09-10-26 Encore Machine Gun Ban Upheld

0:00This is Armed American Radios, Daily Defense. Armed American Radios, Daily Defense, because they don't want me to, that's why I do it. From the CZ Studios, I'm never gonna stop us here. Here is your host, the loudest conservative voice in America, fighting the enemies of freedom. Mark Waters. And welcome in, ladies and gentlemen. Armed American radios, Daily Defense begins right now. We're gonna do a deep dive with you, but we're gonna do it in plain English. Third circuit is on the docket today. We'll explain everything over the course of the hour. You've gotten me for the hour. So it's gonna be a good one a lot to cover. Welcome inside the CZ Studios with me. Mark Walters filling your prescription for freedom today and every day because they don't like me doing that. That's why we do it now 18 years running six days a week.

1:00And then we get a lunch break on Saturday and do it all over again. The Patriot Mobile Command Center and the Microwired Up. It's all brought to you by the NRA. Gregand Dallas, Texas. You ready to rumble? Yeah, let's do this. So I just want to let you know that Andy Hoosier will be in possession of a new Comrex unit on Friday. Okay. We have a tracking number to prove it. That's a personal thing. He sets reminders for me from time to time and sometimes it takes a while to do those things, but we got her done. So next time you're listening to Andy and he's out and about remote, you can thank me for that. How about that? There you go. Absolutely. All right, dude, we're everywhere. Tell everybody where to go and let's get started. Sure places to watch the show are gonna be YouTube, Facebook and rumble. Just do a search for armed American radio with Mark Walters. You can head over to X and find us at AAR mark. You can also head over to armdomaricanradio.org or dot com hit that menu icon. Then select your watch live or listen live option. And if you'd like to join our live chat, all you have to do is download telegram, create your profile and search for armed American radio conversations.

2:01Yeah, that will do it. And let's get started because yesterday, September 1st, 2026, a three-judge panel of the United States Circuit Court of Appeals for the Third Circuit handed down a decision in United States V. Joseph Paul Berger. If you heard about that, we haven't spoken about that yet. That's why we're gonna do it today. And the third circuit, of course, we're on the heels of what is in my estimation, the strongest circuit decision, 15-judge end-bunk panel ruling, second amendment ruling we've ever seen out of a out of a circuit court, ladies and gentlemen. And now this, this is interesting. So as we say, let's get into it. The headline is simple. The federal machine gun band get this survived a second amendment challenge yesterday in the third circuit. This was a three-judge panel. The panel affirmed Berger's conviction and said machine guns may be banned because in the court's view, they are not in common use for lawful purposes. Now remember that.

3:01Okay. Here's why this is such a fascinating decision for us here. This is the very same circuit, as I just said, that only weeks ago, just weeks ago sitting as the full end-bunk panel, 15-judges, I just mentioned, ruled that New Jersey's ban on commonly owned semi-automatic rifles and magazines holding more than 10 rounds violates the second amendment. That July decision, ladies and gentlemen, was an enormous victory. It said the state cannot take away millions of ordinary rifles and magazines and relabel them with the frightening political terminology and ban them from you and me, every piece of will citizen out there. So how can one court strike down a ban on AR 15 style rifles and standard capacity magazines, then turn around and uphold a ban on machine guns? Is it hypocritical? Is it hypocrisy? Is it just a contradiction? We're going to explore this today, folks. It's fascinating. Did the court suddenly abandon brewing?

4:05Or is the court the three-judge panel of the third circuit same court now drawing a constitutional line or a distinction between arms that are commonly possessed for lawful purposes and arms it considers both dangerous and unusual? Those two words dangerous and unusual are going to play a major role coming up in 2027. That's the question for the hour. Let's get the facts straight here first off. Let's talk a little bit about the case. Berger is described by the court as a decorated Navy veteran living with his father in Bethlehem, PA. Federal agents intercepted a package that he ordered containing three suppressors shipped from China. When they intercepted them, they obtained a warrant and searched his home. According to the opinion, agents found more than five dozen firearms, 13 of which were fully automatic and most of those were AK-47 variants of a sort.

