Sheepdog Academy’s alumni already know that H.R. 218-LEOSA, 18 U.S.C. §§ 926B, 926C does not apply to machine guns, silencers, or destructive devices. For those who have not made it to one of our seminars or webinars and expected to argue that the Second Amendment to the United States Constitution protects and individual right to own or carry automatic firearms, be advised that four U.S. Circuit Courts have now held otherwise.
The Ninth Circuit Court of Appeals recently held in U.S. v. Mathew Henry that “machine guns” are “dangerous and unusual weapons” within the meaning of the Heller decision and therefore not included within the protections of the Second Amendment. Henry, a resident of Alaska, was prosecuted for illegal possession of a “machine gun” within his home. The firearm was a .308 caliber semi-auto rifle which Henry converted into an automatic rifle. Agents from the ATF found conversion instructions, kits, and parts within Henry’s home.
The Ninth Circuit looked to Heller and noted that the High Court stated that the Second Amendment only protects the right to own certain weapons, and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 625. The Heller Court also concluded that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ” limits the right to keep and carry arms. Id. at 627.
The Ninth Circuited acknowledged that Heller did not specify that machine guns were excluded, but relied upon decisions in other circuits for that support, citing United States v. Allen, 630 F.3d 762, 766 (8th Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010). cert. denied, 131 S. Ct. 958 (2011); Hamblen v. United States, 591 F.3d 471, 472, 474 (6th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008), cert. denied, 555 U.S. 1174 (2009).
The Henry Court reasoned that a machine gun is “unusual” because private possession of all new machine guns, as well as all existing machine guns that were not lawfully possessed before the enactment of § 922(o), has been unlawful since 1986. You can read the decision at
