PHILADELPHIA — All courts, even those seemingly in support of Second Amendment arguments at times, seem to have a strong aversion to machine guns, and that sentiment was particularly evident in a Third Circuit decision upholding possession bans for machine guns and unregistered suppressors in a recently decided case.
The 16-page opinion of the United States Court of Appeals for the Third Circuit in United States v. Berger was on appeal from the U.S. District Court in Pennsylvania and affirmed unanimously by a three-judge panel on September 1, with Judge Bibas writing joined by Judge Restrepo, and Judge Chung joining the judgment, but not the majority’s silencer reasoning. All three judges previously sat on the en banc case overturning New Jersey’s so-called assault-weapon ban, in which Bibas, ironically, joined the majority, Restrepo dissented, and Chung affirmed in part and dissented in part.
The defendant in the case, Joseph Berger, was convicted of possession of machine guns and unregistered silencers in his Pennsylvania home. The court notes that Mr. Berger also possessed standard semi-automatic firearms that had been converted through parts – also treated as machineguns with regard to the possession charges.
In summary, Mr. Berger’s only crimes were possession of firearms. He had no criminal history, drug offenses, or non-gun-related felonies, as admitted by the government.
(It’s also worth noting that the convictions took place during the Biden administration, and the government moved for pretrial detention arguing that his arsenal “shows that he is a danger to the community, and his history of anti-government rhetoric demonstrates that he is unlikely to abide by the Court’s terms of supervised release.” Though not part of this court’s analysis or decision, it does further characterize an administration that was particularly hostile to the First and Second Amendment.)
The opinion opens with an ominous assertion, which the analytical evidence presented simply doesn’t support: “History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold.”
Though Bruen is the predominant Supreme Court opinion governing restrictions on firearms, the Third Circuit’s initial framework leans heavily on Heller, with the court ruling that machineguns are “arms” covered by the Second Amendment’s text, but are not commonly used for lawful purposes such as self-defense, and thus able to be banned under historical tradition of gun regulation.
The court reasoned, “But it was not clear where the Bruen court wanted the common-use inquiry to fall in its two-step framework. Our en banc court has now held that it belongs at Bruen’s second step. With the benefit of that teaching, we now hold that the government may ban possession of machine guns.”
Bruen simply asks: (1) whether the plain text covers an individual’s conduct, and (2) whether there is a historical tradition of that regulation.
The Third Circuit panel, in this case, relied on a previous circuit decision to anchor this reasoning, noting that, “ten years ago our Court held that, under Heller, machine guns are unprotected because they are ‘exceedingly dangerous’ and ‘not in common use for lawful purposes.'”
The court’s hostility against machineguns goes beyond the ruling, with wild characterizations about machine guns and some expansive interpretations. A few of those statements include:
- So we can “examine a weapon’s features to determine whether a weapon is in common use for lawful purposes.”
- Machine guns are not well-suited for lawful purposes. To be sure, they are excellent weapons of war.
- But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage.
- Machine guns are commonly used for crime or war, not for lawful civilian purposes.
Wrapping up its analysis, the court concludes, “In short, weapons that were particularly dangerous to others and commonly associated only with crime could be outlawed. The machine gun fits into that small category.”
To reach these conclusions, the court had to ignore that there are nearly 235,000 machine guns lawfully possessed by Americans today and virtually zero crimes are committed with machine guns. As many have noted, machine guns would likely be commonly owned were it not for the government artificially limiting their use (under the 1934 National Firearms Act and later the 1986 Hughes Amendment to the Gun Control Act), a situation that creates circuitous logic that courts love to invoke when defending machine-gun bans.
In this decision, the court agrees with the party’s characterization that silencers are “arms” but that the registration requirements are “minimal, objective buying-and-selling regulations are not infringements[;] they are outside the scope of the Second Amendment.” Without having to apply the Bruen test, the court upheld the silencer registration requirement, though Judge Chung declined to join that reasoning, characterizing the silencer as an accessory.
Our readers will be aware of the increasing momentum behind silencer deregulation, including the ending of the $200 excise tax on January 1, 2026, and the current district-court decision in early August, nullifying registration of silencers for a large group of plaintiffs. This court was aware of those developments but did not engage with them as part of the decision.
This publication has offered the opinion that every legal construction of the Supreme Court that departs from the Second Amendment – even if well-intentioned – will be a useful tool (absent an overwhelmingly blunt directive) for lower courts to create their own interpretations, carve out loopholes that don’t exist, and draw out litigation over decades until the next Supreme Court intervention.
That is exactly what has occurred here. Although the Third Circuit ruled against New Jersey’s assault-weapons ban, it certainly has no desire to expand the scope of Second Amendment rights when it comes to machineguns and suppressors.
