In his ruling in United States v. Chang earlier this month, U.S. District Judge Derrick Kahala Watson, an Obama appointee for the District of Hawaii, argued that the Second Amendment does not apply because the short-barreled rifle with a switch that converts it into an automatic weapon, as possessed by Christopher Chang, is not currently in common use in the United States.
During a background check in 2022, police found a bag in the trunk of Chan's car that contained a short-barreled rifle with a conversion switch. As a result, Chan was charged with possession of an unregistered short-barreled rifle and possession of a machine gun, both offences under the National Firearms Act of 1934 (NFA).
Second Amendment rights violated
Chang filed a complaint alleging that his Second Amendment rights were violated. He argued that 1) short-barreled rifles are “weapons” under the Second Amendment and 2) the State of Hawaii could not provide founding-era analogs that bear a “relevant similarity” to the NFA provisions regulating them (as required by Bruenn).
It should have been easy for Judge Watson to rule in Chang's favor and drop the charges. But it wasn't. He had to find a way around Bruen. Judge Watson correctly pointed out the difficulty he faced:
When the language of the Second Amendment applies to private conduct, the Constitution presumptively protects that conduct. To justify its restrictions, the government must show that its restrictions are consistent with the nation's historical tradition of firearms regulation.
Only when firearms regulations are consistent with the nation's historical traditions can courts conclude that an individual's conduct falls outside the Second Amendment's “unconditional command.”
Creating a workaround
Judge Watson found that Chang was entitled to Second Amendment protection as a citizen generally entitled to Second Amendment rights, but that Chang was not entitled to protection against short-barreled rifles because other courts had previously ruled (before Bruen) that they were “dangerous and abnormal.”
The Court found that both short-barreled rifles and machine guns are “dangerous and unusual weapons” that fall outside the protection of the Second Amendment….
“Dangerous and unusual” weapons are not “in common use” and therefore do not fall within the scope of the Second Amendment.
The court found various rulings consistent with his decision.
Joining all other district courts that have considered this issue in the wake of Bruen, the Court agrees with the Government that short-barreled rifles are “dangerous and unusual weapons” that fall outside the protection of the Second Amendment.
This includes the pre-Bruen case, United States v. Henry, handed down in 2012, in which the notoriously anti-Second Amendment Section 1 case, the Ninth Circuit, ruled:
…because “machine guns are such 'dangerous and unusual weapons' that 'are not ordinarily owned by law-abiding citizens for lawful purposes'…the Second Amendment does not apply to machine guns.”
There were no problems before Bloon.
When Chang’s lawyer reminded Watson that the Henry case was decided under the old jurisdiction that was changed by Bruen, Watson responded:
There is no indication that Henry is “clearly irreconcilable” with Bruen. … As a result, Henry remains a binding precedent, requiring this Court to determine that machine guns are “dangerous and unusual weapons…not entitled to Second Amendment protection.”
As a result, Chan's lawyers had to prove in court that such weapons were in fact in common use. Watson thus avoided having to find any violations imposed on firearms during the founding era. He “flipped” the argument, demanding that Chan prove its case, rather than Hawaii prove its case.
Chan's lawyers did their best.
Chang's lawyers tried hard to lose the case, but Watson steered them in his direction: he ignored evidence they presented about machine guns and short-barreled rifles as irrelevant.
In the abstract, the number of machine guns does not prove that such weapons are in common use by law-abiding citizens….
This number (741,146 legally registered and owned machine guns) is far too small to consider machine guns in regular use.
Fredy Riehl, editor in chief of Ammoland Shooting Sports News, wrote:
The real problem here is that the justices conflated two different parts of the legal test. Having acknowledged that the Second Amendment applies to “weapons,” the justices should have shifted the burden to the government to prove that these firearms can be banned based on historical tradition.
Instead, he reversed the story and put the burden on Chang to prove that these firearms were in common use, a clear misapplication of legal principles laid out in Supreme Court cases such as Heller and Bruun.
The ruling is likely to be appealed.
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District court rules possession of machine guns constitutional
