On August 9, 2012, 9th Circuit Court of Appeals Judge Milan D. Smith Jr. authored an opinion in US v. Henry that held machine guns are not arms protected by the Second Amendment. Judge Smith conceded that “Heller did not specify the types of weapons that qualify as "dangerous and unusual," but noted that Heller stated that “it would be "startling" for the Second Amendment to protect machine guns” and because other Federal Circuit Court of Appeals had likewise upheld the Federal machine gun ban.
It was this same shallow reasoning that led to the overruling of another opinion he authored in 2010 which held that all convicted felons, regardless of the nature of the offense, were categorically excluded from the Second Amendment right to keep and bear arms.
We now have the opinion in NYSRPA v. Bruen that mandated the methodology the inferior courts must apply to Second Amendment challenges. Machine guns are firearms and firearms are arms. That shifts the burden onto the government to prove that machine guns are not arms protected by the Second Amendment.
The case is US v. Kittson. The district court did not apply the Bruen methodology. Instead, the trial court judge held that the 2012 opinion in US v. Henry was undisturbed by the 2022 Supreme Court opinion in NYSRPA v. Bruen.
Mr. Kittson’s attorney raised four issues in his opening brief. The Second Amendment issue is the second issue raised in his opening brief.
“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)?”
The first issue raised in the opening brief is one I never would have thought of. It is also an issue that could allow the Court of Appeals to avoid the Second Amendment question if Mr. Kittson prevails on that issue.
“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?”
Issues 3 and 4 are important procedural and constitutional questions that could simply result in a remand back to the trial court for a do-over.
"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?" Here are links to the opening brief and the excerpts of record. Defendant-Appellant Opening Brief Index to the Excerpts of Record Excerpts of Record - Volume 1 of 5 Excerpts of Record - Volume 2 of 5 Excerpts of Record - Volume 3 of 5 Excerpts of Record - Volume 4 of 5 Excerpts of Record - Volume 5 of 5
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