The 2nd Amendment Opinion That Scrambled the Partisan Script

AR-15 rifles and other weapons are displayed on a table at a shooting range in Greeley, Pa., on Oct. 12, 2019. Spencer Platt/Getty Images

Commentary

The July 17 decision by the U.S. Court of Appeals for the Third Circuit that struck down New Jersey’s ban on so-called assault weapons and magazines holding more than 10 rounds is the first time that a federal appeals court has invalidated such bans. New Jersey had one of the nation’s strictest and most prominent assault weapon bans. Its ban was also the longest-running continuously enforced ban in the United States.

With the Supreme Court expected to hear arguments in December on assault weapon bans from Chicago and Connecticut, many believe that the ruling will preview the court’s approach to those cases.

Yet many in legacy media have overlooked one of the most important aspects of the decision: It did not split along predictable partisan lines. News coverage has emphasized how surprising the ruling was, although anyone who listened to last October’s oral arguments by the entire Third Circuit should have recognized that this outcome was by far the most likely possibility.

The New York Times, Politico, The Washington Post, CNN, The Associated Press (carried by places such as ABC and NBC news), and CBS all highlighted the partisan divide on gun control. Few noted that Judge Arianna J. Freeman, an appointee of former President Joe Biden, wrote the sweeping opinion striking down the bans. Three Biden appointees—Freeman, Judge Tamika R. Montgomery-Reeves, and Judge Cindy K. Chung—voted to strike down New Jersey’s assault weapon ban, although Chung only partially joined the opinion.

Judge Patty Shwartz, an appointee of former President Barack Obama, also concluded that New Jersey’s ban on AR-15s violated the Second Amendment, although she would have upheld the magazine-capacity restriction.

All six appointees of President Donald Trump voted to strike down both restrictions. Former President George W. Bush’s appointees split, with two voting to strike down the bans and one voting to uphold them.

As important as the outcome is, the court’s reasoning matters even more. Freeman’s opinion provides a particularly forceful application of the Supreme Court’s Second Amendment precedents.

In examining the historical tradition of firearm regulation, Freeman confronted the unresolved question of whether courts should rely primarily on 1791, when the Second Amendment was ratified, or 1868, when the 14th Amendment made it applicable to the states. She chose 1791, not relying on the later Reconstruction-era restrictions—such as the Black Codes that frequently disarmed newly freed blacks—to define the scope of the constitutional right.

“When conducting the historical inquiry, we saw that the principles underpinning Founding-era firearm regulations pointed in one direction while the principles underpinning mid-to-late-nineteenth century laws pointed in the opposite direction,” Freeman wrote.

“Faced with an ‘irreconcilable conflict’ between the laws of those two timeframes, we concluded that we must look to Founding-era laws for analogies to modern-day regulations. We reached that conclusion based on the Supreme Court’s guidance that the Second Amendment’s ‘meaning is fixed according to the understandings of those who ratified it.’”

Freeman also rejected another common argument advanced by gun control advocates and accepted by some judges: that firearms qualify for constitutional protection only if they are commonly used for self-defense. As she explained, “Self-defense is one lawful purpose relevant to the common-use inquiry, but it is not the only one.”

She likewise rejected the argument that firearms lose constitutional protection merely because they are dangerous. Supreme Court precedent protects arms that are in common use; only weapons that are both “dangerous and unusual” fall outside the Second Amendment.

Freeman was hardly a lone Democratic appointee breaking ranks. Other Democratic appointees joined key portions of her reasoning and agreed that New Jersey’s assault weapon ban violated the Constitution.

The Supreme Court case this fall is likely to be the most important Second Amendment case since the 2022 Bruen decision that struck down concealed handgun laws in seven states—the states that required permit applicants to convince a local public official that they had a good reason for carrying a handgun for protection.

The Third Circuit’s decision matters not only because it struck down one of the nation’s most prominent assault weapon bans, but also because judges appointed by Democratic presidents played a central role in doing so. That reality undermines the simplistic partisan narrative that dominates much of the media coverage.

The dissent’s warnings of “devastating consequences” echo the same predictions Democrats made when the federal assault weapons ban expired in 2004. They warned that police would be “out-gunned by hardened criminals and gang members.” But those predictions never materialized.

In fact, the opposite happened. The U.S. murder rate fell from an average of 5.6 per 100,000 during the final five years of the federal ban to an average of 5.25 in the years since, and it dropped to four per 100,000 last year. Meanwhile, the share of mass public shootings involving assault weapons fell by 26 percent during the first 10 years after the federal ban expired.

If news organizations focused less on the presidents who appointed the judges and more on the legal analysis that persuaded them, they would give readers a far more accurate picture of a decision that could shape the Supreme Court’s forthcoming ruling on assault weapon bans.

From RealClearWire

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.