The bottom line
The Tenth Circuit Court of Appeals has reversed a district court ruling that found the federal machine gun ban unconstitutional as applied, and the way it reached that conclusion is a blueprint for how anti-gun courts evade Bruen without technically violating it. I want to walk through exactly what happened, why the court’s reasoning is wrong, and why the Supreme Court probably isn’t going to do anything about it. That last part is the uncomfortable truth I think gun owners need to hear.
This article is based on commentary from Bearing Freedom. Watch the original video. Commentary, not legal advice.
The Bruen test and why it matters
In 2022, New York State Rifle & Pistol Association v. Bruen fundamentally changed how courts are supposed to analyze gun regulations. Justice Clarence Thomas, writing for the majority, established a two-step framework. Step one: does the regulation implicate the Second Amendment right to keep and bear arms? If it does, it is presumptively unconstitutional. Step two: can the government demonstrate that the regulation is consistent with America’s historical tradition of firearms regulation as of the founding era? If the government cannot produce a meaningful historical analog from that period, the law is unconstitutional.
This is an enormous structural win for the Second Amendment. Before Bruen, courts routinely applied interest-balancing tests that allowed them to weigh government interests against individual rights and almost always find for the government. Bruen eliminated that. The government now has to show historical justification for any law that burdens the right to keep and bear arms. Given that the founders lived in a world without meaningful firearms regulation as we know it today, this is a high bar that modern gun control laws regularly fail to clear.
The catch is that the test only works if courts apply it honestly. United States v. Morgan shows what happens when a court decides it prefers a different outcome.
What actually happened in the Morgan case
Tamori Morgan was arrested during a traffic stop. Officers found he was in possession of an AM-15 that had been modified to fire automatically, and a Glock switch, which is a conversion device that makes a Glock pistol fire automatically. He was indicted for violating 18 U.S.C. § 922(o), the federal statute that prohibits civilian possession of machine guns manufactured after May 19, 1986.
The district court dismissed the indictment on Second Amendment grounds. Judge John W. Broomes concluded that machine guns are “arms” within the meaning of the Second Amendment, that the right of the people to keep and bear arms clearly encompasses them, and that the government had failed entirely to demonstrate a historical tradition of regulating machine guns consistent with the founders’ era. That is a straightforward application of Bruen. The government had to produce founding-era analogs for a machine gun ban and could not, because there were none. Machine guns did not exist in 1791. The founders were not regulating them. The district court got it right.
Then the Tenth Circuit reversed.
How the court avoided Bruen without admitting it
The Tenth Circuit’s opinion in United States v. Morgan, decided September 2, 2025, declined to engage with Bruen step two at all. Instead, the court ruled that Morgan failed at step one. Specifically, the court held that machine guns are not “arms” in “common use” by law-abiding citizens for self-defense, and therefore the Second Amendment does not protect them in the first place.
The court leaned on Heller’s language about arms “in common use for lawful purposes” to argue that because law-abiding civilians cannot legally own post-1986 machine guns, machine guns are not commonly used by law-abiding civilians, and therefore the Second Amendment does not cover them. The court even acknowledged, in a passage that should embarrass every judge who signed onto the opinion, that one could imagine “Hollywood-inspired scenarios” in which a homeowner might want a machine gun to fend off attackers, but that this conceivable lawful use was insufficient because the relevant question is whether such use is actually common.
Read that back slowly. The government made machine guns illegal for civilians to own. Because they are illegal, civilians do not own them commonly. Because they are not owned commonly, the Second Amendment does not protect them. Because the Second Amendment does not protect them, making them illegal is constitutional.
That is a circular argument. It is the logical equivalent of saying a right doesn’t exist because we already banned the exercise of it. And the court applied it with a straight face to Bruen, a case that was designed specifically to prevent courts from engaging in exactly this kind of result-oriented reasoning.
The NFA and the Hughes Amendment
To fully understand what is happening here, you need to know the relevant history. The National Firearms Act was passed in 1934 and imposed a $200 transfer tax on machine guns, short-barreled rifles, short-barreled shotguns, and suppressors. At the time, $200 was a prohibitive amount for most Americans. The practical purpose was suppression of civilian ownership through a nominally-constitutional tax workaround.
Machine guns remained technically legal for civilians to own until 1986. The Firearm Owners Protection Act of that year included the Hughes Amendment, added by Representative William Hughes through a chaotic voice vote in the House on April 10, 1986. The amendment added § 922(o) to federal law and banned civilian transfer or possession of any machine gun manufactured after the law’s effective date. Machine guns manufactured and registered before May 19, 1986 remained transferable to civilians with the appropriate NFA paperwork and tax stamp.
The effect was immediate and dramatic. The civilian-transferable registry was frozen at approximately 175,000 weapons. As demand stayed steady and supply was permanently capped, prices exploded. Machine guns that cost $1,000 in 1985 now routinely sell for $20,000 to $50,000 or more. Ownership became the province of wealthy collectors. The Hughes Amendment effectively ended the practical prospect of ordinary Americans owning new machine guns, not by making them constitutionally impermissible, but by making them financially inaccessible and then arguing that inaccessibility proves non-commonality.