5:05They also found approximately a dozen suppressors and evidence of parts used to convert semi-automatic firearms into machine guns. Under federal law, a machine gun is not just a scary looking rifle under federal law. It's a weapon that fires, of course, we're going to throw the distinction up because it's important the other side doesn't. So weapon that fires more than one shot automatically by a single function of the trigger. And again, that distinction matters because an ordinary AR-15 being a semi-auto fires only one round per each trigger pull, as you already know. If you're new to the show, you're going to get a huge lesson today and brewing the Constitution, the Second Amendment and some hardware. A machine gun continues firing multiple rounds from one trigger function. The media constantly blurs that line. How many times have we talked about that? Semi-auto versus full auto. The law doesn't. So the federal statute here is 18 USC section 922 O and it generally forbids civilian possession of machine guns that were not lawfully possessed prior to May 19, 1986. Pre 1986 transferable machine guns remain lawful ladies and gentlemen under federal law.

6:21If the owner complies with this is where some nuance comes in with the National Firearms Act, which as you know, if you listen to the program is under the gun right now pun intended and, of course, any applicable state laws where you happen to live. Post 1986 machine guns have generally been limited to government agencies and qualified licensees under tightly controlled circumstance. If you've ever fired one, I have going down to Daniel Defense and fire in the Mark Fives. Unbelievable fun. And of course you can do that on various ranges around the country that are licensed to have them. Burger pled guilty to possessing a machine gun and an unregistered suppressor while he reserved the right to appeal the rejection of his second amendment challenge or argument. So this was not a lawsuit brought by a how do I say it's a broad coalition of us ordinary ordinary firearms owners challenging a state ban before anybody was ever prosecuted. It was an as applied constitutional challenge arising from a federal conviction under that code I just mentioned.

7:34And that distinction matters the New Jersey case involved gun owners and advocacy organizations who were challenging sweeping state restrictions across the board against an entire class of commonly owned semi automatic rifles and magazines that were thrown in by the and bond panel, which was fantastic burger involved one criminal defendant just him and 13 illegally possessed automatic firearms. Nobody is disputing that his guns were illegally possessed. So he wanted to fight this on second amendment grounds and did he also was charged with having the unregistered suppressors and conversion parts. So what happens here is courts notice a a factual posture here. They're looking strictly at that even when courts say they're resolving a I guess a pure question of law. Okay, that matters as well. Judge Stefano's bebas I think I'm pronouncing his name properly. I'm not sure. He's the one that wrote the burger opinion. Restrepro and Chung who of course also were on the third circuit New Jersey because it was an end bond panel. They were the other two judges on this panel.

8:50The opinion opens with the following line and it sounds like it was just flat out designed for headlines gun bands are strong medicine, but sometimes they are just what the doctor ordered. I do not like judges talking about constitutional rights as if the government were our physician and prohibition were our prescription. The bill of rights is not medicine dispensed by the state. It is a restraint imposed on the state. But here's you listen to that and then try to pick the ruling out of a hat. You probably get it wrong, right. But we don't we're not going to stop at that opening line because the court made significant concessions immediately after that statement. Here's what it said. And this is critical as we go forward into the next three segments machine guns are in fact firearms. Therefore they are arms within the text of the second amendment.

9:50Let's go back to what we've learned about brewing the brewing test to part test and it just passed test number one step number one. They are in fact and do fall within the text of the second amendment. Therefore what is test number two test number two under brewing says it is now upon the burden is now upon the government to tell us and prove and justify why they are banned. Under the nation's historical tradition and common use principle that was drawn of course from hell guns in common use cannot be banned all of this ties together with what's coming in 2027 folks fascinating stuff. So that's the distinction. That's going to control everything we talk about for the next three segments. So buckle in grab a note pad pad and pay problem to put some great YouTube videos up on this as well too. It is just a content factory for that. So make sure to subscribe to armed American radio on YouTube these shorts and long forms will come out very quickly over the next two days will be back to break it down for you in plain English.

