The Trump administration is taking heat from gun rights advocates after the Justice Department argued in court that machine guns fall outside the scope of firearms guaranteed by the Second Amendment.
“Machine guns are not the kind of arms protected by the Second Amendment,” Assistant U.S. Attorney Jennifer Case argued in a brief to an appeals court.
The filing came on a case where a lower court tossed charges against a man who possessed a machine gun, saying the Supreme Court expanded the universe of gun protections with its 2022 ruling in the Bruen case.
The Justice Department is trying to reinstate the charges and has asked the 5th U.S. Circuit Court of Appeals to step in.
Under the letter of the law, adopted in 1986, machine guns are more heavily regulated than other firearms and can only be sold in limited circumstances.
Justin Brown was charged with violating the law after authorities in 2022 found him in possession of a Whore-16 rifle, which includes a selector switch that allows for automatic fire. That means that a single pull of the trigger can produce continuous fire.
But Judge Carlton Reeves, sitting on the bench in southern Mississippi, ruled that the law restricting Mr. Brown from possessing the weapon violated the Second Amendment after the Bruen decision. In that ruling, the Supreme Court said only firearms regulations that would have been recognizable by people at the time the amendment was crafted, in the founding era, can survive scrutiny.
Judge Reeves said no such laws existed at the founding and indeed machine guns weren’t heavily restricted until 1986, so the prohibition is relatively modern.
“Thus, it is legal to own, possess, and use various semiautomatic and automatic weapons,” the judge ruled. “It appears that although the Second Amendment’s text is fixed, its application keeps up with the times.”
The Justice Department told the appeals court that can’t stand.
The government’s lawyers, citing Supreme Court precedent, said the Second Amendment’s core protection of Americans’ right to bear arms only applies to guns “in common use” and “for lawful purposes like self-defense.” That excludes “dangerous and unusual weapons.”
“Machine guns are not typically possessed by law-abiding citizens for lawful purposes. Instead, they are uniformly restricted, highly lethal and well suited to criminal purposes,” said Ms. Case, the government’s lead lawyer on the case.
She filed the brief on behalf of Patrick Lemon, the acting U.S. attorney in southern Mississippi.
The Firearms Policy Coalition, a gun-rights group, said it had hoped for better out of the new administration.
Brandon Combs, the group’s president, called the argument “horrifically flawed.”
“This insanely offensive brief should never have been filed in any court, let alone at the Fifth Circuit,” he said. “It should be immediately withdrawn and thrown into the trash, along with Mr. Lemon’s ability to make these filings in the future.”
He said Mr. Trump should create a “Second Amendment czar” to better coordinate legal policy on guns, which Mr. Combs said he hoped would head off these types of situations.
