Machine Guns in “Common Use”: A realistic strategy

I have some good news and some bad news. The bad news is that the United States Supreme Court is not going to hold that the Second Amendment protects an individual right to keep and bear machine guns. The justices made this clear in Garland v. Cargil (2024).

In the District of Columbia v. Heller (2008) oral argument, the attorney representing the District of Columbia correctly argued that machine guns are arms protected by the Second Amendment. It was Justice Scalia who pushed back. In the view of the late justice, only arms that are in “common use” are arms protected by the Second Amendment.

The good news is that there is a strategy to bypass the 1986 de facto Federal ban on civilians acquiring machine guns, which would result in their becoming “in common use.”1

But we won’t be able to rely on the courts. We will have to come up with a political solution that will withstand the inevitable legal challenges.

In February, Senate Bill 1071 was filed in West Virginia. Reportedly, “A West Virginia lobbyist working for WVCDL threatened to kill the bill over the weekend in a verbal exchange in front of multiple lawmakers. The lobbyist threatened to kill the bill in other states as well, including Kentucky.” In any event, the bill died.

There were two problems with the bill. The first problem was that the bill relied exclusively on 18 U.S.C. § 922(o)(2)(A), a Federal law that exempts “a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof…”

That argument failed recently in the 9th Circuit Court of Appeals in U.S. v. Kittson. You can read the decision as well as Judge Van Dyke’s dissent below.

U.S. v. Kittson 23-4132
433KB ∙ PDF file

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The second problem is that West Virginia is in the Fourth Circuit Court of Appeals. A Circuit that has long vied with the 9th and 2nd Circuits for being the most anti-gun circuit.

The correct strategy is to rely on the Militia Clause of the Second Amendment.

District of Columbia v. Heller (2008) held that the Second Amendment protects the individual right to keep and bear arms, independent of service in a militia. All of the Second Amendment cert petitions granted since then have likewise been cases unrelated to the Militia Clause.

Instead of using the state to transfer machine guns to basically anyone via a Federal statute, one the Fourth Circuit Court of Appeals has already held only applies to “government personnel,”2 simply make the transfers to members of the state militia or similar state organization, and do it first in a Circuit, such as the Fifth Circuit, where any legal challenge would face an uphill battle.

The Texas State Guard is such an organization. Unlike the National Guard, members of the Texas State Guard report only to the governor.

Members of the Texas State Guard (TXSG) are required to attend monthly drill weekends, four days of Annual Training, and emergency State Active Duty deployments when ordered.

That is an important element to defending against any legal challenge. A state that simply said every able-bodied adult who is a citizen of the state of Texas and who is between such and such an age is a member of the State militia would be hard pressed to defend its passing out or selling machine guns to the general public.

Were it up to me, machine guns would be as easy to purchase as firing reproductions of Revolutionary War muskets. But it is not up to me.

Around half of the states are “Red States,” with a combined population of about 150 million. If you want machine guns to become “in common use,” then you will have to organize and start lobbying the Red State legislatures to revitalize their state militias, and in those states like Texas, utilize the existing infrastructure.

An Alternative Strategy Recently Appeared

Speaking of Texas, a Federal lawsuit was filed on March 10th in the Northern District of Texas that claims 18 U.S.C. § 922(o) “is unconstitutional on its face and as applied to Plaintiffs because it exceeds Congress’s enumerated powers…” The case is Temple Gun Club, Inc. v. Bondi.

Given the recent Fifth Circuit Court of Appeals decision in McNutt v. Department of Justice et al., which held that the ban on the home distillation of alcohol is unconstitutional, if I were the Plaintiffs in Temple Gun Club, I would file an amended complaint.

1775 –

On April 18, General Gage issues orders to Colonel Francis Smith to lead an expedition to Concord and seize and destroy military supplies hidden there.

General Gage’s orders for the confiscation and destruction of arms of the Massachusetts Militia.

Lieut. Colonel Smith, 10th Regiment ’Foot,

Sir,

Having received intelligence, that a quantity of Ammunition, Provisions, Artillery, Tents and small Arms, have been collected at Concord, for the Avowed Purpose of raising and supporting a Rebellion against His Majesty, you will March with a Corps of Grenadiers and Light Infantry, put under your Command, with the utmost expedition and Secrecy to Concord, where you will seize and distroy all Artillery, Ammunition, Provisions, Tents, Small Arms, and all Military Stores whatever. But you will take care that the Soldiers do not plunder the Inhabitants, or hurt private property.