11:13Welcome back to the show if you were watching you didn't hear me because I was only mouthing the words because it's off for copyright purposes but this little hoey mug here my little little sheets who who is just absolutely awesome daddy just gave her a bunch of treats before the show to keep it back and she doesn't like when I come out to work when I'm the only one at home she's left by herself. This is filled with vanilla flavor which I did myself black out coffee and it's iced and it's fantastic it's very good it's a strong cup of coffee needed today Greg I'm just tell you right now because I got so much to cover two cups of black out to start my day today this is my third throughout the day and I'm on a roll so let's keep going because this conversation's huge. You ready? Yeah let's go. Let's do it. So here's the ruling in one sentence ladies and gentlemen continuing where we left off. Machine guns enter the second amendments front door let's let's a lot of metaphors coming here okay because there are arms which the third circuit bound but the third circuit said then that they can be removed at the second door because they're not commonly used by law abiding citizens for lawful purposes and fit a historical tradition of restricting dangerous and unusual weapons Greg picked up on this during the break.

12:25And I said just stop hold on because that's exactly where we're going whether that second staged or second door however you want to frame that analysis is correct is absolute fair game here for this discussion and there's very serious questions about it but the court did not say the government may ban anything it labels dangerous let's go back to him on eat. Money you can't be labeled dangerous simply because you smoke weed therefore your second amendment taken away from you lots of connections here guys. The court in this case relied on a combination or particular combination if you will the weapons automatic operation fully automatic operation and the court's assessment of its typical uses it's rarity it said among ordinary civilians keep that in mind why is it rare among ordinary civilians there's a hint we're going to go there. Supreme Court language also came into play about m16 rifles and historical restrictions on weapons associated principally with crime okay keep all of that in mind now we're going to go in this segment to brew and in common use and the court's weak spot here in the third circuit okay as we break down yesterday's third circuit decision step one asks whether the Constitution's plain text covers the person in the conduct in this case it does they said that step two shifts the person in the context of the case.

13:43Step two shifts the burden to the government the government not the citizen must show that its regulation is consistent with the principles underlying the historical tradition that's brewing we've been talking about this forever or since 2022 which is forever in our world regarding this anyway it does not need an identical law from 1791 it must be historically analysis what the court said but it needs a well established and represented or representative analog. That is relatively similar in why and how it burdens our rights the third circuit held in the New Jersey case now that the common use inquiry belongs at step two not step one burger follows that rule machine guns or firearms so they are arms end of step one at step two however here's the nuance the panel asks whether machine guns are commonly used for lawful purposes and whether history supports banning weapons commonly associated with the law. It is not associated with crime rather than lawful civilian activity many many thousands of Americans own full auto weapons ladies and gentlemen now this court said no machine guns are not commonly used for lawful purposes I would argue that the thousands of people who own them use them for lawful purposes.

15:06It characterized machine guns as weapons of war and crime rather than self defense I don't argue that their weapons of war they are that's why I want one that's why we have a second amendment in case it hits the fan. So the court pointed to very high sicklic rate quote unquote reduced control ability during automatic fire and risk of collateral collateral injury it quotes an army field manual explaining that automatic or burst fire reduces quoting hit probability because recoil disrupts sight alignment it discusses the Thompson submachine guns association with prohibition error criminals the John Dillinger analogy we use the other day. And it sites legislative materials describing machine guns as gangster weapons. This is the same court that gave us the strongest circuit court opinion we've ever seen relative to the second amendment just weeks ago. The panel was leaning very heavily on language from DC V heller Scalia wrote that the second amendment does not protect weapons not typically possessed by lawbiting citizens for lawful purposes and this is where the M16 analysis comes into play because he observed that M16 rifles and symbols.

16:20Wapons may be banned whatever pro gun lawyers think about that sentence folks lower courts are going to treat it as powerful guidance until scotus says otherwise and that's what this lower court is doing right now. But then the third circuit turned to history and invoked the tradition against carrying dangerous and unusual weapons and it noted and I quote that between 1925 and 1934 at least 29 states plus Congress for the DC of Columbia for the District of Columbia banned machine gun possession. The panel admits those are not founding error laws it says it is using them to demonstrate the rapid regulatory consensus here where machine guns became widely known not as the historical analog themselves if that makes sense that's the court's argument so now we're going to pressure test it okay because it's not hard to do problem number one is circularity. Okay the federal government sharply restricted machine guns back in 1934's Greg and I were discussing during the break imposing additional controls in 1968 and close the civilian registry to newly manufactured machine guns in 1986.

