In 2008, U.S. Supreme Court Justice Antonin Scalia, now deceased, called the prospect that a court would rule that fully automatic firearms were protected by the Second Amendment “startling.”
Two U.S. District Court judges have issued such rulings based on the 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association Inc. v. Bruen.
Bruen states that a gun law is constitutional if it fits the plain text of the Second Amendment and has a historical analogue from the time of the Second Amendment’s ratification.
Judges in Kansas and Mississippi found that the 1986 ban on civilian ownership of fully automatic firearms fails the Bruen test and is, therefore, unconstitutional.
In 2022, Bureau of Alcohol, Tobacco, Firearms, and Explosives agents found machine gun conversion devices (MCD) and a machine gun during a search of Justin Bryce Brown’s home in Mendenhall, Mississippi.
He was charged with possessing a machine gun and MCDs. Brown had no criminal history and was not accused of committing any crime with the items. The court found no similar ban in effect when the Second Amendment was ratified in 1791.
“Under [the Bruen] standard, Mr. Brown’s as-applied challenge is sustained,” U.S. District Court Judge Carlton Reeves of the U.S. District Court of Mississippi wrote in his Jan. 29, 2025, decision in United States v. Justin Bryce Brown.
The possession charge was dismissed.
Judge John Broomes rendered a similar ruling on Aug. 21, 2024, in the U.S. District Court for the District of Kansas in United States v. Tamori Morgan. Morgan was also charged with possession of a machine gun and MCDs.
Broomes wrote: “Under Bruen’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. This the government has failed to do.”
The gun control advocacy organization Everytown for Gun Safety did not respond to requests for comment. An Aug. 22, 2024, post on the Everytown webpage called the Morgan decision “appalling” and “reckless.”
“Machine guns ... have been tightly regulated under federal law since the 1930s,” Janet Carter, senior director of issues and appeals at Everytown Law, stated. “The laws banning them are not only constitutional but crucial to public safety.”
Though the decisions apply only to their specific cases, a spokesman for the National Rifle Association applauded the Brown decision.
“The Supreme Court made clear that the government bears the burden of proving that a challenged firearm regulation is consistent with America’s historical tradition of firearm regulation. In Brown, the government made virtually no effort to carry that burden,” John Commerford, executive director of the NRA-Institute for Legislative Action, wrote in an email to The Epoch Times.
Richard Hayes, a Houston-based lawyer who specializes in the Second Amendment, said these, and similar decisions, will clarify the founders’ intent.
Under the pre-Bruen test, which allowed courts to consider the intent of the law and whether it served a public interest, machine guns were deemed illegal by default. In court, lawyers would point to an existing ban, and that settled the debate, according to Hayes.
He said the Bruen standard requires a more thorough examination of how the law aligns with the Constitution. He predicts that Bruen will refocus the courts on dealing with criminals rather than their tools.
“Prior to Bruen, we had an unequivocal answer. Now the attorneys have a more nuanced conversation,” Hayes told The Epoch Times. “It’s still illegal to intentionally kill someone.”
Before Bruen, the courts used a two-step test to weigh gun laws against the government’s role in preserving public safety.
Under the first step, the court considered whether the challenged law complied with the text of the Second Amendment. The second step was to determine whether the law served the public interest.
In Heller, the nation’s top court ruled that the Second Amendment protects the individual’s right to own firearms that were commonly used for lawful purposes, such as self-defense.
Fourteen years before Bruen, Scalia wrote that this did not include machine guns.
“That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns ... might be unconstitutional, machineguns being useful in warfare in 1939,” Scalia wrote in the Heller decision.
Not all Second Amendment proponents are celebrating.
Mark Smith, a constitutional attorney and YouTube host, said Reeves has been critical of Bruen and dismissed Brown’s charges without confirming the Bruen standard.
He predicts that if the Brown case were to go before the current Supreme Court, the justices would split in favor of upholding the ban.
“In the future, if the composition of the Supreme Court changes in some material way, then perhaps the machine gun question could be revisited,” Smith wrote in an email to The Epoch Times. “But now is not the time. ... It will only help the gun control movement.”
Stephen Stamboulieh, a lawyer with Gun Owners of America, said Reeves ruled that using history as a guide could result in conflicting interpretations of the Constitution depending on who the historians are.
Bruen Could Muddy Waters
He wrote that the Bruen test could further muddy the waters with confusing and conflicting versions of history in future gun cases.“The open question is whether the judiciary will incorporate that new research into its conclusions the next time the issue is litigated,” he stated in Brown.
Stamboulieh disagrees. He pointed out that the Second Amendment’s authors had just won their freedom using the most current firearms available.
“The analysis starts with the ratification of the Second Amendment and whether the founders wanted [fully-automatic firearms],” Stamboulieh told The Epoch Times. “Or would the founders have said: ‘No, you can’t have this. It’s too dangerous.’”