You have a Draught of Concord, on which is marked the Houses, Barns, &c, which contain the above military Stores. You will order a Trunion to be knocked off each Gun, but if its found impracticable on any, they must be spiked, and the Carriages destroyed. The Powder and flower must be shook out of the Barrels into the River, the Tents burnt, Pork or Beef destroyed in the best way you can devise. And the Men may put Balls of lead in their pockets, throwing them by degrees into Ponds, Ditches &c., but no Quantity together, so that they may be recovered afterwards. If you meet any Brass Artillery, you will order their muzzles to be beat in so as to render them useless.

You will observe by the Draught that it will be necessary to secure the two Bridges as soon as possible, you will therefore Order a party of the best Marchers, to go on with expedition for the purpose.

A small party of Horseback is ordered out to stop all advice of your March getting to Concord before you, and a small number of Artillery go out in Chaises to wait for you on the road, with Sledge Hammers, Spikes, &c.

You will open your business and return with the Troops, as soon as possible, with I must leave to your own Judgment and Discretion.

I am, Sir,

Your most obedient humble servant
Thos. Gage.

The Real Story of Revere’s Ride

In 1774 and the spring of 1775, Boston silversmith Paul Revere was employed by the Boston Committee of Correspondence and the Massachusetts Committee of Safety as an express rider to carry news, messages, and copies of important documents as far away as New York and Philadelphia.

On the evening of April 18, 1775, Paul Revere was summoned by Dr. Joseph Warren of Boston and given the task of riding to Lexington, Massachusetts, with the news that regular troops were about to march into the countryside northwest of Boston. According to Warren, these troops planned to arrest Samuel Adams and John Hancock, who were staying at a house in Lexington, and probably continue on to the town of Concord, to capture or destroy military stores — gunpowder, ammunition, and several cannon — that had been stockpiled there (in fact, the British troops had no orders to arrest anyone — Dr. Warren’s intelligence on this point was faulty).

Revere contacted an unidentified friend (probably Robert Newman, the sexton of Christ Church in Boston’s North End) and instructed him to show two lanterns in the tower of Christ Church (now called the Old North Church) as a signal in case Revere was unable to leave town. The two lanterns meant that the British troops planned to row “by sea” across the Charles River to Cambridge, rather than march “by land” out Boston Neck.

Revere then stopped by his own house to pick up his boots and overcoat, and proceeded the short distance to Boston’s North End waterfront where two friends waited to row him across the river to Charlestown. Slipping past a British warship in the darkness, Revere landed safely. After informing Colonel Conant and other local Sons of Liberty about recent events in Boston and verifying that they had seen his signals in the North Church tower, Revere borrowed a horse from John Larkin, a Charlestown merchant and a patriot sympathizer.

While the horse was being made ready, a member of the Committee of Safety named Richard Devens warned Revere that there were a number of British officers in the area who might try to intercept him. About eleven o’clock Revere set off. After narrowly avoiding capture just outside of Charlestown, Revere changed his planned route and rode through Medford, where he alarmed Isaac Hall, the captain of the local militia. He then alarmed almost all the houses from Medford, through Menotomy (today’s Arlington) — carefully avoiding the Royall Mansion whose property he rode through (Isaac Royall was a well-known Loyalist) — and arrived in Lexington sometime after midnight.

In Lexington, as he approached the house where Adams and Hancock were staying, a Sergeant Monroe, acting as a guard outside the house, requested that he not make so much noise. “Noise!” cried Revere, “You’ll have noise enough before long. The regulars are coming out!” At this point, Revere still had difficulty gaining entry until, according to tradition, John Hancock, who was still awake, heard his voice and said “Come in, Revere! We’re not afraid of you” and he was allowed to enter the house and deliver his message.

About half past twelve, William Dawes arrived in Lexington carrying the same message as Revere. After both men had “refreshed themselves” they decided to continue on to Concord to verify that the military stores had been properly dispersed and hidden away. A short distance outside of Lexington, they were overtaken by Dr. Samuel Prescott, who they determined was a fellow “high Son of Liberty.”

