DOJ Files Amicus Brief in Third Circuit - Ban on AR15, Magazines not Allowed by Second Amendment

 

The Donald Trump administration Department of Justice (DOJ) has filed an amicus brief defending rights protected by the Second Amendment in the consolidated case to be heard in the United States Court of Appeals for the Third Circuit. The case is ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS, INC., et al., v.  ATTORNEY GENERAL NEW JERSEY, et al.

This case is one of the best candidates for courts to make clear: bans on semi-automatic rifles and on magazines which hold over ten rounds are not allowed by the Second Amendment.  

The Trump DOJ was not asked to submit this amicus brief. The Trump DOJ took the initiative to defend rights protected by the second Amendment.  From the Brief:

The United States is permitted to file amicus briefs without the consent of the parties or leave from the Court.

The brief focuses on two invalid arguments which states refusing to follow Supreme Court guidance on the Second Amendment are using in an attempt to reverse the impact of the Supreme Court decisions. Some of the inferior Courts (all courts below the Supreme Court are “inferior courts”) are saying “arms” are only arms which are commonly used for self defense. The other argument is to limit the definition of “common use” to commonly used in self defense. Both of these arguments are wrong.  From the brief:

This amicus brief addresses two principles of Second Amendment doctrine that have confused other courts. First, the Second Amendment does not secure the right to possess and carry arms only for self-defense or sporting-related purposes, but rather for all “traditionally lawful purposes.” Heller, 554 U.S. at 577. History and tradition confirm that these purposes include the common defense.

Second, the Second Amendment protects arms that are “in common use” among law-abiding citizens for lawful purposes. Id. at 624 (citation omitted). To be sure, some other courts have criticized this common-use test. But the Supreme Court’s cases clearly show that it is the governing test for courts determining which arms the Second Amendment protects. Not only that, but the common-use test has deep roots in both English and American law. The Second Amendment’s irreducible minimum guarantee incorporates both principles: Legislatures may not completely ban arms that are in common use among law-abiding citizens for lawful purposes without running afoul of the Constitution.

The attempt to invalidate the “common defense” purpose of the Second Amendment has been increasingly used since the 1940′s. It is exactly opposite of the US v. Miller case, as poorly written as that decision was. The common defense use includes defense against tyranny in government. It strikes at the heart of Progressive ideology, and Leftist ideology altogether. Those ideologies deny the existence of natural rights as given by God. They insist government should not be limited. They see government as god on earth. De-legitimizing power in the hands of the population has been common throughout history. The United States has become the major exception because of the Second Amendment. Much of Western Civilization agreed with the beneficial effect of widespread ownership of arms until after WWI.

The Supreme Court clearly stated all arms which can be carried and used for offense and defense fall within the textual definition of arms in the Second Amendment. Common use means arms which are commonly used for any lawful purpose are protected by the Second Amendment. By clarifying that common defense is one of the lawful uses of arms, the brief makes clear rifles such as the AR15 type, are protected, because they are in common use. The argument applies, with even more force, to magazines which hold over 10 rounds. There are more of them, and they are obviously useful for the common defense.

Analysis: This is a powerful brief in a critical case. No other administration has pushed as hard to restore rights protected by the Second Amendment.  Is the Trump administration perfect? No. It is much better than any other.  Perfection is not an option.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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