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Militias, Muskets, and Machine Guns? the Third Circuit Furthers Inapplicability of Second Amendment Protection to Machine Gun Possession in United States V

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Militias, Muskets, and Machine Guns? the Third Circuit Furthers Inapplicability of Second Amendment Protection to Machine Gun Possession in United States V Volume 62 Issue 3 Article 1 9-1-2017 Militias, Muskets, and Machine Guns? The Third Circuit Furthers Inapplicability of Second Amendment Protection to Machine Gun Possession in United States v. One Palmetto State Armory Peter J. Adonizio Jr. Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Second Amendment Commons Recommended Citation Peter J. Adonizio Jr., Militias, Muskets, and Machine Guns? The Third Circuit Furthers Inapplicability of Second Amendment Protection to Machine Gun Possession in United States v. One Palmetto State Armory, 62 Vill. L. Rev. 483 (2017). Available at: https://digitalcommons.law.villanova.edu/vlr/vol62/iss3/1 This Issues in the Third Circuit is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Adonizio: Militias, Muskets, and Machine Guns? The Third Circuit Furthers I VILLANOVA LAW REVIEW VOLUME 62 2017 NUMBER 3 Third Circuit Review MILITIAS, MUSKETS, AND MACHINE GUNS? THE THIRD CIRCUIT FURTHERS INAPPLICABILITY OF SECOND AMENDMENT PROTECTION TO MACHINE GUN POSSESSION IN UNITED STATES v. ONE PALMETTO STATE ARMORY PETER J. ADONIZIO, JR.* “[W]e repeat today that the Second Amendment does not protect the possession of machine guns. They are not in common use for lawful purposes.”1 I. BOOT CAMP: AN INTRODUCTION TO THE SECOND AMENDMENT’S TREATMENT OF MACHINE GUNS The Second Amendment to the Constitution of the United States be- stows upon Americans the right to “bear arms.”2 The purpose and extent of this right has been extensively debated in courts of law since roughly a century after the amendment’s inception.3 Much of the dispute over the * J.D. Candidate, 2018, Villanova University Charles Widger School of Law; B.B.A., 2013, Temple University. I would like to thank my family and friends for their endless support and encouragement, especially my parents, P.J. and Alicia Adonizio, my brother Joseph P. Adonizio, and Maria LoBrutto. I would also like to thank the editors of the VILLANOVA LAW REVIEW for their feedback and input in writing this Casebrief. 1. See United States v. One Palmetto State Armory, 822 F.3d 136, 142 (3d Cir. 2016) (reiterating Third Circuit and Supreme Court precedent that machine gun possession is not protected by Second Amendment). 2. See U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). 3. See, e.g., Michael P. O’Shea, The Right to Defensive Arms After District of Co- lumbia v. Heller, 111 W. VA. L. REV. 349, 350–51 (2009) (listing possible purposes of Second Amendment such as deterring government tyrants, protecting against foreign invasion or internal disorder, promoting military readiness, hunting, shooting sports, and self-defense against criminal violence); see Caetano v. Massa- chusetts, 136 S. Ct. 1027, 1032–33 (2016) (asserting that Second Amendment pro- tects possession of bearable arms not in existence at time of enactment); McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (holding that Fourteenth (483) Published by Villanova University Charles Widger School of Law Digital Repository, 2017 1 Villanova Law Review, Vol. 62, Iss. 3 [2017], Art. 1 484 VILLANOVA LAW REVIEW [Vol. 62: p. 483 Second Amendment has focused on whether the right to bear arms ap- plies individually, to citizens in everyday life, or collectively and only in the militia context.4 The Supreme Court settled this question in District of Co- lumbia v. Heller5 when it held that the right to bear arms is bestowed upon all citizens individually, rather than collectively to militias.6 In Heller, however, the Supreme Court also acknowledged that Sec- ond Amendment rights are not unlimited and can be restricted by some state and federal statutes.7 One such statute is the Gun Control Act of 1968, as amended in 1986, which makes it “unlawful for any person to transfer or possess a machinegun.”8 The combination of Heller and the Amendment Due Process Clause incorporates Second Amendment rights against state