A Kansas US District Court judge has tossed an illegal machine gun possession charge on Second Amendment grounds. The court found that the machine guns in question are clearly “bearable arms,” and in this case at least, the government failed to show a historical tradition to justify their ban.
The court finds that the Second Amendment applies to the weapons charged because they are “bearable arms” within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s tradition of gun regulation justifies the application of 18 USC § 922(0) to Defendant.
That’s the portion of the 1986 Firearm Owners Protection Act that outlaws civilian possession of machine guns.
District Judge John Broomes ruled that the the government failed to meet its burden under Bruen and Rahimi to show historical analogues for banning the kind of machine guns possessed by the defendant (a converted AR platform rifle and a GLOCK switch-equipped pistol). In fact, it doesn’t sound like they tried very hard.
Indeed, the government has barely tried to meet that burden. And the Supreme Court has indicated that the Bruen analysis is not merely a suggestion.
Ouch.
Importantly, this decision says little about what the government might prove in some future case. Rather, under Bruen’s framework for evaluating Second Amendment challenges, it is the government’s burden to identify a historical analog to the restrictions challenged in this case. This the government has failed to do. The court expresses no opinion as to whether the government could, in some other case, meet its burden to show a historically analogous restriction that would justify § 922.
You can read the ruling here.
Before you get too excited, remember that this is a District Court ruling that can (and probably will) be appealed to the 10th Circuit Court of Appeals. Also, as the court points out, future cases could go differently if the government establishes applicable historical analogs. That said, I don’t think those analogues exist.
Konstadinos Moros is an Associate Attorney with Michel & Associates, a law firm in Long Beach that regularly represents the California Rifle & Pistol Association (CRPA) in its litigation efforts to restore the Second Amendment in California. You can find him on his Twitter handle @MorosKostas. To donate to CRPA or become a member, visit https://crpa.org/.
This post was adapted by SNW from tweets posted by Konstadinos Moros.
Interesting. From reading the opinion (I just sent DZ a link; hopefully he’ll update the article to link to it), it appears the feds just phoned it in and did not make a serious attempt to satisfy the Bruen test.
I find his “bearable arms” argument unsatisfying. Textually, the Second Amendment protects the right to keep AND to bear arms, and of course historically private citizens could and did own artillery pieces. So while 2A clearly INCLUDES “bearable” arms, I don’t but his syllogism that arms to large to be borne are excluded from 2A.
The good news is that this is the context of a criminal case, where courts tend to give the feds a lot less leeway than in civil challenges. Bad news is that absent a circuit or SCOTUS opinion in this case, it’s not binding on anyone except the feds WRT this defendant.
We’ll see what the Tenth Circuit has to say, but I would not be shocked if DoJ just decided to let this fish go rather than risk a precedential decision. But I daresay a challenge to the Hughes Amendment might have a chance in this judge’s court.
Given decisions at various circuit levels thus far and pending ones how well could such a challenge proceed even in a friendly initial court for the immediate future? Wild ass guess only.
What do you make of this part of his order?
“Thus, this definition seems to encompass everything from an aircraft-mounted automatic cannon to a small hand-held taser or stun gun that can easily be placed inside a handbag and which shoots multi-shot bursts of electrical particles with a single pull of the trigger, or a fully automatic BB gun that shoots multiple rounds of metal projectiles using compressed air.”
Is he suggesting that AFT could have been going after these:
https://www.crosman.com/crosman-dpmstm-sbr-co-bb-air-rifle-with-dual-action-capability
His comment is meant to show the challenge to the law can only be an “as applied” challenge, given the ridiculously broad language of 922(o).
But if you apply a pure textualist interpretation of that statute, if something is a “weapon” (not defined in the NFA) that “shoots” (also not defined) more than one “shot” (ditto), then it is a machinegun — as the judge points out, the limitations on the definition of “firearm” are not included in the definition of machinegun. Probably an oversight, but there it is.
I think most courts would likely exclude the BB gun (not a “weapon” as that term is commonly understood) as well as a stun-gun (no projectile and thus no “shots,” as that term is commonly understood). But a judge in New England, NJ, California (excluding St. Benitez), PAC NW, Hawaii, etc. . . . would not put it past them.
