United States of America v. Jaquan L. Bridges

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAQUAN L. BRIDGES,
Defendant-Appellant.
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No. 24-5874
Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:23-cr-20080-1—John Thomas Fowlkes, Jr., District Judge.
Argued: May 7, 2025
Decided and Filed: August 7, 2025
Before: BOGGS, GRIFFIN, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Greg Gookin, FEDERAL PUBLIC DEFENDER’S OFFICE, Memphis, Tennessee,
for Appellant. Eileen Kuo, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee,
for Appellee. ON BRIEF: Greg Gookin, FEDERAL PUBLIC DEFENDER’S OFFICE,
Memphis, Tennessee, for Appellant. Eileen Kuo, UNITED STATES ATTORNEY’S OFFICE,
Memphis, Tennessee, for Appellee.
GRIFFIN, J., delivered the opinion of the court in which BOGGS, J., concurred.
NALBANDIAN, J. (pp. 17–50), delivered a separate opinion concurring in part and concurring
in the judgment.
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OPINION
_________________
GRIFFIN, Circuit Judge.
Defendant Jaquan Bridges challenges his conviction for possessing a machinegun in
violation of 18 U.S.C. § 922(o), arguing that the statute violates the Second Amendment, facially
and as applied to him, under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
For two independent reasons, we disagree. First, controlling Supreme Court and Sixth Circuit
precedent—that predates Bruen but remains good law—compels our conclusion. In addition,
applying Bruen’s text-and-history methodology, we conclude that § 922(o) is consistent with our
Nation’s historical tradition of prohibiting private possession of dangerous and unusual weapons.
We thus hold that 18 U.S.C. § 922(o) is constitutional both on its face and as applied to Bridges.
Accordingly, we affirm the district court’s judgment.
I.
Bridges was driving on a highway in Memphis, Tennessee, when he almost struck a
police vehicle. As police tried to stop him, he slowed his car, rolled down the window, and fired
several gunshots—one bullet hit the police car and narrowly missed an officer’s head. Bridges
sped off, leading to a pursuit, which ended when Bridges crashed into a concrete barrier. He
crawled out of his car, and officers arrested him and searched his vehicle.
During the search, police found a loaded Glock 23 .40-caliber handgun with an attached
“switch”—a device that allows a semi-automatic pistol to fire more than one round of
ammunition with a single pull of the trigger. The Bureau of Alcohol, Tobacco, Firearms and
Explosives examined the gun and determined that it qualified as a machinegun under federal law.
Bridges did not have a valid registration for the machinegun and does not contest that the
converted pistol is a machinegun as defined by 26 U.S.C. § 5845(b).
A grand jury indicted Bridges on one count of possessing a machinegun, in violation of
18 U.S.C. § 922(o). He moved to dismiss the indictment, arguing that § 922(o) is

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unconstitutional, facially and as applied to him, under Bruen. The district court disagreed, held
that § 922(o) is constitutional, and denied the motion. Bridges then pleaded guilty to the single
count of possessing a machinegun in violation of § 922(o), and the district court sentenced him
to 108 months’ imprisonment. This appeal followed.
II.
A.
Section 922(o) generally makes it unlawful to “possess a machinegun.” See 18 U.S.C.
§ 922(o). A machinegun is “any weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual reloading, by a single
function of the trigger.” 26 U.S.C. § 5845(b). The term encompasses parts “for use in
converting a weapon into a machinegun, and any combination of parts from which a machinegun
can be assembled if such parts are in the possession or under the control of a person.” Id.
Machineguns, otherwise known as “fully automatic” weapons, fire multiple rounds when the
shooter “[s]imply press[es] and hold[s] the trigger down.” Garland v. Cargill, 602 U.S. 406, 425
(2024). For example:
The archetypal modern “machinegun” is the military’s standard-issue M16 assault
rifle. With an M16 in automatic mode, the shooter pulls the trigger once to
achieve a fire rate of 700 to 950 rounds per minute. An internal mechanism
automates the M16’s continuous fire, so that all the shooter has to do is keep
backward pressure on the trigger. If the shooter stops putting pressure on the
trigger, the gun stops firing.
Cargill, 602 U.S. at 432 (Sotomayor, J., dissenting) (internal citations omitted).
We review the district court’s decision about a federal statute’s constitutionality de novo.
United States v. Morton, 123 F.4th 492, 495 (6th Cir. 2024). Although Bridges argues that
§ 922(o) violates the Second Amendment both on its face and as applied to him, we can analyze
those challenges as one. His facial challenge requires him to “establish that no set of
circumstances exists under which” § 922(o) is constitutional, yet, as we will explain, “the
provision is constitutional as applied to the facts of [Bridge]’s own case.” United States v.

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Rahimi, 602 U.S. 680, 693 (2024) (citation omitted). Thus, his as-applied and facial challenges
fail together.
B.
The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. As we consider how to apply this text to § 922(o)’s ban on possessing
machineguns, three cases—two from the Supreme Court and one from the Sixth Circuit—are
key.
1.
The first is the Supreme Court’s landmark decision in District of Columbia v. Heller,
554 U.S. 570 (2008). At issue there was whether the District of Columbia’s ban on handgun
possession in the home violated the Second Amendment. Id. at 573. Heller began with a
“textual analysis” of the Second Amendment, id. at 578, focusing on the text’s meaning as it
would “have been known to ordinary citizens in the founding generation,” id. at 577. To
illuminate that original understanding, Heller looked to “founding-era sources,” id. at 584, as
well as pre-founding materials to show the “historical background of the Second Amendment,”
id. at 592. This review of text and history demonstrated that the Second Amendment
“guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Id.
Heller then consulted other historical sources from “the century after [the Second
Amendment’s] enactment” to determine whether the Court’s interpretation was consistent with
“the public understanding” of the Amendment’s text. Id. at 605 (emphasis omitted). These post-
founding materials included “analogous arms-bearing rights in state constitutions that preceded
and immediately followed adoption of the Second Amendment,” id. at 600–01—ranging from
“Postratification Commentary,” id. at 605; to “Pre-Civil War Case Law,” id. at 610; to “Post-
Civil War Legislation,” id. at 614; to “Post-Civil War Commenta[ry],” id. at 616. Such sources
led the Court to identify a “historical tradition of prohibiting the carrying of ‘dangerous and
unusual weapons.’” Id. at 627 (collecting sources from the 18th and 19th Centuries).

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Next, Heller reviewed the Court’s prior Second Amendment opinions, including United
States v. Miller, 307 U.S. 174, 176–78 (1939), which upheld a ban on transporting short-barreled
shotguns. See Heller, 554 U.S. at 621–25. Heller interpreted Miller to mean “that the Second
Amendment does not protect those weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns.” Id. at 625. In other words, Miller held that
“the type of weapon at issue,” the short-barreled shotgun, “was not eligible for Second
Amendment protection.” Id. at 622.
Heller then considered “what types of weapons Miller permits.” Id. at 624. It concluded
that Miller permits weapons “in common use at the time” that able-bodied men owned and
“[o]rdinarily” brought with them when called for militia service. Id. (quoting Miller, 307 U.S. at
179). Crucially, Heller rejected a reading of Miller that would protect “only those weapons
useful in warfare,” reasoning: “That would be a startling reading of [Miller], since it would
mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller)
might be unconstitutional, machineguns being useful in warfare in 1939.” Id. The
Amendment’s protection of only some weapons, Heller explained, fits within the tradition of
prohibiting “dangerous and unusual weapons.” Id. at 627 (citation omitted). Given this
understanding, Heller made clear that “weapons that are most useful in military service—M–16
rifles and the like—may be banned.” Id.
Finally, Heller rejected the dissent’s suggestion that the Second Amendment right should
be subject to an “interest-balancing inquiry,” under which courts would weigh a regulation’s
burden on the protected right against its beneficial effects to government interests. Id. at 634.
Accordingly, it held that “the District’s ban on handgun possession in the home violates the
Second Amendment.” Id. at 635.
2.
Shortly after Heller, we decided Hamblen v. United States, 591 F.3d 471 (6th Cir. 2009).
There, we rejected a constitutional challenge to § 922(o), holding that Heller “directly
foreclosed” it. Id. at 474. Hamblen relied on Heller’s statement that “the Second Amendment
does not protect those weapons not typically possessed by law-abiding citizens for lawful

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purposes.” Id. (quoting Heller, 554 U.S. at 625). And it noted Heller’s observation that “it
would be a ‘startling’ interpretation of precedent to suggest that restrictions on machine guns, set
forth in the National Firearms Act, might be unconstitutional.” Id. (quoting Heller, 554 U.S. at
624). Thus, Hamblen concluded that, “whatever the individual right to keep and bear arms might
entail, it does not authorize an unlicensed individual to possess unregistered machine guns for
personal use.” Id.
3.
Most recently, the Supreme Court decided Bruen, holding that a state licensing scheme
for the public carrying of firearms violated the Second Amendment right to carry handguns for
self-defense. 597 U.S. at 11. Bruen began by explaining that, in the years since Heller, many
lower courts had failed to faithfully apply it: “the Courts of Appeals have coalesced around a
‘two-step’ framework for analyzing Second Amendment challenges that combines history with
means-end scrutiny.” Bruen, 597 U.S. at 17. Bruen held that “the Courts of Appeals’ second
step—means-end scrutiny—is inconsistent with Heller’s historical approach.” Id. at 24. It thus
abrogated many circuit-court decisions that had erroneously applied means-end scrutiny to the
Second Amendment right. See id. at 19 n.4.
Bruen sought to make “more explicit” Heller’s Second Amendment standard, which
“centered on constitutional text and history.” Id. at 22, 31. “In keeping with Heller,” the Court
clarified the two-step inquiry for analyzing whether a regulation comports with the Second
Amendment. See id. at 17. First, courts ask whether “the Second Amendment’s plain text
covers an individual’s conduct.” Id. If so, then “the Constitution presumptively protects that
conduct,” and courts proceed to the second step—asking whether the government
“demonstrate[d] that the regulation is consistent with this Nation’s historical tradition of firearm
regulation.” Id.
This test, Bruen explained, is the same one “set forth in Heller,” which “requires courts to
assess whether modern firearms regulations are consistent with the Second Amendment’s text
and historical understanding.” Id. at 26. “Heller itself,” Bruen emphasized, “exemplifies this
kind of straightforward historical inquiry.” Id. at 27.

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III.
With that background, we first address Hamblen’s binding force after Bruen. Hamblen,
if it remains good law, forecloses Bridges’s facial and as-applied challenges because it holds that
the Second Amendment categorically does not protect the possession of “unregistered machine
guns for personal use.” 591 F.3d at 474. Ordinarily, holdings of our prior published opinions
bind us, but “we may revisit prior published opinions ‘if intervening Supreme Court caselaw
requires modification.’” United States v. Cogdill, 130 F.4th 523, 527 (6th Cir. 2025) (emphasis
and citation omitted). Bridges argues that Bruen—an intervening Supreme Court decision—
requires us to depart from Hamblen. We disagree. Hamblen straightforwardly applied Heller,
and Bruen did nothing to displace those aspects of Heller on which Hamblen relied; Hamblen
therefore remains good law after Bruen.
To see why, first consider Hamblen’s reasoning. Hamblen appropriately applied Heller’s
statements about machineguns and the types of weapons the Second Amendment protects. See
Hamblen, 591 F.3d at 474 (quoting Heller, 554 U.S. at 625). True, Heller was not a case about
machineguns, so its machinegun-related statements were arguably dicta. See Wright v.
Spaulding, 939 F.3d 695, 701 (6th Cir. 2019). Even so, the Hamblen court was “obligated to
follow Supreme Court dicta, particularly where there [was] not substantial reason for
disregarding it.” Holt v. City of Battle Creek, 925 F.3d 905, 910 (6th Cir. 2019) (citation
omitted). Absent an intervening Supreme Court case that requires a change, Hamblen’s holding
based on those Supreme Court statements—dicta or not—is binding. See Cogdill, 130 F.4th at
527.
Now consider Bruen. It did not call Heller into question; to the contrary, Bruen was an
unqualified endorsement of Heller. When Bruen articulated its text-and-history test, it stated that
it was making Heller’s standard “more explicit,” Bruen, 597 U.S. at 31; that the test was “[i]n
keeping with Heller,” id. at 17; and that this test was the same one “set forth in Heller,” id. at 26.
In other words, Bruen did not assert that Heller fell short of its articulated test; rather, Bruen
stated that “Heller itself exemplifies this kind of straightforward historical inquiry.” Id. at 27.

