A new Texas lawsuit aims to challenge the prohibition on civilian machine gun possession by arguing that the statute exceeds Congress’s enumerated powers under the Commerce Clause.
Temple Gun Club, Inc. v. Bondi was filed in the United States District Court for the Northern District of Texas (Fort Worth Division), on March 10. The 23-page complaint names four plaintiffs: Temple Gun Club, Inc., Jeffrey Howard (club president), Jason Armstrong (a board member), and Clark Miracle (also a club member). The suit is backed by the Texas Public Policy Foundation (TPPF).
Congress has regulated the possession and transfer of machine guns since the National Firearms Act (NFA) of 1934, expanding those prohibitions under the 1986 Hughes Amendment, which banned machine gun possession for firearms manufactured after 1986. Congress claimed the authority to pass these measures under the Interstate Commerce Clause. U.S. Const. art. I, sec. 8, cl. 3, and the “Necessary and Proper Clause.”
Eric Heigis, an attorney at the TPPF and one of the lead attorneys in the suit, explains the rationale behind the case, writing:
The problem is that a person can be convicted under sec. 922(o) without ever proving any connection to interstate commerce. That makes sec. 922(o) look more like an ordinary criminal law – a reserved power for states – than a regulation of interstate commerce. But remember, Congress does not have the power to enact ordinary criminal laws. That is why TPPF is filing a lawsuit on behalf of the Temple Gun Club.
If Congress can regulate any item capable of being bought or sold because it crossed a state line at some point in the supply chain, what can’t Congress regulate?
This lawsuit brings both a facial and as-applied constitutional enumerated powers challenge to 18 U.S.C. sec. 922(o), rather than a Second Amendment challenge. In 1997, the Fifth Circuit Court of Appeals upheld a similar challenge to Congress’s power under this clause. However, a changing makeup of the court suggests there could be renewed interest in visiting this topic again.
Of historical note is the suit’s reminder that most of the prosecutions sought by the ATF were more or less entrapments, further underscoring a long-standing pattern of a weaponized agency (which eventually led to the passing of the Firearms Owners Protection Act):
A 1982 Senate Judiciary Committee report found that “approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge but were enticed by agents into unknowing technical violations.”
The passing of the Hughes Amendment itself seems to be clouded in some mystery. It was passed by a voice vote and without debate in the House. The complaint paints the picture further:
There is no committee report, and sparse legislative history, concerning [sec. 922(o)], as it was added on the House floor. The only apparent explanation for it is the statement of its sponsor, Representative Hughes, that “I do not know why anyone would object to the banning of machine guns.”
