When a divided federal appeals court panel on Wednesday upheld New Jersey’s ban on magazines that hold more than ten cartridges, it underscored why elections matter.
Upholding the restriction were Judges Patty Schwartz and Joseph Greenaway, both nominated by former President Barack Obama. Writing a spirited dissent was Judge Stephanos Bibas, nominated by President Donald Trump. Presidents nominate judges to all the federal courts, and those nominees typically reflect the philosophy of the person in the Oval Office. While Trump has been a lightning rod for all manner of debate, he has been quietly filling federal court vacancies, which may be his lasting legacy.
In her majority opinion, U.S. Third Circuit Appeals Court Judge Schwartz emphasized at one point that the ban does not apply to active or retired law enforcement officers and active military members. But why? The assertion is that they are trained, but tens of thousands of law-abiding private citizens have availed themselves of training, too.
Judge Schwartz also wrote this: “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 (“large capacity magazines”) “are not necessary or appropriate for self-defense,” and that use of LCMs in self-defense can result in “indiscriminate firing,” and “severe adverse consequences for innocent bystanders.”
That description might include the 2012 shootout between New York City police officers and a murder suspect outside of the Empire State Building. Nine bystanders were wounded in that shootout, and the killer was fatally shot.
In his dissent, which appears below the majority opinion in the link above, Judge Bibas noted, “The Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy.”
Later, summing up the New Jersey ban, Judge Bibas writes, “Unlike the majority, I would apply strict scrutiny to any law that impairs the core Second Amendment right to defend one’s home. This law does so. And it fails strict scrutiny.”
The case was brought by the Association of New Jersey Rifle and Pistol Clubs (ANJRPC) and two private citizens, Blake Ellman and Alexander Dembrowski.
According to The Hill, ANJRPC Executive Director Scott Bach clearly disagreed with the 2-1 ruling.
“This decision is plainly wrong,” he stated, “and upholds New Jersey’s unconstitutional law turning one million honest citizens into felons for keeping property obtained legally that could be used for defending their lives. The decision will be further appealed.”
