was signed, Plaintiffs Association of New Jersey
Rifle and Pistol Clubs and members Blake Ellman and Alexander
"Plaintiffs") filed 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.
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. 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. The evidence disclosed the
purpose of LCMs, how they are used, and who uses them.
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 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.
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,  but it does show that 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.
is also substantial evidence that LCMs have been used in
numerous mass shootings,  App. 851-53, 909-10, 914, 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.
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.
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 are
a key source of arming criminals through loss and theft of
their firearms, App. 221-22, 800-01, 924-25.
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. App. 137, 140, 1103.
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
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.
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 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.
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.
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.
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.
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
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 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.
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 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
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,
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
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 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 means-end scrutiny." Id. "If the law
passes muster under that standard, it is constitutional. If
it fails, it is invalid." Id.
step one, we consider whether the type of arm at issue is
commonly owned,  Marzzarella, 614 F.3d at 90-91,
and "typically possessed by law-abiding citizens for
lawful purposes, " Heller, 554 U.S. at 625. The
record shows that 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, pest-control, and occasionally self-defense, App.
655, 554-55,  and there is no longstanding history of
LCM regulation. 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].
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. 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 II, 670 F.3d at 1261
(determining "the appropriate standard of review by
assessing how severely the prohibitions burden the Second
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
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,
also unlike the handgun ban in Heller, a prohibition
on "large-capacity magazines does not effectively 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. Marzzarella, 614 F.3d at 97;
App. 230-32, 917-18.
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 high-capacity
magazines, they can purchase any number of magazines with a
capacity of ten or fewer rounds. In sum, numerous
alternatives remain for law-abiding citizens to acquire a
firearm for self-defense." (internal quotation marks and
"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.
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.
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
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
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.
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 or reload to
continue shooting. 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 ...