Sixth Circuit: Machineguns Are Arms Under 2A; But Restrictions Are Constitutional

On August 7, the United States Court of Appeals for the Sixth Circuit ruled that machineguns are arms under the Constitution, but found two reasons why restrictions on machineguns are permissible and not unconstitutional.

As is often the case, the characters involved in such cases are not the law-abiding citizens one would prefer to represent the masses. In the case of The United States of America v. Bridges, this is unfortunately also the case. Mr. Bridges almost struck police officers with his vehicle, shot at them, engaged in a high-speed chase, crashed and was then found in possession of a Glock handgun with a “switch” – which was classified as a machinegun for the purpose of bringing charges against Mr. Bridges. He was subsequently sentenced to 108 months of imprisonment.

In their 50-page decision, Circuit Judges Boggs, Griffin, and Nalbandian all concurred, or concurred in part, with Judge Nalbandian issuing a separate opinion. They agreed with the previous finding of the United States District Court for the Western District of Tennessee.

The Court’s finding pivots on two principles which they summarized at the beginning of their opinion:

First, controlling Supreme Court and Sixth Circuit precedent – that predates Bruen but remains good law – compels our conclusion. In addition, applying Bruen’s text-and-history methodology, we conclude that § 922(o) is consistent with our Nation’s historical tradition of prohibiting private possession of dangerous and unusual weapons.

The analysis and application is where readers will find the troubling path to their conclusion.

The Court turns to the Heller decision, which itself is based upon Miller, seeking to identify what types of weapons are protected under the Second Amendment, which the court concluded to be, “weapons ‘in common use at the time’ that able-bodied men owned and ‘[o]rdinarily’ brought with them when called for militia service.”

The “in common use” doctrine has become a foundational concept for protecting arms under the Second Amendment, but also has its limitations.

The Court also noted another case, Hamblen v. The United States, which itself references Heller, and served as part of the foundation for the court to build its defense of prohibiting machine guns:

“And it noted Heller’s observation that ‘it would be a ‘startling’ interpretation of precedent to suggest that restrictions on machine guns, set forth in the National Firearms Act, might be unconstitutional.’ Thus, Hamblen concluded that, ‘whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use.'”

With Heller, Miller, and Hamblen in the basket, the Court then conducted the Bruen test and found, “Thus, even in Bruen’s wake, Hamblen remains binding authority. And under that precedent, § 922(o) does not violate the Second Amendment facially or as applied to Bridges. Moreover, even if Hamblen does not control here, a fresh application of the Heller/Bruen text-and-history test yields the same result. Recall Bruen’s two steps.”

At this point, the court – almost incredibly, and correctly – recognizes that machineguns are, indeed, ‘arms’ under the Second Amendment:

“Thus, the Second Amendment’s plain text covers Bridges’s possession of a machinegun, and ‘the Constitution presumptively protects that conduct.'”

Regarding this conclusion, Second Amendment lawyer Kostas Moros noted in a Twitter thread breaking down the decision, “So it’s nice to have this citation that will create a partial circuit split on the issue of what an ‘arm’ is.”

The Court then turns to the historical tradition (as required by Bruen) of banning “dangerous and unusual weapons”. This is where the analysis becomes stretched as they define terms like machinegun and try to infer what “dangerousness” means in this context. The clear problem, especially for the last 100 years, is that advancements in design, manufacturing, materials, technology – and quite frankly, ingenuity – have been used as means to declare firearms that were not extant at the time of the founding are somehow ‘more dangerous’ than others. This conclusion is problematic because any firearm can be lethal, including the iconic .22.

The court then looks at machineguns to determine if they are “unusual”:

Bridges asserts that there are over 740,000 total registered machineguns in the United States and that the number in “common use” is even higher because we must account for “unlawfully owned machine guns.” The government responds that most of those registered machineguns are possessed by law enforcement, a category exempt from the possession ban and one that should not count toward guns in common use. Excluding law-enforcement equipment, the government asserts that there are around 175,977 registered machineguns – the number grandfathered into lawful registration before § 922(o)’s 1986 enactment. The government further contends that we should not count unlawfully owned guns. We agree with the government.

The tortured conclusion is that when We the People own a firearm, it is “unusual” but not when the government owns them, and specifically law enforcement, who are also private individuals serving in a publicly-funded capacity. 

In summary the Court states, “Machineguns are both dangerous and unusual – not weapons typically possessed by law abiding citizens for lawful purposes. Accordingly, § 922(o)’s ban on machinegun possession ‘is consistent with the Nation’s historical tradition of firearm regulation.’ Bridges’s facial and as-applied challenges to the constitutionality of this statute therefore fail.”

The conclusion poses a huge problem for the Second Amendment community, a result of circular logic, as noted by Kostas Moros:

I don’t know how they typed this without any sense of intellectual shame. They are straight up saying “machine gun bans are Constitutional because machine guns are illegal.”