Today, a coalition of civil rights advocacy groups, including the Second Amendment Law Center, California Rifle & Pistol Association, and Second Amendment Foundation filed an amicus brief in a unique criminal case: US v. Kittson. The Kittson case involves an individual who is criminally charged with violating 18 U.S.C. § 922(o), which prohibits the possession or transfer of an unregistered fully-automatic firearm. The United States District Court in Oregon upheld the ban despite Mr. Kittson’s Second Amendment arguments, and now he is appealing to the Ninth Circuit Court of Appeal. Read our brief here.
The district court ruling caught our attention not so much because of the result. It isn’t surprising that, given the way some courts are misconstruing the Supreme Court’s ruling in NYSRPA v. Bruen, certain courts are not yet ready to overturn machine gun bans. But the district court’s refusal to properly apply Bruen’s methodology and the historical tradition analysis is particularly troubling. In the district court’s ruling, the same federal judge who upheld Oregon’s new magazine capacity law ruled that machine guns are not “arms” covered under the Second Amendment’s plain text, and that prior Ninth Circuit caselaw precedent is still good law even after Bruen contradicted it. The judge improperly skipped the historical tradition analysis that Bruen requires entirely.
Our amicus brief focuses on why and how the district court failed to apply the methodology mandated by the Bruen decision correctly. First, we point out that machine guns are undoubtedly bearable “arms” that are covered under the Second Amendment, so the Bruen historical tradition analysis must be conducted. And we advised the Ninth Circuit of the proper contours of that historical tradition analysis to be used should it decide to remand the case back to the district court. We contend that the Ninth Circuit should order the district court to analyze whether machine guns are “dangerous and unusual” weapons. If they are not, they cannot be banned. We ask that the Ninth Circuit also inform the district court that any arm merely being used by the military, without more, is not sufficient reason to ban it. Even if the machine gun ban is ultimately upheld, it deserves the benefit of a full historical tradition analysis first.
District courts should not be allowed to get away with ignoring what the Supreme Court’s Bruen decision demands. The analytical legal process matters, and these abuses will continue to be copied in other cases if they are not corrected.
While 2ALC’s main focus is on the civil Second Amendment cases that we litigate on behalf of all law-abiding gun owners, last week’s excellent decision in US v. Duarte, holding that the law disarming non-violent felons is unconstitutional, was a reminder to us that a lot of Second Amendment case law and legal precedent will also be made in criminal matters, where overworked public defenders can benefit from our expertise. So, the Second Amendment Law Center will both continue to monitor criminal matters for amicus brief opportunities.
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