Third Circuit Fast Tracks ‘Assault Weapon’ Ban Case With En Banc Review

For the second time in recent years, a federal appeals court has bypassed a three-judge panel’s opinion on an “assault weapon” ban in order to bring the case before every judge on the circuit. 

The Fourth Circuit Court of Appeals infamously took that step in the Snope case, short-circuiting the panel’s pending decision after waiting for more than a year after oral arguments had taken place. The panel was broadly presumed to have been crafting an opinion striking down Maryland’s ban, while the en banc panel upheld the law… a decision the Supreme Court left intact last session with Justice Brett Kavanaugh expressing confidence the Court would take up the issue “in a term or two”. 

The Third Circuit will give SCOTUS an opportunity to do sooner than expected, with the appellate court announcing it was taking multiple challenges to New Jersey’s AWB en banc less than two months after a three-judge panel heard oral arguments in the consolidated cases. 

FPC LEGAL ALERT: Nearly two months after oral arguments at the 3-judge panel, the Third Circuit has decided to take our lawsuit challenging New Jersey’s “assault weapon” ban en banc, with oral arguments on October 15th. https://t.co/XrjnZkKX5L pic.twitter.com/YJ0Uf2J3Y1

— Firearms Policy Coalition (@gunpolicy) August 21, 2025

The Third Circuit didn’t give any reason for the unusual decision, but the optimist in me would like to believe it’s because the three-judge panel (which featured a Biden appointee, an Obama appointee, and a Trump appointee) was likely going to uphold the ban and there a majority of judges on the Third Circuit disagree with that stance. 

We’ve seen a couple of good en banc decisions from the Third Circuit in the past couple of years, including one allowing 18-to-20-year-olds to bear arms and another ruling that a man’s guilty plea to falsifying his income on a food stamp application decades ago should not bar him from lawfully possessing firearms. It’s entirely possible that the Third Circuit will go even further than the district judge’s decision, which held that the state’s ban on AR-15s was unconstitutional, while its ban on “large capacity” magazines survived Second Amendment scrutiny. 

U.S. District Judge Peter Sheridan didn’t give the green light to New Jersey banning other semi-automatic firearms in his decision. Instead, he said “the breadth of this decision is limited by the fact that the remainder of the Assault Firearms Law stands since it has not been challenged”, arguing that the plaintiffs had focused most of their attention on the AR-15 platform and not other firearms banned under New Jersey law.

Sheridan upheld the magazine ban on the theory that the prohibition was analogous to 19th century laws regulating Bowie knives. The judge acknowledged that only a few states outlawed the possession of Bowie knives entirely, but “these restrictions overall fanned the basis for a tradition of prohibiting a subset of arms that could be useful and had become common for self-defense yet nevertheless posed a threat to public safety.”

Under that argument, of course, any commonly-owned arm that might be popular among criminals could be banned; an approach the Supreme Court rejected outright in Heller. 

The Third Circuit, sitting en banc, will soon have a change to correct Sheridan’s error. Oral arguments in the consolidated cases are now scheduled for early October; about a month after the Seventh Circuit Court of Appeals will hear oral arguments in the consolidated challenges to the “assault weapon” and “large capacity” magazine bans adopted by Illinois lawmakers. With luck we could have one or both of these decisions handed down early enough in 2026 for the Supreme Court to grant cert next spring or fall, and Kavanaugh’s prediction that SCOTUS would take up a hardware ban before long will prove to be true.* 

*The Court also has the opportunity to address mag bans specifically this fall by granting cert in Duncan v. Bonta, which challenges California’s ban on “large capacity” magazines. The California Rifle and Pistol Association submitted its cert petition on August 15, and right now California AG Rob Bonta has until September 18 to reply, though he’s requested a 30-day extension. 

Editor’s Note: The Second Amendment doesn’t just protect bolt-action rifles or muskets any more than the First Amendment only applies to quill pens or manual printing presses. 

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