17:37Then the government walks in to court decades later and says look how uncommon they are among civilians. But they are uncommon in part because the federal government is the organization prohibiting the public from adding new ones to the lawful civilian supply. How many times have you heard me say I should be able to buy any gun I want out of a vending machine as a law-biting citizen I stand by that I am not a threat. Government should not be able to ban and arms suppress its lawful ownership wait long enough for decades in this case and then defend the ban by pointing to the scarcity that the ban itself created. When that happens common use becomes a constitutional first come first serve rule. A government that bands early wins forever a government that waits until millions are sold loses that rewards aggressive prohibition.

18:43No we'll just ban it. We'll hang out for a few decades win win win win win win win win win win win win win we got this. It's a joke but there are some serious responses to this folks the court says machine guns were not broadly adopted by peaceable civilians even when available because their characteristics made them poorly suited to ordinary self defense and hunting. So it's treating the criminal association as a cause of their regulation not merely an effect but a cause that's what the government's doing here. The factual claim is contestable I guess and the opinion doesn't really fully grapple with and take this thing down by the horns when it comes to the lawful civilian machine gun community but it should we're going to continue this conversation when we come back I'm not going to get to everything that I have here but we will get to the vast majority of it and you'll have enough to walk away with and talk about it intelligently we'll be right back.

19:55The following segment of armed American radios daily defenses being brought to you by patriot mobile visit patriot mobile dot com slash a ar and use the a ar promo code to get three activations today welcome back to the show. A lot to cover with you so we're going to move through the sponsors quick today patriot mobile dot com you see the patriot mobile hat get you one patriot mobile dot com slash a ar and support that amazing company and while you're at it you can drop it in this s l n t silent fair day bag and your phone will disappear. I will be using this thing hands down every day for about two and a half straight weeks as I'm traveling across country multiple times over the month of October and it will come in super handy as it has for a number of years when I travel around the country airports hotels convention floors et cetera I've got them for the computers I've also got them for this you can check them out at s l n t dot com slash a ar make sure to visit them and all of our great partners including buds gun shop dot com they have something for you and you want what they have so it's a match made in heaven.

21:07It's win win all the way around you can find all of our great partners at arm to american radio dot com or dot org let's go back into this is so much here I could easily cover this for two to three hours so I'm going to try to get through my notes and give you the key points here as we get closer running out of time. My assessment is that well first off there's three things here that I think I want to look at first problem number one I'm going to use some big words the liberals I'm going to tell you right now and on time to explain them so you can look them up because I know you that's called a dictionary and you can find it on your phone you might even have one in your house depending on how old your parents are conjunctive formulation big words for liberals. Okay and that's the phrase dangerous and unusual how are you used that conjunctive formulation dangerous and unusual not dangerous or unusual see liberals words mean things and or they mean things every firearm is dangerous in the ordinary sense think about it this way. That can't be enough or the second amendment protects absolutely nothing ladies and gentlemen and if an arm is commonly possessed for lawful purposes the New Jersey court said it cannot simultaneously be dangerous and unusual because of that makes sense.

22:19Okay now they found in burger the three judge panel found that machine guns are unusual because they are not commonly possessed for lawful purposes then finds them dangerous based on rapid automatic fire and their association with crime and war the third problem here is the historical timing the primary historical period for the second amendment is the founding era. The machine gun laws the court discusses arose mainly in the 20s and 30s think the John Dillinger era again right the panel acknowledged that and treats those laws as evidence of rapid consensus how do I want to phrase this more more so about technological development that's the nuance okay technological development and then the more nuanced analogy brewing permits according to this three judge panel for unprecedented quoting societal concerns or dramatic technological changes so this is all debatable all right so my assessment is this burgers not a lazy pre brewing opinion I don't think that I've read it.