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To be sure, Bruen abrogated many lower courts’ Second Amendment decisions, but those
opinions had misapplied Heller by erroneously adding a means-end-scrutiny step to Heller’s
text-and-history standard. Cf. United States v. Williams, 113 F.4th 637, 647–48 (6th Cir. 2024)
(“[O]ur pre-Bruen precedent [with respect to § 922(g)(1)] isn’t binding here because intervening
Supreme Court precedent demands a different mode of analysis.”). Hamblen, by contrast, did no
such thing. And pre-Bruen cases that did not wrongfully apply means-end scrutiny remain
binding. See United States v. Risner, 129 F.4th 361, 368 (6th Cir. 2025); see also id. at 370
(Thapar, J., concurring).
Although Hamblen did not conduct its own independent review of text and history, it did
not have to—it instead relied entirely on Heller’s clear statements, rooted in historical analysis,
that applied to machineguns. The historical sources that Heller reviewed demonstrate a
“tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” 554 U.S. at 627
(collecting sources). And that tradition supports the corollary that “the Second Amendment does
not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”
Id. at 625. With that foundation, Heller declared in no uncertain terms that “weapons that are
most useful in military service,” such as “M-16 rifles and the like,” can be “banned” without
offending the Second Amendment. Id. at 627. And it stated that it would be “startling” to
interpret Miller in a way that would mean that federal “restrictions on machineguns . . . might be
unconstitutional.” Id. at 624.
Accordingly, Hamblen faithfully applied Heller and reasonably came to the only
conclusion that could logically follow: § 922(o)’s ban on machinegun possession is
constitutional. If Heller was rooted in history, then so too was Hamblen. Hamblen did not
conduct interest-balancing or means-end tests; rather, it straightforwardly applied Heller, a case
that Bruen emphatically endorsed. Thus, even in Bruen’s wake, Hamblen remains binding
authority. And under that precedent, § 922(o) does not violate the Second Amendment facially
or as applied to Bridges.

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IV.
Moreover, even if Hamblen does not control here, a fresh application of the Heller/Bruen
text-and-history test yields the same result. Recall Bruen’s two steps. First, we ask whether “the
Second Amendment’s plain text covers” the conduct at issue—if so, then “the Constitution
presumptively protects that conduct.” Bruen, 597 U.S. at 24. Second, “[t]he government must
then justify its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Id.
A.
At step one, we must determine whether “the Second Amendment’s plain text covers”
Bridges’s possession of a machinegun. Id. at 17. On this issue, the Supreme Court has
previously instructed our decision. As discussed above, Heller analyzed how the Amendment’s
text would “have been known to ordinary citizens in the founding generation.” 554 U.S. at 576–
77. That analysis showed that the Amendment “‘guarantee[s] the individual right to possess and
carry weapons in case of confrontation’ that does not depend on service in the militia.” Bruen,
597 U.S. at 20 (first alteration in original) (emphasis added) (quoting Heller, 554 U.S. at 592).
Thus, the text plainly covers the conduct of possession.
The remaining textual question is whether the term “Arms” encompasses machineguns.
Again, on this point, the Supreme Court has concluded that the 18th Century meaning of “Arms”
is “no different” than today’s. Heller, 554 U.S. at 581. “Arms” meant “[w]eapons of offence,”
id. (alteration in original) (quoting 1 Samuel Johnson, Dictionary of the English Language 106
(4th ed. 1773) (reprinted 1978)), and “any thing that a man . . . takes into his hands, or useth in
wrath to cast at or strike another,” id. (first quoting 1 Timothy Cunningham, A New and
Complete Law Dictionary (1771); and then citing Noah Webster, American Dictionary of the
English Language (1828) (reprinted 1989)). Indeed, to the founding generation, “all firearms
constituted ‘arms.’” Id. at 581–82 (citing 1 John Trusler, The Distinction Between Words
Esteemed Synonymous in the English Language 37 (3d ed. 1794)). True, machineguns did not
exist at the time of the founding—the modern, fully automatic machinegun would not be
invented until 1884. David B. Kopel, Machine Gun History and Bibliography, 25 Wyo. L. Rev.

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45, 74 (2025). But the term “Arms” in the Second Amendment extends “to all instruments that
constitute bearable arms, even those that were not in existence at the time of the founding.”
Heller, 554 U.S. at 582; Rahimi, 602 U.S. at 691 (noting that the Second Amendment is not “a
law trapped in amber”).
Although machineguns come in various forms, a machinegun—such as a handgun
modified for fully automatic fire—is undoubtedly an “Arm[]” that one can “keep and bear.”
Thus, the Second Amendment’s plain text covers Bridges’s possession of a machinegun, and
“the Constitution presumptively protects that conduct.” Bruen, 597 U.S. at 24; accord Rahimi,
602 U.S. at 691. Accordingly, we proceed to Bruen’s second step.
B.
For § 922(o) to pass constitutional muster, the government must demonstrate that the
statute “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597
U.S. at 24. To do so, the government must identify a historical law that is analogous, or
“relevantly similar,” to the challenged regulation. Id. at 28–29; see also Rahimi, 602 U.S. at 692.
The historical law “need not be a ‘dead ringer’ or a ‘historical twin’” to the modern regulation.
Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 30). What matters is whether the regulation
“comport[s] with the principles underlying the Second Amendment.” Id.
Once again, Heller’s historical review sets the stage. From that review, Heller derived
the principle that the right protected by the Second Amendment “was not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at
626. Indeed, Heller identified a “historical tradition of prohibiting the carrying of ‘dangerous
and unusual weapons.’” Id. at 627 (collecting historical sources). Thus, whether machineguns
fall within the right’s historical scope turns on whether machineguns are “dangerous and
unusual.”
1.
An object is “dangerous” if it is “likely to cause serious bodily harm.” Dangerous,
Black’s Law Dictionary (12th ed. 2024) (providing the example of “a dangerous weapon”). A

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machinegun is “any weapon which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by a single function of the
trigger.” 26 U.S.C. § 5845(b).
Machineguns are plainly dangerous. As the Ninth Circuit aptly put it:
The machine gun was first widely used during World War I, where it
“demonstrated its murderously effective firepower over and over again.” William
Rosenau, Book Note, The Origins of the First Modern Weapon, Tech. Rev., Jan.
1987, at 74, (reviewing John Ellis, The Social History of the Machine Gun
(1986)). A modern machine gun can fire more than 1,000 rounds per minute,
allowing a shooter to kill dozens of people within a matter of seconds. See
George C. Wilson, Visible Violence, 12 Nat’l J. 886, 887 (2003). Short of bombs,
missiles, and biochemical agents, we can conceive of few weapons that are more
dangerous than machine guns.
United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012) (holding that § 922(o) does not violate
the Second Amendment because machineguns are “dangerous and unusual weapons”).
Bridges argues that the dangerousness inquiry should not focus solely on the machinegun
but rather on how he carried, displayed, or used it. Heller states otherwise: “the Second
Amendment right, whatever its nature, extends only to certain types of weapons.” 554 U.S. at
623. When it comes to “type[s] of weapon[s]” that are “not eligible for Second Amendment
protection,” the manner of possession is irrelevant. See id. at 622.
But even if we considered the manner of Bridges’s possession to evaluate dangerousness,
his argument fails. Far from the hypothetical defendant who locked a machinegun “in a gun safe
in his basement for twenty years without touching it,” see United States v. Morgan, 2024 WL
3936767, at *4 (D. Kan. Aug. 26, 2024), Bridges fired a machinegun at a police officer from a
moving car on a public highway. In sum, regardless of whether we measure dangerousness by
the weapon itself or the manner of possession, both were dangerous here.
2.
Next, we ask whether machineguns are “unusual.” For this inquiry, we focus on whether
machineguns are weapons that are “in common use” or “typically possessed by law-abiding

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citizens for lawful purposes” like “self-defense.” Heller, 554 U.S. at 624–25 (citation omitted);
see also Bruen, 597 U.S. at 32, 51–52 & n.15.
The parties frame this inquiry around machinegun-ownership data, see, e.g., Hollis v.
Lynch, 827 F.3d 436, 448–50 (5th Cir. 2016), abrogated by United States v. Diaz, 116 F.4th 458
(5th Cir. 2024), but disagree on the relevant figure to apply. Bridges asserts that there are over
740,000 total registered machineguns in the United States and that the number in “common use”
is even higher because we must account for “unlawfully owned machine guns.” (Citing
Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015)). The government
responds that most of those registered machineguns are possessed by law enforcement, a
category exempt from the possession ban and one that should not count toward guns in common
use. See 18 U.S.C. § 922(o)(2)(A). Excluding law-enforcement equipment, the government
asserts that there are around 175,977 registered machineguns—the number grandfathered into
lawful registration before § 922(o)’s 1986 enactment. (Citing Hollis, 827 F.3d at 449 (citing
ATF statistics)). See Firearm Owners’ Protection Act, Pub. L. No. 99-308, § 102, 100 Stat. 449
(1986) (codified at 18 U.S.C. § 922(o)(2)(B)). The government further contends that we should
not count unlawfully owned guns.
We agree with the government. First, the relevant number excludes law-enforcement
equipment. Heller establishes that the Second Amendment’s historical scope protects only those
“weapons used in defense of person and home,” 554 U.S. at 625 (citation omitted)—“the sorts of
lawful weapons that” citizens “possessed at home” and would “bring” with them “to militia
duty,” id. at 627. We thus do not count “sophisticated arms” obtained through a special law-
enforcement statutory exception and used to equip a modern-day, militarized police force. See
id.; see also Cadman Robb Kiker III, From Mayberry to Ferguson: The Militarization of
American Policing Equipment, Culture, and Mission, 71 Wash. & Lee L. Rev. Online 282, 285
(2015) (describing how the trend toward police militarization in the United States “began in the
1960s” with the creation and proliferation of “Special Weapons and Tactics (SWAT)” teams).
Second, we do not count unlawfully owned weapons for this constitutional inquiry. The
Amendment’s protection extends only to those weapons “typically possessed by law-abiding

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citizens for lawful purposes,” Heller, 554 U.S. at 625, and law-abiding citizens definitionally do
not possess unregistered machineguns nearly 40 years after § 922(o)’s enactment.
Thus, we proceed with the understanding that there are around 175,977 civilian-owned,
lawfully registered machineguns in the United States. The government argues that number is a
small fraction of the 300 million to 500 million privately owned firearms in the United States and
that machineguns are therefore unusual.
But as Bridges counters, and as several cases illustrate, deciding whether weapons are
“unusual” requires more than simply contrasting the number of that kind of weapon against the
total number of firearms. See Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J.,
concurring). For instance, in Caetano, the Supreme Court held that the Second Amendment’s
protection may extend to stun guns, id. at 412 (majority opinion), of which there were
“approximately 200,000” owned by civilians as of 2009, id. at 420 (Alito, J., concurring)
(citation omitted). Similarly, the Eastern District of New York determined that chuka sticks, or
nunchaku, were “in common use” where “at least 64,890 metal and wood nunchaku were sold on
the retail market in the United States between 1995 and 2018.” Maloney v. Singas, 351 F. Supp.
3d 222, 232–33, 237 (E.D.N.Y. 2018). And the Northern District of New York held that tasers
were “in common use” in part because at least 300,000 such weapons were owned by civilians.
Avitabile v. Beach, 368 F. Supp. 3d 404, 411–12, 421 (N.D.N.Y. 2019). Bridges, citing these
cases, asserts that machineguns too are common. As he argues, 175,977 (the number of lawfully
owned machineguns) is greater than Maloney’s 64,890 nunchaku and comparable to Caetano’s
200,000 stun guns or Avitabile’s 300,000 tasers.
Yet these weapons—stun guns, nunchaku, and tasers on the one hand and machineguns
on the other—are not comparable when it comes to whether they are “typically possessed by
law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. For starters, as Bridges
admits—and as his own illegal machinegun demonstrates—many machineguns are owned
unlawfully, in violation of a federal ban that has been in place for nearly four decades, not to
mention the laws of many states, such as Tennessee, that criminalize the private possession of
machineguns or conversion devices. See, e.g., Tenn. Code § 39-17-1302(a)(3). And even
assuming that the grandfathered-in machineguns are “possessed by law-abiding citizens for

