The Machine Gun Win Now Before the 10th Circuit Court of Appeals
United States v. Morgan (24-3141)
Charles Nichols

Last August, Federal District Court Judge John W. Broomes issued two findings. The first was that the two machine guns the defendant was charged with illegally possessing are ““bearable arms within the original meaning of the [Second” amendment.” The second was “the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant.”

Judge Broomes then dismissed the charges. The Federal government filed a timely appeal, and filed its opening brief on appeal on December 12th. On December 29th, the Brady Center to Prevent Gun Violence filed an Amicus brief in support of the government. On Monday, January 6th, the Defendant filed a disfavored (but unopposed) motion for a thirty-day extension to file his answering brief on appeal. The motion was granted the same day. I am reliably informed that an Amicus brief will be filed in support of the Defendant.

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There are several important facts to keep in mind about this case. Judge Broomes did not say that the government couldn’t have met its burden of proof, but it failed to do so in this case, and so the government lost, as is required by the United States Supreme Court decision in NYSRPA v. Bruen.

Judge Broomes also said that some kinds of machine guns are not arms protected by the Second Amendment, and his decision says nothing about what restrictions or prohibitions the government could place on the carrying (bearing) of machine guns because the Federal law only makes it a crime to possess unregistered machine guns, not carry them.

Additionally, this is an interesting case because the case was prosecuted in the district court, and the opening brief on appeal was filed by the Biden administration. The reply brief and all further proceedings from January 20th onward will be by the Trump administration. The Trump DOJ attorney can simply acquiesce in the case, meaning he can concede that the law is unconstitutional but assert that President Trump will continue to enforce the law, including in this case. The latter is particularly important because if the President does not aver that he will continue to enforce the law, including against the Defendant, then the Court of Appeals could simply dismiss the appeal without deciding the case for lack of a “live case or controversy.”

Putting machine guns to the side for the moment, this quote from the Defendant’s motion for an extension of time is particularly telling, “The government’s brief is 36 pages long. The table of authorities is an additional 15 pages long and includes citations to roughly 200 cases, statutes, and legal texts. Many of the sources relied on by the government are hundreds of years old and were not cited by the government in the district court.”

The Federal criminal court system is rigged against defendants. Had the Defendant’s attorney failed to cite authorities or make properly worded objections in the proper manner at the appropriate time(s) in the trial court, then his failure would be subject to what is called “plain error review” on appeal, and he would almost certainly lose.

Will the 10th Circuit Court of Appeals afford the Federal government a more deferential standard of review? Will the Court of Appeals contrive some way around the NYSRPA v. Bruen mandate that the burden of proof lies with the government?

Time will tell. The appeal should be fully briefed in two months, after which the Court of Appeals can make a decision at any time.

You can read many of the briefs for free from CourtListener at the following links.

United States v. Morgan (24-3141) 10th Circuit Court of Appeals Docket.

United States v. Morgan (6:23-cr-10047) District Court, D. Kansas Docket.