Analysis: The First Crack Forms in Federal Machinegun Ban

For the first time, a federal judge has ruled the Second Amendment protects civilian machinegun possession.

On Wednesday, US District Judge John W. Broomes dismissed charges against a Kansas man for possessing a fully automatic .300 blackout AR-15 and Glock 33 handgun. He ruled that the federal ban on possessing or transferring machineguns (with limited exceptions) was unconstitutional as applied to the defendant.

“To summarize, in this case, the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation,” Judge Broomes wrote in US v. Morgan.

In many ways, the decision is the epitome of what some gun-rights advocates hoped the Supreme Court’s 2022 Bruen decision and the new test it laid down would bring to bear on America’s gun laws. The 1934 National Firearms Act (NFA), which marked the first time the federal government regulated machineguns by requiring registration and a $200 tax stamp, has rankled a vocal section of activists. The same is true of the 1986 Firearms Owners Protection Act, a provision of which known as the Hughes Amendment—18 USC § 922(o)—functionally banned civilian ownership of automatic weapons manufactured after its enactment.

Those activists view the federal regulations, enacted for the first time more than 140 years after the ratification of the Second Amendment, as incompatible with the Bruen standard because it prioritizes Founding-era approaches to weapons regulation when evaluating modern regulations. They see the ultimate liberalization of machinegun, suppressor, and short-barreled rifle regulations as the natural apotheosis of courts faithfully applying the Bruen test to America’s modern gun-control regime.

But court after court to address the question in recent years has rejected the idea the Second Amendment protects machineguns, largely based on the Supreme Court’s own words. Most often, they cite a section of the majority opinion in DC v. Heller that discusses the idea that fully automatic M-16s, which are functionally identical to the rifle at issue in Morgan, “may be banned.”

“We also recognize another important limitation on the right to keep and carry arms,” Justice Antonin Scalia wrote for the majority in Heller. “Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

Broomes interrogated this reliance on Heller’s brief discussion of M-16 rifles and reached a different conclusion on how much it binds courts confronting an explicit challenge to the federal ban on new machineguns.

“First, the government’s interpretation of Heller relies exclusively on dicta (and circuit authority that predates the historical analysis mandated in Bruen)—machineguns were not at issue in Heller,” Broomes, a Donald Trump appointee, wrote. “Second, the government’s interpretation would run directly counter to the essential analysis in Heller: just as the Fourth Amendment applies to modern ‘searches,’ the Second Amendment applies to arms that did not exist at the country’s founding.”

He also noted that the Heller Court’s comments were based on the Court’s holding in 1939’s US v. Miller, the facts of which he differentiated from his analysis of a challenge to the Hughes Amendment.

“It bears noting that, unlike § 922(o), the National Firearms Act does not categorically prohibit the possession of the sawed-off shotgun at issue in Miller or the firearms at issue in this case; rather, that act regulates possession of such weapons by restricting possession to those who comply with the registration and taxation requirements imposed under the act.”

“Heller, because it predates Bruen, however, certainly does not say that the Second Amendment does not apply to bearable machineguns,” he added. “It merely implies that restrictions on ‘dangerous and unusual weapons’ can be consistent with this nation’s history and tradition of firearm regulation.”

As a result, he concluded that fully automatic AR-15s and Glocks are bearable arms within the plain text of the Second Amendment. Therefore, the government would have to offer sufficient historical analogs to the modern machinegun ban to justify it rather than simply relying on dicta.

The government, in turn, pointed to the English common law tradition of prohibiting riding or going armed with dangerous or usual weapons derived from the 1328 Statute of Northhampton. It also cited an 1824 North Carolina Supreme Court case recognizing an offense to arm oneself “with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people,” an example of affray laws that the Supreme Court discussed in its Rahimi decision.

Broomes dismissed those examples as not relevantly similar to the modern machinegun ban in how they regulated the use of weapons.

“Both examples are disanalogous to what Defendant is charged with here—simple possession of a machinegun,” he wrote. “In contrast with the aforementioned historical examples, § 922(o) says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”

Beyond the analogs offered by the government for the modern machinegun ban, Judge Broomes also faulted the government for failing to demonstrate that machineguns aren’t in common use. He cited 2021 data from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), recording over 740,000 legally registered machineguns in circulation throughout the country at the time. Broomes also noted that civilians can continue to purchase and possess machineguns if they were registered before the 1986 ban.

“In that sense, machineguns are not unusual,” he wrote. “The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the Second Amendment.”

The ruling is only a single district court decision. Thus, it doesn’t necessarily have any formal sway over how other courts might decide the question. It was also limited to the law as applied to one criminal defendant, which leaves the federal machinegun ban still in effect.

Furthermore, though it has not done so yet, the Department of Justice will almost certainly file an appeal to the liberal-leaning Tenth Circuit. So, there is good reason to think the ruling won’t last.

Beyond that, it is difficult to imagine the Supreme Court choosing to weigh in. After all, the Justices have already proved hesitant to take up the much less controversial issue of semi-automatic gun bans. Even if it did take up a machinegun case, there’s reason to think a majority might uphold the 1986 ban. After all, multiple conservatives on the Court expressed sympathy for banning bump stocks for merely simulating automatic fire.

Accordingly, the prospect of gun-rights advocates overturning the federal machinegun ban remains unlikely. But the odds were worse before this ruling. At the very least, advocates have a tangible ruling to point to in other challenges.