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lawful purposes,” Heller, 554 U.S. at 625, those weapons were all in existence (and registered)
before 1986. Indeed, “private possession of all new machine guns, as well as all existing
machine guns that were not lawfully possessed before the enactment of § 922(o), has been
unlawful since 1986” under federal law. Henry, 688 F.3d at 640. Thus, a significant, albeit
unknown, number of machineguns “exist on the black market,” id., and are not “possessed by
law-abiding citizens,” Heller, 554 U.S. at 625.
And machineguns—unlike stun guns, nunchaku, and tasers—are designed for a specific
function: to fire as many bullets in as little time as possible. See Cargill, 602 U.S. at 432–33
(Sotomayor, J., dissenting). That function makes this type of weapon exceedingly dangerous and
uniquely adapted for unlawful purposes. Although stun guns and tasers, “like handguns, are
weapons that can injure or kill,” Avitabile, 368 F. Supp. 3d at 413 (citation omitted); see also
Caetano, 577 U.S. at 413 (Alito, J., concurring), they cannot “kill dozens of people within a
matter of seconds,” Henry, 688 F.3d at 640. Likewise, people typically possess nunchaku—“a
tool from the sphere of martial arts”—“for recreational and other lawful purposes.” Maloney,
351 F. Supp. 3d at 235 (citation omitted). They, unlike machineguns, have “no special
propensity for unlawful use.” Id. at 236.
As the en banc Fourth Circuit recently explained in Bianchi v. Brown: What puts
weapons like short-barreled shotguns and machineguns beyond the Second Amendment’s scope
“is their ability to inflict damage on a scale or in a manner disproportionate to the end of personal
protection.” 111 F.4th 438, 451 (4th Cir. 2024) (en banc), cert. denied sub nom., Snope v.
Brown, 145 S. Ct. 1534 (2025) (mem.). Unlike the handgun—“the most popular weapon” for
“the core lawful purpose of self-defense,” Heller, 554 U.S. at 629–30; see also Bruen, 597 U.S.
at 29—machineguns are “excessively dangerous weapons ill-suited and disproportionate to such
a purpose,” Bianchi, 111 F.4th at 452.
Indeed, the machinegun’s historical connection to crime in the United States illustrates its
lack of connection to lawful purposes. As Bianchi explains, after World War I, machineguns
became popular “with criminals, especially bootleggers.” Id. at 469 (quoting David B. Kopel &
Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223, 287
n.490 (2024)); see also Robert J. Spitzer, Understanding Gun Law History After Bruen: Moving

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Forward by Looking Back, 51 Fordham Urb. L.J. 57, 63 (2023). Civilians and police were slow
to adopt these new weapons, so “early 20th-century criminals gained access to weapons with
firepower not seen before in civilian life.” Bianchi, 111 F.4th at 469. Criminal machinegun use
“exacted a devastating toll,” compelling legislative responses to the violence. Id. at 469–71
(citation omitted). Such responses included the National Firearms Act of 1934, Pub. L. No. 73-
474, 48 Stat. 1236 (codified at 26 U.S.C. § 5849), “which severely curtailed the civilian
possession and general circulation of automatic weapons,” Bianchi, 111 F.4th at 470, and,
eventually, the Firearm Owners’ Protection Act of 1986, which codified the possession ban at
issue here, Pub. L. No. 99-308, § 102, 100 Stat. 449.
Consequently, by the end of the 20th Century, the Supreme Court recognized that
machineguns are not weapons typically possessed by law-abiding citizens for lawful purposes.
See Staples v. United States, 511 U.S. 600, 611–12 (1994) (classifying “machineguns, sawed-off
shotguns, and artillery pieces” as weapons that share “the same quasi-suspect character” as hand
grenades); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517 (1992) (plurality)
(observing that the National Firearms Act, which regulates machineguns, was intended “to
regulate certain weapons likely to be used for criminal purposes”). It is thus no wonder that
Heller expressed that it would be “startling” if federal “restrictions on machineguns . . . might be
unconstitutional.” 554 U.S. at 624. Machineguns are, after all, “weapons most suitable for
criminal or military use.” Bianchi, 111 F.4th at 451. They “are not the modern equivalents of
weapons that were commonly possessed and employed for self-preservation by your shopkeeper,
or your butcher, or your blacksmith up the road in colonial America—the disarmament of whom
the Second Amendment was ratified to prevent.” Id. at 452.
In the face of ample evidence that unregistered machineguns are not typically possessed
by law-abiding citizens for lawful purposes, Bridges merely asserts (without citation) that
machineguns “continue to be in many homes for self-protection today.” The evidence suggests
otherwise. Modern machineguns, capable of firing hundreds of rounds per minute, Cargill, 602
U.S. at 432 (Sotomayor, J., dissenting); Henry, 688 F.3d at 640, are far more “useful for
offensive and criminal purposes” and for “inflicting mass horrors” than they are for lawful

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purposes like self-defense, Bianchi, 111 F.4th at 471. Given machineguns’ lack of connection to
lawful purposes, they are “unusual” under Heller.
C.
Machineguns are both dangerous and unusual—not weapons typically possessed by law-
abiding citizens for lawful purposes. Accordingly, § 922(o)’s ban on machinegun possession “is
consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24.
Bridges’s facial and as-applied challenges to the constitutionality of this statute therefore fail.
V.
For these reasons, we affirm the district court’s judgment.

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________________________________________________________________
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
________________________________________________________________
NALBANDIAN, Circuit Judge, concurring in part and concurring in the judgment.
I agree that we should affirm Jaquan Bridges’s conviction. But my thinking differs from the
majority’s. Plain-error review and a facial analysis suffice to resolve this case without making
broader pronouncements about machineguns and the history of “dangerous and unusual”
weapons. Respectfully, “[i]f it is not necessary to decide more, it is necessary not to decide
more.” BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008) (alteration in
original) (quoting PDK Lab’ys Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in judgment)). I write separately to explain my thinking. And
I identify the weightier historical questions that this case implicates, though I leave their
resolution for another day.
First, the federal machinegun ban at 18 U.S.C. § 922(o) isn’t facially unconstitutional.
And the district court didn’t plainly err in applying it to Bridges. So his conviction should stand.
I’d leave things at that.
Because the majority chooses a broader holding, I’ll address some of the majority’s
reasoning, and where I depart from it. I agree that the majority identifies the right historical
tradition—regulations of dangerous and unusual arms—for testing the statute’s constitutionality
under the Second Amendment. And I agree with the majority’s decision to analyze this tradition
under Bruen’s so-called “Step 2,” not “Step 1.” But I don’t share the majority’s confidence
about how we should understand dangerous and unusual weapons. To my mind, the historical
record raises hard questions that haven’t been satisfactorily addressed. I express no opinion
today on the statute’s validity as applied to future defendants, but I’ll walk through some of that
history and flag some doctrinal quirks and complications.
Finally, I cannot join the majority’s dicta about our old, pre-Bruen decision in Hamblen
v. United States. Hamblen upheld the machinegun ban—but with very little analysis. 591 F.3d
471, 473–74 (6th Cir. 2009). Bruen, which requires a specific mode of historical inquiry, has

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superseded Hamblen and returned us to square one. Because the majority rightly conducts a
fresh Second Amendment analysis today, I see no reason to suggest that Hamblen lives on. Time
has passed Hamblen by.
I.
I’ll start with the straightforward part. Bridges brings a facial challenge and an
unpreserved, as-applied challenge to his conviction for possessing a machinegun. Both
challenges fail.
A.
First, the facial challenge. Since 1986, the federal government has banned the possession
or transfer of machineguns. See 18 U.S.C. § 922(o)(1). The statute makes exceptions for
machineguns lawfully owned before 1986 and for law enforcement. Id. § 922(o)(2). What is a
“machinegun”? The statute incorporates the definition from the National Firearms Act of 1934.
Id. § 921(a)(24). Under that Act, a machinegun “means any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b).1 That definition includes
standard, fully automatic rifles like M-16s. But it also covers unconventional automatic
firearms, like the Glock-switch-modified pistol Bridges had. And it extends to much larger,
heavy-duty machineguns, like autocannons (or machinegun cannons), massive guns mounted on
military aircraft and anti-aircraft batteries. See David B. Kopel, Machine Gun History and
Bibliography, 25 Wyo. L. Rev. 45, 63 (2025); United States v. Morgan, No. 23-10047, 2024 WL
3936767, at *2 (D. Kan. Aug. 26, 2024).
Bridges challenges § 922(o) on its face. “This is the ‘most difficult challenge to mount
successfully,’ because it requires a defendant to ‘establish that no set of circumstances exists
1The definition also includes the frames or receivers of such weapons, any parts designed or intended to
convert a weapon into a machinegun, and certain parts from which a machinegun can be assembled. See 26 U.S.C.
§ 5845(b).
Bridges indisputably carried a machinegun. He had a pistol with a Glock switch, a small device (a piece of
metal) that converts a semiautomatic pistol into an automatic one. As a conversion device, the switch itself is a
“machinegun” under the statutory definition. And an assembled or converted fully automatic pistol is, of course,
also a machinegun.

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under which the Act would be valid.’” United States v. Rahimi, 602 U.S. 680, 693 (2024)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). So if we can find a constitutional
application of the machinegun ban, the facial challenge fails.
We can find one. The Second Amendment protects bearable arms—those you can
carry—and § 922(o) bans private possession of some things, like autocannons, that are not
bearable arms.
The Second Amendment protects “the right of the people to keep and bear Arms.” U.S.
Const. amend. II. It “extends, prima facie, to all instruments that constitute bearable arms.”
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28 (2022) (emphasis added) (quoting
District of Columbia v. Heller, 554 U.S. 570, 582 (2008)); see also Duncan v. Bonta, 133 F.4th
852, 908 (9th Cir. 2025) (en banc) (Bumatay, J., dissenting) (explaining how nonbearable
weapons “aren’t protectable ‘Arms’ under the Second Amendment”). To “bear” arms means to
carry them. Heller, 554 U.S. at 584–87. If you cannot carry a thing, you cannot bear it. And if a
weapon isn’t “bearable” by an ordinary soldier or hunter, it doesn’t implicate the Second
Amendment.2
Aircraft-mounted machineguns may be “arms,” but they aren’t bearable in ordinary
hands. So there’s no constitutional right to own them. The government may ban them from
private possession. That likely goes for other heavy machineguns, too, such as some tripod-
mounted machineguns, carried around in pieces but stationary when assembled. See Kopel,
supra, at 63–64.
So to restate the obvious: The Second Amendment doesn’t protect individual ownership
of autocannons just as it doesn’t protect private ownership of tanks, bombers, and trebuchets (not
bearable), or eggplants, chickens, and televisions (not arms). Section 922(o) thus has some
constitutional applications. And Bridges’s facial challenge has no merit.
2At the Founding, some definitions of “arms” even had “bearability” built into them. See District of
Columbia v. Heller, 554 U.S. 570, 581 (2012) (discussing one legal dictionary’s definition of arms as “any thing that
a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another”).

