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CINCINNATI (CN) — Machine guns are atypical weapons not protected by the Second Amendment because a reasonable person would not expect them to be used in militia service, the federal government argued Wednesday before an appeals panel.
The government defended federal statute 18 U.S.C. 992(o), which criminalizes possession of a machine gun, as it sought to uphold a conviction against Jaquan Bridges, who pleaded guilty to the offense after a 2023 shootout with police on a Tennessee interstate highway.
Bridges was arrested with a Glock .40 caliber pistol with an attachment that converted the handgun into a machine gun, but fought to dismiss the charge on constitutional grounds.
He claimed the 2022 U.S. Supreme Court ruling in New York State Rifle and Pistol Association v. Bruen required dismissal of the charge because machine guns fall under the definition of “arms” used in the Second Amendment.
U.S. District Judge John Fowlkes Jr. disagreed, and cited the 2008 Supreme Court decision in District of Columbia v. Heller in his decision to deny the dismissal motion.
“Heller explained that the type of weapons protected by the Second Amendment ‘were those ‘in common use at the time’ and we think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’’” he said.
Attorney Greg Gookin, a federal public defender assigned to Bridges’ case, argued Wednesday his client had no criminal history or prior convictions that precluded him from owning and possessing a firearm at the time of his arrest.
Gookin urged the panel to conduct a historical analysis required under the Bruen ruling, and told the court there are no “historical analogues” to machine guns.
“But it’s not whether there is an analogue to a machine gun, it’s only whether there is an analogue to a ban on entire weapon types,” U.S. Circuit Judge John Nalbandian said.
“The test is: Are they dangerous and unusual?” the attorney responded. “With the proliferation of these weapons, I don’t think the government can meet that standard.”
Assistant U.S. Attorney Eileen Kuo argued on behalf of the federal government and told the panel her opposing counsel’s arguments are foreclosed under the appellate court’s 2009 decision in Hamblen v. United States .
In that decision, a panel relied on the Supreme Court ruling in Heller to determine possession of several machine guns by member of the Tennessee State Guard was not protected by the Second Amendment.
“But Hamblen doesn’t apply after Bruen ,” Nalbandian, a Trump appointee, said.
“Bruen does not displace Hamblen ,” the attorney responded. “The Second Amendment does not protect unlicensed machine guns.”
Kuo found sympathy on the panel with U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, who agreed that Hamblen remained binding precedent because it did not apply the test rejected in the Bruen decision.
Nalbandian asked the government’s attorney for historical analogues to support her position, and while she provided one, he remained skeptical.
“The regulation on gunpowder in the 1800s regulated the amount of gunpowder an individual could own,” Kuo said.
“But that was a fire code issue so they wouldn’t blow up the town,” Nalbandian quipped. “Isn’t the 1986 machine gun ban the first? That’s fairly powerful evidence of no historical evidence of the federal government banning any category of weapons.”
Kuo said the rapid advances in firearm technology have turned small arms into “highly destructive and specialized weapons,” and reiterated the Second Amendment right to bear arms is “not unlimited.”
“It does not include the right to go on the offensive and to wage war with military weapons,” she said.
Gookin pushed back in his rebuttal and reminded the panel his client did not have an assault rifle or military-style weapon when he was arrested.
“This is a small arm, not a tank or a mounted gun. The Glock switch is a device you can buy off the internet, made by a 3D printer. It is not a highly sophisticated piece of equipment,” he said.
Senior U.S. Circuit Judge Danny Boggs, an appointee of Ronald Reagan, rounded out the panel.
No timetable has been set for the court’s decision.
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