From Third Circuit Judge Stephanos Bibas, joined by Judges Felipe Restrepo and Cindy Chung, in yesterday's U.S. v. Berger:
Gun bans are strong medicine. But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold….
The Second Amendment is not boundless…. he Second Amendment protects weapons commonly used for self-defense and other legal purposes. Conversely, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." This traditional principle "accords with the historical understanding of the scope of the right." To support the common-use principle, Heller relied on "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" …
Machine guns are not in common use for lawful purposes. That means they are dangerous and unusual. They are indiscriminate weapons of war and crime, not self-defense ones. And because they can cause unusual amounts of damage, they are used mostly for criminal purposes….
Machine guns are not well-suited for lawful purposes. To be sure, they are excellent weapons of war…. Modern machine guns can fire more than 1,000 rounds in one minute, killing dozens of enemies in seconds.
But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage. The U.S. Army thus trains soldiers to use them only when "the need for precise fires, although desired, is not as important. Automatic or burst fires drastically decrease the probability of hit due to the rapid succession of recoil impulses and the inability of the Soldier to maintain proper sight alignment and sight picture on the target." …
To recap, at Bruen's second step, the government must prove that machine-gun restrictions fit with our Nation's regulatory tradition. It does not need a "historical twin," but only a "well-established and representative historical analogue." This means that a modern gun regulation must be "'relevantly similar' to [Founding-era gun regulations] in both why and how it burdens the Second Amendment right." So we look to "the principles underlying the Second Amendment" and "our regulatory tradition."
But we do not write on a blank slate. The Supreme Court has already done the work of distilling the key principle from history, noting "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Thus, rather than overruling its precedent in U.S. v. Miller (1939), Heller confirmed it "to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes."
Machine guns are commonly used for crime or war, not for lawful civilian purposes. As noted, criminals loved the Tommygun. But law-abiding citizens hated it. Regulators took note. Between 1925 and 1934, at least twenty-nine states, plus Congress (for the District of Columbia), banned possession of machine guns. (We note these laws not as evidence of a tradition of banning automatic weapons, since "the primary time period for the analogical inquiry is the Founding era," but rather to show the rapid consensus that these new weapons were, and are, dangerous.)
In short, weapons that were particularly dangerous to others and commonly associated only with crime could be outlawed. The machine gun fits into that small category. Plus, the Supreme Court has treated owning machine guns as more suspect than owning semi-automatic weapons….
The court also upheld the requirement that silencers be registered:
In Bruen [as in Heller], the Supreme Court … distinguished infringements from making gun buyers or sellers jump through minimal, generally applicable, objective hoops. "To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of … 'shall-issue' licensing regimes," including required "background check[s] or … firearms safety course[s]," which "do not necessarily prevent 'law-abiding, responsible citizens' from exercising their Second Amendment right." Such licensing regimes, which contain only "narrow, objective, and definite standards," are presumptively constitutional, though they may be challenged if "lengthy wait times … or exorbitant fees deny ordinary citizens their right to public carry." In short, the Court has repeatedly endorsed shall-issue permitting rules.
The best way to understand the Court's presumptive endorsement of these rules is at Bruen's step one, as a reading of the Second Amendment's text…. A regulation "infringe[s]" the Second Amendment right only if it destroys or illegitimately restricts the right. See Daniel D. Slate, Infringed, 3 J. Am. Const. Hist. 381, 396–441 (2025) (canvassing legal and political usage from the Magna Carta through the early nineteenth century). One can infringe a right by "violat[ing]," "break[ing]," "destroy[ing]," "hinder[ing]," "intrud[ing], or invad[ing]" it. 1 Samuel Johnson, Infringe, in A Dictionary of the English Language (4th ed. 1773); Daniel Bellamy, Infringe, in A New, Complete, and Universal English Dictionary (4th ed. 1764)….
Early American case law tracks this distinction between infringements and incidental burdens. For instance, Kentucky's highest court explained that even though citizens retain their natural "right of defence" under the social contract, "society may curtail this right, and no doubt does restrain its exercise in many important particulars." And the Arkansas Supreme Court held that "the right to keep and bear arms" is not infringed by some "legal control or regulation" for "the general interests of the community." True, one state court did at first "void" all laws "which diminish or impair" the right to keep and bear arms, but that "outlier decision" "was universally condemned."
In short, minimal, objective regulations that are part of the process of buying and selling guns do not infringe. They comport with the "normal … rule" allowing "incidental burden[s]" on constitutional rights. Because minimal, objective buying-and-selling regulations are not infringements, they are outside the scope of the Second Amendment.
The silencer-registration requirement imposes only an incidental burden. Registering a silencer under the National Firearms Act is an "objective and definite" process "designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens." Berger made some of the silencers at home and bought others. So he had to submit an application with his personal information, fingerprints, photograph, and description of the silencer. He had to notify the chief law enforcement officer in his area and pay a (then) $200 tax for each silencer. Berger also had to register his silencers and mark them with serial numbers.
These clear, narrow standards ensure that only law-abiding citizens own silencers. The applications "shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law." They do not give the government discretion or erect real barriers to owning silencers. In sum, the Act sets up a "shall-issue" regime just like the ones Bruen blessed….
Heller's presumption of constitutionality can be overcome, but Berger has not overcome it. He offers no evidence that the Act imposes anything other than "narrow, objective, and definite standards" in a "shall-issue licensing regime[ ]." We see no evidence of "lengthy wait times" or subjective "proper-cause standards." Nor has Berger argued that the $200 tax was "exorbitant" or functionally denied him the right to buy and keep silencers. So the silencer-registration requirement is constitutional as applied….
The Second Amendment—like every other constitutional right—has limits. Machine guns are commonly used for crime, not self-defense. So they can be banned. And reasonable registration requirements are not infringements. We will thus affirm Berger's conviction and sentence.
Note that Judge Bibas has written important opinions reading the Second Amendment broadly, see Frein v. Pennsylvania State Police (3d Cir. 2022), and Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y Gen. (3d Cir. 2018) (dissenting), and he's joined other such opinions. But indeed the precedent (and American history and tradition more broadly) takes the view that the Second Amendment right is not unlimited, as does Judge Bibas's opinion here.
Robert A. Zauzmer and Anthony J. Carissimi represent the government.