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B.
Neither does his as-applied challenge. In his motion to dismiss, Bridges didn’t develop
any argument that § 922(o) violates the Constitution as applied to him, meaning he forfeited the
issue and we review for plain error.3 See United States v. Calvetti, 836 F.3d 654, 664 (6th Cir.
2016).
To succeed on plain error, the defendant must show “(1) an error, (2) that was obvious or
clear, (3) that affected the defendant’s substantial rights, and (4) that affected the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Bauer, 82 F.4th 522,
530 (6th Cir. 2023). It’s an extremely high standard. The alleged error must have been “clearly
contrary to the law at the time of appeal” such that there is no room for reasonable dispute.
United States v. Tellez, 86 F.4th 1148, 1154 (6th Cir. 2023) (internal quotation marks omitted).
“Only in exceptional circumstances” is an error so plain that the district judge was “derelict” in
letting it to go forward. United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001).
We have nothing of the kind here. It’s by no means “obvious or clear” that § 922(o) is
unconstitutional, if it is at all. Bauer, 82 F.4th at 530. Neither was convicting Bridges “clearly
contrary to the law” or beyond any “reasonable dispute.” Tellez, 86 F.4th at 1154. No court of
appeals has held § 922(o) unconstitutional. And the government’s brief lists dozens of district
courts, including in this circuit, that have upheld the statute. See Appellee Br. at 15–16 n.1.
Only one or two district courts have found the statute unconstitutional, and those cases have
appeals pending.4 At least for now, the caselaw consensus favors the statute’s lawfulness.
Plain-error review thus precludes Bridges’s as-applied claim.
II.
That’s how I would decide this case. But the majority chooses a different path, giving
full review to the statute’s consistency with our historical tradition of regulating “dangerous and
3His motion to dismiss made one reference to an as-applied challenge, in a single sentence, with no citation
to any authority or theory of how the as-applied challenge would work. R. 24, Mot. to Dismiss, p.6, PageID 34.
4See United States v. Morgan, No. 23-10047, 2024 WL 3936767, at *4 (D. Kan. Aug. 26, 2024); United
States v. Brown, 764 F. Supp. 3d 456, 464 (S.D. Miss. Jan. 29, 2025) (order).

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unusual weapons.” Because the majority does so, I will also address the “dangerous and unusual
weapons” doctrine. I do not express any opinion on whether history and tradition justify
§ 922(o), but I’ll offer some observations and explain why I do not share the majority’s certainty
about how this doctrine should work.
Firearms regulations come in many flavors. Some regulate who can bear arms. Some
regulate how you can bear arms. Some regulate where you can bear arms. See United States v.
Williams, 113 F.4th 637, 643 (6th Cir. 2024) (law banning felons from owning guns); Bruen, 597
U.S. at 9–11 (law regulating public carry); Heller, 554 U.S. at 626 (discussing “sensitive places,”
like schools and government buildings).
Today’s case presents a different kind of regulation: What arms can you keep? May the
government ban certain bearable weapons? If so, which ones?
A.
First, some preliminaries.
When the Founding generation adopted the Second Amendment, they recognized and
codified a preexisting, fundamental right. Heller, 554 U.S. at 592. With deep roots in the
common law and the natural-law tradition, the right to bear arms was considered a component, or
auxiliary right, of the natural right to self-defense. See 2 William Blackstone, Commentaries on
the Laws of England 143 (St. George Tucker ed., 1803) (1765). As James Wilson put it, citing
Cicero, the “defence of one’s self, justly called the primary law of nature, is not, nor can it be
abrogated by any regulation of municipal law.” James Wilson, Of the Natural Rights of
Individuals, in 2 Collected Works of James Wilson 1082 (Kermit L. Hall & Mark David Hall
eds., 2007) (footnote omitted). Thus, Wilson explained, keeping arms and using lethal force was
justified to protect home and homeland—when “necessary for the defence of one’s person or
house” and when “necessary for the defence of the United States.” James Wilson, Of Crimes
Against the Right of Individuals to Personal Safety, in 2 Collected Works of James Wilson,
supra, at 1141–42; see also Nunn v. State, 1 Ga. 243, 251 (1846) (roughly equating the
“constitutional right to keep and bear arms” with the “natural right of self-defence”).
The Founding generation enumerated the right in the Constitution (and in their state

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constitutions5) because they thought it fundamental; it wasn’t fundamental because it was
enumerated.6
As a fundamental right, not the creation of any one locality, the right to bear arms had
general, trans-jurisdictional contours. Early state courts often treated the Second Amendment as
functionally equivalent to state constitutional counterparts, despite minor textual variations. See
William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev.
1467, 1472 & n.25 (2024). These constitutional provisions were all thought to codify the same
preexisting right. So state courts considered the views of other state courts, as well as the right’s
historical origins, when analyzing the right’s scope. See id.
Like any right, of course, the right to bear arms came with limits, often based on the
natural-rights principle that “no man can so use his own as to violate the rights of others, or of
the community.” Andrews v. State, 50 Tenn. (3 Heisk.) 165, 178–79, 185 (1871). The common
law and legislatures developed the scope of the right over the centuries. Some of these
historically defined limits were more fixed; for others, legislatures had breathing room to enact
reasonable regulations to promote the public good.7 See Jud Campbell, Natural Rights, Positive
Rights, and the Right to Keep and Bear Arms, 83 L. & Contemp. Probs. 31, 35–37 (2020)
(discussing eighteenth-century social-contract theory). We continue to recognize these
principles today. See Heller, 554 U.S. at 626 (“[T]he right secured by the Second Amendment is
5See McDonald v. City of Chicago, 561 U.S. 742, 769 (2010).
6See Jud Campbell, Natural Rights, Positive Rights, and the Right to Keep and Bear Arms, 83 L. &
Contemp. Probs. 31, 51 (2020) (“The right to keep and bear arms was widely recognized as a historically grounded
rule—not something created through its enumeration in state and federal constitutions. Its force and meaning
therefore depended on its historical scope—not on its textual enumeration.”); see also United States v. Cruikshank,
92 U.S. 542, 553 (1875) (“This is not a right granted by the Constitution. Neither is it in any manner dependent
upon that instrument for its existence.”).
7Limits from the common law and statutory law often overlapped. Both common-law doctrines and
legislatures reinforced the natural-law outlook, preventing you from interfering with the rights of others. See State
v. Buzzard, 4 Ark. 18, 41–42 (1842) (opinion of Lacy, J.). Statutory regulations of the right to bear arms often
“declared,” or reaffirmed, the right’s natural-law or common-law limits. See N.Y. State Rifle & Pistol Ass’n v.
Bruen, 597 U.S. 1, 47 (2022); United States v. Rahimi, 602 U.S. 680, 697–98 (2024); Jud Campbell, Determining
Rights, 138 Harv. L. Rev. 921, 931–36 (2025). Other times, statutes “specified” limits that were “out there” in
principle but underdetermined. See In re Opinion of the Justices, 80 Mass. (14 Gray) 614, 620 (1859) (explaining
that the Second Amendment “declares a great general right, leaving it for other more specific constitutional
provision or to legislation to provide for the preservation and practical security of such right”); see also Campbell,
Determining Rights, at 931–36. Still other times, legislatures innovated.

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not unlimited.”). Regulations of the right, though, couldn’t nullify the core of the right. Statutes
“which, under the pretence of regulating, amount[ed] to a destruction of the right, or which
require[d] arms to be so borne as to render them wholly useless for the purpose of defence,
would be clearly unconstitutional.” State v. Reid, 1 Ala. 612, 616–17 (1840).8
The right’s contents—its reach and its limits—were determined by historical practice and
cannot be uncovered by text alone. While the text makes some things clear (what’s protected?
“arms,” not eggplants), for many questions we must resort to historical understandings of the
scope of the right, just as courts have long done. See Aymette v. State, 21 Tenn. (2 Hum.) 154,
156 (1840) (“In order to have a just and precise idea of the meaning of the clause of the
constitution under consideration, it will be useful to look at the state of things in the history of
our ancestors, and thus comprehend the reason of its introduction into our constitution.”).9 To
borrow Justice Frankfurter’s classic metaphor, at ratification the right “br[ought] the old soil with
it.” Cf. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
537 (1947).
So Second Amendment law is the law of the Second Amendment at ratification plus any
subsequent lawful developments. And to understand what about the right to bear arms comes
fixed and what comes subject to change, we examine “this Nation’s historical tradition of firearm
regulation.” Bruen 597 U.S. at 17. Of course, the law isn’t “trapped in amber.” Rahimi, 602
U.S. at 691. But modern regulations of arms must be “consistent with the principles that
underpin our regulatory tradition.” Id. at 692. Today’s rules must be “relevantly similar” to
yesterday’s. Bruen, 597 U.S. at 29.
8See also Nunn v. State, 1 Ga. 243, 249 (1846); Aymette v. State, 21 Tenn. (2 Hum.) 154, 159 (1840)
(“And, although this right must be inviolably preserved, yet it does not follow that the Legislature is prohibited
altogether from passing laws regulating the manner in which these arms may be employed.”); Andrews v. State, 50
Tenn. (3 Heisk.) 165, 181 (1871) (“The power to regulate, does not fairly mean the power to prohibit [arms]; on the
contrary, to regulate, necessarily involves the existence of the thing or act to be regulated.”).
9See also Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 (Ky. 1822) (noting that the “right existed at the
adoption of the [Kentucky] constitution,” and describing how statutes that “diminish or impair it as it existed when
the constitution was formed, are void”); State v. Reid, 1 Ala. 612, 615 (1840) (analyzing the English Bill of Rights);
State v. Huntly, 25 N.C. (3 Ired.) 418, 420–22 (1843); English v. State, 35 Tex. 473, 479 (1871).

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To discern whether a modern regulation is relevantly similar to a historical analog, we
typically look at two features: Why the two regulations burden the right, and how they do so. Id.
In other words, we look to the regulations’ ends and means. To be clear, this undertaking
doesn’t involve judicial policy balancing or the so-called tiers of scrutiny (which Bruen rejected).
Rather, our ends-means analysis is a “comparative one,” a historical inquiry “where the baseline
comparator is supplied by the people through historical tradition.” J. Joel Alicea, Bruen Was
Right, 174 U. Pa. L. Rev. (forthcoming 2025) (manuscript at 67); see Bruen, 597 U.S. at 29 n.7.
With these principles in mind, let’s turn to the history.
B.
One prominent historical regulatory tradition, stretching back through English and early
American law, involved “dangerous and unusual weapons.”
Heller mused on this tradition in passing, when discussing limits on the right to bear
arms. In dicta, the Court remarked: “[Precedent dictates] that the sorts of weapons protected
were those in common use at the time. We think that limitation is fairly supported by the
historical tradition of prohibiting the carrying of dangerous and unusual weapons.” 554 U.S. at
627 (citation and internal quotation marks omitted). The Court then offered as support a string
cite to Blackstone, James Wilson, six early American criminal-law treatises, and four nineteenth-
century state cases. Id.
To operationalize this doctrine, we must ask two questions. First, what makes a weapon
dangerous and unusual? (This question roughly tracks Bruen’s “why”; we ask what about
certain weapons warrants special rules.) Second, what kind of regulations can be applied to such
weapons? (Bruen’s “how.”)
Because this doctrine was not before the Court in Heller, the Court didn’t spend much
time on it. Neither has it had the chance to revisit the issue in the years since. To date, the Court
has not decided on a “comprehensive framework for evaluating restrictions on types of
weapons,” and it has left “open essential questions such as what makes a weapon ‘bearable,’
‘dangerous,’ or ‘unusual.’” Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (mem.) (Thomas, J.,

