DISMISSING INDICTMENT, FEDERAL COURT
FINDS “MACHINEGUNS ARE NOT UNUSUAL”
by
Prof. Anthony Michael Sabino
The Right to Keep and Bear Arms does not encompass “dangerous and unusual” firearms. See District of Columbia v. Heller, 554 U.S. 570, 627 (2008); see also New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). Yet, with reportedly over 740,000 legally registered “machineguns” in the United States today, do such implements qualify as “unusual”? Possibly not, according to United States v. Morgan, ___ F.Supp.3d ___, 2024 WL 3936767 (D. Kansas August 26, 2024), wherein a federal judge dismissed a criminal indictment alleging illegal possession of a so-called “Glock switch.”
Federal law prohibits the transfer or possession of a “machinegun.” See 18 U.S.C. § 922(o). The latter is exquisitely described in, of all things, the Internal Revenue Code. See 26 U.S.C. § 5845(b). This is an “extremely broad” definition which “encompass[es] everything” from aircraft-mounted cannons to small tasers or even BB guns.
In Morgan, District Judge John W. Broomes noted that the defendant was indicted pursuant to a statute which criminalizes the “simple possession of a machinegun,” but lacks any element of breaching the peace or going about armed with the intent of terrorizing the People, the “affray” described in detail by the high Court in Bruen, and again more recently in United States v. Rahimi, 602 U.S. 680 (2024). In short, a citizen could still be charged with a crime, even if he locked away a machinegun “in a gun safe in his basement for twenty years without touching it.”
The trial bench ruled that a “Glock switch” is a firearm within the original meaning of the Second Amendment, which then obligated the government to establish, via historical analogs, that the law, as applied against this defendant, was consistent with the Nation’s history of firearms regulation. However, the prosecutors “barely tried to meet that burden,” mistakenly relying upon case law which pre-dated Bruen, and positing an interpretation counter to Heller’s proclamation that, just as the Fourth Amendment applies to modern “searches,” the Second Amendment applies to firearms that did not exist at the Founding.
Finding that the government had failed to “identify a historical analog to the restrictions challenged in this case,” and that Morgan was accused with “nothing more” than mere possession of a machinegun, the Kansas federal court decreed that the indictment was unconstitutional. Finally, after noting that nearly three-quarters of a million machineguns are legally registered at present, the district judge raised the possibility that such firearms “are not unusual.”
We cannot draw any firm conclusions from Morgan at this time. The ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit, and the trial court’s judgment was based upon a decidedly limited factual record; even Judge Broomes warned that the case at bar “says little about what the government might prove in some future case.”
Nevertheless, Morgan raises an intriguing question; if machineguns are so numerous, are they “unusual” firearms? One thing is certain: the constitutionality of the laws regulating their possession “must be evaluated under the Bruen framework.”
FINAL Tamori Morgan ANJRPC v.1
AMS/dal