Thanks, asking for a friend who lives in Ohio, where it’s still fairly conservative…😉
Given the potential penalties, I’d suggest he call someone at the Prince Law Offices that specialize in this area and get specific legal advice. They’re just across the border in PA.
“I think most courts would likely exclude the BB gun (not a “weapon” as that term is commonly understood)…”
If spring-powered like the venerable Daisy ‘Red Ryder’, I’d agree.
However, there are air rifles easily capable of developing the foot-pounds roughly equivalent to modern rimfire rounds like .22lr, if not greater. Plenty of lethal energy.
Hell, there are even .50 caliber air rifles available :
https://www.airgundepot.com/big-bore-airguns.html
The ‘Lewis and Clark’ expedition used a potent repeating air rifle :
https://en.wikipedia.org/wiki/Girardoni_air_rifle
I’m very familiar with high powered airguns; indeed, my preferred tool for eliminating fruit/veggie stealing squirrels and rabbits is an internally-suppressed, tuned .22 PCP with a sub-4oz two-stage trigger. With the right pellet, it’ll shoot a ragged one hole pattern all day at 25 yards or less.
But the FA BB gun that the court and the poster identified are nowhere near that powerful, and thus I suspect most rational courts would treat them more like airsoft or paintball guns (i.e., toys) rather than actual weapons.
But in some states (e.g., NJ), all of those are considered “guns” under state law, and thus YMMV . . . .
“To keep and bear cannons” doesn’t work as English grammar and the Founders certainly would have been able to write an amendment protecting arms to big to “bear” if they wanted to
So, no, the 2A is about bearable arms
Now you may have a right to cannons etc but if so I would look for that under the 9A. You could use Tench Coxe’s “every terrible implement of war” quote as support for such a right
“… meet its burden to show a historically analogous restriction that would justify § 922.”
Right now comrade Kamunista has her minions at that (unconstitutional) ‘White House Office of Gun Viole…” (ok I can’t bear to type out the rest of that lie), are bent over a cauldron trying different combinations of eye-of-newt and toe-of-frog with history to ‘create’ something.
In the mean time Joe is enjoying his ice cream and muttering to him self ‘not my problem any more, that damn Nancy staged a soft-coup to get rid of me and those second amendment guys beat me with that damn …what was that word again? Oh yeah, consacution…nah that’s not right…constipation ….nah, well maybe, nah that’s not right… now what was that word … anyway I quit.” and wondering “Wheres Ashley, I want a shower.”
IMHO, the right to bear arms includes any weapon that infantry would normally carry. Since the people are the militia and need to be armed as the regular army is if needed. Which includes select fire weapons. And historically, machine guns were legal to own until one day- they weren’t.
So an M-16 (or whatever it is that’s carried by infantry today) should be perfectly legal to buy and possess.
When the Bill of Rights was ratified private citizens were permitted to own artillery. That whole bit in the Constitution about Congress being able to issue letters of Marque and Reprisal doesn’t make much sense otherwise.
“When the Bill of Rights was ratified private citizens were permitted to own artillery.”
There is still *zero* paperwork or permission required to own a fully-functional civil war era field cannon, AKA ‘Artillery’.
Period-correct exploding shells will require destructive device paperwork, but solid shot, canister shot, and nasty chain-linked shot, and grapeshot are good-to-go for all the good little boys and girls… 😉
You have to ask permission from Congress to be a privateer
There is no right to be a privateer therefore there is no right to cannons in order to be a privateer
Now you may have a right to cannons outright under the 9A using Tench Coxe’s “every terrible implement of war” quote as support for that
But the 2A covers only bearable arms and the privateer clauses does not change that
Ignores context.
As a ‘privateer’ one had to get the blessing of Congress to act as a ‘privateer’ under color of the U.S. (American) authority. Although the term ‘privateer’ is no longer used but rather, mostly, ‘contractor’.
But, as a private person there were no restrictions on if one could have a cannon and some private people back then did have cannons. And its still the same today.
And still today a private person can own a cannon and there are people who do. They are ‘bearable arms’. The term ‘bearable arms’ in context with Bruin (and other past SCOTUS decisions) and history and text means the same as it did way back then in the days of the ‘privateer’ and even before … which is basically ANYTHING a person can use for defense (or offense) – it doesn’t matter how impractical it may seem or how big or heavy it its, and it makes no distinction between, the old ‘privateer’ or todays ‘contractor’ or a private person or the government.
