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On Wednesday, a Trump judge in Kansas ruled that the Second Amendment invalidates criminal charges against a defendant charged with illegally possessing a machine gun. The case is United States v. Morgan.
Judge John Broomes’s decision in Morgan is obviously wrong, even under the Supreme Court’s most aggressively pro-gun opinion, which Broomes relied on heavily.
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen (2022) cast a cloud of uncertainty over nearly all US gun laws, requiring the government’s lawyers to prove that any gun law challenged in court is consistent with “this Nation’s historical tradition of firearm regulation.” Judges across the country have struggled to interpret and apply that vague standard, and many of them have openly complained that Bruen is unworkable in their published opinions.
Read in isolation, Bruen’s vague “historical tradition” test might be read to support Broomes’s decision. But Bruen left in place a previous legal rule, first announced in District of Columbia v. Heller (2008), which permits the government to ban “dangerous and unusual weapons.” Heller also includes a line stating that it would be “startling” to conclude that one of the Court’s early Second Amendment decisions invalidates the federal ban on machine guns.
To get around Heller’s conclusion that the government may regulate dangerous and unusual weapons like fully automatic firearms, Broomes primarily argues that there were no laws similar to the modern-day ban on machine guns either in 18th century England or during the period around America’s founding.
Of course, there’s a really obvious reason why no actual machine gun ban existed in the 1700s: The machine gun wasn’t invented until 1884.
Broomes also argues that centuries-old English and early American laws merely prohibited people from carrying guns “to terrify the King’s subjects” or “in such a manner as will naturally cause a terror to the people.” And so, the Trump judge suggests, it is unconstitutional to charge someone with carrying an illegal weapon unless the defendant also “takes the same weapon out on the public streets and displays it in an aggressive manner.”
Taken seriously, this reasoning would also prohibit the government from banning possession of a tank, a fighter jet, or even a nuclear warhead, so long as the civilian who obtains a nuclear warhead does not brandish it in public.
In any event, Broomes’s decision will appeal to the United States Court of Appeals for the Tenth Circuit, a left-leaning court where Democratic appointees outnumber Republicans by 7-5 among the court’s active judges. So the appeals court will almost certainly reverse Broomes and reinstate the rule that dangerous and unusual weapons can be banned.
Broomes’s United States v. Morgan decision is a monument to why Bruen must be overruled
The “historical tradition” test announced in Bruen has no real substance, cannot be applied consistently by lower court judges, and has led to absurd and immoral results. Just last June, for example, the Supreme Court had to intervene after an appeals court, in a perfectly honest application of the Bruen decision, ruled that people subject to domestic violence restraining orders have a constitutional right to own a gun.
But, while the Court’s decision in that case, United States v. Rahimi, reversed one of the federal judiciary’s most astonishing post-Bruen decisions, it left Bruen’s confounding historical test in place. Under Rahimi, “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit” — whatever the hell that means.
In a separate concurring opinion in Rahimi, Justice Ketanji Brown Jackson quoted a dozen lower court opinions complaining that judges can’t figure out how Bruen is supposed to work. As one of those opinions stated, “courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions.”
This chaos is likely to continue until Bruen is overruled. The history and tradition test announced in the case provides lower court judges with no meaningful guidance on which gun laws are constitutional. And Bruen allows judges who are determined to reach pro-gun conclusions no matter what the consequences to strike down virtually any gun law — which may explain Broomes’s decision in the Morgan case.
