Hello again everyone. Welcome to Washington Gun Law tv. I'm Washington Gun Law President William Kirk. Thanks for joining us. Hey, you guys, let's go back in our time machine a couple summers ago. Remember when that Broin opinion first came out and all your head started spinning because you'd been geeking out with people like me and others, and you really kind of were starting to understand the law and you were like, wow, the possibilities of this Bruin opinion are literally endless. That's true, but I told you it was going to take some time to see some of these kind of percolate through the system. We're going to talk about machine guns or automatic weapons. We don't talk about it an awful lot around here unless we're talking about forced reset triggers or wide open triggers or things such as that. But we got a huge, and I mean a huge ruling out of the United States District Court for the District of Kansas today, they have found 18 United States Code Section 9 22 subsection oh, the prohibition against machine guns unconstitutional, not making it up. So today, let's spend a few minutes and let's talk about the huge ruling that says machine gun bans are unconstitutional.

Okay? And today's video is brought to us. Yeah, right? Yeah. Okay, so hey, listen, before we get going too far down the road, we're going down proud to announce that this video is being brought to you by, but don't tell anybody, Taylor Freelance. Now, we would love to show you all the cool things that Taylor Freelance is making right here in the United States of America. That's right, because they're based right there in Bellingham, Washington. But here's the deal. If I start showing you all the cool stuff they're making, well then Google and YouTube, they're going to kind of crap their pants. Let me just say it this way though. They don't make firearms, got that Google, but they will make your firearms a lot better. So whether you're looking for base plates, brass, backstraps, or any other component to make your firearm better fit for your use, well then you need to go visit my good friends at Taylor Freelance.

Now, normally I'd just go ahead and run the little link right down below. But yeah, you see Google get a little pissed about that too. So instead, that's a link to our partner page right there. You can go there and then you can find the good folks at Taylor Freelance and check out all the cool stuff that they're making because you know it's cool if YouTube doesn't want it here. Okay, America, the case we're talking about today is United States of America verse Temuri Morgan. This is a case that was filed in the United States District Court for the District of Kansas. The defendant here had been charged with being in possession of two automatic weapons. The first was a 300 block out with a full auto setting, and the second was a Glock handgun with a Glock switch attached to it. Now, we know that the way that this typically works is is that the court is going to have to first examine is the activity here covered by the plain text of the Second Amendment?

If the answer is yes, then they have to find historical analogs to justify the constitutionality of the regulation. Of course, when we're talking about modern weapons, we're not going to have a lot of very old traditions, and so the way the court has been dodging the bullet, so to speak, is just to say, well, the Second Amendment does not even protect these firearms. The court here. However, yeah, they did not fall into that trap and starts its ruling this way. Defendant argues 18 United States Code Section 9 22 oh is unconstitutional facially as applied to him. Defendant first argues that under the first step of Bruin, the plaintiff of the Second Amendment applies to his conduct of possessing machine guns. The government argues to the contrary, pointing to the language in Heller that suggests the unconstitutionality of machine gun regulation would be startling and that the Second Amendment only applies to weapons that were commonly used by law abiding citizens at the time of the Second Amendment's enactment.

And I'm not sure what the government was talking about here because there's a litany of case law that obviously says that the Second Amendment protects all modern firearms in common use today. Now, for those of you who geek out on this channel regularly, you will know that there's an old case out there called United States v Miller. Why is it important? Well, because the United States government and states governments for that matter will can routinely cite to it as a means by which they can uphold the ban on dangerous and unusual weapons. A lot of people think it comes from Heller. It actually goes all the way back to Miller. Miller, however, dealt with a short barreled, sought off shotgun that was transported illegally across state lines. So it's a little bit of apples to oranges here, but the court very correctly points out in relying upon Miller.

In Miller, the Supreme Court rejected a challenge to the National Firearm Max Prohibition against carrying an unregistered sought off shotgun across state lines. Interestingly, over half of the opinion in Miller was devoted to explaining how in the years proceeding and immediately following the enactment of the Second Amendment, one of the lawful purposes for which law abiding citizens possessed modern for that era of firearms was for service in the militia. The court surveyed several laws from that era that not only permitted, but essentially required law abiding citizens to provide for their own use modern military style. Small arms. Against that backdrop, the court concluded that sought off shotgun was not the type of weapon that would be useful for military service, and there is a lot of truth to that. In fact, not only were you expected it was almost demanded of you that if you were a member of the militia or of the political community that can serve in the militia, you were literally required to have modern weaponry in the event of conflict.

So with that in mind, this court was not persuaded at all by the government's first argument, which is, Hey, the Second Amendment, it doesn't even protect this particular type of firearm as the court ruled Heller because it predates Bruin. However, certainly does not say that the Second Amendment does not apply to machine guns. It merely implies that restrictions on dangerous and unusual weapons can be consistent with this nation's history and tradition of firearm regulation. This touches on what is now the second step of Bruin rather than the first step. Suffice it to say that the weapons at issue in this case are bearable arms that under Bruin's first step are covered by the plain text of the Second Amendment. Okay, so that means if the Second Amendment is in play here, now the government must justify these regulations through historical analogs and therein lies the big problem for the United States government.

