{"id":118562,"date":"2026-09-03T12:48:22","date_gmt":"2026-09-03T17:48:22","guid":{"rendered":"https:\/\/milesfortis.com\/?p=118562"},"modified":"2026-09-03T12:48:22","modified_gmt":"2026-09-03T17:48:22","slug":"118562","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=118562","title":{"rendered":""},"content":{"rendered":"

Third Circuit Upholds Machine Gun Ban, Creates Bruen Loophole for Gun Registration<\/a><\/p>\n

The Third Circuit ruled that machine guns are protected \u201cArms,\u201d then upheld the federal ban anyway. Its treatment of suppressor registration may be even more dangerous for gun owners.<\/p>\n

The U.S. Court of Appeals for the Third Circuit handed the federal government two victories Monday, upholding Joseph Paul Berger\u2019s convictions for possessing machine guns and unregistered suppressors.<\/p>\n

The machine gun ruling in\u00a0United States v. Berger<\/strong><\/a>\u00a0is bad enough. The court acknowledged that machine guns fall within the Second Amendment\u2019s plain text, only to uphold the federal ban by declaring them unsuitable for lawful civilian use.<\/p>\n

The court\u2019s suppressor analysis could reach much further. A two-judge majority held that registration requirements judges consider \u201cminimal\u201d do not infringe the Second Amendment at all. Under that reasoning, the government can escape the historical test required by N.Y. State Rifle & Pistol Association v. Bruen merely by convincing a court that its registration scheme is not burdensome enough to count.<\/p>\n

<\/p>\n

Federal Agents Found Machine Guns and Suppressors<\/h3>\n

Berger is a decorated Navy veteran living in Bethlehem, Pennsylvania. According to the September 1 opinion, federal agents began investigating after intercepting a package containing three suppressors shipped from China to Berger\u2019s home.<\/p>\n

A subsequent search uncovered more than five dozen firearms, including 13 fully automatic firearms\u2014mostly AK-pattern variants\u2014and approximately 12 suppressors. Agents also found evidence that Berger and his father had purchased parts used to convert semiautomatic firearms into machine guns.<\/p>\n

Berger pleaded guilty to possessing a machine gun under 18 U.S.C. \u00a7 922(o) and possessing an unregistered suppressor under the\u00a0National Firearms Act<\/a>. His plea agreement preserved his right to appeal the rejection of his Second Amendment challenge.<\/p>\n

Writing for the court, Judge Stephanos Bibas opened with a remarkable endorsement of gun bans:<\/p>\n

\u201cGun bans are strong medicine. But occasionally, they are just what the doctor ordered.\u201d<\/p><\/blockquote>\n

That is not constitutional analysis. It is a federal judge announcing that some arms may be banned whenever the government considers them too dangerous for ordinary people to possess.<\/p>\n

Third Circuit Admits Machine Guns Are \u201cArms\u201d<\/h3>\n

The court first made an important concession:\u00a0machine guns<\/a>\u00a0are unquestionably covered by the Second Amendment\u2019s text.<\/p>\n

\u201cAt step one, machine guns are firearms, so they are \u2018Arms\u2019 protected by the text of the Second Amendment.\u201d<\/p><\/blockquote>\n

That should have placed the burden squarely on the government to prove that banning an entire category of bearable arms is consistent with the Nation\u2019s historical tradition of firearm regulation.<\/p>\n

Instead, the court leaned on Heller\u2019s discussion of \u201cdangerous and unusual weapons\u201d and concluded that machine guns are not commonly used for lawful purposes. It described them as \u201cindiscriminate weapons of war and crime, not self-defense ones\u201d and asserted that their rate of fire makes them unsuitable for personal protection.<\/p>\n

The opinion relies heavily on twentieth-century material, including congressional reports, testimony concerning criminal use of Thompson submachine guns, and laws enacted by at least 29 states between 1925 and 1934. The panel admitted that those statutes were not Founding-era analogues, using them instead to show a supposed \u201crapid consensus\u201d that automatic weapons were dangerous.<\/p>\n

The court never seriously confronts the government-created scarcity problem.<\/p>\n

Congress closed the registry to newly manufactured civilian machine guns through the Hughes Amendment in 1986. The government now prohibits ordinary Americans from acquiring newly manufactured machine guns, restricts the available supply to grandfathered firearms, drives prices into the tens of thousands of dollars, and then points to the resulting lack of widespread ownership as proof that these arms are \u201cunusual.\u201d<\/p>\n

As\u00a0AmmoLand recently explained<\/a>, the government should not be permitted to manufacture its own constitutional justification. If the government can suppress ownership long enough and then use that suppression to defeat the right, \u201ccommon use\u201d becomes a ratchet that works only against gun owners.<\/p>\n

