President Donald Trump speaks at an event at the General Motors Proving Ground Monday, July 27, 2026, in Milford, Mich. (AP Photo/Paul Sancya).
The Second Amendment may encapsulate machine guns as “arms,” but it does not protect a civilian’s right to bear them, a federal court of appeals panel ruled on Wednesday.
In a slightly divided opinion, the U.S. Court of Appeals for the 3rd Circuit affirmed the criminal convictions of Navy veteran Joseph Paul Berger for possessing machine guns and unregistered silencers.
“Machine guns are not in common use for lawful purposes,” the opinion reads. “That means they are dangerous and unusual. They are indiscriminate weapons of war and crime, not self-defense ones. And because they can cause unusual amounts of damage, they are used mostly for criminal purposes.”
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Circuit Judge Stephanos Bibas, who President Donald Trump appointed during his first term, wrote the ruling.
The opinion was joined by Circuit Judges Felipe Restrepo and Cindy Chung, who were appointed by Barack Obama and Joe Biden, respectively. Restrepo joined the opinion in full, but Chung disagreed with some of the legal reasoning, while accepting the result.
In affirming Berger’s convictions, the court explicitly signed off on a federal machine-gun ban as well as a registration scheme for silencers.
“Gun bans are strong medicine,” the opinion begins. “But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold.”
Bibas frames the opinion as the proper progeny of the landmark U.S. Supreme Court opinion that solidified the long-theorized personal right to own a firearm, without necessitating militia membership, for “traditionally lawful purposes.”
The lawful purposes language is where Bibas drew the line.
“The Second Amendment is not boundless,” the opinion continues. “[T]he scope of the Second Amendment is limited to guns ‘in common use,’ not ‘dangerous and unusual weapons.’ Thus, Justice Scalia suggested it ‘would be a startling reading of’ our Second Amendment jurisprudence to construe it to protect possessing machine guns.”
Since then, however, other cases have come before the nation’s high court that have arguably expanded on the watershed Heller opinion.
The 3rd Circuit viewed Berger’s case in light of those later cases, but still found the Second Amendment favoring a machine-gun ban.
To reach this conclusion, the appellate court noted that “the central component” of the Second Amendment right is the right to self-defense within the home. Or, in other words, the “lawful purposes” anticipated by the Supreme Court could be defined as “self-defense.”
“Machine guns are not well-suited for lawful purposes. To be sure, they are excellent weapons of war,” Bibas goes on. “But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage.”
The opinion runs through a history of machine guns and law enforcement’s aversion to them. The judge notes the infamous “Tommygun” was long considered “an unqualified success” for “a criminal.”
“That impression did not change over time,” the judge continues. “To explain why it was banning machine guns, Congress described them (and silencers) as ‘gangster-type weapons.’ Congress criminalized them because they are ‘used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime.'”
The 3rd Circuit panel describes its opinion as applicable to the more gun-friendly cases that have come since Heller.
“Machine guns are not commonly used for lawful purposes like self-defense,” the opinion goes on. “Machine-gun bans fit our tradition of banning weapons commonly used for crime, not lawful purposes.”
As for silencer registration, Bibas describes the law as “a minimal, objective hoop that buyers must jump through — just the sort of hoop that the Supreme Court has suggested does not infringe on the right.”
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