A short time later, a British patrol intercepted all three men. Prescott and Dawes escaped; Revere was held for some time, questioned, and let go. Before he was released, however, his horse was confiscated to replace the tired mount of a British sergeant. Left alone on the road, Revere returned to Lexington on foot in time to witness the latter part of the battle on Lexington Green.

Kostas Moros –
While I ridicule the antigunners a lot, I don’t think I was ever more disgusted than when I saw how upset they were when Elisjsha Dicken stopped a mass shooting. They could barely hide their rage.
They would have preferred he wasn’t there to stop the killer, because of how that example hurts their narratives. They would have preferred more people murdered, so they could use that to push gun bans.
Everytown being angry about this HK ad, showing totally lawful self-defense and defense of others, is in that same vein.
The ad is actually extremely healthy in its message, saying that its subject could only stop a mass shooting because he chose a good gun (their gun of course, it is still an ad), got training, and stored it responsibly in a safe at home. It even shows him not shooting it very well at first, but continuing to train until he got better. And it’s an ad for a small handgun, not a scary “assault weapon.”
It’s literally the least controversial modern gun ad I’ve seen. So what the hell is Everytown’s problem? Oh right, they want to ban all guns, so NO gun advertising is ever acceptable.
By the way, ads like this do a very good thing. They send a message to would-be mass shooters that they might get smoked quickly, and their fame-seeking may thus end in humiliation. That’s a deterrent to mass shootings. So it’s a shame more people don’t see them given gun ads don’t play on TV and such.

Chicago Man Gets 25 Years for Serving as a ‘Press Person’ for the ISIS Terrorist Organization

A federal judge on Thursday handed a 25-year prison sentence to a former Chicago software developer who the feds say functioned as a “press person for the Islamic State” terrorist organization and held a sincere, “radical urge for bloodshed.”

Ashraf Al Safoo, 41, already has served more than seven years behind bars since prosecutors filed charges against him in 2018. His attorney sought a sentence of time-served, arguing he’s caused no trouble in jail and basically amounted to a “keyboard warrior.”

But U.S. District Judge John Blakey said Al Safoo’s crimes went beyond words — “it was material support for the murder and destruction of other human beings.”

“While you did not pull a trigger or detonate a bomb or behead someone with your own hand, by your own knife, you engaged in a course of conduct that facilitated and rooted them on,” Blakey told Al Safoo while handing down the sentence.

In a bench trial last year, Blakey convicted Al Safoo of conspiring to provide material support to a foreign terrorist organization, among other crimes.

Before learning his fate, Al Safoo told the judge he’d fled Iraq with his family as a teenager before he could be enlisted in Saddam Hussein’s military. He said he’s betrayed the United States, the country that gave him a home, and cries when he receives photos of his children.

“I reap what I sow,” Al Safoo repeatedly told Blakey.

The sentence is among the stiffest in recent memory to be handed down in a terrorism case at Chicago’s Dirksen Federal Courthouse.

Ashraf Al Safoo, 41, already has served more than seven years behind bars since prosecutors filed charges against him in 2018. He received a 25-year sentence Thursday.

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Two More 2A Cases Make Their Supreme Court Conference Debut Tomorrow Today

Earlier today I covered why one Supreme Court-watcher is optimistic about the justices taking up bans on so-called assault weapons and large capacity magazines next term, but those aren’t the only 2A issues that will be discussed in tomorrow’s conference. There are two cases making their first appearance in the justice’s closed door meeting that could be granted cert (or denied) as early as next Monday, and both are worth taking up… and talking about.

The first case is U.S. v. Peterson; a challenge to the National Firearms Act’s restrictions on suppressors. Specifically, the attorneys for plaintiff George Peterson are asking SCOTUS to address two questions: First, whether the National Firearms Act’s taxation-and-registration scheme for covered firearms can be justified as a licensing law, and whether the National Firearms Act’s taxation-and-registration scheme violates the Second Amendment with respect to firearm suppressors.

The Trump administration waived its right to reply to the cert petition, and it’s not a great sign for the plaintiffs that not a single justice asked the DOJ to reply anyway. To date, though, Trump’s DOJ has argued that, while suppressors may be protected “arms” under the Second Amendment, the $200 tax (which has now been zeroed out by the One Beautiful Bill Act) and registration requirement (which is still in place) represent “modest” burdens on our right to keep and bear arms.

