CRPA Joins Amicus Brief in US v. Kittson

Today, California Rifle & Pistol Association, Second Amendment Foundation, and the Second Amendment Law Center took the somewhat unusual step of filing an amicus brief in a unique criminal case out of Oregon. US v. Kittson involves an individual charged with violating 18 U.S.C. § 922(o), which prohibits the possession or transfer of an unregistered fully-automatic firearm. The United States District Court for the District of Oregon upheld the ban despite Mr. Kittson’s Second Amendment arguments, and now he is appealing to the Ninth Circuit Court of Appeals. Read the full brief here.

The district court ruling caught our attention not so much because of the result (considering the confusion that courts have created on how to apply the Bruen test of constitutionality, it isn’t surprising that courts are not yet ready to overturn machine gun bans) but rather because of the district court’s refusal to properly apply Bruen’s methodology and historical tradition analysis. In the decision, which is just a few paragraphs, the same federal judge that upheld Oregon’s new magazine capacity law ruled that machine guns are not “arms” covered under the Second Amendment’s plain text, and that prior Ninth Circuit precedent is still good law even after Bruen. The judge skipped the history and tradition analysis entirely.

Our amicus brief focuses on why and how the district court failed to apply Bruen correctly. First, we point out that machine guns are undoubtedly “arms” under the Second Amendment, so the historical tradition analysis must be conducted. Next, we discuss the proper contours of that historical analysis. We contend that the Ninth Circuit should order the district court to analyze whether history supports classifying machine guns within the historical tradition of regulating “dangerous and unusual” weapons. If they are not, they may not be banned. Finally, we argue that the Ninth Circuit should also inform the district court that an arm merely being used by the military, without more, is not sufficient reason to ban it. Even if the machine gun ban is ultimately upheld, like any Second Amendment question it deserves the benefit of a full historical tradition analysis first.

District courts should not be allowed to get away with ignoring what the Supreme Court’s Bruen decision demands.  The analytical legal process matters, and these abuses will continue to be copied in other cases if they are not corrected.

While our main focus is on the civil Second Amendment cases that we litigate on behalf of all law-abiding gun owners, last week’s excellent decision in US v. Duarte reminds us that a lot of Second Amendment case law and legal precedent will be made in criminal matters, where overworked public defenders can benefit from our expertise. So CRPA our allies will continue to monitor criminal matters for amicus brief opportunities.

As we’ve harped on time and again, the way in which the Bruen standard is used (or ignored) in cases all over the country has the potential to advance our cause or to erode gains already made.  This is a critical fight!