Two Liberal Judges Just Gave the Supreme Court Cover to Legalize Assault Weapons

Sign up for Executive Dysfunction, a newsletter that highlights one under-the-radar story each week about how Trump is changing the law—or how the law is pushing back. You’ll also receive updates on the latest from Slate’s Jurisprudence team. For years, state bans on assault rifles and large-capacity magazines had enjoyed an unbroken winning streak throughout the nation’s federal courts of appeals. That run came to a halt last Friday when the U.S. Court of Appeals for the 3rd Circuit struck down New Jersey’s bans on both, granting civilians a Second Amendment right to military-grade weaponry. Given the 3rd Circuit’s conservative tilt, this outcome was no surprise. But the margin of the vote split was stunning: The court, sitting en banc, ruled 10–5 against the Garden State’s laws, with Judge Arianna Freeman—a progressive appointee of President Joe Biden—writing the majority opinion. This lopsided vote may give the Supreme Court greater ideological cover to enshrine a nationwide right to assault weapons when it takes up the issue next term. On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the 3rd Circuit’s blowout decision against New Jersey, and explored why two liberal judges endorsed a ruling that expands civilian access to mass shooters’ weapon of choice. A preview of their conversation, below, has been edited and condensed for clarity. Dahlia Lithwick: Everyone thought this case was going to be close; Senate Republicans actually rushed two Trump appointees through confirmation to make sure it went the right way for the gun industry. But it turned out to be a rout against New Jersey. What did Judge Freeman hold? Mark Joseph Stern: Freeman held that Heller and Bruen protect any weapon in “common use” today, then found that assault rifles are in “common use” and cannot be banned under the Second Amendment. That doesn’t mean these weapons are in common use for self-defense; in fact, they’re almost never used in self-defense. Nor does it mean that most gun owners have AR-15s or similar weapons; only a small fraction of law-abiding gun owners possess these rifles. But there are millions of them owned by Americans today. And so Freeman held that this fact alone was sufficient to grant them constitutional protections under the Second Amendment. Although Freeman is very much a liberal judge, this was not a grudging application of Heller and Bruen. She went all-out, enthusiastically applying a maximalist interpretation of Supreme Court precedents. She even expanded the holding beyond Colt AR-15s, which is what the district court had focused on, and applied her judgment to all assault rifles across the board. And she granted sweeping protections to large-capacity magazines, which are magazines that hold more than 10 rounds. Both assault rifles and large-capacity magazines are heavily favored by mass shooters because they inflict catastrophic damage on the human body in a very short amount of time. So this is a very extreme and dangerous opinion. Judges Patty Schwartz and Cheryl Ann Krause wrote incandescent dissents focusing on something that’s been driving you and me crazy for years: this “common use” test. You always say this is the highest iteration of living constitutionalism disguised as originalism—exactly what the Heller people are not supposed to believe in. Both dissents hit the nail on the head. Judge Schwartz wrote that under Freeman’s conception of this test, “a manufacturer could simply flood the market with a type of gun to foment a constitutional challenge against its regulation. That cannot be correct. The scope of constitutional protection is not defined by a popularity poll.” And Judge Krause wrote that “circulation data reveals only how many units” of a weapon that companies have “pumped into the marketplace,” not how many people have used that weapon for self-defense. She added that “using circulation data as a benchmark” allows the gun industry to “define the scope of the Second Amendment and thwart restrictions on new weapons by flooding the market with enough of a new potentially highly lethal weapon to secure constitutionally protected status for that weapon before legislators had the chance to regulate it.” That is what happened here. Assault weapon manufacturers flooded the market with these rifles even though they have limited use for any legitimate purpose, like hunting or self-defense. They were developed by the Army to penetrate a steel helmet from a faraway distance. But gun companies convinced people that they should buy these military-grade weapons, and enough people did that now the 3rd Circuit is declaring they’ve become a constitutional right. I can’t think of a better example of living constitutionalism than a court saying that access to a physical object can get bootstrapped into the Constitution—and removed from the democratic process forever—because enough people decided they wanted it. Especially when you think about mifepristone and its common use; so many people desperately want it, but the Supreme Court has told us that access to medication abortion is not a constitutional right. Yet somehow access to assault weapons is a fundamental right. Can you dig into this lopsided vote and the crossing of the aisles? Because that was very striking. Judge Freeman wrote the opinion, and was joined by Judge Tamika Montgomery-Reeves, another Biden appointee. Meanwhile, all three Obama appointees dissented, as did one Biden appointee and one George W. Bush appointee. Why did two of the most progressive judges on the 3rd Circuit side against very popular and effective gun safety laws that prevent mass shootings? I think what we’re seeing here is the dark side of President Biden elevating public defenders and legal aid attorneys to the bench. It is true that many gun laws have a disproportionate impact on racial minorities and low-income communities. People of color are more likely to be put in prison, and to be given longer sentences, for certain firearm crimes. And that is very bad. But to me, it is not a reason to rip up all gun safety laws and to take away protections from mass shootings. Look, Judge Freeman was a federal public defender for 13 years. She specialized in post-conviction litigation. She represented defendants who argued that their convictions or their sentences were unconstitutional. And she specifically worked on hundreds of cases involving defendants convicted of firearm-related crimes, fighting to get their convictions overturned or their sentences reduced. I suspect that experience gave her a very strong civil libertarian instinct that manifests here as a deep skepticism towards state power to criminalize gun possession. There may be something similar with Judge Montgomery-Reeves: She worked closely with the Legal Aid Society’s Prisoners’ Rights project for several years, and I think that may have imparted a civil libertarian streak. She saw up close the consequences of handing the state broad authority to dole out these lengthy sentences for firearm-related crimes and the disproportionate impact that some of these laws impose on minority communities. These judges do have an important perspective to share on the way that overcriminalization can have a horrible impact on minority communities. I supported pulling more public defenders onto the bench, and I still think that overall, it has a lot of benefits. But here, what this translates into, in my view, isn’t going to be racial justice; it merely prevents us from using the democratic process to protect our communities from mass slaughter. This ruling will allow predominantly white people to buy the most lethal weapon that they can get their hands on. And some fraction of those people will use that weapon to commit mass shootings. Frankly, I think these judges will have blood on their hands when that happens if their decision is upheld by the Supreme Court. Two thoughts: First, we saw this split previewed in Bruen, with the public defenders’ amicus brief. So nobody should be surprised by this split. Second, you mentioned that the Supreme Court will decide next term whether assault-weapon bans violate the Second Amendment. Does this 3rd Circuit decision tell us anything about what the high court’s going to do? I fear this decision makes it more likely that the Supreme Court will say that the Second Amendment protects assault weapons, thereby striking down bans in a bunch of states, including not just New Jersey but also California, Illinois, Maryland, and more. Why? Because up until this point, there had been a remarkable consensus among the federal appeals courts; and well-respected conservative judges like J. Harvie Wilkinson, Frank Easterbrook, and Amy St. Eve had all found that the Second Amendment does not protect assault weapons. Now this cross-ideological group of judges on the 3rd Circuit has lined up to say that it does. That could send a message—especially to Chief Justice John Roberts and Justice Amy Coney Barrett, who are probably the swing votes here—that SCOTUS would not get out too far ahead of the lower courts or the public by enshrining a constitutional right to military-grade weaponry. I can see the conservative supermajority boosting the fact that Judge Freeman wrote this opinion to emphasize that this isn’t just a liberal vs. conservative thing. Basically, I think this decision ultimately gives SCOTUS more cover to rule against assault weapons bans. It creates the false impression of consensus and momentum where it doesn’t actually exist.