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statement respecting denial of certiorari). In a short unsigned opinion, the Court once reversed a
state court for mangling Heller’s test and putting stun guns outside the Second Amendment’s
reach because they were “unusual” at the Founding. Caetano v. Massachusetts, 577 U.S. 411,
412 (2016) (per curiam). But that’s it. Other than a few suggestions from Heller and Caetano,
our guidance must come from history itself, not from above.
On to the history.
1.
Let’s begin with a remarkable fact. From what we can tell, no American jurisdiction
prohibited any kind of weapon in the eighteenth century. See David B. Kopel & Joseph G.S.
Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223, 226, 261–62
(2024).10 They had regulations on who could have arms or how you could carry arms, but not on
what arms you could have. If a weapon existed, you could own it. The leading historical study
surveying restrictions on types of arms summarizes things this way: “Before, during, and after
the Revolution, no state banned any type of arm, ammunition, or accessory. Nor did the
Continental Congress, the Articles of Confederation Congress, or the federal government created
by the U.S. Constitution in 1787.” Id. at 261. And to my knowledge, no court or scholar has
identified any historical example to the contrary. E.g., Bianchi v. Brown, 111 F.4th 438, 532 (4th
Cir. 2024) (en banc) (Richardson, J., dissenting) (“The majority does not identify any laws from
this period limiting the possession of especially dangerous weapons.”).
Eighteenth-century patterns of weapons ownership would shock some modern
sensibilities. Far from banning any weapons, colonies often imposed arms-bearing mandates on
private citizens for public-safety reasons. See Heller, 554 U.S. at 601. Men, and in some cases
women, were expected to have—and be proficient in the use of—weapons ranging from
muskets, rifles, and pistols, to sabers, bayonets, and tomahawks, in case the community needed
10Things don’t change much if we peek back at the seventeenth century, either. Apparently, the only
restriction in the 1600s “involving specific arms was a handgun and knife carry restriction enacted in Quaker-owned
East New Jersey in 1686.” David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before
1900, 50 J. Legis. 223, 238 (2024). It lasted only a few years, and “imposed no restriction on the possession or sale
of any arms.” Id. And, whatever the regulation did, a few “years of history in half a Colony roughly a century
before the founding sheds little light on how to properly interpret the Second Amendment.” Bruen, 597 U.S. at 49.

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to defend itself. See Kopel & Greenlee, supra, at 241–54. Certain repeating rifles (which did
exist in the 1700s) circulated in private hands in the colonies and the early republic. Id. at 254–
57. The Continental Congress even tried to order some for George Washington’s troops, though
they proved too expensive. Id. at 255–56. Cannons were also privately owned at this time.11 Id.
at 257–60.
The takeaway here isn’t difficult. The historical record before 1800 offers no support for
a ban on any class of arms.
2.
But wait, you might ask—what about the old common-law tradition of banning
dangerous and unusual arms? The short answer is that there was no such tradition, neither at the
Founding nor in the republic’s early decades. Our nation, like England, had a historical tradition
of regulating the manner of carry of dangerous and unusual arms. But outright statutory bans—
on possession or sale—came much later.
The “dangerous and unusual weapons” doctrine derived from the common-law offense of
“going armed.” As Blackstone summarized it, the “offence of riding or going armed, with
dangerous or unusual weapons, [was] a crime against the public peace, by terrifying the good
people of the land; and [was] particularly prohibited by the statue of Northampton.”
5 Blackstone, supra, at 148; see also Sir John Knight’s Case, 87 Eng. Rep. 75, 75–76 (KB
1686).12 Note Blackstone’s phrasing. The offense consisted not of possessing dangerous or
unusual weapons, but of displaying or wielding them in public intending to cause a public
11Cannons, of course, are not “bearable” arms. See supra Part I.A.
12Curiously, the Statute of Northampton did not itself use the words “dangerous and unusual.” It provided
that Englishmen could not “come before the King’s Justices, or other of the King’s Ministers doing their office, with
force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night or by day, in Fairs,
Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.” 2 Edw. 3 c.3 (Eng. 1328).
The gloss of “dangerous and unusual weapons” seems to have been developed sometime between the fourteenth
century and the eighteenth century.

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terror.13 See also Rex v. Knight, 90 Eng. Rep. 330, 330 (KB 1686) (discussing the “malo animo”
element); Bruen, 597 U.S. at 43–44.
The going-armed offense crossed the Atlantic with the common law and was a
cognizable crime in American jurisdictions. See State v. Langford, 10 N.C. (3 Hawks) 381, 383–
84 (1824); State v. Huntly, 25 N.C. (3 Ired.) 418, 420–23 (1843); O’Neill v. State, 16 Ala. 65, 67
(1849). And the crime still comprised a certain manner of publicly carrying certain weapons
plus the in terrorem mens rea. It was not unlawful simply to possess or sell dangerous and
unusual weapons, or even to bear them in public without criminal intent.14 As the North
Carolina Supreme Court explained, at common law “the carrying of [such a weapon] per se
constitutes no offence. For any lawful purpose—either of business or amusement—the citizen is
at perfect liberty to carry [it]. It is the wicked purpose—and the mischievous result—which
essentially constitute the crime.” Huntly, 25 N.C. (3 Ired.) at 422–23.
3.
If we move from the common law to early statutory law, we see the same story. Well
before the Revolution and the Constitution, a few colonies passed going-armed statutes. See
Bruen, 597 U.S. at 46. But “[f]ar from banning the carrying of any class of firearms, [these
statutes] merely codified the existing common-law offense of bearing arms to terrorize the
people, as had the Statute of Northampton itself.” Id. at 47. As discussed, before 1800, bans on
types of arms were a kind of regulation that seems not to have existed.
Things change little if we press forward into the early nineteenth century. Start with
firearm regulation. From the Founding to the Civil War, only one state enacted a law banning
the possession or sale of any kind of firearm. Kopel & Greenlee, supra, at 287. An 1837
Georgia act made it unlawful for anyone “to sell, offer to sell, or to keep or to have about their
13Note also that Blackstone wrote “dangerous or unusual,” not “dangerous and unusual.” I’ll return to this
in Part II.C.3.
14And of course, “wearing common weapons” did not violate the traditional going-armed laws. 1 William
Oldnall Russell, A Treatise on Crimes and Indictable Misdemeanors 272 (2d ed. 1831).

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persons” any pistol, among other weapons. Nunn, 1 Ga. at 246.15 The statute didn’t last long.
The Georgia supreme court declared it unconstitutional in Nunn v. State, a celebrated antebellum
case. Id. at 251.16
While firearms generally remained lightly regulated, some states in the 1800s did begin
to crack down on other weapons considered “dangerous and unusual.” This category typically
consisted of Bowie knives, daggers, dirks, sword canes, brass knuckles, and in some
jurisdictions, certain small pistols. These smaller and concealable weapons contrasted with
traditional, commonly owned weapons like rifles, muskets, sabers, bayonets, and larger
handguns.17
What set Bowie knives, dirks, and the like apart was their frequent use in criminal
assaults and perceived lack of lawful uses or defense value. The first half of the nineteenth
century saw a spike in private violence, and newspapers regularly ran stories of “slight personal
offenses escalating into deadly conflicts.” Robert Leider, Our Non-Originalist Right to Bear
Arms, 89 Ind. L.J. 1587, 1602–06 (2014); see also Robert J. Spitzer, Understanding Gun Law
History After Bruen: Moving Forward by Looking Back, 51 Fordham Urb. L.J. 57, 89 (2023)
(describing how Bowie knives were “widely used in fights and duels”). In one “nationally
infamous” incident, the speaker of the Arkansas House of Representatives came to blows with
another representative during a floor debate, and both men drew hidden Bowie knives. Kopel
& Greenlee, supra, at 297–98, 305. The member stabbed the speaker in the arm, and the speaker
15The statute made one exception, for “horseman’s pistols.” Nunn, 1 Ga. at 246. These pistols “were large
handguns” that came “with a double holster . . . meant to be draped over a saddle,” and they were impracticable for
anyone not riding a horse. Kopel & Greenlee, supra, at 288.
16The court invalidated the possession and open-carry prohibitions, while upholding the statute’s ban on
concealed carry. Nunn, 1 Ga. at 251. Among the so-called “Barron contrarians,” the Nunn court applied the Second
Amendment directly to Georgia. See id. at 250; see also Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
(holding the Bill of Rights inapplicable to the states), superseded by constitutional amendment, U.S. Const. amend.
XIV; Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 153–54 (1998).
Nearly two centuries later, Heller praised Nunn as “perfectly captur[ing]” the essence of the right to bear
arms. 554 U.S. at 612.
17Dangerous and unusual arms were usually impact weapons, not missile weapons. With an impact
weapon, the user strikes an adversary while holding the weapon (think Bowie knives, daggers, clubs, brass knuckles,
but also commonly owned weapons like sabers). Missile weapons, by contrast, fire a projectile at an adversary
(think rifles, muskets, bows, crossbows).

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responded by stabbing the member in the chest, killing him. Id. at 297–98. (We can be grateful
that Preston Brooks went after Charles Sumner in the United States Senate with a cane instead of
a Bowie knife.)
Thanks to this and similar incidents, concealable weapons like Bowie knives, daggers,
dirks, brass knuckles (and in some cases, certain pistols) became associated with assault, murder,
dueling, robbery, and other criminal activity. See Leider, supra, at 1604–05 (explaining small
size and concealability as prized features for their usefulness in surprise attacks). They weren’t
arms that law-abiding citizens typically owned for traditionally lawful purposes. So legislatures
began regulating them more heavily, which often drew constitutional challenges. These
antebellum and Reconstruction statutes—and the cases analyzing them—illustrate the contours
of the “dangerous and unusual weapons” doctrine as it developed in the nineteenth century.
These laws and cases did two things. First, they distinguished between dangerous and
unusual arms, and “weapons commonly used for lawful purposes.” Bianchi, 111 F.4th at 503
(Richardson, J., dissenting). Historically, “dangerous” and “unsusual” meant something like
“particularly useful for criminal activity” and “not in common use for lawful purposes.” Id. at
513. By contrast, protected weapons included “such arms as are commonly kept, according to
the customs of the people, [which] are appropriate for open and manly use in self-defense, as
well as such as are proper for the defense of the State.” State v. Duke, 42 Tex. 455, 458
(1875).18
Second, the laws and cases distinguished—at least for a while—between regulations and
prohibitions, between public carry rules and possession bans. Statutes mostly regulated public
carry of dangerous and unusual arms. Early on, they tended not to ban possession or sale
outright. On that basis, courts tended to uphold them. Later in the nineteenth century, some
states regulated these arms much more heavily, and at times, did ban sales or carriage altogether,
approximating more modern possession bans.
18Some weapons may fall in between these categories. Crossbows, for example, might be unusual, but not
dangerous, in the sense that they are particularly useful for criminal activity. See Bianchi v. Brown, 111 F.4th 438,
516 n.51 (4th Cir. 2024) (en banc) (Richardson, J., dissenting).

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Let’s walk through some examples.
In the 1840 case Aymette v. State, the Tennessee Supreme Court upheld a statute
prohibiting the concealed carry of Bowie knives. 21 Tenn. (2 Hum.) at 155. Looking to history
and noting that the state constitutional right to bear arms “was adopted in reference to [certain]
historical facts,” the court concluded that the right protected those arms commonly carried for
traditional, lawful defense purposes, like “swords, muskets, rifles, etc.” Id. at 157–61. That
meant other weapons were out: “those weapons which are usually employed in private broils,
and which are efficient only in the hands of the robber and the assassin.” Id. at 158. Such
weapons, the court noted, “would be useless in war. They could not be employed
advantageously in the common defence of the citizens. The right to keep and bear them is not,
therefore secured by the constitution.”19 Id. So the legislature could regulate the carry of such
weapons to protect the public from “desperadoes with concealed arms” going about “for
purposes of private assassination.” Id. at 159–60. The court rejected the view that the right to
bear arms allowed every person “to arm himself in any manner he may choose, however unusual
or dangerous the weapons he may employ.” Id. at 156. Because the statute regulated Bowie
knives, a weapon associated with criminal violence and not commonly carried for lawful
purposes, the court upheld the challenger’s conviction.
Or consider the Louisiana Supreme Court’s decision in State v. Smith, 11 La. Ann. 633
(1856). The court upheld a law banning concealed carry of Bowie knives, dirks, pistols, and
similar weapons. Id. at 634. The right to bear arms, the court found, did not extend to “the
treacherous use of weapons not even designed for any purpose of public defence, and used most
frequently by evil-disposed men who seek an advantage over their antagonists.” Id.
19This case involved the Tennessee constitution. Aymette, 21 Tenn. (2 Hum.) at 156–58.
One other note. References to protected weapons as those useful for militia service or useful in war,
whether in Aymette or in other cases, was one way to refer to the common-use test. As the Supreme Court has
explained, “when called for service” in the militia, “men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.” United States v. Miller, 307 U.S. 174, 179 (1939) (emphasis
added); see also Friedman v. City of Highland Park, 577 U.S. 1039 (2015) (mem.) (Thomas, J., dissenting from
denial of certiorari) (“[The right’s] scope is defined not by what the militia needs, but by what private citizens
commonly possess.”). Referring to a weapon as militia-grade signified that the weapon was in common use.

