OSD 288: Dude, where’s my machine gun?
If machine guns get legalized, here’s how it would happen.
In US v. Morgan last week, a federal district judge dismissed machine gun possession charges against a Kansas man, finding the federal machine gun ban unconstitutional under the Second Amendment.
What happens next in that case is that the government will appeal to the Tenth Circuit, which will almost certainly reverse the district court’s ruling. And if they don’t reverse, then the government will appeal to the Supreme Court, who absolutely will reverse.
Ever since Bruen, people have wondered what the implications would be. The most immediate impact has been that in the restrictive states, carry permits are easier to get than they used to be. There’s an assault weapons ban case teed up nicely for the Supreme Court to take, and they’ll decide this fall whether to hear it or not. Magazine bans are also ripe for scrutiny. But machine guns have always been lurking in the background. Could the 1986 ban ever be repealed?
There are four possible ways it could happen. Let’s examine each one:
The Supreme Court strikes down the ban on Second Amendment grounds. This is very unlikely. The current Court is fine with the 1986 ban. Sotomayor, Kagan, and Jackson are explicitly fine with it. Alito wrote a concurrence in the bump stock case just to urge Congress to pass a law banning bump stocks. And reading between the lines, Roberts, Kavanaugh, and Barrett aren’t on board to legalize machine guns. Thomas and Gorsuch are the only maybes, so SCOTUS legalizing machine guns would require replacing at least three of the other justices with top-5%-pro-2A judges. Not going to happen anytime soon.
The ATF overreaches with administrative law. A version of this already happened with the bump stock ban, where in overreaching, the ATF managed to create new anti-administrative-law precedent. They did the same with the pistol brace ban, whose end result will probably be to put SBR laws on even weaker footing than they’re already on. (We wrote about that in “OSD 204: When you come at the king, you best not miss.”) The machine gun ban was an act of Congress, not administrative law. So it can’t be struck down with an administrative law ruling. But ATF overreach could create more wiggle room for things like forced reset triggers or the Hoffman Tactical super safety.
Federalism. Eight states have a “firearms freedom act”, declaring that federal gun laws don’t apply to guns made and kept in-state. The premise is since those guns don’t touch interstate commerce, they can’t be regulated by Congress. Federal courts don’t agree with that interpretation of the Commerce Clause, and so far the success rate is 0% for people using these laws to get out of federal prosecution. But the current Court is probably more skeptical about expansive Commerce Clause interpretations than any Court since the Lochner era. So it’s conceivable that a well-crafted case could get the Court to hold that the machine gun ban doesn’t apply to guns that are well-and-truly intrastate-only. You won’t get a Glock 18 that way, but it could be the way to legalize homemade drop-in auto sears made with basic hand tools.
Congress. It’s theoretically possible that Congress would pass a law repealing the ban. But in the history of the country, they have never passed a law that expands gun rights*. So it’s unlikely they’d start now.
*Two slight exceptions: (1) FOPA, which made it harder for the ATF to paperwork FFLs to death. But that was bundled with the machine gun ban, so we’ll call it a wash. (2) Obama signed a law in 2010 that repealed the carry ban in most national parks.
So, when do we get machine guns? At a nationwide level, probably never. At least unless coil guns, or some other technically-not-a-firearm invention, create facts on the ground faster than Congress can ban them.
At a state level, the picture is more nuanced. The likeliest outcome is that machine guns remain banned for the foreseeable future. But some version of option 3 — machine guns are allowed within narrow limits in a handful of states — is plausible if SCOTUS reinterprets the Commerce Clause. We’ll see. It’s a good example of how gun rights advances can come from events that aren’t really gun-related.
This week’s links
Dirty Civilian on the second-order effects of restricting imports of Chinese gun gear
See more on this in “OSD 266: The buffalo jump”.
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"At least unless coil guns, or some other technically-not-a-firearm invention, create facts on the ground faster than Congress can ban them."
I have not done any sort of detailed analysis of the physics involved, but I don't see any reason why a large-bore full auto airgun isn't possible. Paintball guns with this capability exist and have for some time. Replace the ball hopper with a magazine filled with literal 9mm bullets, and if you can get 1000 FPS at 800 RPM, you effectively have an air-powered MP5-SD.
I see reopening the registry to be less unlikely than you put forward. There's enough momentum behind the increasingly serious approach to the tax clause that I could see SCOTUS saying that the ATF has to at least let people buy stamps again.
Also, I just wouldn't be too certain of anything with guns, and that applies as much to potential backsliding as it does to unexpectedly swift progress. Thirty years ago we barely got the federal AWB to have a sunset clause, and I don't think anyone in 1994 would have believed you if you had told them that we'd have nationwide shall-issue CCWs and be on the threshold of assault weapons bans being ruled unconstitutional.