The Fifth Circuit Finds That Machine Guns (Still) Aren't Protected by the Second Amendment

The U.S. military can use machines guns, but the weapons have been off limits to civilians for years.
The U.S. military can use machines guns, but the weapons have been off limits to civilians for years.
Photo by Collin Wiseman via Official Navy Page from United States of America

The U.S. Fifth Circuit Court of Appeals is known for being one of the most conservative courts in the country. You'd think this would mean the judges would be open to striking down a law banning machine guns, but it turns out even the judges on the Fifth don't think regular people have a constitutional right to  guns capable of select-fire or full-auto.

See, people haven't been allowed to own machine guns since Congress amended the Gun Control Act of 1968 to make it "unlawful for any person to transfer or possess a machine gun" except for government entities and anyone who legally owned a machine gun before 1986.

Of course, someone decided to challenge the law. Back in 2014, a Texan with the moniker Jay Aubrey Isaac Hollis decided to try to get around the law. He established the Jay Aubrey Isaac Hollis Revocable Living
Trust and named himself the trustee. Then, in May of that year, he submitted an application on behalf of the trust to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requesting permission  to manufacture an M-16 (a rifle currently being used by the U.S. military that is capable of automatic fire and thus classified as a machine gun) from AR-15 components (the AR-15 is a semi-automatic version of the M-16). 

You'd think the endeavor would have stopped right there, but in September 2014, the ATF actually approved the application. The agency told Hollis his approval was an error and rescinded it two days later. A letter followed explaining that the “ATF may not approve any private person’s application to
make and register a machine gun after May 19, 1986,” and any continued possession of a machine gun would be a violation of the National Firearms Act. 

Hollis responded by filing a lawsuit claiming, well, a whole bunch of legal transgressions on the part of the federal government. In the lawsuit, he contended the machine gun ban violated Second Amendment rights, that Congress exceeded the power granted by the commerce clause in banning machine guns in the first place, and that the government took his property, the M-16, without due process of law.

And he didn't stop there. He also claimed that the ATF has granted other applications for machine guns after 1986 so the denial of his application was a violation of equal protection. Plus, he maintained, the ban against machine guns doesn't say that an unincorporated entity — like the one he created — can't make or possess a machine gun.

The lawyers representing Hollis argued that if an item, like, say, an M-16, is part of regular military equipment, then it is protected by the Second Amendment. It was an interesting claim, but when the U.S. District Court for the Northern District of Texas heard the case last year, judges didn't buy it. The case bounced up to the Fifth, but the panel of three judges that heard the case also disagreed with Hollis.

Judge Leslie Southwick, an appointment to the bench by President George W. Bush, penned the ruling. Judges Carolyn King (a Carter appointee) and Catharina Haynes (another Bush pick) joined him in a decision handed down last week. 

The 22-page opinion knocks down each contention of the lawsuit. The opinion witheringly dismisses Hollis's claim that the unincorporated trust he created is not a person but an entity and thus allowed to build an M-16, stating that the "argument strains common sense and misunderstands trust law."

The Second Amendment argument was also quickly taken apart. Southwick pointed out that even when the U.S. Supreme Court struck down Washington, D.C.'s ban on handguns in District of Columbia v. Heller in 2008, the high court still explicitly stated that people don't get to own machine guns as a constitutional right. To find in favor of Hollis would be tantamount to overruling the Supreme Court, the opinion observes, and that just wasn't going to happen with these judges. 

Besides, Hollis wasn't even consistent in his arguments. “Hollis seeks equality between the people and the Government so that those seeking to abolish the government will have a fair chance,” noted Southwick. “But self-defense, not revolution, is the central component of the Second Amendment.”

So Hollis won't be building his M-16 anytime soon, and neither will anyone else in the civilian population. And any revolutions will just have to take place the old-fashioned way, without machine guns. Altogether, that seems pretty fair. 

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