23:36But it uses the framework that the entire circuit established in the New Jersey case the results here depend on very debatable judgments about lawful use think about the irony of what we just talked about okay very very important because the government is creating the scarcity all right so let's do this here some detail that destroys the very important simplistic claim that the third circuit suddenly reversed itself because it didn't judge bevis join judge Freemann's pro-second amendment majority in the New Jersey case then judge bevis wrote the burger opinion from his perspective the decisions are consistent point by point first are the weapons arms for both semi automatic rifles the embank court said yes fire arms are bearable arms including modern fire arms unknown to the founders for magazines it also said yes because magazines are necessary components for the operation of many firearms the text does not prohibit only the minimum equipment or protect I should say not prohibit the minimum only equipment required to make a gun fire and an 11 round magazine does not cease being an arm because the legislature prefers 10 read that is Democrats

25:02for machine guns burger also said yes they are firearms and therefore arms going in that first door of brewing that's an important pro textual holding even though burger lost at the second door so how broad is the government's burden all right new jersey has practically unattainable licensing standards for ordinary citizens the n bonk court ruled the restriction is a de facto ban on semi automatic rifles going back to the jersey decision and bond the full panel the magazine law was also a ban or severe restriction for ordinary self defense owners because they're banned you can't get them those were not background checks that wasn't neutral paperwork or rules aimed at criminal misuse they prohibited you peaceful citizens from possession of an entire class of arms and then we get into common use here and this is comparing the two cases the record in the New Jersey case showed approximately 24 million AR 15s and similar semi auto rifles in circulation we saw from yesterday that it's likely 60 million or above

26:17it also showed that 100 million 30 round AR 15 magazines again that's closer to 500 million we talked about that in great detail yesterday the court found lawful uses including self defense target shooting hunting pest control we talked a little bit about animals that we don't talk about it noted mild recoil ergonomics accuracy it covered all of that New Jersey offered no meaningful rebuttal period so those numbers made the states dangerous and unusual theory absolutely collapse on its face right on its surface a weapon can't be both commonly possessed for lawful purposes and unusual and political labels like assault firearms do not change the mechanics ownership or the constitutional status of what you own because Democrats who hate your guns are always coming up with new verbiage burger on the other hand presents an opposite factual conclusion the panel says machine guns are not commonly used for self defense or other lawful purposes and are associated principally with war or crime

27:30or war and crime and or it matters get emphasized again automatic rate of fire multiple shots from one trigger function not cosmetic features detachable magazines or semi automatic operation but the actual full auto operation of the gun and that distinction was huge in this decision an AR 15 is not in m16 ladies and gentlemen semi automatic is not automatic one trigger function one shot is not one trigger function continuous fire the left blurs that all the time and so do the Democrat politicians who hate your rights every single anti gun politician who uses machine gun imagery to support an AR 15 ban should probably have burger red back to them because the third circuit three judge panel treats these two different treats these two categories differently as it should because they are we get into a fourth here and that's history you know New Jersey's had bowie knife regulations trap gun laws gunpowder storage rules and other historical examples the end bomb majority found them inadequate

28:35to five because I'm going to run out of time the purpose of possession is huge the New Jersey majority rejected the idea that only frequent defensive firing counts people do not need to fire an arm in self defense per possession to serve law to serve self defense like my situation again we talked about it in the 2026 firearm study yesterday that found up to 2.2 million defensive uses and 75% roughly never have to fire a shot one shot and that happens so burger kind of narrows the lens here it asks whether automatic fire is well suited for personal protection and it relied in the court on evidence that sustained automatic fire is hard to control I have no problem controlling it others might but that's a pressure point ladies and gentlemen as I pointed out in the previous segment suitability is not identical to possession and judges should be cautious about choosing the equipment citizens need

29:44and when we come back from the break will wrap all this up in segment four don't go away this segment is brought to you by attorneys on retainer get the only self defense program for gun owners back by a real law firm the attorneys for freedom visit them online at attorneys on retainer dot us welcome back yeah welcome back attorneys on retainer dot us get a lawyer in your pocket how many times I have to ask you to do that just get it done okay if you carry a gun for personal protection self defense you need a lawyer in your hit pocket it's only 37 bucks a month if you've got a lawyer you know there a lot more a hell of lot more than $37 a month so take advantage of this they focus on nothing but your self defense case period that's all they do also allegiance goal dot com