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Similar examples abound in the antebellum period. Weapons seen as implements of
purely private violence and not commonly owned by the law-abiding were considered dangerous
and unusual; states tended to ban concealed carry of such weapons, rather than the weapon itself;
and courts tended to uphold such laws. See Nunn, 1 Ga. at 246, 251 (upholding ban on
concealed carry of Bowie knives, pistols, dirks, and other weapons); Reid, 1 Ala. at 614, 621–22
(upholding ban on concealed carry of Bowie knives, dirks, or firearms); State v. Mitchell, 3
Blackf. 229, 229 (Ind. 1833) (upholding ban on “wearing or carrying concealed weapons”); State
v. Buzzard, 4 Ark. 18, 19 (1842) (opinion of Ringo, C.J.) (upholding ban on concealed carry of
large knives, dirks, pistols, and sword canes); State v. Jumel, 13 La. Ann. 399, 399–400 (1858)
(upholding ban on concealed weapons); but see Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 94
(Ky. 1822) (invalidating ban on concealed carry of pocket pistols, dirks, large knives, and sword
canes).
After the Civil War, though, some states pushed things further. Legislatures and courts
continued to consider Bowie knives, dirks, and similar weapons “the greatest nuisances of our
day.” Hill v. State, 53 Ga. 472, 474 (1874).20 And many jurisdictions kept on banning
concealed carry (while some didn’t regulate at all). E.g., State v. Wilforth, 74 Mo. 528, 531
(1881) (upholding concealed-carry ban); Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass.
1896) (noting “it has been almost universally held that the legislature may regulate and limit the
mode of carrying arms”). But others tightened their regulatory grip. Though not without
constitutional controversy, these stricter laws often survived judicial review.
In 1870, the Tennessee legislature banned anyone from “publicly or privately” carrying a
revolver, pocket pistol, dirk, sword cane, or Spanish stiletto. Andrews, 50 Tenn. (3 Heisk.) at
171. This statute came closer to a ban on possession than a carriage regulation. When hearing a
challenge to the statute, the court echoed the familiar refrain and described how the right to bear
arms protected such arms “as are found to make up the usual arms of the citizen of the country,
and the use of which will properly train and render him efficient in defense of his own liberties,
20See also State v. Workman, 14 S.E. 9, 10 (W. Va. 1891) (noting that the legislature had directed “that
when a man is found going around with a revolver, razor, billy [club], or brass knuckles upon his person, he shall be
presumed to be a burglar, duelist, gambler, thief, or other criminal of the like violent and dangerous class”)

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as well as of the State.” Id. at 179. And what could you do with such arms? The right permitted
you to use them “in all the usual modes to which they are adapted, and common to the country.”
Id.
The court quashed the defendant’s indictment. The state had indicted him under the
revolver provision without making clear what kind of revolver he’d possessed. Id. at 186–87.
And the statute was unconstitutional as applied to some kinds of revolvers, the court found,
because some revolvers were part of the soldier’s equipment, and thus commonly carried for
lawful public defense purposes. Id. But the court upheld the statute as to dirks, sword canes,
Spanish stilettos, and pistols because (like the Bowie knives in the court’s Aymette decision)
these weapons were closely associated with criminal activity and not commonly carried for
lawful purposes. Id. at 186. So while the court allowed a stricter method of regulation, it
maintained the traditional distinction between lawful arms and dangerous or unusual arms.
A few years later, Arkansas passed a law prohibiting the public carry of pistols, Bowie
knives, sword canes, and brass knuckles, without distinguishing between open or concealed
carry. Fife v. State, 31 Ark. 455, 456 (1876). The act did permit you to have such weapons “on
[your] own premises.” Id. The state supreme court upheld the statute against the defendant’s
challenge because the pistol the defendant had carried was “such as is usually carried in the
pocket, or of a size to be concealed about the person, and used in private quarrels and brawls,
and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for
the ‘common defence.’” Id. at 461. So again, the court permitted a stricter means of regulating
dangerous and unusual weapons, while keeping the traditional understanding of what constituted
dangerous and unusual weapons.
A similar dynamic played out in Texas. In English v. State, the state supreme court
upheld a law banning open and concealed carry of pistols, Bowie knives, dirks, daggers, and
brass knuckles. 35 Tex. 473, 480–81 (1871); see also Kopel & Greenlee, supra, at 315.

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Taking a strong militia-centric view of the right to bear arms, the court held that the right
protected only such arms “as are used for purposes of war.” 35 Tex. at 475.21
But just a few years later, in State v. Duke, the court broadened its view and rejected
English’s position “that the word ‘arms,’ . . . refers only to the arms of a militiaman or soldier.”
42 Tex. 455, 458 (1875). “The arms which every person is secured the right to keep and bear (in
the defense of himself or the State, subject to legislative regulation),” the court explained, “must
be such arms as are commonly kept, according to the customs of the people, and are appropriate
for open and manly use in self-defense, as well as such as are proper for the defense of the
State.” Id.; accord Nunn, 1 Ga. at 251 (“The right of the whole people . . . and not militia only,
to keep and bear arms of every description, and not such merely as are used by the militia, shall
not be infringed . . . .”). That meant some pistols regulated by the statute would receive
constitutional protection. Duke, 42 Tex. at 459. The court then revisited the state’s amended law
and found that it did not infringe the right to keep and bear these pistols, since the law made
exceptions for carrying them in self-defense or keeping them at home. Id. at 456, 458–59.
Which weapons counted as dangerous and unusual could vary across jurisdictions. The
Texas Supreme Court, for example, at one point found Bowie knives “in common use” and
convenient for individual self-defense, reasoning that “the gun or pistol may miss its aim.”
Cockrum v. State, 24 Tex. 394, 402–03 (1859). The state had a special history with Bowie
knives; they’d been carried by Texans in the war for independence against Mexico, and the
knives were thus “omnipresent” in the middle of the century. Kopel & Greenlee, supra, at 314.
So even though the Bowie knife was a “deadly” and “exceeding[ly] destructive” weapon, it
wasn’t unusual. Cockrum, 24 Tex. at 402–03. Thus, the “right to carry a bowie-knife for lawful
21The court partially stuck with the traditional view that “deadly weapons,” “the wicked devices of modern
craft” which were “employed in quarrels and broils, and fights between maddened individuals,” fell outside the
scope of the right to bear arms. 35 Tex. at 474–75.

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defense [was] secured.” Id. at 402.22 But while applications may have differed in different
states, the test remained the same.23
As this example illustrates, a weapon could be both particularly dangerous but also in
common use for lawful purposes. If so, the weapon warranted constitutional protection. “The
fact that a weapon was especially harmful was necessary but not sufficient to limit its possession
or carry.” Bianchi, 111 F.4th at 532 (Richardson, J., dissenting); see also Aymette, 21 Tenn.
(2 Hum.) at 158 (discussing weapons “only in the hands of the robber and the assassin”
(emphasis added)); Smith, 11 La. Ann. at 633 (weapons “most frequently” in criminal hands);
Fife, 31 Ark. at 461 (weapons “used in private quarrels and brawls, and not such as [are] in
ordinary use”).
If a weapon was in common use for lawful purposes but also sometimes used for criminal
purposes, its common-use status trumped its criminal-use status. In that case, legislatures simply
had to target the criminal abuse of such weapons, not the weapons themselves. See Wilson v.
State, 33 Ark. 557, 560 (1878) (“If cowardly and dishonorable men sometimes shoot unarmed
men with army pistols or guns, the evil must be prevented by the penitentiary and the gallows,
and not by a general deprivation of a constitutional privilege.”).
Over the nineteenth century, a few states did pass laws banning sale, carry, or use of
Bowie knives or other weapons, but such laws were rare. See Kopel & Greenlee, supra, at 293.
Nine jurisdictions banned the sales of “slungshots,” a type of rope club, which was the most for
any weapon. Id. at 347. Near the end of the century, two states (effectively) banned some
firearms considered dangerous and unusual. See id. at 226, 288–89. Tennessee made it criminal
to sell any handgun or bring one into the state, while Arkansas did the same for handguns (save
army and navy pistols), Bowie knives, sword canes, or brass knuckles. The courts upheld these
22Elsewhere, the Northeastern states apparently had little interest in regulating Bowie knives. See Kopel &
Greenlee, supra, at 312.
23Weapons can also move in and out of categories over time, as well as across jurisdictions. Handguns
provide an excellent example. “Whatever the likelihood that handguns were considered ‘dangerous and unusual’
during the colonial period, they are indisputably in ‘common use’ for self-defense today.” Bruen, 597 U.S. at 47.

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laws. See State v. Burgoyne, 75 Tenn. 173, 173–76 (1881); Dabbs v. State, 39 Ark. 353, 355–57
(1882).
That brings us to the turn of the century. I’ll leave off there because twentieth-century
historical material generally offers little insight into the original understanding of the Second
Amendment. Bruen, 597 U.S. at 66 n.28.
C.
So what can we make of this history and tradition? I see several potential lessons for the
federal machinegun ban, some more clear and some less so. Though we need not answer every
question today, I can at least sketch out the battle lines.
1.
Some of the history poses a problem for the government. For starters, the absence of
Founding-era and early-republic bans on dangerous and unusual weapons makes it harder for the
government to justify § 922(o). The one antebellum statutory ban on firearm possession was
held unconstitutional in Nunn. So there’s a nonfrivolous question whether the “dangerous and
unusual weapons” doctrine is a doctrine about what weapons you can own in the first place, or
instead a doctrine about how you can carry or use certain weapons (that are lawfully owned).
Some early courts seemed to think that legislatures had no power to completely ban any
kind of weapon, including dangerous and unusual ones. See Simpson v. State, 13 Tenn. (5 Yer.)
356, 360 (1833) (“[A]n express power is given and secured to all the free citizens of the state to
keep and bear arms for their defence, without any qualification whatever as to their kind or
nature . . . .”); Andrews, 50 Tenn. (3 Heisk.) at 193–201 (opinion of Nelson, J.) (similar); Nunn, 1
Ga. at 251 (similar). Other courts disagreed. See Aymette, 21 Tenn. (2 Hum.) at 161
(disagreeing with Simpson); Andrews, 50 Tenn. (3 Heisk.) at 171; Dabbs, 39 Ark. at 355–57;
Burgoyne, 75 Tenn. at 173–75. These latter opinions tended to come later in the nineteenth
century, though. And the farther we get from ratification in 1791, the less probative history

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becomes. See Bruen, 597 U.S. at 34–37.24 Plus, some states that effectively banned possession
still carved out exceptions for self-defense or keeping the weapon at home. See, e.g., Fife, 31
Ark. at 456 (home); State v. Workman, 14 S.E. 9, 9 (1891) (self-defense).
As for machineguns specifically, until 1986 they were lawfully owned by anyone who
could purchase one. And don’t forget—machineguns are still lawfully owned by some private
citizens today. The statute grandfathers in automatic firearms owned before the ban took effect.
18 U.S.C. § 922(o)(2)(B).
In fact, the 1986 machinegun ban was the first time the federal government ever enacted
a nationwide ban on any kind of weapon. See Stephen Halbrook, The Power to Tax, the Second
Amendment, and the Search for Which “‘Gangster’ Weapons” to Tax, 25 Wyo. L. Rev. 149, 164
(2025). That’s nearly 200 years from the Second Amendment’s ratification.
2.
But the history poses some serious problems for criminal-defendant challengers, too.
Arguments from historical silence are rarely satisfying; it’s possible that legislatures had the
ability to ban possession of certain weapons all along, even if they didn’t exercise the full extent
of their power early on. Originalism does not impose a “‘use it or lose it’ view of legislative
authority,” nor does it require us to assume “that founding-era legislatures maximally exercised
their power to regulate.” Rahimi, 602 U.S. at 739–40 (Barrett, J., concurring). Or perhaps
dangerous and unusual weapons don’t just receive less constitutional protection on a sliding
scale; perhaps they receive no constitutional protection, just like trebuchets or eggplants, so the
fact that governments chose not to regulate open carry or home possession is immaterial.
For those who take a generous view of “liquidation” theory, perhaps the early, anti-ban
cases aren’t enough to settle these questions. The early 1800s saw only a handful of state-court
adjudications of weapon regulations, and it may have taken several more decades to hash out and
24Many Second Amendment cases involve state regulation, and courts have not yet settled on whether the
relevant ratification period is 1791, when the Second Amendment was ratified, or 1868, when the Fourteenth
Amendment was ratified. See Bruen, 597 U.S. at 37–38. This case involves a federal statute, though, so 1791 is our
target date.

