Other State Kansas district court finds "machine guns" supported by Second Amendment

[The Heretic]

https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2023cr10047-35

This matter is before the court on Defendant's motion to dismiss based on Second
Amendment grounds. (Doc. 26.) A response and a reply have been filed (Docs. 28, 29), and the
court held a hearing to establish additional facts about the weapons charged. The motion is thus
ripe for review. 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 court therefore grants the motion to
dismiss.
I. Background
Defendant Tamori Morgan is charged with two counts of possessing a machinegun in
violation of 18 U.S.C. § 922(o). (Doc. 1.) Specifically, Defendant is charged with possessing an
Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion
device. It was established at the hearing that the conversion device is a so-called "Glock switch"
which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon.
II.Under the Second Amendment, "the right of the people to keep and bear Arms, shall not
be infringed." U.S. Const. amend. II. "[T]he Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were not in existence at the time of the
founding." D.C. v. Heller, 554 U.S. 570, 582 (2008).

18 U.S.C. § 922(o) https://www.law.cornell.edu/uscode/text/18/922 :

(o)
(1)
Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2)This subsection does not apply with respect to—
(A)
a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B)
any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

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[Diamondback]

Could be the light at the end of the tunnel... could also be an oncoming train.

 

[The Heretic]

Could be the light at the end of the tunnel... could also be an oncoming train.

Either way - it is interesting.

We'll see what happens down the tracks.

 

[JustShoot]

Either way - it is interesting.

We'll see what happens down the tracks.

 

[CamoDeafie]

Betting it'll get overturned either at the Fed Appeals District level, or at SCOTUS level, based on the fact Heller decision does say "dangerous and unusual" arms may be regulated via NFA 1934 and Hughes Amendment (post 86 MG ban).
Machine guns are regulated under NFA/Hughes Amendment as "dangerous and unusual weapons".

 

[FATAL125]

Could be the light at the end of the tunnel... could also be an oncoming train.

Either way - it is interesting.

We'll see what happens down the tracks.

I feel like this one might get derailed...

 

[The Heretic]

Betting it'll get overturned either at the Fed Appeals District level, or at SCOTUS level, based on the fact Heller decision does say "dangerous and unusual" arms may be regulated via NFA 1934 and Hughes Amendment (post 86 MG ban).
Machine guns are regulated under NFA/Hughes Amendment as "dangerous and unusual weapons".

Yeah - but the 2A doesn't say anything about limits on "dangerous/unusual weapons".

 

[CamoDeafie]

Yeah - but the 2A doesn't say anything about limits on "dangerous/unusual weapons".

Nope. But SCOTUS has consistently supported the notion that "some arms may be regulated/banned if they are ""dangerous and unusual"" " and that 2A isn't "unlimited/unrestricted Right to all arms"

see Miller, Heller, all the way to Rahimi

the only Justice(s) I can see supporting the idea of overturning NFA as a whole is Clarence Thomas, and possibly Alito. The rest, regardless of how they decide on other issues, aren't likely to join him/them in overturning whole of NFA.

 

[Yarome]

Unusual? Are they?? As of 2021 there are close to 3/4mil of them in circulation. (Although that comes with the caveat distinction between ownership by private citizens vs. possession by law enforcement agencies)

I haven't looked into that particular judge, but just at first glance it brings to question: Was that a pro-2A judgement or an anti-2A judgement to then flip the narrative to, "See how radical and dangerous the current make up of SCOTUS is!! They would see full auto machine guns in the hands of mass shooters in our schools!"

Ya gotta wonder.... but I guess it doesn't matter. Even if it was a pro-2A move that narrative will still be pumped for all it's worth by the anti's.

The common use argument is a bit weak if you consider Heller's distinction of "law abiding citizens" and it doesn't have much chance of surviving any appeal, IMHO.

 

[CamoDeafie]

Unusual? Are they?? As of 2021 there are close to 3/4mil of them in circulation.

Following Caetano opinion; no. but then neither are "silencers" (suppressors), over 21 million of them registered, and Congress refuse to remove them from NFA

 

[CamoDeafie]

See how radical and dangerous the current make up of SCOTUS is!

Aren't those in one Party already milking and doubling down on that since the overturning of Roe V Wade?

