On July 17, the en banc Third Circuit decided Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey. Eleven members of the en banc court ruled that New Jersey’s “assault firearms” ban and prohibition on “large capacity magazines” violate the Second Amendment.
The majority opinion was written by Judge Arianna Freeman, a Biden appointee. I concur with Ed Whelan that Freeman deserves some credit for taking this strong stand, and disqualifying herself from any future Supreme Court vacancy.
Ed also praises Judge Tamika Montgomery-Reeves, another Biden appointee, who joined the majority opinion. She too has taken her name off the SCOTUS short list. Yet, she joined the majority despite a reservation. Judge Montgomery-Reeves wrote a short concurrence that raises an important question of timing. She observes that on June 30, the Supreme Court granted certiorari to review AR-15 ban cases from Illinois and Connecticut. Judge Montgomery-Reeves writes, “the Supreme Court has granted certiorari in two cases considering constitutional challenges to statutes nearly identical to the one now before us.” Judge Montgomery-Reeves could have voted to hold the cases pending the Supreme Court’s resolution. But she didn’t. Judge Montgomery-Reeves explained:
I see little reason to decide this case now and get out in front of the Supreme Court. But because the majority has decided to do so, I respectfully concur.
I am perplexed by these two sentences. If Judge Montgomery-Reeves thought there was no reason to decide the case now, she could have simply dissented from the court’s judgment, without taking any position on the constitutional analysis. Indeed, Judge Krause’s dissent faults her colleagues, including Judge Montgomery-Reeves, for “jumping ahead of the Supreme Court.”
It seems just about every term, a circuit court decides an issue that is pending before the Supreme Court. In some cases, the resolution happens after oral argument. There is no hard-and-fast rule. I wrote about this issue in December 2025.
What happened in the Third Circuit? It is useful to look at the chronology.
The New Jersey case was argued before the three-judge panel on July 1, 2025, argued en banc on October 15, 2025, and decided on July 17, 2026. During the entire pendency of the en banc proceedings, Viramontes was stuck in docket purgatory. As I noted, the Court granted the AR-15 case after twenty-one relists over the course of six months. I am fairly certain that the judges Third Circuit expected these relists to result in a denial of certiorari, accompanied by a dissental. As a result, the judges of that court likely proceeded to write the majority and dissenting opinions, and waited until Viramontes would finally be resolved. Judge Montgomery-Reeves was likely prepared to join the majority opinion without reservation. She was “locked in,” to use Justice Barrett’s phrasing.
But in a surprise to me and others, the twenty-one relists yielded a grant. This shift created an opportunity for the dissenters to argue the case should be held. I’m sure there were some internal deliberations to flip enough members of the majority to put the case on ice until July 2027. For reasons only Justice Montgomery-Reeves knows, she decided to join the majority opinion, so it could be released right away. No one would have ever known if she took the path of minimalism, and simply dissented. Indeed, her vote was not necessary to form an en banc majority.
Perhaps the answer can be found in a footnote from the majority opinion. Judge Freeman wrote, “no party to these long-pending cases has asked us to hold our decision pending the Supreme Court’s decision.” But the en banc court never needs a request to hold a case indefinitely. En banc courts routinely sit on petitions forever. (Jon Adler recently noted that a case has been pending before the en banc D.C. Circuit for nearly two years.)
Finally, I’d like to commend Judge Paul Matey’s scholarly concurrence. He is an extremely meticulous judge, and his opinion reads like a law review article. Take some time to read. It is a complete antidote to the lawlessness from the Hawaii Supreme Court. I’ll take Matey’s “Garden State Spirit” any day.
