We were surprised but pleased last August when a district court judge, ruling in a Kansas case, found that the federal restriction on machine gun ownership was unconstitutional. At the time, U.S. District Judge John Broomes used the Supreme Court’s instructions set down in the Bruen ruling to determine that the Second Amendment protects ownership of machine guns as well as other arms.
However, on September 2, a three-judge panel of the Denver-based 10th Circuit Court of Appeals overturned the district court’s decision in U.S. v. Morgan, ruling that the court was wrong to conclude that charges against a Kansas man, accused of illegally possessing a machine gun, violated his right to keep and bear arms.
In reversing the earlier ruling, U.S. Circuit Judge Scott Matheson wrote that the defendant had failed to show the machine guns he possessed could under the Second Amendment and Supreme Court precedent be considered “arms” that were in “common use” for self-defense.
“Mr. Morgan has not shown that law-abiding citizens commonly use any type of machinegun for self-defense, let alone the types he possesses,” the ruling stated. “Instead, he faults the Government for not ‘cit[ing] any statistics to support’ its arguments that machineguns are not in common use for lawful purposes, inverting the burden he bears at Bruen step one.”
The ruling also faulted the defendant’s inability to prove the firearm in question is in “common use.”
“Mr. Morgan has not shown that using a machinegun for self-defense makes sense as a common use, especially given that self-defense does not commonly require “fir[ing] more than 1,000 rounds per minute,” the ruling further stated. “Although ‘one could imagine Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants’ with a machinegun, ‘Heller and Bruen direct us to analyze not only whether a weapon might have some conceivable lawful use, but also whether such use is common.”
Ultimately, the 10th Circuit panel concluded that wasn’t the case and ruled against Morgan.
“Because Mr. Morgan has not shown law-abiding citizens commonly use the machineguns he possesses for self-defense, he has not met his burden to show they ‘fall[] under the protection of the Second Amendment,’” the ruling stated. “His as-applied challenge to § 922(o) fails under Bruen step one. We reverse the district court’s dismissal of Mr. Morgan’s indictment because § 922(o) is constitutional as applied to him. We remand to the district court to proceed consistent with this opinion.”
The recent 10th Circuit ruling isn’t the only setback on the issue of late. Last month, the 6th Circuit Court of appeals ruled that the Second Amendment does not protect the right to own machine guns. The decision was made in the context of upholding the conviction of 22-year-old Jaquan Bridges, who was arrested with a .40-caliber Glock handgun equipped with a device that enabled it to fire in full-auto.
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