Trump Administration Position on Machine Guns - Not 2A Protected

“Trump administration says machine guns aren’t protected by Second Amendment,” The Washington Times reports. “The Trump administration is taking heat from gun rights advocates after the Justice Department argued in court that machine guns fall outside the scope of firearms guaranteed by the Second Amendment.”

The story quotes Assistant U.S. Attorney Jennifer Case, who, in arguing a brief in the Fifth Circuit Court of Appeals to overturn a lower court ruling, asserted “Machine guns are not the kind of arms protected by the Second Amendment.”

District Judge Carlton Wayne Reeves of the United States District Court for the Southern District of Mississippi had properly ruled that the Supreme Court’s Bruen decision, codifying that text, history and tradition at the time the Constitution was ratified, defined the standards to be used in determining Founding Era intent.

Besides, the Second Amendment says “arms.” It doesn’t say “kinds of arms.” Continental Congress Delegate Tench Coxe’s views were reflective of what the understanding was at the time, when he wrote, “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."

And for what purpose?

“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms," Coxe declared.

Where’d you pull “kinds of weapons” out of, AUSA Case? She’s relying on the “in common use at the time” artificial construct that restricts “legal” ownership to what has not been banned by infringements, and limits gun uses to “self-defense.”

While some leading Second Amendment voices are calling it our salvation, this column has been an almost lone voice in warning how “common use” can be a trap, exploited to sustain current gun bans and deny new weapons developments to the people. We have also been one of the few advocates warning that ignoring the Militia clause and relying exclusively on self-defense makes the Second Amendment more vulnerable to infringements.  

Viewed properly, the function of the Militia was to field citizen soldiers bearing arms in common use at the time, in other words, having “ordinary military equipment” to take into “common defense” battles. Make no mistake: they mobilized with the intent to match and best a professional military threat. A modern Militia would require citizens to keep and bear exactly what the gun-grabbing politicians are trying to take away from them, what they denounce as “weapons of war.”

But AUSA Case wasn’t done being wrong.

“Machine guns are not typically possessed by law-abiding citizens for lawful purposes. Instead, they are uniformly restricted, highly lethal and well suited to criminal purposes,” she flat-out lied.

First, per ATF records, there are about three quarters of a million registered machineguns in the United States, and crimes committed with those have been exceedingly rare, with some reports documenting as low as four in all the time since the National Firearms Act went into effect, with two of them committed by police officers, and one by a sailor with a Navy-issued weapon. As for being “uniformly restricted,” the (certainly unconstitutional since Congress has no legitimate delegated authority to ignore “shall not be infringed”) Hughes Amendment, banning civilian ownership of post-1986 machineguns, makes my “common use is a trap” argument for me.

Editor-in-Chief of Firearms News, Vincent L. DeNiro, who has spent four decades in the gun industry and who successfully led the first defeat of a municipal “assault weapons’ ban in 1989 (which made national news), had this to say, “It is nonsensical for any so-called ‘pro-gun’ individual to state that they believe that the Second Amendment is in place for the individual to defend against tyranny, and then in the same breath state that machine guns should be illegal. How can a citizenry defend themselves against a tyrannical government which is armed with superior weapons?

They cannot, and it was the Founder’s intent that the citizenry owns such modern military-grade weapons. Had they not felt that way, they would have restricted citizens to crossbows and catapults instead of muskets and cannon – they did not, and their writings are very clear. The Founders inserted the Second Amendment specifically as a God-given recognized right for the individual to have the ability to defend their liberty and life against tyranny and genocide. The Second Amendment was not put in place just for defense of robbers and rapists, it was put into place as a defense against a possible future tyrannical government.

My Ukrainian grandparents and mother wound up in a German camp and their property and business confiscated by the Nazi government. Almost 10 years before that, Communist Russia, under Stalin, conducted the largest genocide by famine in history murdering somewhere between seven and 10 million Ukrainians in order to wipe out their ethnicity, culture, language, and history, something Russia tried to do for over 600 years, and continues to do to this day. The Second Amendment means much more to me than collecting guns and keeping a handgun in nightstand for home defense.”

Here’s the thing: Case is offering these offensive and absurd arguments “on behalf of Patrick Lemon, the acting U.S. attorney in southern Mississippi.” It’s fair to ask where the hell either of them were when Attorney General Pam Bondi announced her Second Amendment Task Force and sent out a memorandum to all hands at Justice declaring “For too long, the Second Amendment, which establishes the fundamental individual right of Americans to keep and bear arms, has been treated as a second-class right. No more. It is the policy of this Department of Justice to use its full might to protect the Second Amendment rights of law-abiding citizens.”

To that end, we’re either to believe Case and Lemon are dissidents rebelling against the new marching orders and will be slapped down forthwith, or they’ve already cleared their arguments with the higher-ups, presumably to include Bondi, new Solicitor General D. John Sauer, and new Assistant Attorney General for the Civil Rights Division Harmeet Dhillon, and that they’re all on board with it. Ditto for the new “pro-Second Amendment” ATF Chief Counsel, Robert Leider.

But wait, as they say in the infomercials, there’s more!

“Government Opposes Compassionate Release of Gun Tuber Matthew Hoover For Terminal Medical Condition,” AmmoLand reports. His “crime”? Advertising (not selling) an “Auto Key Card” that could presumably be cut along the lines and function like a “lightning link,” but, in fact, could not be made to function by ATF testers because its outline dimensions and thickness were wrong. Is this that “full might to protect the Second Amendment” Bondi was talking about?

If Justice doesn’t back down on these cases (and others there’s not enough space to outline here), we’ll have our answer. If it does, like it did when it got embarrassed for siding with New York Attorney General Letitia James against gun companies for selling 80% kit guns, it will point to more bipolar examples of the left hand not knowing what the right had is doing, the much ballyhooed “Task Force” notwithstanding.

A “solution” to eliminate the confusion that’s being bandied about is for the administration to name a “Second Amendment Czar” and create a Second Amendment staff within the DOJ Civil Right Division. There are two problems no one else seems to be bringing up, so let’s do it here: First, they’d all be feeding from the same hand, with attendant career incentives. Second, a “czar,” by definition, is a dictator, and the Bill of Rights is about freedom.

By all means have a DOJ 2A point person with adequate staff, but also correct the one glaring deficiency then Task Force has: There are no independent gun owner advocates. By bringing gun owner advocacy groups, attorneys, and activists into the process from  inception as partners and advisors, the disconnects, the reversals, the misunderstandings and surprises  – and the resulting mistrust – could be resolved before policy is ever set.

Otherwise, look for more of the same. And despite whatever “good” decisions we see coming out of Justice today will be offset by disillusioning “bad” ones tomorrow. “Americans are born free and under the Trump administration, we will live free ,” Donald Trump promised in his address to NRA members at the Association’s 2025 Annual Meeting. “With me in the White House, your sacred rights will not be infringed.”

We’ve heard those promises before, Mr. President. Let us help you keep them. Or don’t and keep alienating core supporters who know when they’re being played and are fed the hell up with it. If machine guns aren’t protected, the Second Amendment is a dead letter and anyone who maintains otherwise is a fraud.

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