Third Circuit gun ruling crossed party lines in 10–5 vote against New Jersey

A closer look at last month’s landmark Third Circuit decision striking down New Jersey’s restrictions on semiautomatic rifles and large-capacity ammunition magazines shows a court that did not divide strictly along the partisan lines of the presidents who nominated its judges.

The full U.S. Court of Appeals for the Third Circuit ruled 10–5 against the New Jersey law, meaning 66.7% of the 15 participating judges voted to hold that the restrictions violate the Second Amendment.

In political terms, that’s a 2-1 victory.

The majority included eight judges nominated by Republican presidents and two nominated by a Democratic president.  The five judges who sided principally in support of the New Jersey ban included three nominees of President Barack Obama, one nominee of President Joe Biden and one nominee of President George W. Bush.

Arianna Freeman, a Biden nominee, wrote the majority opinion. Biden-appointed Tamika Montgomery-Reeves also joined the majority, although she added some qualifications in a separate concurrence.

They were joined by Michael Chagares, the chief judge, and Thomas Hardiman, both nominated by Bush; Stephanos Bibas, David Porter, Paul Matey and Peter Phipps, all nominated by Donald Trump during his first term; and Emil Bove and Jennifer Mascott, Trump nominees confirmed during his second term.

Phipps joined most of Freeman’s opinion and agreed with the judgment but differed with part of its historical analysis.  Mascott agreed with the judgment and joined Matey’s separate concurrence.

Patty Shwartz, an Obama nominee, wrote the principal dissent, joined by fellow Obama nominees Cheryl Ann Krause and Luis Felipe Restrepo and by D. Brooks Smith, a Bush nominee. Krause and Smith also wrote separately.

Cindy Chung, a Biden nominee, took a more qualified position.  Chung agreed that the cases should be returned to the U.S. District Court for additional proceedings, but she dissented from the majority’s constitutional analysis and would not have invalidated the laws on the existing record.  On the central question of whether New Jersey’s restrictions violate the Second Amendment, Chung was on the state’s side.

New Jersey likely would have won before the original three-judge panel, which consisted of Freeman, Shwartz and Smith.  Based on their eventual en banc positions, Freeman would have voted against the state while Shwartz and Smith would have voted to uphold the law, producing a 2–1 decision for New Jersey.

That panel never issued an opinion.  The Third Circuit instead voted to rehear the case en banc on its own initiative.

The court does not disclose how individual judges voted on whether to grant en banc consideration, so the public does not know which of the 15 supported taking the case away from the panel and which opposed it.

An en banc hearing means a case is considered by all of the court’s active, eligible judges instead of the usual three-judge panel.  The Third Circuit generally reserves that process for questions of exceptional importance or cases requiring greater consistency in its precedents.

Gun cases have dominated the court’s en banc docket: the last six Third Circuit en banc cases to receive oral argument have involved firearms.

Bove, whose nomination generated a bruising confirmation fight, was clearly not the deciding vote. Even without him, New Jersey would have lost 9–5.

The outcome also would not have changed if Adeel Mangi, Biden’s unsuccessful nominee for the seat eventually filled by Bove, had been confirmed and voted to uphold the law.  Replacing Bove’s vote with a pro-New Jersey vote from Mangi would have produced a 9–6 ruling against the state.

There was no guarantee Mangi would have voted in support of the New Jersey law.  He never heard the case or issued a decision showing how he would approach these specific Second Amendment questions.  Assuming his vote, solely because he was from the party of the president who nominated him, would repeat the partisan assumption contradicted by the actual result.

Mascott’s arrival presented a different political calculation.  The Senate confirmed her six days before the October 15, 2025, en banc argument, and she was sworn in in time to participate. Republican leaders, acutely aware of the importance of gun cases before federal appellate courts, moved Mascott ahead of other pending nominees and ensured that she was seated before the argument.

But neither the Trump White House nor Senate Republicans could have known how Freeman and Montgomery-Reeves would vote.  Both Biden nominees ultimately sided with the court’s conservatives against New Jersey.

The result suggests the Biden White House did not make gun policy an overriding test in selecting federal judges.  At least two Biden selections for the U.S. District Court of New Jersey are gun owners whose views of the Second Amendment are more supportive than many Democrats may have realized.

The court held that New Jersey’s ban is unconstitutional as applied to semiautomatic rifles and that its restriction on magazines holding more than ten rounds also violates the Second Amendment.

But the same 15 judges subsequently voted unanimously to stay their decision, leaving the New Jersey laws in effect while the state seeks U.S. Supreme Court review.  The stay was 15–0, with no dissent from Freeman, who wrote the majority opinion; Montgomery-Reeves, who wrote a concurrence; Matey, who also wrote a concurrence; or any other judge who voted against the state.

That unanimity does not undo the 10–5 constitutional ruling.  It gives the Supreme Court time to weigh in before the Third Circuit’s decision takes effect.