10th Circuit Rules: Machine Guns NOT Protected by Second Amendment

A three-judge panel of the Tenth Circuit has ruled that machine guns are not protected by the Second Amendment – reinstating a federal indictment and reversing a lower court dismissal. As Stephen Gutowski reports at The Reload, the panel concluded the government can continue enforcing the federal ban on post-1986 machine guns because the weapons at issue are not “in common use” for self-defense. Mark W. Smith, a constitutional attorney and host of the Four Boxes Diner channel, calls the decision “good news” for purely strategic reasons – though he sharply criticizes the court’s legal reasoning.

The Case at a Glance (Morgan and the Guns Involved)

According to Gutowski, the case centers on U.S. v. Morgan, where police recovered a fully automatic AM-15 rifle and a “Glock switch” (a conversion device that makes a Glock fire automatically). The district court originally tossed the charges, but the Tenth Circuit – Judges Scott Matthiasan, Carolyn McHugh, and Robert Bacharach – reversed. Smith, summarizing the factual record in his video, underscores why this was a poor test case for gun-rights litigators: Snapchat video and other details made it an unattractive vehicle to press a constitutional challenge.

What the Tenth Circuit Actually Held

Per Gutowski’s reporting, Judge Matthiasan wrote that defendant Tamori Morgan failed at Bruen step one – that is, he didn’t show the weapons he possessed are “arms” protected by the Second Amendment because they are not in common use for self-defense. The panel therefore didn’t move on to the historical-tradition analysis. In short: before asking whether modern regulation matches historical analogues, the court said you must first demonstrate the weapons are protected “arms” – and the panel said Morgan didn’t.

How the Panel Read Heller’s “Common Use”

Gutowski notes the panel leaned on Heller’s “common use” standard and read it to mean more than raw ownership numbers. Judge Matthiasan reasoned that “common use” focuses on use – especially for self-defense – not mere possession. Citing the legal landscape and practical patterns of civilian behavior, the panel said machine guns aren’t typically used by law-abiding people to defend themselves.

The Numbers Fight: 740,000 vs. ~235,000

The district judge had leaned on ATF data showing over 740,000 legally registered machine guns in 2021 to argue they aren’t “unusual.” Gutowski explains the Tenth Circuit saw it differently. The panel highlighted the government’s figure that only about 234,718 are transferable to private individuals, and even suggested that number may be overstated because some registered guns may no longer exist. More importantly, the panel insisted the real question isn’t how many exist, but how they’re used – and Morgan offered little evidence that civilians commonly deploy machine guns in self-defense.

The Legal Map: Why Statute Books Matter Here

As Gutowski details, the panel emphasized that at least 38 jurisdictions strictly regulate machine guns: 12 states plus D.C. ban possession, 25 more allow them only if legal under federal law, and two additional states require registration while presumptively barring public carry. To the court, that broad state-level hostility to machine-gun possession undercuts any claim that such firearms are “commonly used” by the law-abiding for protection.

What the District Court Had Said – And Why It Didn’t Stick

Gutowski recounts that U.S. District Judge John Broomes dismissed the indictment last year, finding machine guns are “arms” under the Second Amendment and that the burden fell to the government to justify the 1986 federal ban with historical analogues. He also criticized the government for failing to show machine guns were “unusual,” particularly given the ATF’s registration data and the fact that pre-1986 machine guns remain lawfully possessed. The Tenth Circuit, however, flipped the script: in its view, Morgan had to first show “common use” for self-defense and didn’t.

Mark W. Smith: Why He Calls the Outcome “Good News” (But the Reasoning “Terrible”)

In his breakdown, Mark W. Smith says bluntly that the result – upholding the machine-gun ban – is tactically positive for the Second Amendment movement right now because it reduces the chance the Supreme Court takes a machine-gun case. He argues that if such a case reached the Court today, gun-rights advocates would “100% lose,” likely cementing harmful nationwide precedent and delaying a more important battle over AR-15s and other semi-automatics. In Smith’s view, the better strategy is to avoid a machine-gun merits ruling at the high court until the terrain is more favorable.

Smith’s Doctrinal Critique: Who Bears the Burden, and What Counts as “Use”?

