The Third Circuit ruled that machine guns are protected “Arms,” then upheld the federal ban anyway. Its treatment of suppressor registration may be even more dangerous for gun owners.
The U.S. Court of Appeals for the Third Circuit handed the federal government two victories Monday, upholding Joseph Paul Berger’s convictions for possessing machine guns and unregistered suppressors.
The machine gun ruling in United States v. Berger is bad enough. The court acknowledged that machine guns fall within the Second Amendment’s plain text, only to uphold the federal ban by declaring them unsuitable for lawful civilian use.
The court’s suppressor analysis could reach much further. A two-judge majority held that registration requirements judges consider “minimal” do not infringe the Second Amendment at all. Under that reasoning, the government can escape the historical test required by N.Y. State Rifle & Pistol Association v. Bruen merely by convincing a court that its registration scheme is not burdensome enough to count.
Federal Agents Found Machine Guns and Suppressors
Berger is a decorated Navy veteran living in Bethlehem, Pennsylvania. According to the September 1 opinion, federal agents began investigating after intercepting a package containing three suppressors shipped from China to Berger’s home.
A subsequent search uncovered more than five dozen firearms, including 13 fully automatic firearms—mostly AK-pattern variants—and approximately 12 suppressors. Agents also found evidence that Berger and his father had purchased parts used to convert semiautomatic firearms into machine guns.
Berger pleaded guilty to possessing a machine gun under 18 U.S.C. § 922(o) and possessing an unregistered suppressor under the National Firearms Act. His plea agreement preserved his right to appeal the rejection of his Second Amendment challenge.
Writing for the court, Judge Stephanos Bibas opened with a remarkable endorsement of gun bans:
“Gun bans are strong medicine. But occasionally, they are just what the doctor ordered.”
That is not constitutional analysis. It is a federal judge announcing that some arms may be banned whenever the government considers them too dangerous for ordinary people to possess.
Third Circuit Admits Machine Guns Are “Arms”
The court first made an important concession: machine guns are unquestionably covered by the Second Amendment’s text.
“At step one, machine guns are firearms, so they are ‘Arms’ protected by the text of the Second Amendment.”
That should have placed the burden squarely on the government to prove that banning an entire category of bearable arms is consistent with the Nation’s historical tradition of firearm regulation.
Instead, the court leaned on Heller’s discussion of “dangerous and unusual weapons” and concluded that machine guns are not commonly used for lawful purposes. It described them as “indiscriminate weapons of war and crime, not self-defense ones” and asserted that their rate of fire makes them unsuitable for personal protection.
The opinion relies heavily on twentieth-century material, including congressional reports, testimony concerning criminal use of Thompson submachine guns, and laws enacted by at least 29 states between 1925 and 1934. The panel admitted that those statutes were not Founding-era analogues, using them instead to show a supposed “rapid consensus” that automatic weapons were dangerous.
The court never seriously confronts the government-created scarcity problem.
Congress closed the registry to newly manufactured civilian machine guns through the Hughes Amendment in 1986. The government now prohibits ordinary Americans from acquiring newly manufactured machine guns, restricts the available supply to grandfathered firearms, drives prices into the tens of thousands of dollars, and then points to the resulting lack of widespread ownership as proof that these arms are “unusual.”
As AmmoLand recently explained, the government should not be permitted to manufacture its own constitutional justification. If the government can suppress ownership long enough and then use that suppression to defeat the right, “common use” becomes a ratchet that works only against gun owners.
Court Calls the NFA a Shall-Issue System
The majority’s treatment of suppressors is potentially more consequential. The parties agreed that suppressors are “Arms,” but the majority declined to decide that question. Instead, Judges Bibas and Restrepo held that the NFA registration process did not infringe the Second Amendment because it imposed only an incidental burden.
At the time relevant to Berger’s prosecution, that process required applicants to provide personal information, fingerprints, a photograph, identifying information about the suppressor, local law-enforcement notification, registration and serialization. It also required payment of a $200 tax for each suppressor.
The court brushed that aside as an ordinary shall-issue licensing system.
“Because minimal, objective buying-and-selling regulations are not infringements, they are outside the scope of the Second Amendment.”
That is the most dangerous sentence in the opinion.
Bruen says that when the Second Amendment’s text covers a person’s conduct, the government must prove that its restriction is consistent with the Nation’s historical tradition. The Third Circuit has now created a way around that command: call a registration system “minimal,” decide it does not amount to an infringement, and stop before forcing the government to produce any historical analogue.
A federal registry connecting particular firearms to particular owners is not the same thing as confirming that a buyer is not legally prohibited from possessing a firearm. Registration is designed to identify and track the gun itself. It also carries felony consequences for anyone who possesses an unregistered item.
The Second Amendment does not contain an exception for infringements that federal judges consider convenient, objective or sufficiently inexpensive.
Judge Chung Refuses to Join the Majority’s Reasoning
Although Judge Cindy Chung joined the judgment affirming Berger’s conviction, she expressly refused to join the majority’s suppressor-registration analysis.
Chung noted that the government had not argued that registration failed to “infringe” the Second Amendment. The government instead defended the law under Bruen’s history-and-tradition inquiry.
She also warned that the majority’s new test may conflict with Supreme Court precedent:
“Judge Chung would consider the parties’ and amici’s views, as she perceives some tension between this approach and the Supreme Court’s rejection of means-end scrutiny and interest balancing.”
Chung reached the same result through a different path, concluding that a suppressor is an accessory unnecessary for a firearm to function as intended and therefore falls outside the Second Amendment’s protection.
That accessory theory is also deeply flawed. Suppressors reduce muzzle blast and protect shooters’ hearing. Dismissing a functional part of a firearm as an unprotected “accessory” gives courts another way to strip constitutional protection from magazines, triggers, sights and other components necessary to use arms effectively.
The NFA Fight Is Far From Over
The ruling does not erase the recent victory in Silencer Shop Foundation v. ATF. That case invalidated major NFA registration and approval provisions on Congress’s enumerated-powers authority after the applicable taxes were reduced to zero. The district court did not decide the Second Amendment claims, and its injunction protects specified plaintiffs, members and customers.
Berger’s prosecution involved the earlier $200 tax, and his challenge was decided as applied to his circumstances. The Third Circuit specifically noted that Berger presented no evidence of excessive waiting periods and did not argue that the tax was exorbitant.
Still, the Justice Department will undoubtedly use Berger to defend the registry in future Second Amendment litigation. That makes this more than another machine gun case.
The Third Circuit admitted that machine guns are “Arms,” allowed the government to benefit from the scarcity its own ban created, and declared that some federal gun registration does not even implicate the Second Amendment.
Gun owners should pay attention. The most damaging part of this opinion is not limited to automatic weapons or suppressors. It is a judicially invented loophole around Bruen—one that future courts could use to excuse firearm registration whenever they decide the burden is small enough.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
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