Litigation Highlights: Public Carry, Third-Party Standing and (More) LCMs

In the past several weeks, there have been some important Second Amendment cases decided. I examined the Ninth Circuit’s decision on large-capacity magazines last week and offered some thoughts on the reasoning that led the court to strike down CA’s ban. There have also been a few other notable developments.

• In Association of New Jersey Rifle and Pistol Clubs v. Attorney General, the Third Circuit reaffirmed its disagreement with the Ninth Circuit’s conclusion on LCMs. On Tuesday, the panel concluded it was bound by a prior panel’s decision that New Jersey’s 10-round magazine cap does not substantially burden core protected conduct and need only satisfy intermediate scrutiny, which it did. One noteworthy aspect of the case is that another dissenting judge argued that the circuit should scrap its methodological approach to Second Amendment questions and replace it with the Kavanaugh-inspired “text, history, and tradition” approach. With the Third Circuit now numbering more Republican-appointed judges than Democratic-appointed ones, a call for en banc here might give those judges a chance to work the change in circuit doctrine. We’ve hosted a fair amount of commentary on this blog about the text, history, and tradition approach—here are just a few examples.
• In Maryland Shall Issue v. Hogan, the Fourth Circuit held that a gun seller had standing to raise its and (through third-party standing) its customers’ Second Amendment claims against Maryland’s handgun licensing law. That case will now return to the lower court for analysis of those claims.
• In Baird v. Becerra, a district judge in the Eastern District of California preserved a challenge to California’s open carry licensing regime. The court denied both the plaintiff’s request for a preliminary injunction stopping the law from going into effect and also parts of the defendant’s motion to dismiss the case. That case—and most importantly the Second Amendment claim—will move forward in the district court.