A district court in Kansas ruled in August that the federal law prohibiting the possession of “machineguns” failed the test set out in New York State Rifle & Pistol Association 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, and 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.
In simple terms, Judge John Broomes determined the federal law was unconstitutional as it applied to the defendant’s specific case, noting what some refer to as the Bruen two-part test. First, the Second Amendment must cover an individual’s conduct in relation to challenging the constitutionality of a particular law. Second, if the burden of the first test is met, the government must then show that the law or regulation being challenged “is consistent with the Nation’s historical tradition of firearm regulation.”
The weapons at issue satisfied the first Bruen test, being bearable arms covered by the Second Amendment’s plain text. Attempting to satisfy the “historical tradition” test, the government referred to old English common law that prohibited riding or going armed with dangerous or unusual 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.”
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.”
Broomes also declined to make any finding that machineguns were “dangerous and unusual,” 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.
While this ruling is noteworthy, its current scope is confined to the defendant’s case. You can find a more detailed analysis on the decision online, at nraila.org.
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