So, it’s come to this. We have a federal judge who has enough integrity to look at the 2nd Amendment, even diluted by Bruen, and conclude that a law prohibiting the mere possession of a machine gun is unconstitutional on its face.
Awesome!
But the Trump administration is now asking for this decision to be reversed. That is, it is the position of the Trump administration that machine guns are not the kind of ‘arms’ that are protected by the 2nd Amendment.
And what is the reasoning behind this position? It’s that machine guns are not ‘in common use’.
To break that down a little:
- For almost a century, the federal government has made it nearly impossible to own machine guns.
- Consequently, not very many people own machine guns!
- Therefore, says the Trump DOJ, machine guns do not pass the ‘in common use’ test articulated in Bruen.
- Thus, they are not protected by the 2nd Amendment.
Actually, this ‘reasoning’ is remarkably similar that used by Justice Kavanaugh’s in his dissent in the second Heller case:
https://granitegrok.com/blog/2018/07/why-judges-shouldnt-be-lawyers
Now, it’s possible that this somehow slipped under Pam Bondi’s radar, and was handled independently by a holdover from a previous administration.
But if the Trump administration maintains this position for more than, say, the next 24 hours, it is a big red flag — and yet another reminder of why, if any kind of arms are protected by the 2nd Amendment, it would be those arms that would be most effective in fighting a government that has flipped the script from protecting rights to undermining them.
And machine guns are at the top of that list.
