Machine gun ban unconstitutional

(Snip).....Defendant argues that the government cannot meet its burden to show that § 922(o) is
consistent with this nation’s history of firearm regulation. (Doc. 26 at 8–9.) To meet its burden,
the government advances only two potential historical analogs. First, the government points to
English common law, which it asserts prohibited riding or going armed with dangerous or usual
weapons. (Doc. 28 at 7 (citing 4 William Blackstone, Commentaries on the Laws of England 148–
49 (1769).) Second, the government cites one case from the North Carolina Supreme Court in
1824 that recognized an offense to arm oneself “with dangerous and unusual weapons, in such a
manner as will naturally cause a terror to the people.” (Id. at 7–8 (citing State v. Langford, 3
Hawks 381, 383 (NC 1824).) But both examples are disanalogous to what Defendant is charged
with here—simple possession of a machinegun..........(snip)


(Snip) ...Moreover, to the extent that the Second Amendment would allow weapons to be prohibited
solely on the basis that they are “dangerous and unusual” or “highly unusual in society at large”,
Bruen, 597 U.S. at 47, as the government suggests, the government has not made that showing
here. As Defendant points out, “[t]here are over 740,000 legally registered machineguns in the
United States today.” (Doc. 29 at 4 (citing Alcohol, Tobacco, Firearms and Explosives, Firearms
Commerce in the United States – Annual Statistical Update 2021.
www.atf.gov/firearms/docs/report/2021-firearms-commerce-report/download).)
Machineguns have been in existence for well over a century. While the federal government has
regulated transfer and possession of such weapons since passage of the National Firearms Act in
1934, it did not outright prohibit possession of machineguns until passage of the Firearms Owners
Protection Act in 1986. Even then, the law did not prohibit the possession of all machineguns;
rather, § 922(o) merely prohibits possession of machineguns that were not lawfully possessed as
of the date that prohibition went into effect in 1986. § 922(o)(2)(B). Thus, even today, it is
perfectly legal for a person who has not been divested of his firearm rights under some other
provision of law to acquire and possess a machinegun, so long as it was lawfully possessed by
someone before the relevant date in 1986, and so long as he complies with the National Firearms
Act’s requirements to obtain and possess the weapon. In that sense, machineguns are not unusual.
The government fails to address these facts, and thus fails to meet its burden to demonstrate that
possession of the types of weapons at issue in this case are lawfully prohibited under the Second
Amendment.
To summarize, in this case, the government has not met its burden under Bruen and Rahimi
to demonstrate through historical analogs that regulation of the weapons at issue in this case are
consistent with the nation’s history of firearms regulation. Indeed, the government has barely tried
to meet that burden. And the Supreme Court has indicated that the Bruen analysis is not merely a
suggestion. In Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023), the Tenth Circuit side-stepped
the Bruen analysis in a challenge to the prohibition against felons possessing firearms under 18
U.S.C. § 922(g)(1), concluding that Bruen did not abrogate the Tenth Circuit’s prior decision,
United States v. McCane, 573 F.3d 1037 (10 th Cir. 2009), which upheld the constitutionality of
§ 922(g)(1) in the face of a Second Amendment challenge.. Vincent, 80 F.4th at 1202.
Nevertheless, just last month the Supreme Court vacated Vincent and remanded for further
consideration in light of Rahimi. Vincent v. Garland, No. 23-683, 2024 WL 3259668 (U.S. July
2, 2024). The court interprets that as indicating that the Supreme Court means what it says: the
constitutionality of laws regulating the possession of firearms under the Second Amendment must
be evaluated under the Bruen framework.
Importantly, this decision says little about what the government might prove in some future
case. Rather, under Bruen’s framework for evaluating Second Amendment challenges, it is the
government’s burden to identify a historical analog to the restrictions challenged in this case. This
the government has failed to do. The court expresses no opinion as to whether the government
could, in some other case, meet its burden to show a historically analogous restriction that would
justify § 922(o).
IV. Conclusion
The motion to dismiss on Second Amendment grounds (Doc. 26) is GRANTED. The
motion to dismiss on Commerce Clause grounds (Doc. 25) is DENIED AS MOOT.
IT IS SO ORDERED.
Dated: August 21, 2024 /s/ John Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE