Tension Explodes Between DOJ and New Jersey Ahead of 3rd Circuit Gun Case

All eyes are on Philadelphia as the full Third Circuit prepares to hear en banc arguments in the consolidated New Jersey “assault weapon” and magazine ban cases on October 15. As News2A points out, an en banc rehearing is the last stop before the Supreme Court for most federal disputes – and the Court accepts only a sliver of petitions each term. That alone makes the Third Circuit’s ruling potentially decisive. But the temperature rose even more after the U.S. Department of Justice weighed in against New Jersey’s bans – an amicus position that News2A emphasizes was unusually direct and sweeping.

DOJ’s Brief: “These Bans Violate The Second Amendment”

According to News2A’s report, the Department of Justice filed its amicus brief on September 18, flatly asserting that New Jersey’s prohibitions on AR-15–type rifles and magazines over ten rounds violate the Second Amendment. The brief, signed by Assistant Attorney General Harmeet K. Dhillon of the Civil Rights Division, underscored the federal government’s view that the state’s “complete bans” cannot be reconciled with the constitutional framework established in District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen. 

That’s a remarkable posture for the federal government – one that turns the usual alliances on their head and, as both News2A and attorney and gun rights commentator William Kirk note, appears to have rattled Trenton.

New Jersey’s Unusual Counterpunch

In what News2A characterizes as a “desperate attempt” and William Kirk describes as a “tantrum,” New Jersey did something atypical: it filed a response brief aimed directly at the DOJ’s amicus. Kirk, on Washington Gun Law, notes he’s rarely seen a party answer an amicus brief with its own dedicated rebuttal. The move telegraphed urgency. It also signaled the state’s awareness that the Third Circuit’s current composition – reshaped, News2A writes, by the recent appointment of Judge Jennifer Mascott – may be less receptive to broad bans than earlier, more deferential panels.

The Stakes Of An En Banc Panel

The en banc setting matters. News2A reminds readers that a three-judge panel can sometimes be a roll of the dice; a full court rehearing is a statement that the issues are weighty enough to warrant the entire bench’s judgment. It also heightens the risk of a circuit split – something New Jersey explicitly pleads with the court to avoid. As the state frames it, six sister circuits have already upheld similar laws; creating a split, the state argues, would invite Supreme Court review. That argument may be pragmatic, but as News2A dryly notes, it’s an odd stance when the very reason Heller and Bruen exist is because lower courts had been getting the Second Amendment wrong for years.

New Jersey’s Two-Pronged Pushback

Kirk distills Trenton’s counterarguments to two thrusts. First, the state urges the Third Circuit to “stay with the herd,” insisting there’s no circuit split and therefore no reason to upend settled terrain. Second, it launches a frontal assault on the “common use” doctrine – Heller’s touchstone for protected arms – calling it “ahistorical,” “illogical,” and a recipe for an “arms race” between industry and government. 

News2A quotes similar passages from New Jersey’s brief, which contends that neither “common use” as a sole test nor “circulation” as a metric should decide constitutionality. In short, New Jersey asks the court to refocus the analysis away from how millions of Americans actually own and use these arms.

The Machine Gun Red Herring

If there’s a rhetorical drum New Jersey hits repeatedly, both News2A and Kirk say it’s the specter of machine guns. The state’s brief warns that treating “popular” arms as protected would “inevitably” sweep in M16s, pointing to ATF’s tally of registered machine guns edging toward the kind of numbers that once convinced the Supreme Court to protect stun guns. Kirk calls this a misdirection play. The cases before the court deal with semi-automatic rifles and standard-capacity magazines – platforms that, News2A stresses, are ubiquitous among lawful owners. Equating them to fully automatic military arms is advocacy, not analysis.

The Bowie Knife Detour And History’s Limits

The state also spends pages on 19th-century laws restricting Bowie knives and other weapons, trying to build historical analogues for modern bans. News2A highlights this detour and calls it thin gruel – both because the cited regulations largely addressed public carry rather than possession, and because Bruen cautions that historical analogues must be similar in “how and why” they burden a right. Kirk is blunter: the historical work relevant to platform bans “has already been done” by Heller and Bruen. If an arm is in common use for lawful purposes, it cannot be banned. That framework doesn’t evaporate because legislators can find a 200-year-old worry about knives.

DOJ’s Position Supercharges The Moment

New Jersey’s sharp response is partly a reaction to the messenger. As News2A reports, having the federal government – through the Civil Rights Division – say out loud that New Jersey’s “complete bans” violate the Second Amendment creates a rare alignment between state challengers and Washington. Kirk reads the temperature similarly: when DOJ tells a federal appeals court that a state’s bans flunk Heller/Bruen, the terrain shifts. It also gives the Third Circuit a clean, government-endorsed path to strike down prohibitions without wandering into doctrinal weeds.

What “Common Use” Actually Means Here

New Jersey’s distaste for “common use” is telling. As Kirk explains, the test is not a random “counting exercise,” it’s a recognition that the public, not bureaucrats, ultimately determines which arms are in ordinary, lawful use for self-defense. New Jersey argues that popularity shouldn’t control constitutional analysis, yet Heller chose that very concept to distinguish protected arms from those that are “dangerous and unusual.” And as News2A notes, the items at issue here – AR-pattern rifles and magazines over ten rounds – are not exotic. They are the mainstream of modern rifle ownership and standard equipment for millions of Americans.

The Court Wanted This Fight, And It Got It

The Third Circuit didn’t take this en banc to rubber-stamp anything. By taking the case as a full court and now having DOJ on record against the bans, the judges have a squarely presented question under Bruen’s text-and-history test: Can a state categorically prohibit commonly owned semi-automatic rifles and standard magazines? New Jersey wants the court to refocus on “dangerousness,” to expand “unusual” into a floating standard, and to lean on other circuits’ pre-Bruen instincts. But Bruen narrowed the inquiry rather than widened it. The state’s fixation on what other courts once allowed feels less like doctrine and more like inertia.

The Conservative Tilt And The Cert Shadow

News2A flags an undercurrent: the Third Circuit’s ideological balance has shifted rightward, and the addition of Judge Jennifer Mascott could matter in a close case. New Jersey’s earliest plea – “don’t create a split” – acknowledges another reality: however this comes out, the Supreme Court is watching. After Bruen, the Court repeatedly GVR’d (grant, vacate, and remand) cases to force lower courts to apply its test faithfully. If the Third Circuit blesses bans on arms in common use, that posture could invite another round of correction. If it strikes them, a split materializes – and cert becomes likely.

What To Watch At Argument

Expect New Jersey to hammer machine guns, emphasize historical episodes of weapons regulation, and portray “common use” as a dangerous popularity contest. Expect the challengers to stick tightly to Heller/Bruen: the text covers these arms; they are in common, lawful use; the state bears the burden to prove a historical analogue that is meaningfully similar; and it has not done so. And expect questions for DOJ about the breadth of its position. News2A’s reporting suggests DOJ has already chosen clarity over hedging; Kirk’s analysis suggests that clarity is exactly what this panel asked for.

Attacking “Common Use”

Between News2A’s detailed rundown and William Kirk’s line-by-line tour through the state’s “nasty little response brief,” a picture emerges: New Jersey is trying to re-litigate Heller by attacking “common use,” to reframe Bruen’s history test with distant analogues, and to scare the court with machine-gun hypotheticals. Meanwhile, DOJ and the challengers are telling the court something simpler: you can’t ban what ordinary people commonly own for lawful purposes. On October 15, we find out which vision of the Second Amendment the Third Circuit is prepared to endorse – and whether the road from Philadelphia leads directly to Washington, or stops right there.

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