On May 18, the U.S. Court of Appeals for the Third Circuit released its “Precedential” opinion in Watson v. United States.
On December 9, 2015, we filed an amicus brief in this case arguing that machineguns are protected “arms” under the Second Amendment.
The Court’s analysis was predictable – and thoroughly wrong.
First, the Third Circuit did not accept the simple theory that a trust could possess a pre-1986 machinegun because the statute does not prohibit “trusts” from possessing machineguns. Trusts are not identified in the definition of "persons" prohibited from possession.
The panel stated that “we refuse to conclude” that a statute would prohibit a “person” from possessing a machinegun, but then turn around and permit a person as a “trustee” to possess one. Apparently the panel felt that its job was not to “say what the law is,” but instead “to say what it believed Congress would think the law should have been.”
Second, the Third Circuit held that machineguns are outside the scope of the Second Amendment and thus are not protected arms. Choosing to completely ignore our amicus brief, the panel misinterpreted the Supreme Court’s language in Heller and Miller as supporting its conclusion that machineguns are not protected arms.
The panel stated that “In case Marzzarella left any doubt, we repeat today that the Second Amendment does not protect the possession of machineguns.”
The panel was comprised of Judge Ambro, a Clinton appointee, Judge Krause, an Obama appointee, and Judge Anne Thompson, a federal district court judge from New Jersey.