The plaintiffs have made strong arguments about why that is not the case, but they weren’t able to prevail in the fairly conservative and 2A-friendly Fifth Circuit, which treated the taxation-and-registration scheme as akin to a shall-issue-licensing law. I’ll be thrilled if I’m wrong, but my hunch is that the justices aren’t ready to wade into the thorny questions posed by the plaintiffs here. If SCOTUS grants cert to a case dealing with bans on “assault weapons” and “large capacity” magazines the odds of a cert grant in Peterson would improve, but I can’t see SCOTUS addressing the constitutionality of the NFA and its treatment of suppressors before it takes up gun and magazine bans… at least not with an outcome that gun owners will appreciate.

The other Second Amendment case making its first Friday appearance in conference is Gardner v. Maryland, which poses three questions to the Court:

1. Does Maryland’s prohibition on carrying a handgun without a state permit, as applied to an interstate traveler with a valid Virginia concealed carry permit who displayed a loaded firearm in self-defense against an assailant’s vehicular assault and physical advance, violate the Second Amendment under New York State Rifle & Pistol Ass’n v. Bruen… by lacking a historical tradition of disarming law-abiding citizens in such circumstances?

2. Did the Maryland courts’ reliance on a video showing the assailant’s calm demeanor upon police arrival, without his testimony or other witnesses to corroborate the incident, while disregarding Petitioner’s evidence of the assailant’s PIT maneuver, vehicular coercion, and physical advance, violate the Fourteenth Amendment’s Due Process Clause by denying Petitioner a meaningful opportunity to present a self-defense claim?

3. Does Maryland’s refusal to recognize Petitioner’s valid Virginia concealed carry permit for interstate travel violate the Full Faith and Credit Clause, U.S. Const, art. IV, § 1, or the Firearms Owners’ Protection Act (18 U.S.C. § 926A), despite the firearm being loaded and Pennsylvania’s non-recognition of the permit at the time of the incident?

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Bearing arms: Shifting views among gun owners on a foundational right

Reporter Patrik Jonsson has been writing about guns for 15 years. As the Monitor’s beat reporter in the American Southeast, Patrik has covered gun violence and gun rights; coffee shops banning firearms and stand-your-ground-law advocates using them; mass shootings and the National Rifle Association, and whether the gun itself has become a “sacred object” in America.

In this week’s magazine, he writes about a new twist in what has become one of this country’s most emotional, and debated, issues: a growing liberal embrace not just of guns themselves, but of an approach to the Second Amendment long associated with the conservative right.

“I’ve covered so many angles on the Second Amendment,” Patrik told me. “I’ve done stories about liberal gun owners, I did a story about women gun owners, I did a story about the complications of being a Black gun owner.” But Patrik started noticing something new after the killing of Alex Pretti, an intensive care nurse fatally shot by federal agents in Minnesota earlier this year.

Why We Wrote This

The Monitor’s longtime Georgia bureau chief, Patrik Jonsson, noticed a shift in thought among gun owners: a mistrust of government on the political left.

During the COVID-19 pandemic and a wave of Black Lives Matter protests, Patrik explains, a growing number and diversity of Americans started turning to firearms in hopes of defending themselves from criminals. This, according to scholars, was an expansion of what is sometimes called “Gun Culture 2.0” – a perception of guns as being primarily for self-protection rather than for hunting or military use.

(Previously, those on the left were more likely to identify with gun control advocates, who point to research showing that firearms in the home increase the risk of violence there.)

After Minnesota, though, Patrik found a growing, cross-partisan belief that guns are necessary not just to protect oneself from criminals, but also from the government.

Mr. Pretti had been carrying a licensed handgun – a fact used by some government officials to at first justify his shooting and later raised by citizens across the political spectrum worried about federal overreach.

“What happened after Alex Pretti … was this simmering sense on the left that, ‘Maybe the folks on the right were correct? What if the state falls into the wrong hands?’” Patrik told me.

“if the state falls into the wrong hands” he says

Judge Alex Kozinski –
The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

He started to look for data, he says, and found early indications that thought might be shifting.

“This is at the heart of the story – this rethinking of the Second Amendment on the left and what that means,” Patrik says.

It’s not just a threat to America

Supreme Court Justice Clarence Thomas blasts progressivism as threat to America.

