The United States Court of Appeals for the Sixth Circuit ruled that machineguns are protected by the Second Amendment, but said a ban on the category of firearms passes Constitutional muster.

The case involves a man named Jaquan Bridges, 22, who is accused of having an unregistered machinegun. Mr. Bridges was driving on a Memphis, Tennessee highway when he nearly hit a police car. When police tried to stop the man, he fled the scene. When police caught up to the fleeing man, he fired shots at the police officers responding. Law enforcement officers were able to apprehend Bridges. Police then recovered a .40 caliber Glock pistol equipped with what is colloquially known as a “Glock switch” or just as a “switch” from the man.

A Glock switch replaces the backplate of a Glock semi-automatic handgun. The device has a switch that, when engaged, converts the pistol into a machinegun. A switch is considered a machinegun conversion device (MCD). According to federal statute, any device that converts a firearm into a machinegun is itself considered to be a machinegun. Glock switches are available on Chinese websites that are out of the reach of U.S. law enforcement officials. Criminal entrepreneurs have started importing the items for resale on the intercity streets.

According to the National Firearms Act of 1934 (NFA), a machinegun must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) through the long and complicated registration process and a tax stamp of $200 must be paid.

In 1986, the Firearms Owners Protection Act (FOPA) was passed by Congress and signed into law by President Ronald Reagan, which included what is known as the Hughes Amendment. This amendment to the bill closed the ATF’s machinegun registry for privately held machineguns. The only machineguns allowed to be transferred now are those that were manufactured before April 1986.

Mr. Bridges was charged on the state level with fleeing and firing his gun at law enforcement officers. The NFA violations were charged at the federal level and in a Tennessee Federal District Criminal Court. Bridges’s public defender argued that the Hughes Amendment violated the Second Amendment of the U.S. Constitution.

According to the Supreme Court in Madison v. Mulberry, if a law is unconstitutional, then a person is not required to comply with it. The judge was unmoved by the defense’s argument.

After losing at the District Court level, the public defender appealed to the Sixth Circuit Court of Appeals in Ohio. The case was assigned to a three-judge panel made up of Republican appointees. The defense lawyer again argued that the law was unconstitutional because machineguns were protected by the Second Amendment, referencing several Supreme Court cases, such as Bruen and Miller.

In Miller, the Supreme Court said that short-barreled shotguns (SBS) and short-barreled rifles could be banned because they serve no military purposes. SCOTUS said the Second Amendment was meant to protect military style weapons. The public defender argued that since the military uses machineguns, they cannot be banned. The judges rejected the argument and pointed out that if Miller said that only military arms are protected, it would be dangerous because it could lead to the banning of many currently legal firearm types not used by the U.S. Military.

The judges next moved on to the Bruen argument. The Bruen test has two steps. The first is to see if the plain text of the Second Amendment protects the conduct at issue. Mr. Bridges is an American adult over the age of 18, making him, in the eyes of the Court, a part of “people” referenced in the Second Amendment.

The Sixth Circuit judges said that machineguns are bearable arms, and to them, that means that Bruen’s first step was satisfied. In the second step, the burden then falls to the state to provide historical analogues to show a law is consistent with the nation’s history and tradition of firearms regulations from the country’s founding era, which most believe is the ratification date of the Second Amendment in 1791.

According to the Supreme Court’s Rahimi case, a presented analogue does not have to be a “dead ringer” for a current law, but it does have to be similar. The government failed this step as well, but the judges referenced another Supreme Court case. That case was Heller.

Although Heller was monumental for Second Amendment rights, it came with a big caveat from Associate Justice Anton Scalia. Scalia wrote that an arm can be banned if it is dangerous and unusual. The Sixth Circuit panel said that this statement is not at odds with Bruen. The latter case affirmed the earlier case.

“Now consider Bruen,” the Court wrote. “It did not call Heller into question; to the contrary, Bruen was an unqualified endorsement of Heller. When Bruen articulated its text-and-history test, it stated that it was making Heller’s standard ‘more explicit’ that the test was ‘[i]n keeping with Heller,’ and that this test was the same one ‘set forth in Heller.’ In other words, Bruen did not assert that Heller fell short of its articulated test; rather, Bruen stated that ‘Heller itself exemplifies this kind of straightforward historical inquiry.’”

The defense argued that machineguns are in common use and presented numbers showing over 740,000 machineguns are currently in circulation and registered with the ATF. If an arm is in common use by the people, it cannot be banned. The Court rejected the given number. The Court reasoned that a lot of the machineguns referenced by the defense were in the hands of law enforcement SWAT teams. They stated they believe the number is more likely just under 200,000. They noted that machineguns only account for a small percentage of firearms in circulation in the country today. Because, according to the courts, firearms are inherently dangerous and machineguns only make up a small percentage of firearms in the country, they can be considered “dangerous and unusual,” and therefore could be banned.

The Circuit Court upheld the lower Court’s decision. Although the Court said that machineguns can be banned, this is the first time an appeals court ruled that machineguns are protected arms. The defense can ask for an en banc hearing, meaning that the full bench will hear the case, vacating the panel’s decision. The defense can also directly appeal to SCOTUS, but neither is a guarantee that the High Court will take it.

However, this ruling does create an interesting circuit split. Other courts have considered firearms such as the AR-15 not protected under the Second Amendment.

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About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.