All that really needs to happen to start the slippery slope is for Hughes to go away. Force the Registry back open and, just like with suppressors, the market will get full auto costs down to where a regular joe can afford one. As suppressors have shown, the $200 Stamp isn’t really an impediment for most people. If everyone who owns an AR buys some form of FA, like a modern cheap STEN or an auto-sear, then they will shortly be “in Common Use” per Heller / Braun and the GCA will become irrelevant.
We lost our rights incrementally, we can take them back in the same way. Nibble by nibble while the anti’s, most of whom don’t understand how any of these laws actually work, fume and bluster.
If Hughes went away, we would quickly be awash in 100% legal conversion kits.
There are plenty of SOT’s out there who make the FA parts for LE/Mil-only select fire AR’s. They could easily crank out high-quality, registered drop-in kits that would be as easy to install as a trigger pack (for about the same price as one). Silencer Shop, Capitol Armory, and other NFA-weapon specialty retailers would process the Form 4’s on them just like they do suppressors today.
And maybe Tippman Arms would bring back their miniature Ma Deuce in .22LR! Belt-fed full auto range toy that doesn’t break the bank when you want to turn nickels into noise . . . .
Yayyyy!!! For Ma Duece in 22 lr!
“If Hughes went away, we would quickly be awash in 100% legal conversion kits.”
I wonder if our own Possum is shopping for a 3-D printer right now.
He already has the string to drag it around behind him… 😉
Speaking of possum has anyone heard from him? I haven’t seen anything from him for a while.
The decision in Rahimi suggests that the majority on the Court have decided that they don’t *really* mean Bruen. They’ll make some excuse for not really applying it whenever the the gun or the owner is “icky”.
Obviously there’s no historical analog to the machine gun ban; There’s no historical analog for ANY gun ban at the federal level, at the time the NFA was enacted they didn’t even think the federal government COULD ban things, it was beyond Congress’ enumerated powers.
But I doubt it will matter, because the Court isn’t going to uphold Bruen’s reasoning against the federal government. Only against states, and only outlier states, at that.
We’ll see.
I’ve always felt nuking the entire NFA, while justified, may be a bridge too far. But killing the Hughes Amendment might get through the courts.
It would be less than perfect, but having MG’s and conversion kits available suppressors today would be OK.
I pretty much agree but if NFA is allowed to stand, count on our Solons on the Potomac (and quite likely plenty of state legislatures) to raise the ‘tax’ to at least $5,000, which is approximately what it was in 1934, adjusted for inflation. What they can’t ban they can still tax to death.
“What they can’t ban they can still tax to death.”
Repeat after me, “Poll tax”.
I don’t mind the paperwork (very much, ‘Heller’ was clear, there were “exceptionally-dangerous weapons”), but taxiing a civil right will not stand…
” at the time the NFA was enacted they didn’t even think the federal government COULD ban things, it was beyond Congress’ enumerated powers.”
Indeed, the congressional record explicitly states that THE CREATORS of the NFA knew a ban would be unconstitutional, that’s why they tried the 2000% tax strategy. Note this was 2 years before Grosjean v. American Press Co.slapped down a mere 2% tax on gross because it was clearly designed as an anti-1A tax.
“…this was 2 years before Grosjean v. American Press Co.slapped down a mere 2% tax on gross because it was clearly designed as an anti-1A tax.”
Damn straight, if they wanna play, we’ll threaten to impose a literacy test on the Constitution before you can vote.
Flip the entire Reconstruction ‘Black Codes’ script on them, for a change…
“But I doubt it will matter, because the Court isn’t going to uphold Bruen’s reasoning against the federal government.”
Let’s see how this fall’s upcoming ‘Frames and Receivers’ SCotUS case plays out…
Ya, but….Who could afford the ammo?
The right to bear ARMS… all arms — from derringers to fast attack submarines. Not just arms you can carry or holster. ARMS means everything. No legs. All ARMS. Don’t go short and don’t interrupt your enemy while they are making a mistake.
The “historical analogue” argument is also specious. If there is one, that in no way indicates that the historical law itself was in any way constitutional.
Jeff
Thats been my thought also. Just because Podunk had a no guns in the city law does not mean it was constitutional.
Most people didn’t even realize they could fight city hall in court and maybe win.