governments); District of Columbia v. Heller, 554 U.S. 570, 594 (2008) (con- cluding that Second Amendment gives individuals right to bear arms for tradition- ally lawful purposes other than militia service); United States v. Miller, 307 U.S. 174, 178 (1939) (declaring purpose of Second Amendment was to allow Congress to “call forth” militias and holding that Second Amendment must be interpreted in light of that purpose); Presser v. Illinois, 116 U.S. 252, 585–86 (1886) (recogniz- ing individual right to bear arms while upholding state law prohibiting privately formed military organizations); United States v. Cruikshank, 92 U.S. 542, 556 (1875) (asserting that Second Amendment only limits powers of federal govern- ment, not states). 4. See Kyle Hatt, Gun-Shy Originalism: The Second Amendment’s Original Purpose in District of Columbia v. Heller, 44 SUFFOLK U. L. REV. 505, 505 (2011) (declaring that Supreme Court had now “settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institu- tions”). Compare Heller, 554 U.S. at 594 (asserting that right to bear arms is an individual right unrelated to militia service), and Presser, 116 U.S. at 265 (declaring that states cannot prohibit individuals from bearing arms), with Miller, 307 U.S. at 178 (determining that Second Amendment right was meant to ensure continua- tion and effectiveness of militias). 5. 554 U.S. 570 (2008). 6. See id. at 594 (holding that individual right to bear arms is protected by Second Amendment). 7. See id. at 595 (“Of course the [Second Amendment] right was not unlim- ited, just as the First Amendment’s right of free speech was not.” (citing United States v. Williams, 553 U.S. 285 (2008))). The Supreme Court acknowledged tradi- tional limitations of the Second Amendment, such as prohibitions of firearm pos- session “by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” See id. at 626–27 (describing accepted limitations of Second Amendment firearm possession). 8. See 18 U.S.C. § 922(o) (2012) (“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.”). The Gun Control Act of 1968 did not independently define “machine gun,” but cites and uses the IRS definition in its National Firearms Act. See id.; see also I.R.C. § 5845(b) (2012) (“The term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual re- loading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclu- https://digitalcommons.law.villanova.edu/vlr/vol62/iss3/1 2 Adonizio: Militias, Muskets, and Machine Guns? The Third Circuit Furthers I 2017] CASEBRIEF 485 Gun Control Act creates an issue of whether a citizen’s Second Amend- ment right to bear arms preempts the Act’s federal ban on machine gun possession.9 The Supreme Court alluded to this issue in Heller by reaffirming “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”10 In 2010, the Third Circuit heard a closely related issue in United States v. Marzzarella11 and held that “weapons not typically possessed by law-abiding citizens for lawful purposes” are not protected by an indi- sively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”). In 1986, the Gun Control Act was amended by the Firearm Owners Protection Act of 1986. See National Firearms Act, BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, https://www.atf.gov/rules-and-regulations/na- tional-firearms-act [https://perma.cc/D8QM-VUWS] (last visited Feb. 15, 2017). The 1986 amendment contains the specific machine gun prohibition at issue in the cases in this Casebrief. See id. (explaining provisions of Firearm Owners Pro- tection Act of 1986). The amendment bans all machine guns except those pos- sessed by government agencies, or those legally possessed by individuals prior to May 19, 1986. See id. 9. See, e.g., United States v. Fincher, 538 F.3d 868, 870 (8th Cir. 2008) (consid- ering whether machine gun prohibition under Gun Control Act violated Second Amendment), cert. denied, 555 U.S. 1174 (2009); see Hollis v. Lynch, 827 F.3d 436, 439 (5th Cir. 2016) (same); United States v. One Palmetto State Armory, 822 F.3d 136, 138 (3d Cir. 2016) (same); United States v. Henry, 688 F.3d 637, 638 (9th Cir. 2012) (same); Hamblen v. United States, 591 F.3d 471, 472 (6th Cir. 2009) (same); see also Friedman v. City of Highland Park, 784 F.3d 406, 407–08 (7th Cir.
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