r/progun • u/ZheeDog • 5d ago

Third Circuit upholds machine gun ban [Joseph Berger case]

https://www2.ca3.uscourts.gov/opinarch/242125p.pdf
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u/DigitalLorenz 5d ago

Bad panel draw (as is tradition in the 3rd Circuit). This is a panel that made their decision and worked backwards to justify it, and really only uses interest balancing to justify their ruling. They can't even follow the 3rd's own in circuit precedent correctly.

They rely on the fact that machine guns are not in common use for self defense, and then hammer home that they would make horrible weapons for self defense. They touch on that the 2A protects arms for any lawful purpose, but they don't check to see if machineguns are used for anything but hunting.

They claim that then claim that the ban is within the tradition of historic firearms restrictions. They cite Blackstone, and only Blackstone. No historic laws from the founding era which is what 3rd Circuit precedent requires as established by Lara v Commissioner.

This is an opinion that needs be reheard en banc, if not by the SCOTUS, but won't because no one wants to touch machine gun bans.

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u/youcantseeme0_0 5d ago

They rely on the fact that machine guns are not in common use for self defense

Such a convenient little Catch-22 the courts have created to abuse. "In Common Use" is complete trash.

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u/DigitalLorenz 5d ago

The lower courts turned into trash as it has effectively become to them "is this a gun that can be used by criminals?" When it was originally "does this gun have no lawful use?"

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u/RampantAndroid 5d ago

And before that, it was "Does this gun have military use?"

Go look at US v. Miller, where the standard was "Are short barreled shotguns used by the military? If so, you may have them." And that's a case from 1939.

https://en.wikipedia.org/wiki/United_States_v._Miller

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u/TheHat2 5d ago

"Ordinary military equipment" was the standard for protected arms for almost 140 years. Then after Tommy guns were issued to the US Army in WWII, the courts had to revise that standard to preserve the NFA, which brought us to "legitimate use" like in Cases v. United States, 131 F.2d 916 (1st Cir. 1942). That begat the modified "legitimate sporting use" in the Gun Control Act of 1968, which was a response to a milsurp rifle being used to assassinate Kennedy.

We have yet to get back to "ordinary military equipment" because the federal courts lack the balls to admit that the NFA illegally overrode that historical standard, and they don't want to be held responsible for any negative consequences that might result from striking down the NFA.

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u/youcantseeme0_0 4d ago

I'm fairly certain that is what the traitors in Congress used as an argument in favor of adding all the various things to the NFA in 1934, as well. "The military isn't using short-barreled anything or suppressors, so the plebs can't have them."

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u/jayzfanacc 5d ago

From “are there any lawful uses?” to “are there any unlawful uses?”

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u/Regayov 5d ago

Didn’t Heller decision bring up this exact point when defining Common Use?

At the end of the day, Common Use is not a justification by itself. It is the counter to Dangerous and Unusual.  

Further, Machine Guns are in common use by those who are allowed to own them.  

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u/LearningSomeCode 4d ago

What Im curious about is how this affects non-machine guns down the road. This ruling doesn't really cite sources or statistics on how machine guns are primarily used for crime. I almost never hear about machine guns used for crime; their examples are Tommy Guns from the gangster days of old.

So if the ban is upheld based on the feelings of the judges that they cannot imagine the guns being used for anything other than crime, then what does that do for semi-automatic rifles that statistically are used in crimes far more often, when the administration eventually changes to someone who wants to put a federal semi-automatic ban in place? Couldn't this exact argument basically be used for anything, given how subjective it is?

I definitely can see this ruling coming up at a later date in favor of banning something else.

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u/Regayov 4d ago

What you’re describing is literally Interest Balancing.  Something explicitly prohibited by prior scotus rulings 

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u/youcantseeme0_0 4d ago

I think you're right, but it's been twisted by activist judges to protect the NFA.

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u/WickeddWayzz 5d ago

It’s a double edged sword for sure. On one hand it’s great because it decreases the odds that states can legally ban easily obtainable firearms (AR-15s), but then you run into an issue like this case where the Feds have made machine guns unobtainable for the average person so courts can say they’re “not in common use”. I do believe a recent ruling, potentially by SCOTUS, tried to address this by saying the question of historical tradition should be asked first before whether asking someone is dangerous or unusual. Maybe someone smarter than me can weigh in on that.

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u/PricelessKoala 5d ago

The courts have an easy way they can fix the catch-22 with the common use test. They just have to say that the common use test is evidence of protection, not the deciding factor of protection. Meaning, a weapon in common use is definitely protected, but an uncommon weapon is still maybe protected. Then just simply apply the Bruen analysis and find that there are no historical analogs to banning possession of entire classes of arms.

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u/DownstairsDeagle69 21h ago

How can it be in common use when it's outlawed? It's a literal gotcha trap. It's designed that way.

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u/Independent-Exit7434 5d ago

I’d argue machine guns make fantastic self defense weapon. Suppressive fire gives cover to retreat and disengage. If a gang is raiding my farmhouse where I need to put down suppressive fire then I really need an MG. I mean, I don’t own a farmhouse or an MG and cannot imagine getting raided by a gang but it’s certainly a valid scenario probably somewhere maybe.

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u/DigitalLorenz 5d ago

I would also argue the same. Burst fire, which also falls under machine guns, would be ideal for dealing with an intruder. You don't need spray and pray, but a few shots center mass to guarantee that whatever is hit is not getting back up would be ideal.

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u/G8racingfool 5d ago

Like down along the southern border for the last few decades...

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u/tambrico 5d ago

It was written by judge Bibas. Supposedly a strong 2A judge. I wouldn't chalk this up to panel draw.

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u/Kthirtyone 5d ago

>the federal registration requirement for silencers does not infringe his Second Amendment right. It is a minimal, objective hoop that buyers must jump through

I wonder if the judges might have a different opinion on this type of "minimal, objective hoop" if it applied to something like voter registration, marriage certificates, organizing/attending a protest, etc.

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u/WickeddWayzz 5d ago

My favorite thought experiment is to take gun laws and apply them to voting. If people aren’t ok with the same restrictions and hoops being present before voting, they shouldn’t support gun control. Actually tends to get a pretty decent response from most people if you argue it in good faith.

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u/PricelessKoala 5d ago

The response I get is "but guns are meant to kill people, it's completely different". Anti-gun people just can't wrap their minds around the fact that the 2nd amendment protects a right

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u/OnlyLosersBlock 5d ago

All I have ever heard is "are you saying a vote is the same as a gun? I have never heard of a vote blasting a room full of people!" As if voting hasn't lead to massive wars that our country got involved in.

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u/Gooble211 5d ago

Never mind that the main reason machine guns are not in common use by commoners was manufactured by the government.

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u/GiantSquid_ng 4d ago

Watch the Four Boxes Diner video on this decision

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u/Automan1983 4d ago

Came here to say this. Mark Smith on the Four Boxes Diner YouTube channel does superb work, and he points out in yesterday's video why this decision is actually GOOD for 2A rights.