 

[The Heretic]

Following Caetano opinion; no. but then neither are "silencers" (suppressors), over 21 million of them registered, and Congress refuse to remove them from NFA

There is a difference between Congress and the SCOTUS; the Congress & the POTUS are driven primarily by politics, and the pursuit of power while they ignore the Constitution as much as possible (what they can get away with). The SCOTUS is driven by precedents and laws, including the Constitution (to a degree).

 

[Yarome]

Following Caetano opinion; no. but then neither are "silencers" (suppressors), over 21 million of them registered, and Congress refuse to remove them from NFA

Fair point. Silencers I really just don't get though. Maybe in the movies they are depicted as a bad guy... silent assassin type tool (where the level of "silencing" capability is closer to fiction)... but the reality of ownership and use today, by law abiding citizens, is overwhelmingly as a hearing protection device. That's it!

Neither in and of themselves dangerous OR unusual. It makes no sense....

 

[CamoDeafie]

There is a difference between Congress and the SCOTUS; the Congress & the POTUS are driven primarily by politics, and the pursuit of power while they ignore the Constitution as much as possible (what they can get away with). The SCOTUS is driven by precedents and laws, including the Constitution (to a degree).

And this also brings to another point I've made before. Until the majority changes in both House and Senate Joint Committees on taxation, any bills to repeal parts or whole of NFA and GCA and FOPA will never get onto the Floor. Any bills to increase or add to NFA, will get out of committee onto the Floor. We cannot trust Congress, nor can we really trust SCOTUS to go back to the original meaning and text of the Constitution, particularly where 2A is the main issue.

Fair point. Silencers I really just don't get though. Maybe in the movies they are depicted as a bad guy... silent assassin type tool (where the level of "silencing" capability is closer to fiction)... but the reality of ownership and use today, by law abiding citizens, is overwhelmingly as a hearing protection device. That's it!

Neither in and of themselves dangerous OR unusual. It makes no sense....

Context, hearing protection was just not seen as "gentlemanly" for much of the US history regarding arms edit
The idea was (and is) that silenced gunshots are a staple only useful for criminals, assassins, and gangsters, just like SBRs and SBS,. Even pistol crossbows are regulated/banned in some States.

Also, it was in an era where concealed carry was seen as criminally "ungentlemanly", "dishonorable", "scourge", and so on.
That was a big part of why the NFA included short barreled firearms and "concealable" weapons (AOWs) as well as silencers/suppressors. Believe earlier drafts out there did push to include pistols/handguns in the NFA.

 

[Sip]

Nope. But SCOTUS has consistently supported the notion that "some arms may be regulated/banned if they are ""dangerous and unusual"" " and that 2A isn't "unlimited/unrestricted Right to all arms"

see Miller, Heller, all the way to Rahimi

the only Justice(s) I can see supporting the idea of overturning NFA as a whole is Clarence Thomas, and possibly Alito. The rest, regardless of how they decide on other issues, aren't likely to join him/them in overturning whole of NFA.

I agree to an extent, but I think Gorsuch might be persuaded...He's low key an Originalist acolyte

 

[VinnieBoomBah]

I think the important question is how will this ruling benefit the Plutocracy

 

[The Heretic]

I think the important question is how will this ruling benefit the Plutocracy

Or threaten it.

 

[ilikegunspdx]

Mark smith has a video on it. Says it will be reversed on appeal and scotus will deny cert. Or if trump wins gov will simply drop the case to avoid any legal precedents etc.

 

[CamoDeafie]

I think the important question is how will this ruling benefit the Plutocracy

it doesn't. Kansas is one of the few States to have passed a "Second Amendment Protection Act" which says State officers arent bound by law to enforce any Federal law that contradicts the 2nd Amendment , essentially using both Marbury (any law repugnant to Constitution is null and void), and the 2a sanctuary counties/ that one court case in the past that undocumented immigration advocates have used as justification, Printz v USA.

 

[CamoDeafie]

Mark smith has a video on it. Says it will be reversed on appeal and scotus will deny cert. Or if trump wins gov will simply drop the case to avoid any legal precedents etc.

Yup. 10th Circuit would reverse it