Federal Court Declares Machine Gun Ban Unconstitutional

In a major ruling out of the Southern District of Mississippi, Judge Carlton Reeves has struck down the federal machine gun ban as unconstitutional under the Second Amendment. The case, United States v. Brown, follows the framework established by the Supreme Court in New York State Rifle & Pistol Association v. Bruen, which requires gun laws to be justified by historical tradition.

As someone who has appeared before Judge Reeves, most recently in The Jones Group of Mississippi, LLC v. Zurich American Insurance Co., No. 3:20-CV-151-CWR-FKB (S.D. Miss. Dec. 1, 2020), I can attest that he is a fair and methodical judge. What makes this ruling particularly noteworthy is that while he ultimately found the law unconstitutional, he openly expressed skepticism about the Bruen framework. Nevertheless, he followed the Supreme Court’s ruling as written and determined that the government failed to meet its burden of proving that § 922(o) is consistent with the nation’s historical firearm regulations.

The Court’s Reasoning in United States v. Brown

The defendant, Justin Bryce Brown, was charged with unlawful possession of a machine gun under 18 U.S.C. § 922(o). His argument was that, under Bruen, the statute is unconstitutional as applied to him.

The government’s response was predictable: It argued that machine guns fall under the Heller-established category of “dangerous and unusual” weapons, which courts have long held are not protected by the Second Amendment. However, Judge Reeves rejected this argument, reasoning that while machine guns are certainly dangerous, the government failed to prove they are unusual. His ruling pointed to the fact that over 740,000 machine guns are legally owned in the United States today—a significant number that undermines the idea that they are outside the scope of common use. 

Perhaps the most striking aspect of Judge Reeves’ opinion is his acknowledgment of Bruen’s limitations. He openly questioned whether the Supreme Court’s historical approach is the best way to evaluate Second Amendment cases, calling it “deeply concerning” and noting that it will likely lead to “confused and confusing lower court precedent.” However, despite these concerns, he applied Bruen faithfully, dismissing the indictment against Brown.

What the Supreme Court Has Said About Machine Guns

Although Brown follows Bruen, there is ample language in Supreme Court decisions—both before and after Bruen—that suggests machine guns do not receive Second Amendment protection. In District of Columbia v. Heller, the Supreme Court reaffirmed the longstanding doctrine that the Second Amendment does not protect “dangerous and unusual” weapons. The Court traced this doctrine back to English common law and applied it to modern firearms. Bruen itself contained similar language, with Justice Kavanaugh emphasizing in his concurrence that nothing in the ruling should be interpreted as questioning existing restrictions on “dangerous and unusual weapons.” 

Given these precedents, if Brown is appealed, the Supreme Court may take the opportunity to clarify whether machine guns continue to fall outside the scope of constitutional protection. But it has to get through the Fifth Circuit Court of Appeals, first. About that…

How Judge Reeves Addressed Hollis v. Lynch 

A key precedent in the Fifth Circuit on this issue is Hollis v. Lynch, a 2016 pre-Bruen case which explicitly held that machine guns “do not receive Second Amendment protection” because they are “dangerous and unusual.” However, Judge Reeves directly addressed Hollis in his ruling and made two critical points: 

1) He stated that Hollis has been abrogated by Bruen but did not engage in a deep analysis of whether the “dangerous and unusual” standard still applies. The reality is that, even if Hollis predates Bruen, the Fifth Circuit’s holding that machine guns are “dangerous and unusual” remains relevant because that standard continues to be applied in Second Amendment cases. After all, the phrase “dangerous and unusual” appears 135 times in the Bruen decision, so Hollis, in my opinion, remains relevant, even as a pre-Bruen decision.

2) However, Judge Reeves highlighted a factual discrepancy in Hollis’s common use analysis. When Hollis was decided in 2016, the record stated there were 175,977 legally owned machine guns. In Brown, however, the record states that there are over 740,000. Judge Reeves observed that he doesn’t understand the cause for the discrepancy—although I’ve seen it speculated that this is transferable versus non-transferable but legally possessed machine guns (i.e., post-1986 non-transferable machine guns owned by an SOT holder). However, Judge Reeves noted that the Hollis appellate decision ruling that 175,977 machine guns were uncommon does not necessarily resolve the question of whether 740,000 machine guns are uncommon.

This is a crucial distinction. The Hollis court might not have called 740,000 machine guns “unusual” even though it found that 175,977 was too small a number. This creates an opportunity for the Fifth Circuit to reevaluate Hollis in light of new data.

The Circular Reasoning Behind the Machine Gun Ban

One of the most significant flaws in the government’s argument is the circular reasoning behind the idea that machine guns are “unusual.” 

• Machine guns are rare because of federal bans enacted during the 20th century.
• Because they are rare, the government argues they can be banned. 
• And because they are banned, they remain rare. 

This self-reinforcing logic is not a legitimate historical or constitutional argument—it is simply a consequence of previous legislative decisions. Under the Bruen framework, laws must be justified by history and tradition, not by the fact that the government has successfully restricted certain firearms subsequent to 1986, 210 years after the country was founded and only about four decades subsequent to the invention of perhaps the first true fully automatic assault rifle—the StG 44. If the Second Amendment’s scope is determined by historical regulations rather than modern policy preferences, the government cannot use its own bans as evidence that a firearm is outside constitutional protection.

What Happens Next?

If Brown is appealed, it will go to the Fifth Circuit, which is the most conservative federal appellate court in the country. That is important because, while the Fifth Circuit has been aggressive in striking down gun restrictions post-Bruen, it has also previously ruled against machine gun protections.

As mentioned, in Hollis v. Lynch, the court unequivocally stated that machine guns do not receive Second Amendment protection. More recently, in United States v. Simien, a 2023 case, a federal district court (not an appellate court) in the Western District of Texas rejected an identical Bruen-based challenge to the machine gun ban. The Simien court held: 

“Assuming the conduct of possessing a machinegun is protected by the plain text of the Second Amendment, the weapon itself is not protected, based on U.S. Supreme Court and Fifth Circuit precedent.”

The court cited Heller, Miller, and Hollis and concluded that machine guns are still not in common use. Simien shows us that even though Hollis is pre-Bruen, courts within the Fifth Circuit are still willing to ignore that fact because—and I think this is correct—the “dangerous and unusual” standard still applies, post-Bruen. I do not expect the Fifth Circuit to uphold Judge Reeves’ ruling in the event of an appeal, but I certainly hope that the discrepancy in the record regarding the number of machine guns in circulation between Hollis and Brown would change the Simien or Hollis analysis.

Final Thoughts: The Implications of This Ruling

Since this is a criminal case, the ruling only applies to Justin Bryce Brown. It does not overturn § 922(o) nationwide, and it does not mean new machine guns will suddenly become legal. However, the case has broader implications: If the ruling is appealed and upheld, it could trigger more challenges to the National Firearms Act and other federal gun restrictions, including regulations on suppressors and short-barreled rifles. Either way, this case is far from over. The Fifth Circuit and possibly the Supreme Court may eventually address the fundamental issue at play: Whether machine guns can be considered “dangerous and unusual” when their rarity is a direct result of government restrictions.

This decision is just one more step in what is shaping up to be a defining Second Amendment battle in the post-Bruen era.