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5th Circuit: No Fundamental Right to Machine Guns Under 2nd Amendment

By Jonathan R. Tung, Esq. | Last updated on

According to the Fifth Circuit, citizens do not have a fundamental right to own or possess machine guns under the Bill of Rights. It's a blow to Rambo and Commando fans nationwide.

The case of Hollis v. ATF might very well be the next case to draw a line in the sand after Heller with respect to Americans and their guns.

Mr. Hollis and His M-16

Mr. Jay Hollis petitioned the Bureau of Alcohol, Tobacco, Firearms and Explosives through his separate trust to convert his AR-15 to an M-16 automatic firearm. This would turn a semi-automatic weapon into a fully automatic one. The ATF rejected his request. Upon rejection, Hollis sued and claimed that the Gun Control Act of 1968 was unconstitutional as it conflicted with the current reality: the "M-16 is the quintessential militia-styled arm for the modern day."

A Well-Regulated Militia

Obviously, in invoking the famous "M" word of the Second Amendment, Hollis made the militia/gun-control debate an issue.

In so doing, he probably opened the door to more than he bargained for. This was all the circuit needed. The decision was unanimous in that Heller protected a Second Amendment right to possess a firearm within the home for "defense of hearth and home." But with regards to automatic weapons where several rounds can be fired off without releasing the trigger? Such weapons are "dangerous and unusual" and not at all like the weapons that would have been used by militias during the founding of the nation.

Dangerous and Unusual?

Hollis, along with amici, pressed other legal arguments including the notion that machine guns of the type contemplated are not dangerous and unusual given that they are "ordinary military equipment." The court found this argument ludicrous and noted that this would give civilians free reign to own other heavy destructive weaponry like bazookas and grenades. Besides, to rule this way would be "tantamount to ... overrul[ing] the Supreme Court" in Heller.

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