Now, you're going to see later on in the brief, I think the reason they had this problem is they didn't even really try. They kind of mailed in the second part of the argument, they got caught sleeping on this one. They kind of figured like, Hey, the Second Amendment doesn't even apply. We'll just brief that issue. We'll be out of here no problem. When the court said no, the Second Amendment is in play, they had never really done any thorough research, which may have still proven to be futile at best, but they'd never really done any research as to the types of historical regulations that could justify this type of restriction. In fact, the only two ones they came up with was a citation to some very old English common law as well as a North Carolina statute that kind of prohibited how you carry a firearm.

And it led the court to this. But both examples are analogous to what defendant is charged with here. Simple possession of a machine gun. Now, one of the historical analogs that the United States government relied on is the statute of North Hampton. We haven't spent a lot of time talking about the statute of North Hampton because it was written in 1328 in England. And candidly, I don't care about much that was written in 1328 in England. I don't care much about anything that's written in 2024 in England either. However, the court was like, Hey, listen, all of this that you're bringing up, it's just going to how an individual carries a firearm. These are like, you can't carry a firearm into this location. You can't carry a firearm into this location. You can't carry a firearm into places where royalty you can't carry a firearm with.

Your intent is to threaten or intimidate another. None of these apply to the mere possession, however of a firearm. And that led the court to conclude. In contrast with the aforementioned historical examples, section 9 22 oh says nothing about the manner in which machine guns are carried or displayed. Instead, section 9 22 O criminalizes the mere possession of such weapons without regard to how the possessor uses them. If an individual purchases such a weapon and locks it away in a gun safe in his basement for 20 years without touching it, he is just as guilty of a violation of Section 9 22 O as the one who takes the same weapon out on the public street and displays it in an aggressive manner. The statute requires no more than possession and more importantly in an as applied challenge. The indictment in this case alleges nothing more. Okay, and then because this court understands the common use test and it is one about numerical value, and they recognize that, Hey, if a mere 200,000 stun guns constitutes in common use under cantano, how much does over 740,000 lawfully registered machine guns constitute under the common use test, thus leading the court to rule as follows.

Moreover, to the extent that the Second Amendment would allow weapons to be prohibited solely on the basis that they are dangerous and unusual or highly unusual in society at large, as the government suggests, the government has not made that showing here. As defendant points out, there are over 740,000 legally registered machine guns in the United States today. And ultimately what this comes down to is a very simple inquiry. Do we have the historical analog of prohibiting the possession of these firearms? We're not talking about anything else other than the mere possession as the court justly points out. In that sense, machine guns are not unusual. The government fails to address these facts and thus fails to meet its burden to demonstrate that possession of these types of weapons at issue in this case are lawfully prohibited under the Second Amendment, and so therefore the court reaches the following conclusions.

To summarize, in this case, the government has not met its burden under Bruin and Rahimi to demonstrate through historical analogs that regulation of weapons at issue in this case are consistent with the nation's history of firearms regulation. Indeed, the government has barely tried to meet that burden and because they didn't really try. I will say that as interesting as a ruling as this is, and it is a huge ruling, which will probably be appealed as soon as tomorrow, the court did leave an out here where it basically said if the government maybe had tried a little harder, we might've had a different outcome. Importantly, this decision says little about what the government might prove in some future case. Rather, under Bruin's framework for evaluating Second Amendment challenges, it is the government's burden to identify a historical analog to the restrictions challenged. In this case, the government has failed to do so.

The court expresses no opinion as to whether the government could in some other case, to show a historically analogous restriction that would justify Section 9 22. Oh, huge, huge ruling. This is obviously not the end of it. Like I said, the appeal is probably being written right now as we speak. The case once again is United States v Morgan. We're going to go ahead and link up the court's order down below so that you can geek out on it for yourself. Huge win, but like I say, we are a long way from having this one be over. If you guys got any questions about this or anything else related to what's left of our Second Amendment rights, you should know how to get ahold of Washington Gun Law by now. But if you don't, that's okay. That information's down there in the description box. Maybe you got an idea for a video we should be doing here.

If you do, go ahead and click on link right there because most of the good ideas we ever come up with, we don't actually come up with at all. Maybe you just want to be part of our monthly newsletter. The ability to subscribe to that is all down below in the description box. And then finally, and most importantly, America, let's remember that part of being the lawful and responsible gun owner like we talk about all the time here. So know what the law is in every situation and how it applies to you in any instance that you may find yourself. Until next time, thanks for watching and stay safe.

 

YouTube Video Link: https://www.youtube.com/watch?v=dAY3jAmgGcM

Credit: William Kirk, Washington Gun Law