Smith contends the panel misplaced the “common use” inquiry at Bruen’s text stage, rather than at the history stage. As he frames it, once a defendant shows the conduct implicates “arms,” the burden shifts to the government to prove a historical tradition of regulation. He also pushes back on limiting “common use” to self-defense specifically, arguing Heller/Bruen protect arms commonly used for any lawful purpose (hunting, sport, collection), not just defensive gunfire. Narrowing the test to defensive use, he says, is a common “anti-gun” move that the Supreme Court would reject.

Smith on “Use” Versus Use

Mark W. Smith also faults the panel for conflating firing a gun with using it for self-defense. He argues that possession itself, keeping a firearm on a nightstand or carrying it lawfully, is a form of self-defensive “use,” akin to maintaining a fire extinguisher or insurance policy you hope never to deploy. On that understanding, “common use” shouldn’t require evidence of frequent trigger pulls in defensive incidents.

A Broader Trend: Gutowski’s Fourth Post-Bruen Win for the Ban

Gutowski places this decision in a growing line of post-Bruen rulings that uphold the machine-gun ban. He notes it’s the fourth time a federal court has done so since 2022, a sign that, for the moment, most courts are comfortable distinguishing machine guns from the types of guns they view as core to individual self-defense. Whether you agree with that line-drawing or not, the trend line matters for litigators – and for Congress, which enacted the post-1986 ban.

The Court Narrowed “Common Use” for a Reason

As a practical matter, the panel’s emphasis on how a weapon is used (rather than how many exist) gives the government a powerful front-end filter. It keeps machine guns outside the Second Amendment’s core without forcing the court to wade into messy Founding-era analogies. That approach may frustrate those who see “arms” as a plain-text term that easily covers machine guns (Smith argues exactly that), but it’s doctrinally attractive to judges wary of expanding gun rights at the margins while the Supreme Court is still sorting out the scope of Bruen. In other words: the Tenth Circuit chose a narrow offramp over a potentially divisive historical deep-dive.

What This Means for AR-15 and Semiauto Litigation

Here, Gutowski’s straight reporting and Smith’s strategy intersect. If machine-gun cases keep losing below, fewer petitions will tempt the Supreme Court to speak broadly about “common use” in ways that could boomerang against owners of semiautomatic rifles. Smith says the priority should be clear rulings that AR-15s are protected “arms” commonly possessed for lawful purposes – wins that could stop state-level bans. From that perspective, this loss on machine guns may paradoxically help preserve bandwidth and doctrinal flexibility for battles most gun owners care about day-to-day.

Where the Numbers Still Matter (But Won’t Save Machine Guns)

The district court’s reliance on ATF’s 740,000 figure may sound impressive, but the Tenth Circuit reframed the metric and the mission: even if there are hundreds of thousands of registered units, the pattern of lawful defensive use is what counts – and on that score, machine guns are rarely, if ever, part of civilian defense. Gutowski captures the panel’s bottom line: the legal environment (widespread state restrictions) plus the practical environment (negligible defensive use) makes “common use” hard to prove.

What to Watch Next

Expect defense counsel to consider an en banc ask; expect the government to cite this opinion in other circuits; and expect gun-rights litigators to keep steering clear of machine-gun vehicles. If other circuits adopt the Tenth’s step-one placement of the “common use” test, Smith’s critique may ripen into a cleaner Supreme Court issue in a different context (e.g., semi-auto bans). For now, though, as both Gutowski’s piece and Smith’s video make clear, the status quo on machine guns looks stable.

Two Stories at Once

Stephen Gutowski reports that the Tenth Circuit decisively reinstated the machine-gun charges by holding the weapons aren’t protected “arms” because they’re not commonly used for self-defense. Mark W. Smith argues the court got there the wrong way, but he still cheers the result – not on principle, but because it likely keeps a machine-gun test case away from the current Supreme Court. Between the doctrinal move (narrow reading of “common use”) and the strategic calculus (don’t risk a sweeping high-court loss), this decision tells two stories at once. And for the near future, both stories point to the same conclusion: the federal machine-gun ban isn’t going anywhere.