On June 30, 2016, the U.S. Court of Appeals for the 5th Circuit issued its unanimous (attached) opinion in Hollis v. Lynch, upholding the federal machinegun ban, the same as the Third Circuit did in Watson v. United States.
In a horrible, poorly reasoned decision, the Fifth Circuit claimed that the federal machine gun ban does not violate the Second Amendment. It came to this conclusion based on several blatant misreadings of the Supreme Court’s decisions in Heller and Miller.
• First, the Fifth Circuit claimed that “Miller upheld the National Firearms Act against a Second Amendment challenge.” On the contrary, all Miller said was that “in the absence of any evidence” that a short-barreled shotgun is a protected arm, it could be banned — meaning that if there had been evidence, then maybe it could not be banned. That is in no way a finding that the NFA ban on short barreled shotguns is constitutional.
• Second, the Fifth Circuit noted that “Heller, therefore, distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are “possessed at home” ... for ... self-defense.” Our amicus had argued that Heller noted that both Categories of weapons are protected, not only Category 1. The Fifth Circuit read Heller in just the opposite way, claiming only that category (2) weapons are protected.
• Third, the Fifth Circuit claimed that Heller “recognized the divergence of these two classes of weapons,” and “in the colonial and revolutionary war era ... weapons used by militiamen and weapons used in defense of person and home were one and the same.” According to the Fifth Circuit, however, things have changed, and “today, though, ordinary military weaponry is far more advanced than weapons typically found at home and used for defense.” That was then, and this is now, according to the Fifth Circuit.
• Fourth, the Fifth Circuit quoted Heller that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service.” However, in the very next sentence, the Court made the outlandish claim that “an effective militia today [is] i.e., the National Guard” — a mind boggling disregard for what Heller said. Again, that was then, and this is now, and apparently the meaning of the text at ratification has no bearing on its meaning today.
According to the Fifth Circuit three judge panel, the Second Amendment protects only the right to keep and bear arms “in defense of hearth and home,” and thus the only “arms” protected are “the class of weapons that enable” self defense in the home. The Court even goes so far as to say that resistance to tyranny is NOT protected by the Second Amendment — “self-defense, not revolution, is the central component of the Second Amendment.”
Of the three judges that made up the Fifth Circuit panel, two were appointed by Bush I and one by Carter. So much for Republican judges in what frequently is said to be the most conservative circuit in the country.