Machine Gun Oral Argument in the 9th Circuit Court of Appeals

United States of America v. Kittson (23-4132)

On February 20th, the 9th Circuit Court of Appeals noticed the attorneys that this case, United States of America v. Kittson (23-4132), is being considered for an upcoming oral argument calendar in Portland in June or the following month.

This is a complex case. It is the appeal of a criminal conviction for a single count of “Illegal Possession or Transfer of a Machinegun” under Federal law 18 U.S.C. § 922(o). The jury acquitted Mr. Kittson of being a convicted felon in possession of a firearm in violation of Federal law. Nevertheless, the government argues that Mr. Kittson is a convicted felon.

The Court of Appeals had first noticed the attorneys that this case was being considered for oral argument on September 30th of last year for February or March of this year. On October 1st and 2nd, the attorneys filed the dates they would be unavailable, followed by the Defendant-Appellant filing his Reply Brief on October 21st. We then heard nothing from the Court of Appeals until last Thursday's notice that the case is being considered for oral argument in June or July.

Mr. Kittson raises four distinct issues on appeal. Only the second issue specifically challenges the Federal machine gun ban as violating the Second Amendment.

The four issues raised on appeal are:

1. Given that the statute criminalizing possession and transfer of machineguns, 18 U.S.C. § 922(o), does not criminalize an attempted transfer and exempts transfers to the government from criminal culpability in subsection (o)(2)(A):
a) does a transfer to an undercover government agent violate the statute?
b) should the jury have been instructed on the terms of the statute?

2. Whether a near total ban on the possession of machineguns is consistent with the Nation's historical tradition of firearms regulation under the Second Amendment, based on New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022)? 

3. Whether the jury instruction that a functioning magazine was irrelevant to the question of whether a weapon qualified as a machinegun – given over Mr. Kittson’s objection – requires reversal because: it was an erroneous statement of the law; directed a verdict on a contested element of the offense; deprived Mr. Kittson of critical constitutional rights including his right to be presumed innocent; to require the government to prove his guilt of all elements of the offense beyond a reasonable doubt; to confront the evidence and present a defense; and, to have his guilt determined by the unanimous suffrage of the jury?

4. Did the district court violate Mr. Kittson’s constitutionally protected rights to Due Process and a fair and impartial adjudicator at sentencing when the court resolved a factual dispute against Mr. Kittson based not on any evidence proffered by the government, but instead based on the court’s prior personal practice sitting as a judge in the Oregon State courts?

I did say that this is a complex case.

Any of the three other issues raised on appeal is sufficient for the Court of Appeals to avoid the Second Amendment issue.

The government makes three arguments regarding Mr. Kittson's Second Amendment challenge: 1) Circuit precedent forecloses defendant’s argument, 2) Bruen did not disturb circuit precedent upholding § 922(o), 3) Even if this Court were not bound by circuit precedent, 18 U.S.C. § 922(o) is constitutional.

Mr. Kittson's Reply Brief argues that whether machine guns are "dangerous and unusual weapons" that fall outside the scope of Second Amendment requires the Court to engage in a historical analysis, which is something the 9th Circuit has not yet done.

Should the three-judge panel reach the Second Amendment question, there is a potentially fatal problem with Mr. Kittson's case.  Mr. Kittson failed to challenge the law as it applies to him.  Mr. Kittson makes only a facial challenge.  The Supreme Court in US v. Rahimi told us that a facial challenge fails unless there is no set of circumstances in which the law is constitutional.  All that is necessary for Mr. Rahimi to lose his appeal is for the Court of Appeals to contrive one circumstance in which the law is constitutional.

And Mr. Kittson is a convicted felon.

This appeal was briefed on the merits by the Biden administration.  It is President Trump's Department of Justice that will be defending the constitutionality of the Federal machine gun ban in oral argument and after that.  Should his Department of Justice concede in oral argumen that the Federal machine gun ban is unconstitutional then Mr. Kittson wins.  In the 9th Circuit Court of Appeals, parties are bound by the concessions they make in oral argument.  

There was one Amicus brief filed in this case.  Some time ago, I alerted Attorney Konstadinos T. Moros to it and strongly suggested that he write and file an Amicus brief in this case.  He did and he brought along the California Rifle and Pistol Association (CRPA), the Second Amendment Law Foundation, and the Second Amendment Foundation (SAF).

The CRPA is the official state organization of the NRA.  Ironically, an attorney representing the NRA-CRPA argued in a different case before the 9th Circuit Court of Appeals said that machine guns are "dangerous and unusual" weapons and are not protected by the Second Amendment and therefore machine gun bans are constitutional.  It's nice to see that the CRPA has changed its mind.  Now if only we can persuade the NRA-CRPA to change its position that banning Open Carry is constitutional (I'm not going to hold my breath).

I've uploaded a few additional documents to the free CourtListener district court docket for those who wish to take a deeper dive into the case.  Likewise, the CourtListener docket has the Opening, Answering, and Reply briefs online, free to read by everyone.  Links below:

CourtListener dockets:  District Court  and Court of Appeals