Will Present Legal Arguments Undermine Future Efforts to Restore Second Amendment?

“A federal district court judge held machine guns are protected arms under 2A but this is a trap set by anti-gunners,” Mark W. Smith, constitutional attorney, author, host of the Four Boxes Diner YouTube channel, and 2025 Gundies Award winner for “Top Voices of the 2A,” notes in a February 12 video entitled, 2A Machine Gun Trap: Do Not Take the Anti-Gunner’s Bait.

He’s referring to a January 29 order out of the United States District Court for the Southern District of Mississippi Northern Division by United States District Judge Carlton W. Reeves, a Barack Obama appointee, in the case of United States of America v. Justin Bryce Brown.  Long story short, even though making it obvious he disagrees, Judge Reeves ruled that the federal machine gun ban is inconsistent with the text, history, and tradition of the Second Amendment as established by the Supreme Court in the Bruen decision.

“While the ruling does not invalidate the law wholesale since it only impacts the specific charges against Brown, it does create significant doubt about its constitutionality–at least as applied to any otherwise law-abiding American,” The Reload founder Stephen Gutowski noted in his analysis of the decision. “If other federal judges agree with Reeves’ assessment, the decision could pave the way for future courts to throw out the federal machinegun ban altogether. It may also help establish a firmer standard for which weapons are, and aren’t, considered in ‘common use’ and, therefore, protected by the Second Amendment under the Supreme Court’s controlling precedents.” “Do not take the anti-gunner bait!” Smith cautions.

“In the Garden of Eden when Eve bit into the poisonous apple, bad things occurred for the human race,” he explains. “Likewise, I hate to say this, but if the Second Amendment community decides to argue that machineguns are protected arms under the Second Amendment in light of that decision by anti-gun, anti- Supreme Court Judge Carlton Reeves … we … will be biting into the poisonous fruit.”

Why?

“Judge Carlton Reeves is trying to thumb his nose at the Second Amendment movement and trying to get the U.S. Supreme Court to rule against our rights,” Smith warns.  “We must not argue that machineguns are protected arms…” He presents a hypothetical scenario where the Fifth Circuit rules machineguns are protected arms, and the Supreme Court grants cert (agrees to review the case).

“And the Supreme Court, 1,000%, will rule that machine guns are not protected arms under the Second Amendment which means we will 1,000% be 1,000% worse off … as opposed to where we are now which … means that for the rest of our natural lives and beyond we will be living with a precedent that says that the machineguns are not protected arms under the Second Amendment,” Smith declares.  “It is a strategic terrible strategic mistake, don't do it don't even think about doing it, it would be utterly stupid and terrible judgment in my view.”

“Beyond that it is going to hurt us in our ongoing fight to get the Supreme Court to hear the AR-15 case and find that AR-15 semi-automatic rifles and magazines, and ultimately suppressors, by the way, are protected arms under the Second Amendment because… if the Second Amendment Community sends a clear message to the US Supreme Court that a ruling in favor of AR-15s somehow will entail protections for machineguns, this is 100% going to reduce the likelihood that we're going to win on AR-15s, we're going to win on semi-automatic rifles and magazines and the like, so this is the harsh reality.”

That is harsh, and depressing, especially with gun owners all pumped up anticipating the Trump administration is primed to save the Second, that Pam Bondi’s previous anti-gun inclinations are going to be kept in check, and that Main Justice will now usher in a new era of 2A fidelity. At the risk of disappointing those expecting me to refute Smith’s assessment, I wish I could. I can’t, even though he doesn’t elaborate on why he’s “1,000%” certain SCOTUS won’t save us. I’m afraid I agree with that assessment. 

This column has offered one of the few voices in the overall Second Amendment dialog warning that legal efforts ignoring the militia purposes the Founders envisioned would end up allowing for infringements to become accepted precedents (see “Ignoring Core Purpose Makes 2nd Amendment More Vulnerable to Infringements (see my articles:  The Militia Aspect, Parts 1 and 2, on the Firearms News website).

You don’t need to be a Second Amendment scholar to understand “shall not be infringed.” Informed gun owners are well aware of the arguments advanced in the Federalist Papers. The internet has invested us all in Tench Coxe’s bold proclamation that, “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." How is it we know that, but the Supreme Court justices do not?

