‘Objectively Suitable’ for Self-Defense or ‘Dangerous and Unusual’: Third Circuit Dissents

Yesterday I examined the concurring opinions released alongside the Third Circuit’s decision striking down New Jersey’s ban on “assault weapons” and large capacity magazines (or at least ban as it applies to semi-automatic rifles). Today we’ll be looking at the dissents. 

There’s actually a dissent disguised as a concurring opinion that we should start with. Judge Cindy Chung wrote that she agrees with the decision to remand the case back to the district court, but her reasoning for doing so is that the lower court did not properly examine all of the history it should have. 

In what seems to be her biggest gripe, Chung says courts should consider “another principle underpinning that regulatory tradition” of gun ownership; “to wit, a weapon not commonly worn in public causes a terror to the people.”

Going back to the late 1500s, Chung claims that “if people were not accustomed to seeing the weapon worn in public, the wearing of it, in and of itself, prompted fear.” That, in turn, essentially made the weapon “dangerous and unusual.” 

Taken to its logical conclusion, Chung’s rationale would allow for every firearm to be banned, since we’re not really accustomed to seeing any of them worn openly. Even in open carry states, concealed carry is far more popular, and it’s not that common to see someone openly carrying a pistol or long gun. 

Chung didn’t get anyone to join her concurrence, so I’m not sure how much support her position has, but we may see some anti-gunners adopt her point of view in amicus briefs defending the “assault weapon” bans the Supreme Court will consider next term. 

The main dissent, authored by Judge Patty Schwartz and joined by judges Cheryl Ann Krause, L. Felipe Restrepo, and D. Brooks Smith, is basically a rehash of the appellate court opinions that upheld similar gun and magazine bans around the country, though they also argue that the majority opinion is too broad since it addresses every semi-automatic rifle included in New Jersey’s ban and not just the Colt AR-15. 

The dissent argues that whether “assault weapons” and LCMs are arms is an open question, though the Supreme Court just said in Wolford that “arms” are “weapons customarily used for offensive or defensive purposes.” Instead, the dissenting judges claim:

At Bruen Step One, we must determine whether AR-15s and LCMs as defined under the Act are suitable, and in common use, for self-defense and therefore presumptively protected under the Second Amendment, or whether they are unusually dangerous and therefore outside the Amendment’s protection.

That’s wrong on two different levels. The “common use” and “dangerous and unusual” test comes at Step Two, and is not contingent on a gun being in common use for self-defense. Instead, the test is whether it’s in common use for lawful purposes including self-defense. 

As you might have guessed, Schwartz believes that the “objective features of AR-15s and LCMs render them disproportionate to ‘ordinary self-defense needs’ and thus outside the scope of the Second Amendment’s protection.”

Schwartz claims that “assault weapons” are used in 24 percent of mass shootings, are more useful in military combat than civilian self-defense, and thus is an “unusually dangerous tool” used by the military, not “an arm in common use by civilians for self-defense.” The majority opinion did an excellent job of explaining why Schwartz is wrong, and you should read it in full or at least my summary from Friday. 

Schwartz’s dissent also contains this gem in a footnote. 

The anti-gun logic from one of the dissents: https://t.co/qfQk7s7ERF pic.twitter.com/svV73vqgUQ

— Firearms Policy Coalition (@gunpolicy) July 17, 2026

Although hunting is also a lawful purpose to possess a firearm, semiautomatic weapons are unlikely to aid inhunting for food or trophies given the destruction they cause to the target.

This is downright idiotic. Some states prohibit hunting for deer or larger game with .223 caliber rifles because they are too underpowered. Of course, you can find AR-15s chambered in larger calibers, and my semi-automatic rifles chambered in .223 do just fine in taking down varmints like fox and coyote, without the “destruction” that Schwartz describes. 

Judge Cheryl Ann Krause, writing her own dissent, opines that “the majority disregards New Jersey’s decision to align its firearm regulations with the deeply rooted regulatory tradition of proscribing these sorts of dangerous weapons, those so lethal that every other Court of Appeals to review a law regulating them has upheld it against constitutional challenge,” and that “in departing from this consensus, the majority isolates us as the only Court of Appeals in the Nation to afford constitutional protection to AR-15s and LCMs.”

The Third Circuit isn’t required to be a judicial lemming blindly following other courts off the cliff into Second Amendment irrelevancy. Moreover, New Jersey did not decide to “align its firearm regulations” with any “deeply rooted regulatory tradition.” As the majority pointed out, New Jersey’s ban on modern sporting rifles and magazines that can hold more than 10 rounds is deeply ahistorical and at odds with the national tradition of gun ownership. 

On what basis does the majority disregard the democratic will of the People of New Jersey and conclude that these weapons deserve constitutional protection? On the novel theory that these weapons are “in common use” because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gun owners assert their subjective intent to use them only for lawful purposes. The majority’s analysis contravenes the Supreme Court’s repeated instructions to evaluate modern laws regulating firearms by comparing them with historical analogues enacted pursuant to principles that have guided legislatures since the Founding. Instead, the majority gives undue weight to today’s market trends and the idiosyncratic preferences of an ill-defined subset of gun owners. And the majority does so despite the ground shifting beneath our feet: The Supreme Court has granted certiorari to resolve within months one of the two questions before us today—the constitutionality of laws prohibiting the possession of AR-15s. The other question, the constitutionality of regulations on LCMs, is presented by a pending petition for certiorari that the Court has relisted for its next conference.

In other words, Schwartz disagrees with the majority decision and would keep the gun and magazine ban in place, but at the very least thinks the Third Circuit shouldn’t release its decision until after SCOTUS has weighed in on gun bans. Do you think she’d still hold that point of view if she were in the majority? This just screams of sour grapes rationalization to me. 

Finally, Judge D. Brooks Smith offered up the pithiest of dissents: 

I join Judge Shwartz’s incisive dissent in its entirety. I add only that my views in this matter are fortified by the persuasive reasoning of Judge Wilkinson in his comprehensive opinion in Bianchi v. Brown, 111 F.4th 438(4th Cir. 2024) (en banc). I also join the persuasive dissenting opinion of Judge Krause.

Wilkinson’s argument in Bianchi was that AR-15s and other arms labeled “assault weapons” by the Maryland legislature weren’t protected by the Second Amendment because they are military-style weapons meant for combat, not self-defense. Wilkinson also wrote that there’s a national tradition of regulating “excessively dangerous” weapons, a phrase the Supreme Court has never used in its Second Amendment-related decisions. 

Beyond Judge Chung’s “weapons not commonly worn are dangerous and unusual” argument, there’s not much new here. I’m not concerned about Chung’s novel approach finding support from a majority of Supreme Court justices either. I’m sure we’ll see echoes of these dissents when the Supreme Court issues its decision on the constitutionality of “assault weapon” bans next term, but I expect those echoes will remain in a dissenting opinion instead of serving as the basis of a decision upholding those bans. 

Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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