Court Calls the NFA a Shall-Issue System<\/h3>\n

The majority\u2019s treatment of\u00a0suppressors<\/a>\u00a0is potentially more consequential. The parties agreed that suppressors are \u201cArms,\u201d but the majority declined to decide that question. Instead, Judges Bibas and Restrepo held that the NFA registration process did not infringe the Second Amendment because it imposed only an incidental burden.<\/p>\n

At the time relevant to Berger\u2019s prosecution, that process required applicants to provide personal information, fingerprints, a photograph, identifying information about the suppressor, local law-enforcement notification, registration and serialization. It also required payment of a $200 tax for each suppressor.<\/p>\n

The court brushed that aside as an ordinary shall-issue licensing system.<\/p>\n

\u201cBecause minimal, objective buying-and-selling regulations are not infringements, they are outside the scope of the Second Amendment.\u201d<\/p><\/blockquote>\n

That is the most dangerous sentence in the opinion.<\/p>\n

Bruen says that when the Second Amendment\u2019s text covers a person\u2019s conduct, the government must prove that its restriction is consistent with the Nation\u2019s historical tradition. The Third Circuit has now created a way around that command: call a registration system \u201cminimal,\u201d decide it does not amount to an infringement, and stop before forcing the government to produce any historical analogue.<\/p>\n

A federal registry connecting particular firearms to particular owners is not the same thing as confirming that a buyer is not legally prohibited from possessing a firearm. Registration is designed to identify and track the gun itself. It also carries felony consequences for anyone who possesses an unregistered item.<\/p>\n

The Second Amendment does not contain an exception for infringements that federal judges consider convenient, objective or sufficiently inexpensive.<\/p>\n

Judge Chung Refuses to Join the Majority\u2019s Reasoning<\/h3>\n

Although Judge Cindy Chung joined the judgment affirming Berger\u2019s conviction, she expressly refused to join the majority\u2019s suppressor-registration analysis.<\/p>\n

Chung noted that the government had not argued that registration failed to \u201cinfringe\u201d the Second Amendment. The government instead defended the law under Bruen\u2019s history-and-tradition inquiry.<\/p>\n

She also warned that the majority\u2019s new test may conflict with Supreme Court precedent:<\/p>\n

\u201cJudge Chung would consider the parties\u2019 and amici\u2019s views, as she perceives some tension between this approach and the Supreme Court\u2019s rejection of means-end scrutiny and interest balancing.\u201d<\/p><\/blockquote>\n

Chung reached the same result through a different path, concluding that a suppressor is an accessory unnecessary for a firearm to function as intended and therefore falls outside the Second Amendment\u2019s protection.<\/p>\n

That accessory theory is also deeply flawed. Suppressors reduce muzzle blast and protect shooters\u2019 hearing. Dismissing a functional part of a firearm as an unprotected \u201caccessory\u201d gives courts another way to strip constitutional protection from magazines, triggers, sights and other components necessary to use arms effectively.<\/p>\n

The NFA Fight Is Far From Over<\/h3>\n

The ruling does not erase the recent victory in Silencer Shop Foundation v. ATF. That case invalidated major NFA registration and approval provisions on Congress\u2019s enumerated-powers authority after the applicable taxes were reduced to zero. The district court did not decide the Second Amendment claims, and its injunction protects specified plaintiffs, members and customers.<\/p>\n

Berger\u2019s prosecution involved the earlier $200 tax, and his challenge was decided as applied to his circumstances. The Third Circuit specifically noted that Berger presented no evidence of excessive waiting periods and did not argue that the tax was exorbitant.<\/p>\n

Still, the Justice Department will undoubtedly use Berger to defend the registry in future Second Amendment litigation. That makes this more than another machine gun case.<\/p>\n

The Third Circuit admitted that machine guns are \u201cArms,\u201d allowed the government to benefit from the scarcity its own ban created, and declared that some federal gun registration does not even implicate the Second Amendment.<\/p>\n

Gun owners should pay attention. The most damaging part of this opinion is not limited to automatic weapons or suppressors. It is a judicially invented loophole around Bruen\u2014one that future courts could use to excuse firearm registration whenever they decide the burden is small enough.<\/p>\n","protected":false},"excerpt":{"rendered":"

Third Circuit Upholds Machine Gun Ban, Creates Bruen Loophole for Gun Registration The Third Circuit ruled that machine guns are protected \u201cArms,\u201d then upheld the federal ban anyway. Its treatment of suppressor registration may be even more dangerous for gun owners. The U.S. Court of Appeals for the Third Circuit handed the federal government two … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,11,8],"tags":[],"class_list":["post-118562","post","type-post","status-publish","format-standard","hentry","category-courts","category-crap-for-brains","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/118562","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=118562"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/118562\/revisions"}],"predecessor-version":[{"id":118563,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/118562\/revisions\/118563"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=118562"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=118562"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=118562"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}