Under Bruen, none of this legislative history saves § 922(o). There were no founding-era laws restricting machine gun ownership. The founders armed militias with military-grade weapons. They explicitly contemplated a citizenry capable of resisting government tyranny, which requires weapons capable of doing so. There is no meaningful historical analog from the 1780s or 1790s for what the Hughes Amendment does. The district court was right. The Tenth Circuit’s dodge around the merits of that analysis by refusing to even reach step two is intellectually dishonest.
Why the Supreme Court probably won’t fix this
Here is where I am going to say something that I think is true but that I know is not what a lot of gun owners want to hear.
I don’t think the Supreme Court is going to take this case. And even if they did, I am not certain they would rule the right way on machine guns.
The Roberts Court has shown a real willingness to expand Second Amendment protections in contexts like carry rights and the constitutionality of categorical prohibitions applied to nonviolent offenders. Bruen itself was a major structural win. But machine guns occupy a different psychological and political space, even for conservative justices. The NFA has been on the books since 1934. The Hughes Amendment has been law for nearly forty years. There is an institutional conservatism at the Supreme Court that makes the justices reluctant to issue rulings that would be characterized, accurately, as legalizing machine guns for civilian ownership. Even justices who understand that § 922(o) cannot survive honest Bruen analysis are unlikely to want to author that opinion in the current political climate.
The practical reality is also that machine guns, because of the Hughes Amendment’s market distortion, are not widely owned by ordinary Americans. The Second Amendment’s political coalition is primarily made up of people who own handguns, rifles, and shotguns in common configurations. Suppressor reform and SBR deregulation have broader coalition support because more gun owners are directly affected. The number of Americans personally invested in the legal status of post-1986 machine guns is relatively small, which reduces the political pressure on both legislators and justices to act.
This is not how I think the law should work. The question of what the Second Amendment protects is a constitutional question, not a popularity contest. The principle at stake in Morgan is not just about machine guns. It is about whether courts are going to apply Bruen honestly across the board, or whether they are going to carve out exceptions for disfavored categories of arms by manipulating the step-one analysis. If the circular logic the Tenth Circuit used in Morgan is allowed to stand without challenge, it becomes a template. Any arm that the government has already effectively restricted can be declared non-protected because its restriction has made it insufficiently common. That is a mechanism for progressively hollowing out the Second Amendment from within Bruen’s own framework.
What I actually think about the NFA
I am going to say this plainly because I think the hedged language that often surrounds NFA discussions obscures what is actually going on.
The $200 tax on suppressors is not a serious regulatory measure. It is a nearly century-old workaround designed to suppress a constitutional right through economic burden while maintaining a fig leaf of constitutionality. Suppressors are hearing protection. Every other country that allows civilian gun ownership, including countries far more restrictive than the United States, treats suppressors as ordinary safety equipment rather than tightly regulated near-contraband. The short-barreled rifle classification is similarly arbitrary. Under current law, a pistol and a rifle with identical barrels and identical ballistics are treated differently the moment you add a stock to the pistol, transforming it from legal to an NFA item. There is no coherent constitutional basis for that distinction.
The NFA has survived this long because gun rights organizations have prioritized other battles and because the Court has not yet been presented with the right case in the right posture to confront it directly. That does not mean it is constitutional. Under Bruen, applied honestly, substantial portions of the NFA cannot survive historical scrutiny. The founders regulated gunpowder storage for fire safety. They did not regulate the types or capabilities of arms that citizens could possess. The distinction is critical and the NFA ignores it entirely.
A court that ignores the Supreme Court
At bottom, United States v. Morgan is a case where a federal appellate court looked at a district court correctly applying Bruen and decided to reverse it by inventing a step-one argument that the Supreme Court’s precedents do not actually support. The court knows that machine guns implicate the Second Amendment. Calling an automatic rifle a category of arm outside Second Amendment protection is not a good-faith legal conclusion. It is a predetermined outcome in search of a doctrinal hook.
The district court was not wrong. It applied the test that the Supreme Court gave lower courts and reached the result that test compels. The Tenth Circuit reversed because the result was politically uncomfortable, and it dressed the reversal in language plausible enough to avoid a direct confrontation with Bruen.
The Supreme Court, for the reasons I have described, is probably not going to step in. The justices are aware of what is happening in these lower courts. They are also aware of the political consequences of the outcomes that honest Bruen application would require. They have other Second Amendment cases this term in Wolford v. Lopez and United States v. Hemani that are more politically manageable and more likely to build clean doctrine incrementally.
This is the reality of Second Amendment litigation in 2025. The framework is better than it has ever been. The courts are not applying it consistently. And the people paying the price are the Americans whose rights are being violated while the institutional process grinds toward justice at whatever pace the Roberts Court decides it can manage.
Justice delayed is justice denied. I believe that. I just want you to know exactly where we stand.
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