{"id":116289,"date":"2026-04-18T02:04:47","date_gmt":"2026-04-18T07:04:47","guid":{"rendered":"https:\/\/milesfortis.com\/?p=116289"},"modified":"2026-04-18T02:04:47","modified_gmt":"2026-04-18T07:04:47","slug":"116289","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=116289","title":{"rendered":""},"content":{"rendered":"

Machine Guns in “Common Use”: A realistic strategy<\/a><\/p>\n

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\u00a0Garland v. Cargil<\/a>\u00a0(2024).<\/p>\n

In the\u00a0District of Columbia v. Heller<\/em> (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 \u201ccommon use\u201d are arms protected by the Second Amendment.<\/p>\n

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 \u201cin common use.\u201d1<\/a><\/span><\/p>\n

But we won\u2019t be able to rely on the courts. We will have to come up with a political solution that will withstand the inevitable legal challenges.<\/p>\n

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In February, Senate Bill 1071 was filed in West Virginia. Reportedly<\/a>, \u201cA 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.<\/em>\u201d In any event, the bill died.<\/div>\n
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There were two problems with the bill. The first problem was that the bill relied exclusively on 18 U.S.C. \u00a7 922(o)(2)(A), a Federal law that exempts\u00a0\u201ca 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\u2026\u201d<\/em><\/p>\n

That argument failed recently in the 9th Circuit Court of Appeals in\u00a0U.S. v. Kittson<\/em>. You can read the decision as well as Judge Van Dyke\u2019s dissent below.<\/p>\n

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U.S. v. Kittson 23-4132<\/div>\n
433KB \u2219 PDF file<\/div>\n<\/div>\n

Download<\/span><\/a><\/div>\n<\/div>\n<\/div>\n

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.<\/p>\n

The correct strategy is to rely on the Militia Clause of the Second Amendment.<\/p>\n

District of Columbia v. Heller<\/em>\u00a0(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.<\/p>\n

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 \u201cgovernment personnel,\u201d2<\/a><\/span>\u00a0simply 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.<\/p>\n

The\u00a0Texas State Guard<\/a>\u00a0is such an organization. Unlike the National Guard, members of the Texas State Guard report only to the governor.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Around half of the states are \u201cRed States,\u201d with a combined population of about 150 million. If you want machine guns to become \u201cin common use,\u201d 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.<\/p>\n

An Alternative Strategy Recently Appeared<\/h4>\n
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