Judge John W. Blooms of the U.S. District Court for the District of Kansas, a President Trump appointee, opened the door (just a little) to the first real potential challenge to the National Firearms Act of 1934 (NFA) when he ruled on Wednesday to dismiss charges against a defendant for possessing two machine guns.
The law in question is 18 USC § 922(o), which states that “it shall be unlawful for any person to transfer or possess a machine gun.” The law originates from the National Firearms Act, signed into law by then-President Franklin D. Roosevelt. The act was passed in the aftermath of the Prohibition-era Valentine's Day Massacre (1929) and the attempted assassination of President-elect Roosevelt in 1933. (At the time, the Federal Reserve-induced Great Depression had left a quarter of Americans unemployed and the influence of Communism in the federal government was finally beginning to be felt.)
The constitutionality of the NFA was challenged five years later in United States v. Miller, and the case was successful, but the Supreme Court overturned the decision, ruling that the NFA “infringes on the states' reserved powers, but does not violate the Second Amendment to the United States Constitution.”
This problem has persisted for nearly 90 years.
For nearly 90 years, possession of machine guns, short-barreled rifles and short-barreled shotguns was severely restricted: owners were required to obtain a permit from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), pass a background check, provide fingerprints, register their now-illegal firearms in the NFA database and pay a fee equivalent to $4,555 in today's value.
Owners who successfully navigated the new regulations also had to get permission from the ATF before transporting firearms across state lines.
After the intentionally misnamed “Firearms Owners Protection Act” was passed in 1986, domestic machine gun manufacturing disappeared.
Severe penalties for violations
Violation of the law carries a maximum sentence of 10 years in federal prison, confiscation of the firearm in question, and a ban on future firearm possession. Additionally, citizens who violate the law can be fined up to $250,000 (per firearm).
Gun control opponents have relied on Miller to develop and strengthen their case against the Second Amendment. Second Amendment supporters who challenged Miller have been largely silenced since then.
Blooms' opinion: concise and to the point
Judge Blooms dealt with the matter lightly in just ten pages. He used Bruen's hammer to destroy the anvil of the charges against defendant Tamori Morgan. Defendant Tamori Morgan was accused of possessing a semi-automatic rifle and a semi-automatic pistol that had been modified so that it could fire more than one shot with a single pull of the trigger. Defendant was not charged with criminally using these guns, but merely with possessing them.
Bloom writes:
The matter is pending before the court after the defendants filed a motion to dismiss the case on Second Amendment grounds. Answers and pleadings have been filed and the court has held a hearing to determine additional facts regarding the weapons charged.
The motion therefore ought to be considered.
The Court held that the Second Amendment applied because the weapons at issue were “portable weapons” within the meaning of the Second Amendment.
The Court further found (thanks to Bruen) that the Government had failed to show that the country’s gun control history justified the application of 18 USC § 922(o) against the Defendants.
Accordingly, the Court grants the motion to dismiss.
The government failed
Federal lawyers could find no such “history.”
The government cites Heller (District of Columbia v. Heller) to argue that machine guns are not covered by the amendment's language. The government's citations of Heller are unhelpful.
First, the government's interpretation of Heller relied exclusively on precedent (and on circuit precedent that predated the historical analysis required by Bruen), and machine guns were not at issue in Heller.
Second, the Government's interpretation runs counter to a fundamental analysis of Heller: the Second Amendment applies to weapons that did not exist at the time of the nation's founding just as the Fourth Amendment applies to modern “searches.”
Even if you don't succeed at first…
U.S. lawyers tried a different tack.
To address that burden, the government has proposed just two potential historical parallels.
First, the government points to English common law, which says it is prohibited to ride or go out on horseback equipped with dangerous or conventional weapons.
Second, the government cites an 1824 North Carolina Supreme Court decision that made it a crime to carry “dangerous and unusual weapons” that create fear in the public.
But neither example is similar to the crime the defendant is charged with here, namely, mere possession of a machine gun.
Many attempts
US prosecutors tried again, arguing that machine guns are “dangerous and abnormal” or “highly abnormal in society at large”, but failed again.
As defendant points out, “there are currently over 740,000 legally registered machine guns in the United States.”
Machine guns have been around for over a century. The federal government has regulated the transfer and possession of these weapons since the passage of the National Firearms Act in 1934, but it didn't completely ban the possession of machine guns until the passage of the Firearms Owners Protection Act in 1986.
Even then, the law did not prohibit possession of all machine guns; rather, Section 922(o) only prohibited possession of machine guns that were not lawfully possessed at the time the ban took effect in 1986.
Thus, even today, it is perfectly legal for someone who has not been deprived of their firearms rights under the provisions of any other law to acquire and possess a machine gun, so long as they were lawfully possessed by someone before the relevant date in 1986, and so long as that person complies with the requirements of the National Firearms Act regarding the acquisition and possession of weapons.
In that sense, machine guns are nothing new.
The Government has not addressed these facts and therefore has not met its burden of showing that possession of the types of weapons at issue in this case is lawfully prohibited under the Second Amendment.
Bloom's conclusion
The judge concluded:
In summary, in this case, the government has not met its burden under Bruun to demonstrate through historical parallels that the weapons regulations at issue in this case are consistent with the nation's history of firearms regulation.
In fact, the government has done little to help cover the burden…
According to Bruen’s framework for evaluating Second Amendment challenges, it is the government’s responsibility to identify historical parallels for the restrictions at issue in the case.
The government has failed to do this….
The motion to dismiss under the Second Amendment is granted.
Possible appeal
But it probably won't last. Pro-Second Amendment writers were cautiously pleased with the ruling, but were quick to point out that the federal Justice Department, aware of the potential risks to the NFA, will likely appeal the ruling soon, likely to the liberal, anti-gun control Tenth Circuit Court of Appeals. “It remains unlikely that gun control advocates will overturn the federal machine gun ban,” Jake Fogleman wrote in The Reload, “but before this ruling, it was even less likely.”