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31:53because of what we've been talking about with the NFA and the fifth circuit and the DOJ and what's happening if you're a part of the CCR KBA or any of the other plaintiffs those NFA regulations no longer apply to you and the director of the ATF just said they're not coming after you for that so we're going to have a lot more information on that down the road in the next couple days and weeks ahead no doubt but that's what made this interesting in the third circuit because they the treatment of suppressor Registration here I think deserves some pretty close attention the panel upheld burgers conviction for possessing unregistered suppressors it did not decisively definitively decide whether suppressors are arms because the parties agreed for the purpose of the case that they were so the court didn't get into that instead the majority reason that objective minimally burdensome quoting minimally burdensome registration rules do not in fringe on the right at all

32:55and therefore fall outside Bruins second step historical inquiry all this is debatable is it not I wish we had more time burden some registration minimally burdensome registration rules minimally burdensome registration rules do not in fringe on the right at all in other words well I guess you have to go get a permit to speak it's minimally burdensome but it doesn't in fringe on your first amendment right same thing with your religion let's not even consider our fourth amendment rights in order to have fourth amendment protections before we refuse consent for an illegal search or any search for that matter we have to fill out paperwork and wait for a government agency to approve us and then we can carry a card in our wallet that says oh this guy's decided to to to to uphold his own fourth and all okay yeah guys come on this is debatable you know it and I know it all right

34:00so once courts start deciding that a burden is so small or too small is the word here once they start deciding that a burden is too small to trigger constitutional review minimal can expand because they can explain it away a fee is minimal to a judge a delay is minimal to a judge to a bureaucrat fingerprinting that's minimal to an agency registrations minimal until a hostile administration uses the registry right the second amendment says shall not be infringed court should demand clear limits on this before creating a constitutional small burden exception think about this so it's a huge difference between regulation and prohibition so interesting stuff I don't I don't celebrate a court announcing that the government may ban any entire category or class of firearms in any way

35:11shape or form and I'm very very troubled by this what appears to be this circular use of government created scarcity here and I question any analysis that slides or moves from not ideal for self-defense to well principally criminal who did that movies did that 1930 gangsters did that and we have to be extremely cautious here about any new theory whatsoever that supposedly small regulatory hoops don't count as an infringement because they do now keep in mind this is not by any stretch the end of the AR-15 case it's not a reversal of the third circuits new jersey ruling by any stretch

36:13it does not say anything about semi-automatic rifles at all it doesn't claim that semi-automatic rifles in that very strong decision back just three weeks ago four weeks ago middle of July somewhere around their time is flying it does not revive new jerseys failed analogies okay it works for the end-bought decision that protected semi-automatic rifles and magazines that decision works and that that decision was huge it was strong the anti-gun side though once one blurry category here and they want to call it what you've heard it a million times weapon of war or weapons of war that they want that blurry category they intentionally misrepresent they lie every single day about it well there's a huge distinction between these two cases in any honest clear thinking individual within IQ above a

37:16democrats gets this so there's two very sharply different third circuit outcomes here one involving fully automatic fire weapons and a restricted civilian population the other involves ordinary semi-automatic rifles and magazines possessed by millions upon millions of peaceable americans the problem here is again this circular creation of a problem and not in common use because of government created scarcity and bands i have trouble with that you should have trouble with that because that can apply elsewhere as well we can take it out of the second amendment box we just did a couple minutes ago quite frankly so when they wave yesterday's machine gun ruling and claim it saves ar 15 bands hand in the july opinion right when they say semi-automatic are basically machine guns meaning the anti-gun side make them explain why the exact same court treated them

38:18entirely differently with very clear distinctions whether you agree or disagree with the rulings either one you just have to be honest when they say 20 or 30 round magazines are unusual you can give them the ownership numbers folks you've got them just visit my website you they're laid out for you youtube i should say because they're right there for you in the videos and when they tell you that the government can choose what arms you need remember what Alan Gottlieb said it's the bill of rights not the bill of needs and they don't get to determine that nor does a court remind them that constitutional rights remove certain policy choices from the government's hands it's that simple the machine gun challenge was yesterday the constitutional case against bands on commonly owned semi-autor rifles and standard capacity magazines did not and that case may actually be stronger today because the line was distinguished by the third circuit we're going to get up and do it again tomorrow because they don't want us to enjoy your day stay safe i hope you learn something i'll see on the radio you just filled your prescription for freedom on armed american radio with mark

39:24Walters the loudest voice in america fighting for gun rights