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Second Amendment Doesn't Protect Machineguns, Doesn't Preclude Registration Requirement for Silencers

Eugene Volokh | 9.2.2026 8:01 AM

From Third Circuit Judge Stephanos Bibas, joined by Judges Felipe Restrepo and Cindy Chung, in yesterday's U.S. v. Berger:

Gun bans are strong medicine. But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime. Machine guns fit that mold….

The Second Amendment is not boundless…. he Second Amendment protects weapons commonly used for self-defense and other legal purposes. Conversely, "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." This traditional principle "accords with the historical understanding of the scope of the right." To support the common-use principle, Heller relied on "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" …

Machine guns are not in common use for lawful purposes. That means they are dangerous and unusual. They are indiscriminate weapons of war and crime, not self-defense ones. And because they can cause unusual amounts of damage, they are used mostly for criminal purposes….

Machine guns are not well-suited for lawful purposes. To be sure, they are excellent weapons of war…. Modern machine guns can fire more than 1,000 rounds in one minute, killing dozens of enemies in seconds.

But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage. The U.S. Army thus trains soldiers to use them only when "the need for precise fires, although desired, is not as important. Automatic or burst fires drastically decrease the probability of hit due to the rapid succession of recoil impulses and the inability of the Soldier to maintain proper sight alignment and sight picture on the target." …

To recap, at Bruen's second step, the government must prove that machine-gun restrictions fit with our Nation's regulatory tradition. It does not need a "historical twin," but only a "well-established and representative historical analogue." This means that a modern gun regulation must be "'relevantly similar' to [Founding-era gun regulations] in both why and how it burdens the Second Amendment........

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