In an opinion by George W. Bush appointed Judge Milan Smith, the United States Court of Appeals for the Ninth Circuit rejected a criminal defendant’s claim that he has a Second Amendment right to own a machine gun:
In Heller, the Supreme Court struck down the District of Columbia’s ban on handgun possession, concluding that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” However, the Court stated that the Second Amendment only protects the right to own certain weapons, and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” The Court also concluded that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” limits the right to keep and carry arms.
Heller did not specify the types of weapons that qualify as “dangerous and unusual,” but the Court stated that it would be “startling” for the Second Amendment to protect machine guns. Since Heller was decided, every circuit court to address the issue has held that there is no Second Amendment right to possess a machine gun.
We agree with the reasoning of our sister circuits that machine guns are “dangerous and unusual weapons” that are not protected by the Second Amendment. An object is “dangerous” when it is “likely to cause serious bodily harm.” Congress defines “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The machine gun was first widely used during World War I, where it “demonstrated its murderously effective firepower over and over again.” A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns.
As a matter of law, this was an easy case. The Ninth Circuit now joins the Third, Sixth, and Eighth Circuits which have all rejected claims that the Second Amendment guarantees a right to own machine guns. Nevertheless, it is an important reminder that the Supreme Court’s Second Amendment cases still permit robust gun regulation. As conservative Justice Scalia explained in his Heller opinion, the Second Amendment not only does not apply to “dangerous and unusual” weapons, it also does not apply to “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”