A U.S. District Court in Kansas agreed with a federal public defender over a set of machine gun charges, tossing them as unconstitutional with the right to keep and bear arms.
Judge John W. Broomes, a 2018 Trump appointee, agreed with a motion from the Federal Public Defender Office in Wichita to dismiss a two-count indictment against a local man for possession of a pair of unregistered Post-86 machine guns, arguing the charges went against the "history and tradition of the Second Amendment of the United States Constitution by imposing a blanket prohibition on machineguns," and is thus unconstitutional as applied to the defendant.
Broomes wrote plainly in his 10-page order granting the dismissal of the charges that, "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 defendant, Tamori Morgan, was indicted by a federal grand jury last April with possession of an Anderson AM-15 pistol .300 Blackout handgun and a Glock 33 in .357 SIG with a conversion device, charging him with two violations of the federal machine gun statutes.
To this, the federal public defender argued that recent case law, such as the Supreme Court's 2022 Bruen opinion, establishes that the government must show that the 1934, 1968, and 1986 regulations on machine guns are in line with the country's historical tradition of firearm regulation.
Broomes pointed out in his order this week that the U.S. Attorney's office's effort to back up the history of machine gun bans in the country fell short, noting "Machineguns have been in existence for well over a century," while it was only in 1986 that the Hughes Amendment prohibited possession of such firearms made after that date, and "Even then, the law did not prohibit the possession of all machineguns; rather, § 922(o) merely prohibits possession of machineguns that were not lawfully possessed as of the date that prohibition went into effect in 1986."
And for the knockout blow:
Thus, even today, it is perfectly legal for a person who has not been divested of his firearm rights under some other provision of law to acquire and possess a machinegun, so long as it was lawfully possessed by someone before the relevant date in 1986, and so long as he complies with the National Firearms Act’s requirements to obtain and possess the weapon. In that sense, machineguns are not unusual. The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the Second Amendment.
Naturally, anti-gun types were quick to slam the court's action, with the Bloomberg-backed Everytown group issuing a statement that included the words "Extreme and Reckless" in its title.
As Broome references federal gun regulators have more than 740,000 machine guns currently on the book as of 2021 to counter the claim by federal prosecutors that the guns are "dangerous and unusual," and simple "Glock switches" are flooding the market, this case is sure to receive further attention from the government. Expect the U.S. 10th Circuit to get involved at some point, and then possibly even the Supreme Court.
Until then, all NFA rules apply, folks.
