Despite taking aim at a number of state and local gun control laws and policies, the Department of Justice continues to defend the vast majority of federal gun laws, including the National Firearms Act and its restrictions on suppressors, short-barreled firearms, and machine guns.
The DOJ's latest defense of that last item came on Tuesday, as the Eleventh Circuit Court of Appeals heard oral arguments in a case involving a Florida man convicted for illegally possessing a machine gun. More specifically, a machine gun conversion device that illegally converts a semi-automatic pistol into a fully automatic machine gun.
“Now, I imagine that most folks hear machine gun and clutch their pearls,” Ta’Ronce Stowes, a federal public defender representing Maxon Alsenat, told a three-judge panel. “But let me be clear, what we’re talking about here is a machine gun conversion device or MCD. A MCD is typically no bigger than the tip of your thumb. MCDs make small arms more useful for elderly householders and others who are too frightened to draw a careful bead on an intruder.”
Alsenat’s conviction stems from selling three machine gun conversion devices to an undercover agent for $1,500 in June 2023. Alsenat pleaded guilty to possessing a machine gun, a violation of federal statute 18 U.SC. 992(o)(1). The 29-year-old was sentenced to two years in prison and is currently free on a three-year probation.
Stowes argued the machine gun conversion device was similar to a silencer and “isn’t necessary to enable a firearm to function.”
“We’re talking about a machine gun conversion device that isn’t going to be attached to another machine gun,” Stowes said. “It’s going to be attached to a semiautomatic firearm.”
I have great respect for public defenders, who are an integral part of our justice system and are often overworked and underpaid. Having said that, the argument Stowes used to defend his client is not the one I would have made.
It doesn't matter how big a machine gun conversion device is, or even how useful it might be for senior citizens and frightened homeowners who might want to pray and spray rounds at an intruder. In order for these items to be protected by the Second Amendment, Stowes needed to convince the panel of judges that machine guns are not "dangerous and unusual", but are actually in common use for lawful purposes.
That is a decidedly difficult argument to make, as both the panel and DOJ attorney pointed out.
Assistant U.S. Attorney Justin Silverberg, representing the federal government, argued the appellate court only needs to look at the landmark 2008 Supreme Court decision in District of Columbia v. Heller, which found a ban on the possession of handguns unconstitutional but allowed for the prohibition of “dangerous and unusual” firearms.
“Yes, of course, a firearm is dangerous,” Silverberg said. “The government’s not going to contend that they’re not. However, there’s also an unusual element that Heller read into this area of law and the unusual part goes to two various things.
“It goes to who’s using the weapon and what are they used for,” he continued, describing how machine guns reached the streets of the United States after World War I. “These were never used by lawfully abiding citizens for self-defense. These have always been, throughout their history, used by criminals to further criminal enterprises.”
That's an interesting argument, given that most of us would characterize "unusual" as a synonym for "uncommon." But with more than 700,000 registered machine guns in the U.S., the DOJ can't really argue that these arms are all that rare, especially when courts have suggested that devices like stun guns are in common use even though they're fewer in number than automatic weapons.
In response, Stowes brought up the fact that the DOJ is currently challenging bans on semi-automatic firearms like the AR-15, contending that they're much the same thing.
“I say that’s ironic because the complaint here is that a machine gun can spray thousands of bullets and harm a bunch of innocent people at one time,” Stowes said. “Well, if you take an AR-15 with a large-capacity magazine that’s protected by the Second Amendment, and you take one of these legal bump stocks and put it on there, you achieve the same result.”
... Chief U.S. Circuit Judge William Pryor was not convinced.
“But the problem for you is that Heller spoke very directly to machine guns,” said the George W. Bush appointee. “And not only did it say that there is an historical tradition of regulating dangerous and unusual weapons, not only did it say it would be startling to conclude that restrictions on machine guns might be unconstitutional, but it also said weapons that are most useful in military service, M16 rifles and the like, may be banned.”
That, I think, is the biggest hurdle to undoing the NFA restrictions on machine guns, as well as being the most frustrating part of the Heller decision. It also appears to conflict with what SCOTUS said in the Miller case in 1939, when it ruled that there is no right to possess a sawed-off shotgun because it has no "reasonable relationship to a well-regulated militia."
The late Antonin Scalia tried to square that circle in Heller, though whether or not he was able to do is a matter of opinion.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.
Again, this suggests that "unusual" is the opposite of "in common use", which brings us back to a numbers game that the DOJ doesn't really want to play. Or at least it would, if not for Scalia's comment that weapons that are most useful in military service can be banned.
To be fair to Stowes, I'm not sure that there is an argument in favor of legalizing machine gun conversion devices that would be acceptable to the Eleventh Circuit (or the Supreme Court). Even the recent lawsuit challenging the NFA filed by the NRA, FPC, SAF, and the American Suppressor Association seeks to undo the NFAs restrictions on short-barreled firearms and suppressors without explicitly targeting machine guns.
Realistically, undoing the restrictions on machine guns is a legal bridge too far at this moment in time, and while I'm sure Stowes gave his best effort in defense of his client, I fully expect the Eleventh Circuit to uphold Alsenat's conviction.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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