Supreme Court Justice Clarence Thomas on Wednesday delivered a televised broadside against progressivism, a political philosophy he described as an existential threat to America and the principles that founded it 250 years ago.

“Progressivism seeks to replace the basic premises of the Declaration of Independence and hence our form of government,” Thomas said in a speech at the University of Texas Austin Law School pegged to the nation’s upcoming milestone birthday. 

A spirit of “cynicism, rejection, hostility and animus” toward America — by Americans — has taken hold, Thomas said in remarks carried live on CSPAN.

Thomas, the Supreme Court’s senior conservative member, spoke broadly, not referencing specific contemporary events or political figures to make his case. But his comments come at a critical time for the sharply divided country and the Court.

He said that the values enshrined in the 1776 Declaration of Independence have “fallen out of favor” among Americans — a trend perpetrated, he argued, by “intellectuals” and the nation’s colleges and universities.

“intellectuals” he says…
George Orwell –
Some ideas are so stupid that only intellectuals believe them

Thomas also said he believes many people no longer believe “all men are created equal” and deserving of “unalienable rights” protected by a limited government.

 “[Progressivism] holds that our rights and our dignities come not from God, but from government,” he said. “It requires of the people a subservience and weakness incompatible with a constitution premised on the transcendent origin of our rights.”

The 77-year-old justice was appointed by Republican President George H.W. Bush in 1991 and is one of the longest-serving justices in history. He is a staunch conservative and has been a reliable vote in favor of the Trump administration’s positions in cases.

Thomas said Washington has been overrun by elected and appointed officials who lack commitment to “righteous cause, to traditional morality, to national defense, to free enterprise, to religious piety or to the original meaning of the Constitution.”

“They recast themselves as Institutionalists, pragmatists or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country,” he said.

Thomas called on Americans to stand up for their principles and endure personal “sacrifices,” if necessary, to preserve the nation’s democracy.

“In my view, we must find in ourselves that same level of courage that the signers of the Declaration have so that we can do for our future what they did for theirs,” he said.

1775-

Joseph Warren sends Paul Revere to Lexington with a message for John Hancock and Samuel Adams, warning them that General Gage was planning to send troops to Concord. On his ride back to Boston, Revere stops in Charlestown, where he arranges with church sexton Robert Newman and vestryman John Pulling to have lanterns hanged in the steeple of the North Church to signal whether troops were moving by land (one lantern) or by sea (two lanterns).

Following Revere’s first ride to Lexington, patriots in Worcester, Massachusetts, relocate military supplies hidden in their town.

In a way, the continuing gun control controversy is much like the prohibition problem in Oklahoma in the fifties and sixties. It was the belief of many that prohibitionists and bootleggers were united in their efforts to prevent the legal sale of alcoholic beverages. In gun control, those who can afford private alarm systems and bodyguards are united with criminals in their desire to keep guns out of the hands of honest citizens.
— Bill Dannenmaier

BLUF
…bad facts drive bad policy. The issue here is not whether crime near schools is serious. The issue is whether the public is being told the truth. On that question, the answer is clear. The methodology does not support the headline, and the headline does not deserve the public’s trust.

‘31 Shootings a Day’ Media Narrative Collapses Under Easy Scrutiny

A recent news headline declared, “11,500 shootings occurred within 500 yards of US schools last year.” The obvious implication is that American school children are under daily fire on school campuses nationwide. But, as with most gun control narratives in national media written by reporters who mostly don’t understand the basics of firearms or criminal gun use, that narrative collapses under the slightest scrutiny.

The first glaring red flag in this story is that Hearst Television Data Visualization Journalist Susie Webb and the WCVB Get the Facts Data Team built their agenda-driven narrative by relying on gun control advocacy site The Trace’s “School-Adjacent Shootings” dataset, which tracks Gun Violence Archive (GVA) incidents that fell within 500 yards of a K-12 school. Even that dataset warns that each row is a shooting-to-school match and must be deduplicated before anyone totals up the incidents, deaths or injuries. However, that was not done before Webb and WVTM’s story went live on several news outlets, on social media, on Hearst Television’s YouTube channel and was even—unsurprisingly—picked up by MSN.

This blatant error is not a trivial methodological footnote. It is the difference between measuring school-related crime and measuring a broad circle on a map. It’s also a trick that’s been seen time and again from the likes of Everytown’s propagandist at The Trace and GVA.

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