A district court in Kansas has ruled that the federal law prohibiting the possession of “machineguns” failed the test set out in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022). “The court finds that the Second Amendment applies to the weapons charged because they are ‘bearable arms’ within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant.”
The case is United States v. Morgan, No. 23-10047-JWB (D. Kan. Aug. 21, 2024; the ruling was modified slightly on August 26). The defendant, Tamori Morgan, was charged with two counts of possessing a “machinegun” (a machinegun, and a full-auto switch “machinegun conversion device”) in violation of federal law.
That law, 18 U.S.C. § 922(o), makes it a crime, with some exceptions, to possess a “machinegun,” defined to include “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” Unlike other definitions in 26 U.S.C. § 5845, this lacks any reference to weapons that use the energy of an explosive to fire a projectile.
Morgan moved to dismiss the charges based on Bruen, claiming the federal prohibition was unconstitutional, both facially and as applied to him.
Beginning his analysis, Judge John Broomes observed that the “machinegun” definition was “extremely broad,” potentially encompassing “everything from an aircraft-mounted automatic cannon to a small hand-held taser or stun gun that can easily be placed inside a handbag and which shoots multi-shot bursts of electrical particles with a single pull of the trigger, or a fully automatic BB gun that shoots multiple rounds of metal projectiles using compressed air.”
Unfortunately, it was the wide scope of this definition that doomed Morgan’s facial challenge, as that required him to show that the challenged law was unconstitutional in all of its applications. While the machinegun and switch Morgan was charged with possessing were “bearable arms” within the plain text of the Second Amendment, things like aircraft-mounted guns were not.
On the remaining as-applied challenge, the government argued – citing language in District of Columbia v. Heller (2008) and United States v. Miller (1939) on “dangerous and unusual weapons” and military arms – that machineguns were not covered by the plain text of the Second Amendment. However, machineguns were not at issue in either case, and the court determined that the question of whether restrictions on military or “dangerous and unusual weapons” were consistent with historical firearm regulations was more properly addressed at the second step of the Bruen analysis. The weapons at issue satisfied the first Bruen step, being bearable arms covered by the Second Amendment’s plain text.
To meet its burden under the second step, the government proffered only two potential historical analogs: old English common law, which prohibited riding or going armed with dangerous or usual weapons, and a North Carolina case from 1824 that recognized the offense of arming oneself “with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people.” The Supreme Court in Bruen considered that such English laws (dating back to the Middle Ages, “more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment”) were predicated on the manner in which arms were carried or displayed in public rather than the sole fact of being armed, and in any event, had “little bearing on the Second Amendment adopted in 1791.”
Besides noting that “the government has barely tried to meet” its mandatory burden under step two, Judge Broomes ruled that neither example succeeded as a sufficiently relevant analog because the law at issue criminalized simple possession “without regard to whether the weapon is carried or otherwise employed.” The statute Morgan was charged under “requires no more than possession, and, more importantly in an as-applied challenge, the indictment in this case alleges nothing more.”
Significantly, the court declined to make any finding that machineguns were “dangerous and unusual” or “highly unusual in society at large,” pointing to the fact that machine guns have been in existence for more than 100 years, with currently over 740,000 legally registered machineguns in the United States. “[E]ven 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.”
Everytown and other gun control groups reacted with dismay to the decision, and several news stories on the case highlighted the apparently sinister fact that Judge Broomes was appointed to the court by former President and current presidential candidate Donald Trump. Rather than “brazenly put[ting] the deadly agenda of the gun lobby over the safety of Kansans,” as Everytown alleges the Morgan court opted to do, it was clear that the prosecutors’ failure to discharge their evidentiary burden left the court with little choice, being obliged to apply the law as laid down by Bruen (“the Supreme Court has indicated that the Bruen analysis is not merely a suggestion”).
Further, contrary to assertions that the “reckless” ruling allows “the possession of fully automatic weapons” and places “the safety of all Americans… in jeopardy,” as one op-ed claimed, the decision was limited to an as-applied challenge. The immediate outcome was the dismissal of the charges against Morgan without invalidating the federal machinegun law, meaning that for everyone else, machineguns are still illegal to possess outside of the limited circumstances permitted by federal law.
Far from the ruling opening the door to mayhem and carnage in the streets, as the exaggerated reaction of the anti-gun crowd would suggest, a disinterested observer need only consider the situation in the gun control utopia of Chicago. A lawsuit that predates the ruling, filed by the City of Chicago in coordination with Everytown, admits that federal and state law notwithstanding, criminals (“extremely dangerous and irresponsible individuals”) have already been illegally installing machinegun conversion devices to make guns into fully automatic weapons with “military-grade firepower,” and using the guns to “cause chaos on public streets and roadways” and “in drive-by homicides and assaults.”
As Vice President Kamala Harris doubles down on her campaign promises to implement an extreme gun control agenda if elected (including a ban on commonly-owned semi-automatic firearms), the ruling in the Morgan case is a welcome reminder that, in the words of U.S. Supreme Court Justice Antonin Scalia in Heller, the “enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
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