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settle questions of possession bans.25 Cf. Bruen, 597 U.S. at 35–36; Rahimi, 602 U.S. at 723–
729 (Kavanaugh, J., concurring); see generally William Baude, Constitutional Liquidation, 71
Stan. L. Rev. 1 (2019). If we give weight to cases from the 1840s (five decades postdating the
Second Amendment), what’s another three decades into the 1870s? I recognize that we have to
stop somewhere, but drawing that line isn’t easy. As for the statutory carveouts for possession at
home, they seem more like a matter of legislative grace than a constitutional requirement.
And as always, we can’t cling too closely to the precise forms that laws took long ago.
We need a historical analog, but we don’t need a “historical twin” or “dead ringer.” Bruen, 597
U.S. at 30 (emphasis omitted). Perhaps the fact that nearly all old laws banned concealed carry
signifies only a contingent assessment about the effectiveness of carriage restrictions at
suppressing crime. Perhaps once a weapon is deemed dangerous and unusual, legislatures may
regulate its whereabouts in whatever way necessary to minimize the harm the weapon can cause.
See Bianchi, 111 F.4th at 483 (“[H]istory and tradition support the banning of weapons that are
both dangerous and unusual . . . .”) (Richardson, J., dissenting) (first emphasis added). After all,
“[w]e are bound by the principles undergirding the Second Amendment, but we are not bound by
the regulators’ contingent empirical judgments about how best to effectuate those principles,
which are not part of the right as the ratifiers would have understood it.” Alicea, supra
(manuscript at 40).
If possession bans are constitutional, what about machineguns specifically? Are they
dangerous and unusual? As it turns out, there’s significant historical evidence closely tying the
machinegun to criminal activity, especially organized criminal activity, and demonstrating a lack
of ordinary, law-abiding interest.
25As discussed, some cases favored bans while other cases rejected them. The mere fact of disagreement
by itself shouldn’t cause us to throw our hands up; there are better and worse arguments and answers to legal
questions. But if you take the view that the 1800s cases did not definitively settle the question of possession bans,
and the matter is unclear, perhaps we owe legislatures some deference. After all, judicial deference to legislatures
on truly doubtful questions is part of our historical regulatory tradition, too. See Derek A. Webb, The Lost History
of Judicial Restraint, 100 Notre Dame L. Rev. 289 (2024); William Baude, Fear of Balancing, 2024 Sup. Ct. Rev.
169, 181; e.g., Bliss, 12 Ky. (2 Litt.) at 94 (“Whether or not an act of the legislature conflicts with the constitution is,
at all times, a question of great delicacy . . . . The court should never, on slight implication or vague conjecture,
pronounce the legislature to have transcended its authority,” but can declare a law unconstitutional “when a clear
and strong conviction is entertained . . . .”).

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The automatic machinegun came around in the late 1800s and early 1900s. In 1920, the
Thompson submachinegun became the first automatic firearm marketed to American consumers.
See Kopel & Greenlee, supra, at 287 n.490. “In the consumer market, it was a failure. The gun
was popular with criminals, especially bootleggers, and had some sales to law enforcement.” Id.
(citing John Ellis, The Social History of the Machine Gun (1986)); see also Kopel, supra, at 85 &
n.240, 89 (describing how twentieth-century gangsters used machineguns). Stories of gangster
machinegun violence permeated newspapers of the early twentieth century. See Spitzer, supra,
at 63. One paper described how the Tommy gun had become “inseparable from gang fights,
bank robberies, assassinations and other major crimes.” Id. at 64 (internal quotation marks
omitted).
Many states responded by enacting anti-machinegun laws in the 1920s and 1930s. Id. at
64–65 & n.38. And in 1932, Congress banned the possession of machineguns in the District of
Columbia, along with other weapons traditionally treated as dangerous and unusual. See Act of
July 8, 1932, ch. 465, §§ 1, 14, 47 Stat. 650, 650, 654 (machineguns, sawed-off shotguns, metal
knuckles, blackjacks, clubs, and others). Congress likely couldn’t have passed a national ban at
the time, since the most expansive notions of the interstate commerce power—§ 922(o)’s basis—
came later. See Wickard v. Filburn, 317 U.S. 111, 127–29 (1942).26 But in the District of
Columbia, Congress acted just like a state exercising traditional police powers to eliminate the
weapons of gangsters and assassins. And it acted early on, responding to a serious social
problem within a few years.
Eventually, machineguns became a standard military firearm. But it’s not clear whether
or how many ordinary Americans would have possessed them for lawful purposes throughout the
twentieth century.27 It very well may be that machineguns would have fit the traditional
understanding of dangerous and unusual—particularly useful for illegal activity and not
commonly possessed by law-abiding citizens.
26Indeed, under a more originalist view of Congress’s commerce powers, the federal machinegun ban
might be more susceptible to a Commerce Clause challenge than a Second Amendment challenge. See United
States v. Rybar, 103 F.3d 273, 286–87 (3d Cir. 1996) (Alito, J., dissenting).
27The government’s brief represents that a decade ago, there were about 170,000 legacied machineguns
lawfully owned by private citizens. Appellee Br. at 31–32.

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Even assuming that some traditional machineguns could receive constitutional protection,
the Glock switch that Bridges carried seems like a pretty good candidate for exclusion. A Glock
switch is a small metal device that converts a Glock semiautomatic pistol to an automatic pistol
by disabling the trigger bar. See Kopel, supra, at 53. In recent years, criminal syndicates in
China have been manufacturing them and illegally exporting them to the United States where
they find their way into criminal hands. Id. These devices are a menace. Like the dirks and
daggers of days past, the Glock switch is tiny, easily concealable, easily transportable, and often
used to commit horrific private violence—gang shootings, random shootings. By all accounts
the Glock switch seems like the weapon of modern-day “desperadoes,” “efficient only in the
hands of the robber and the assassin” and “usually employed in private broils.” Aymette, 21
Tenn. (2 Hum.) at 158–59. Or in other words, not “typically possessed by law-abiding citizens
for lawful purposes.” Heller, 554 U.S. at 625.
Bridges himself is Exhibit A. He drove down a Memphis highway shooting at police cars
with his Glock-switch-modified pistol. He hit one car, narrowly missing an officer, and then led
the police on a high-speed chase that lasted for ten miles and only ended when he crashed into a
concrete barrier. Not exactly a sympathetic defendant. It’s beyond dispute that Bridges’s
conduct falls within the ambit of some historical regulatory tradition. Indeed, his conduct seems
like a classic common-law going-armed violation—he waved a deadly weapon out a car window
on a busy highway and breached the peace, terrorizing the public and law enforcement alike.
(That’s before we even get to basic crimes like assault or attempted murder.)
But 18 U.S.C. § 922(o) doesn’t codify the common-law offense of going armed in
terrorem populi. It criminalizes the possession of a specific weapon, not the misuse of all deadly
weapons. I think the government must do more work tackling these historical questions and
connecting history and tradition to modern law. I’ve explained already that a facial analysis and
plain-error review suffice to resolve today’s case. But in the future, I hope that when the

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government wants a statute upheld, the government will tell a more compelling story about a
statute’s consistency with the past.28
3.
There are two other odd features of the “dangerous and unusual weapons” doctrine that,
in my view, the government doesn’t adequately grapple with. First, the objection that some
courts and litigants raise to the supposedly circular relationship between a weapon’s unusualness
and its eligibility to be banned. Second, the idiosyncrasy that at common law, interpreters
described the doctrine in multiple ways—sometimes “dangerous and unusual weapons,” but
sometimes “dangerous or unusual weapons.”
Circularity first. Why do we say that a ban on a certain weapon is justified by that
weapon’s unusualness, when the weapon may only be unusual because it’s already been banned?
Is unusualness the cause or the effect of the law? The Seventh Circuit explains things this way:
[R]elying on how common a weapon is at the time of litigation [is] circular . . . .
Machine guns aren’t commonly owned for lawful purposes today because they
are illegal; semi-automatic weapons with large-capacity magazines are owned
more commonly because, until recently (in some jurisdictions), they have been
legal. Yet it would be absurd to say that the reason why a particular weapon can
be banned is that there is a statute banning it, so that it isn’t commonly owned. A
law’s existence can’t be the source of its own constitutional validity.
Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015).29 The Seventh Circuit
used this argument to distance itself from the common-use test and uphold a ban on
semiautomatics; Bridges raises a version of it to argue for striking down the machinegun ban.
This objection has some intuitive appeal, but returning to the historical sources helps
explain the oddity. The circularity arises only when considering bans on unusual weapons. Yet
at English and American common law, and for half a century after the Founding, no one banned
28So I’d leave open the possibility that some defendant someday could bring an “as-applied” challenge to a
§ 922(o) prosecution for possessing a prohibited firearm. I’d leave the “matter to be settled by evidence as to what
character of weapon” the defendant possesses. Andrews, 50 Tenn. (3 Heisk.) at 186.
29See also Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 50 (1st Cir. 2024) (“It defies reason to
say that legislatures can only ban a weapon if they ban it at (or around) the time of its introduction, before its danger
becomes manifest.”); Bianchi, 111 F.4th at 460–61 (similar).

