The Huffington Post reports:
A Texas man who sued the federal government because it wouldn’t approve his application to manufacture a machine gun doesn’t have a constitutional right to possess the automatic weapon, an appeals court ruled.
Jay Hollis sought permission to convert his AR-15, a popular semi-automatic firearm, into an M16 — an automatic firearm that is banned under federal law, except for official use or lawfully obtained pre-1986 models.
After he was rejected, Hollis mounted a constitutional challenge to the Gun Control Act of 1968 — which Congress amended in 1986 to make it illegal to possess or transfer newly manufactured machine guns. Among other things, he argued that an “M-16 is the quintessential militia-styled arm for the modern day.”
In a unanimous ruling issued Thursday, the U.S. Court of Appeals for the 5th Circuit rejected Hollis’ arguments, categorically noting that “machine guns are not protected arms under the Second Amendment.”
The court explained that the leading Supreme Court precedent on the right to keep and bear arms, 2008’s District of Columbia v. Heller, only protected individual handgun possession for “defense of hearth and home.”
Firearms Policy Coalition, Colorado Second Amendment Association, Madison Society, Lone Star Gun Rights, Firearms Policy Foundation, and Mississippi Carry filed an amicus brief in support of the Hollis Plaintiffs-Appellants. Among other arguments, we noted that
[T]he district court below did not require the government to prove that the arm at issue in this case was both not “in common use for lawful purposes” and “dangerous and unusual.” That error should be reversed. At trial, Appellant may be able to demonstrate that the M-16 style service rifle which he wishes to manufacture from the AR-15 lower receiver is a rifle in common use for lawful purposes, at this time, and for at least two generations prior to the enactment of section 922(o)’s total prohibition. And the government, then, must shoulder the burden of proving that the arm, even if “in common use for lawful purposes,” are so “dangerous and unusual” such that they are outside the scope of the Second Amendment’s protection. The government may or may not be able to clear this required hurdle, but it must do so with evidence and not mere speculation. See., e.g., Ezell v. City of Chicago, 651 F.3d 684, 709 (7th Cir. 2011) (in analogous First Amendment context, “the government must supply actual, reliable evidence to justify restricting protected expression based upon secondary public-safety effects.”).
The full Fifth Circuit decision can be viewed here.