New Decision on the Second Amendment, Machine Guns, and Trusts

The 3rd Circuit has just issued a decision upholding the exclusion of certain weapons from the protection of the Second Amendment. In the decision, the Court held that the same laws governing an individual’s possession and manufacture of firearms also apply to trusts. We asked Edwin Walker, an attorney at the law firm of Walker & Byington in Houston and a Texas Law Shield Independent Program Attorney, to break down what this decision means.

What happened?

In 2014, Pennsylvania resident, Ryan Watson, filled out an application on behalf of a trust to make and register an M-16-style machinegun with the ATF. Despite a federal law prohibiting any individual from manufacturing or possessing a machinegun after 1986, the ATF inadvertently approved his application. Afterwards, Ryan Watson had his machinegun manufactured. A month after that, he received a call from the ATF saying that his application had been “disapproved.”

Ryan Watson sued the ATF, claiming that the ATF had violated his Second Amendment rights. He argued that:

  • The federal law prohibiting the possession of a machinegun is unconstitutional under the Second Amendment, both by itself and as applied to him specifically, and
  • That even if the law is constitutional, it doesn’t apply to a trust because a trust isn’t a person.

How did the court rule?

The court ruled that the law is constitutional because the Second Amendment does not protect the possession of machineguns. The court also ruled that trustees (and their trusts) are not exempt from this law.

Why did they rule that way? Why isn’t the law unconstitutional?

In its decision, the 3rd Circuit court relied heavily on a 2008 Supreme Court case called District of Columbia v. Heller. In Heller, the Supreme Court ruled that the Second Amendment extends only to certain kinds of weapons such as those “in common use.” This is a concept that started in United States v. Miller, which was the first case to challenge the constitutionality of the NFA! The 3rd Circuit, Heller Court, and Miller Court all held that the Second Amendment excludes “those weapons not typically possessed by law-abiding citizens for lawful purposes,” such as machineguns.

The Supreme Court then adopted a 2-part approach to analyzing whether a law is constitutional under the Second Amendment. The Court asks:

  1. Does the challenged law impose a burden on conduct protected by the Second Amendment? If the answer is yes, the court then asks-
  2. Is the law the least restrictive way to achieve a constitutional end?

The federal circuit Pennsylvania sits in, the 3rd Circuit, first applied this approach in a case called United States v. Marzzarella and then applied this approach again in the case at hand. Using the Supreme Court’s analysis, the Court decided that the challenged law does not impose a burden on conduct protected by the Second Amendment because possessing a machinegun is not conduct protected by the Second Amendment. Why? Because machineguns are not in “common use for lawful purposes” and because they are “not typically possessed by law-abiding citizens for lawful purposes.” Therefore, they do not fall under the protection of the Second Amendment.

The 3rd Circuit isn’t alone in this approach. The 6th Circuit, 7th Circuit, 8th Circuit, and D.C. Circuit have all come to similar conclusions.

Why does the law apply to a trust? I thought this law only applied to people!

The law in question, 18 U.S.C. § 922(o) makes it “unlawful for any person to transfer or possess a machinegun.” The Gun Control Act defines a “person” as “any individual, company, association, firm, partnership, society, or joint stock company.” 18 U.S.C. § 922(a)(1).

Since a trust isn’t listed in the definition, wouldn’t that mean that the law doesn’t apply to a trust? Not necessarily. A trust can’t take legal action on its own, so a trustee must take legal action on behalf of the trust. The court held that because a trustee must always take action on behalf of a trust, the same rules that apply to persons apply to trusts.

The Court points out that this rule is consistent with the intent of the law. If you didn’t count a trustee acting through a trust as a “person” then people traditionally prohibited from possessing firearms (like convicted felons) could set up trusts and possess all the firearms they wanted.

With this case, the 3rd Circuit joins four other Circuits in upholding the principle that certain types of weapons (in this case, machineguns) are not protected by the Second Amendment. The 5th Circuit, which includes Texas, hasn’t issued a decision on this topic.

Do you think the Court came to the right conclusion, or do you think that the Second Amendment should apply to all weapons?