A unanimous three-judge panel last week upheld a lower court ruling that guns capable of select-fire or full-auto are “dangerous and unusual” and not protected by the Constitution.
The ruling came from the New Orleans-based U.S. Fifth Circuit Court of Appeals in a challenge by Texas resident Jay Aubrey Isaac Hollis.
In May 2014, Hollis, through a gun trust, submitted a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 5320.1 along with a $200 fee to the ATF to manufacture a select-fire M-16 from semi-auto AR-15 components. Four months later, the ATF approved Hollis’s application but the same week quickly backpedaled and informed him the application was granted in error and revoked their approval.
The ATF in a letter acknowledged the mistake and advised under the Hughes Amendment of 1986 they could not “approve any private person’s application to make and register a machine gun” and any resulting possession of such a “post-86” machine gun would be a violation of the National Firearms Act.
This led Hollis to file suit in the U.S. District Court for the Northern District of Texas, challenging the constitutionality of the 1986 statute as well as other gun control schemes such as the NFA and Gun Control Act of 1968. His attorneys argued that if “an item is part of the ordinary military equipment, then it is protected by the Second Amendment,” and that because an “M-16 is the quintessential militia-styled arm for the modern day,” it is protected under the Constitution.
The District Court in 2015 disagreed with the argument and the Fifth Circuit upheld that ruling in a 22-page decision handed down on June 30.
Judge Leslie H. Southwick, an appointment to the bench from President George W. Bush, penned the ruling. Judges Carolyn Dineen King and Catharina Haynes, appointments by Presidents Carter and G.W. Bush, respectively, joined her.
The appeals court felt Hollis wanted to have them overrule the Supreme Court’s own 2008 Heller decision which held that some restrictions on “dangerous and unusual” arms were legal.
The court placed weight on the fact that just 175,977 legal pre-1986 civilian-owned machine guns are in existence, a figure far lower than estimated the number of large-capacity magazines (50 million) and AK/AR-platform semi-auto rifles (8 million) that previous courts have upheld as being “not in common use” saying no sources, “allow a conclusion that a machine gun is a usual weapon.”
Finally, the Court blasted the plaintiff’s argument that possession of a select-fire rifle is guaranteed by the Second Amendment as a safeguard to tyranny.
“Hollis seeks equality between the people and the Government so that those seeking to abolish the government will have a fair chance,” noted Southwick, continuing, “But self-defense, not revolution, is the central component of the Second Amendment.”
Taking a recent case by the Supreme Court holding that stun guns — while not envisioned by the Founding Fathers — still fell under the scope of Second Amendment protections, the court pointed out that ruling hinged on self-defense and not military use.
“Caetano reaffirmed that whether a weapon has a nexus to military utility is not the test as to whether that weapon receives Second Amendment protection,” wrote Southwick. “In summary, the Second Amendment protects an individual right to keep and bear arms in defense of hearth and home.”
One of the Hollis attorneys, Mississippi-based Stephen Stamboulieh, has been very active on social media promoting the case but has not commented if he will seek an appeal to the Supreme Court on last week’s decision.
Another one of the attorneys in the Hollis case, Alan Beck, worked on a similar case decided by the U.S. Third Circuit that was likewise upheld in May.