Most of them probably do, but they’re creatures of stare decisis über alles, and political appointees to boot. It doesn't matter how well-argued and logical a case is. Most of those in "authority," owing their positions of power and privilege to their elite connections, mindful of their historic legacies, and who basically feel if they didn’t “know best” they wouldn’t be among the exalted, are not going to willingly cede power unless there is a credible "or else" attached to a demand to give it back. And what is the Second Amendment if not the most egalitarian power sharing arrangement devised by the mind of man?

That such justices are seated (while the nominally “pro-gun” ones are hailed by gun groups as pillars of hope) with such flawed commitments to the Second Amendment reflects a hole in the advise and consent process you could march a standing army through. That’s because they get a pass on answering specific questions. Per Congressional Research Service, “Usually, when Senators at confirmation hearings have asked Supreme Court nominees to comment on topical legal and constitutional issues, the nominees have firmly declined to do so. In those situations, the nominees typically have taken the position that answers to questions which convey their personal views would conflict with their obligation to avoid appearing to make commitments, or provide signals, as to how they would vote as a Justice on future cases.”

Think of one job you’ve applied for where you’d have gotten it if you decided to play coy with the hiring managers.  While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation — for legitimate reasons, including not having studied and evaluated all the particulars, evidence and precedents, there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies. 

Then again, that’s presupposing the politicians confirming them aren’t outright enemies, and that the ones we’re told are friends know more about the Second Amendment then the requisite platitudes they use to pay lip service to gun owners during their political campaigns. How many of those use their bully pulpits to knowledgeably educate their constituencies and correct misinformation when the cameras and microphones are on them?

The reality is that job falls on the Second Amendment community, and that’s filled with often squabbling factions jockeying for importance, many of which leave inconvenient truths unmentioned and unexplored if they don’t bolster their agendas.

These are the reasons why, like it or not, Smith is right about what the Supreme Court would do if you stuck a machinegun in front of them and said, “Deregulate it.” That’s why even semiautos can’t be looked at as “shoo-ins” (and as this is being written, SCOTUS has once more distributed the Snope v. Brown Maryland “assault weapon” ban case for conference).

“In Common Use”  That doesn’t mean everything Smith says in that video should go unquestioned. Once more, he presents “in common use” as THE test to rely on.  “It is crystal clear that the US Supreme Court in 2008 in Heller said if arms are in common use by Americans for lawful purposes, they cannot be banned,” Smith notes. “This is a fantastic test, it is clearly the right answer.

“If you win the ‘in common use’ argument, that says an arm is in common use by Americans for lawful purpose and therefore it cannot be banned, that is sufficient for us to protect arms … and of course, it allows we the people to dictate and decide what arms we want because if an arm is in common use by Americans for lawful purposes, it is protected.”

Again, he’s right. That’s what the law says, and that’s what he pulls three quotes from Bruen on to substantiate his contention. That’s the most likely way to win in the Supreme Court as currently comprised. So, what’s the argument against that? Only some observations, really. It’s not a long-term solution for restoring the Second Amendment to the purposes intended by the Framers.

Smith is right about the legal tactics and options immediately before us, but he is assuming that “in common use” will win the long game. What it’s doing is freezing recognized arms in the present, essentially saying new developments can and will forever be withheld from “We the People” because they’re not allowed by the government to enter into common use.

It’s taking care of our immediate needs. However, the Founders bequeathed us a constitution intended “to secure the Blessings of Liberty to ourselves and our Posterity.” If this is all we concern ourselves with, what are we bequeathing to them? Semiautomatic firearm technology that’s already 140 years old…?  In a world where technological developments and breakthroughs are being introduced seemingly exponentially, what new “terrible implements” will become standard issue in the next 140 years? 

“It's been said that a battle isn't won until a man with a rifle occupies the ground,” I wrote in “Things to Come” for Guns and Ammo back in 2002. “We must keep in mind that someone probably once said the same thing about spears.” It falls on those instructing us that “in common use” is the final word in legal tactics to explain how it won’t also be the final word on the Second Amendment, ultimately rendering it obsolete. 

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.

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