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dangerous and unusual weapons; the law simply regulated methods of public carry. And
carriage regulations don’t pose a feedback-loop problem on the same scale.
The “unusual” doctrine wasn’t originally developed or designed to fit with prohibitions
on possession. Forcing it to fit is a little like mixing oil and water. It is we moderns who have
assumed, sometimes too quickly, that banning dangerous and unusual weapons has always been
constitutional. The circularity is a quirk of our creation, not the historical doctrine’s.30
Next, consider “and” versus “or.” We generally think of the doctrine, as Heller
described, as concerning “dangerous and unusual weapons.” But recall that Blackstone—
Heller’s leading citation—wrote about “dangerous or unusual weapons.” 5 Blackstone, supra, at
148 (emphasis added). In fact, if we open up Heller’s string cite of authority, the sources seem
to alternate between “and” and “or” without second thought, as if they were interchangeable.
Compare id., and O’Neill, 16 Ala. at 67 (“deadly or unusual weapons”), and Henry J. Stephen,
Summary of the Criminal Law 85 (1834) (“dangerous or unusual Weapons”), with Wilson, Of
Crimes Against the Right of Individuals to Personal Safety, supra, at 1138 (“dangerous and
unusual weapons”); Langford, 10 N.C. (3 Hawks) at 383 (“dangerous and unusual weapons”);
Francis Wharton, A Treatise on the Criminal Law of the United States 527 (1846) (“dangerous
and unusual weapons”).31
At times, the law didn’t even use both terms. You can find references instead to
“dangerous weapons” or “unusual weapons.” See Smith, 11 La. Ann. at 634 (“dangerous
weapon”); Huntly, 25 N.C. (3 Ired.) at 422 (“unusual weapon”); Nunn, 1 Ga. at 246 (“deadly
30Putting aside whether “unusual” weapons can be banned, there is no problem with the position that
common weapons cannot be banned. The Second Amendment protects a customary historical right, based in the
practice of the people. “Both the traditional English constitution and American constitutions were grounded in
customary law,” and as scholars have explained, “‘[C]ustom obtain[ed] the force of law by a combination of time
and precedent. Whatever had been done from time immemorial in a community was legal; whatever had been
abstained from was illegal.’” William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre
Dame L. Rev. 1467, 1494 (2024) (quoting John Phillip Reid, In Defiance of the Law: The Standing-Army
Controversy, the Two Constitutions, and the Coming of the American Revolution 160 (1981)).
31See also John A. Dunlap, The New-York Justice 8 (1815) (“and”); 1 Russell, supra, at 271 (“and”); Ellis
Lewis, An Abridgement of the Criminal Law of the United States 64 (1847) (“and”); Charles Humphreys, A
Compendium of the Common Law in Force in Kentucky 482 (1822) (“or”); English, 35 Tex. at 476 (“or”); State v.
Lanier, 71 N.C. 288, 289 (1874) (“or”).

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weapons”). These terms seemed to work as stand-ins or synonyms for the more complete
“dangerous and unusual.”
What do we make of these quirks? Perhaps there are other ways to conceptualize what
“dangerous and unusual” means. Perhaps the phrase could be understood more loosely, as a
legal or linguistic term of art, not a strict two-part conjunctive test. Perhaps the term represents
some sort of quasi-hendiadys, a figure of speech, with “dangerous” and “unusual” working
together to form a single, complex idea. Cf. Samuel L. Bray, “Necessary and Proper” and
“Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 688–89, 695–701
(2016).32 That way, the conjunction would matter less; “dangerous” and “unusual” could be
joined by “and” or “or” without altering the meaning.33 As one, blended idea, “dangerous
and/or unusual weapons” could perhaps signify weapons that are dangerous in their unusualness,
or unusual in their dangerousness.
This reading could make some sense of the historical sources’ alternating conjunctions as
if the difference didn’t matter. It could offer another understanding of what “dangerous” means.
(Aren’t all weapons definitionally dangerous? But unusually dangerous sets certain weapons
apart.) Or it could make sense of the supposed circularity in defining weapons that can be
banned as those that are unusual for already being banned. (Mere unusualness doesn’t suffice;
the weapons must be dangerously unusual.)34
Whether the historical sources understood “dangerous and unusual weapons” this way,
I leave for another day. This case does not require resolving these possibilities. But in future
cases, rationalizing the “and” versus “or” distinction may help us better understand the nuances
that shaped this historical doctrine.
32Professor Bray offers the example of calling a cow “nice and fat.” We don’t take the “and” literally; the
cow isn’t nice and, separately, fat. The cow is something like “nicely fat.”
33The phrase came from the common law, after all, not any statute. And we do not interpret common-law
terms as if they came from written law.
34I imagine that these different conceptualizations could land in a similar spot as the traditional view that
“dangerous and unusual” meant not commonly owned for lawful purposes and specially adapted to criminal activity.
These criminally adapted weapons are unusually dangerous or dangerously unusual in that only criminals tend to
have them, making them less of a known quantity to the public and police.

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D.
I do agree with the majority on one important point. Analysis of the “dangerous and
unusual weapons” doctrine falls under Bruen’s Step 2, where it’s the government’s burden to
show that a firearms ban comports with history and tradition. See Maj. Op. at 9–11.
As Bruen structured the test, we first ask if the Second Amendment’s plain text covers an
individual’s conduct. Bruen, 597 U.S. at 17. This stage could involve asking if something
constitutes an “arm” (eggplants are out) or if you can “bear” it (tanks are out). If the text covers
it, “the Constitution presumptively protects that conduct.” Id. Then, at the next stage, the
burden rests on the government to “demonstrate that [a] regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id. We sometimes term the textual inquiry
“Bruen Step 1,” and the history-and-tradition inquiry about the scope of the right “Bruen Step 2.”
Analysis of the “dangerous and unusual weapons” doctrine belongs at Step 2, where the
burden belongs to the government. The doctrine speaks to the scope of the right, as historically
understood. It does not say that dangerous and unusual arms are not arms.
Still, some courts have concluded otherwise. They have ruled at Step 1 that the history of
“dangerous and unusual weapons” means that such weapons aren’t even “arms” within the
Second Amendment’s meaning. See Bianchi, 111 F.4th at 447–48; Bevis v. City of Naperville,
85 F.4th 1175, 1192–96 (7th Cir. 2023). This analysis does not faithfully implement Bruen’s
instructions. Step 1 concerns the semantic content of the Second Amendment’s text. It’s about
what triggers the right at all. Step 2 concerns the historical scope of the right, once we know
what implicates the right.
To be sure, perhaps we may need some “minimal historical context” to understand the
text’s semantic meaning. Alicea, supra (manuscript at 10). We consult eighteenth-century
dictionaries, for example, not modern ones, to uncover the constitutional definition of “arms.”
See Heller, 554 U.S. at 581–84. But Step 1 is primarily a linguistic enterprise, not a historical
one. History and tradition determine the scope of the right at Step 2.

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Dangerous and unusual weapons are plainly “arms” that trigger Second Amendment
scrutiny. Bowie knives and (arguendo) machineguns are “[w]eapons of offence,” “thing[s] that
a man . . . takes into his hands, or useth in wrath to cast at or strike another.” Id. at 581 (internal
quotation marks omitted). So they pass Step 1. Now, Congress might be able to specially
regulate (or ban) them based on history and tradition, but we determine that point—the right’s
scope—at Step 2. And just because we regulate (or ban) certain arms doesn’t mean that they
aren’t arms to begin with. They’re “unprotected not because they aren’t ‘Arms’ under the plain
text, but because they fall within the historical tradition of regulating dangerous and unusual
weapons.” Bianchi, 111 F.4th at 496 (Richardson, J., dissenting). And “[t]he nature of an object
does not change based on its popularity,” even if “the regulation of that object can.” Bevis, 85
F.4th at 1209 (Brennan, J., dissenting).
Where we slot in the dangerous-and-unusual analysis makes a difference because the
government bears the burden at Step 2, where much of the action happens, but not at Step 1.
Courts that slot this analysis into Step 1 improperly relieve the government of that burden. I am
pleased to join the majority in keeping the historical analysis where it belongs.
E.
Stepping back for a minute, why does this history matter so much? Relatively speaking,
machineguns are small fry in the current Second Amendment legal landscape.
It matters because your theory of “dangerous and unusual weapons” doesn’t just dictate
whether the government can ban machineguns. It dictates how you approach bans on many other
arms. Semiautomatics, for example, like the AR-15—“the most popular rifle in the country.”
Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 145 S. Ct. 1556, 1569 (2025); see
also Snope v. Brown, 145 S. Ct. 1534, 1534 (2025) (mem.) (Kavanaugh, J., statement respecting
denial of certiorari) (“Americans today possess an estimated 20 to 30 million AR-15s. And AR-
15s are legal in 41 of the 50 states . . . .”). Even though semiautomatics are “commonly
available” in many states, Garland v. Cargill, 602 U.S. 406, 430 (2024) (Sotomayor, J.,
dissenting), which should shield them under the common-use test, a few jurisdictions have
banned them and the courts of appeals have so far stood aside. E.g., Bianchi, 111 F.4th at 441

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(upholding Maryland ban); Bevis, 85 F.4th at 1181–82 (upholding Illinois ban); Capen v.
Campbell, 134 F.4th 660, 663 (1st Cir. 2025) (upholding Massachusetts ban). Other examples of
controversial arms abound. See, e.g., Caetano, 577 U.S. at 411 (stun guns); Teter v. Lopez, 76
F.4th 938, 942 (9th Cir. 2023), vacated and remanded as moot, 125 F.4th 1301 (2025) (en banc)
(butterfly knives); Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 50–51 (1st Cir. 2024)
(large capacity magazines).
If a case like this comes before us again, I hope that we and the parties and will give the
history and tradition the attention it requires—and deserves.
III.
Last, I’d like to address the Hamblen case. In 2009, just after Heller, this court decided
Hamblen v. United States and ruled that a challenge to § 922(o) “[was] directly foreclosed” by
Heller. 591 F.3d at 474. The analysis consisted of all of three sentences:
Heller [instructed] that “the Second Amendment does not protect those weapons
not typically possessed by law-abiding citizens for lawful purposes.” Moreover,
the Heller Court expressly rejected Hamblen’s reading of United States v. Miller,
307 U.S. 174 (1939), when it opined that it would be a “startling” interpretation of
precedent to suggest that restrictions on machine guns, set forth in the National
Firearms Act, might be unconstitutional. Thus, whatever the individual right to
keep and bear arms might entail, it does not authorize an unlicensed individual to
possess unregistered machine guns for personal use.
Id. (citations omitted). That’s it. The question today is whether Hamblen remains binding
precedent that disposes of any § 922(o) challenge.
It does not. Simply put, Bruen demands more.
A.
Bruen directs courts to do two things: Engage in historical analysis and abstain from
policy balancing. In other words, Bruen gives both an affirmative and negative command.
Hamblen may have abstained from balancing, but it did not analyze or engage with the history of
dangerous and unusual weapons or machineguns.

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Hamblen cited dicta from Heller about machineguns and the National Firearms Act. But
the National Firearms Act is a different statute than the machinegun ban. Congress passed the
National Firearms Act in the ‘30s under its taxing power. See National Firearms Act of 1934, ch.
757, §§ 3–5, 48 Stat. 1236, 1237–38. The statute created registration requirements for privately
owned machineguns and imposed a tax on any transfer or sale of a machinegun. The statute did
not ban machineguns. Congress banned them in a different, later statute, in a 1986 amendment
to the Gun Control Act of 1968, a criminal law passed under the interstate commerce power. See
Act of May 19, 1986, § 102, 100 Stat. 449, 453. So it’s unsurprising that Heller thought that the
National Firearms Act was constitutional—that law only regulated machineguns, it didn’t ban
them. But whatever Heller thought of registration and taxing rules tells us little about whether
Congress can prohibit possession entirely. And more importantly, this is not the stuff of which
Bruen analysis is made.
The majority also reads Hamblen to have also incorporated Heller’s dicta about
dangerous and unusual weapons. Maj. Op. at 8. But that’s still not enough to survive Bruen.
For one, the dicta was just that. Important dicta, to be sure, but still dicta. You can think of
Heller’s string cite to Blackstone, James Wilson, and a few treatises as a helpful suggestion, a
starting point for additional research. But as I’ve explained, there’s a lot more work that needs to
be done to connect the dots between a tradition of regulating the carry of dangerous and unusual
weapons and a ban on possession of such weapons. Even Heller—as scholarly as it was—was
imprecise with the distinction. See Baude & Leider, supra, at 1485; Leider, supra, at 1595.
This is exactly why courts treat holdings as holdings and dicta as dicta. The Heller Court
didn’t have to exhaustively consider the history of dangerous and unusual arms because that
wasn’t part of the question before the Court. As Chief Justice Marshall once explained, “[t]he
question actually before the Court is investigated with care, and considered in its full extent.”
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821). Judges often “think differently—more
carefully, more focused, more likely to think things through—when our words bring real
consequences to the parties.” United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en
banc) (Kethledge, J., concurring in judgment). But judges don’t think through dicta with the
same care. We thus don’t give dicta the same weight as holdings.

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And, funny enough, treating dicta as dicta turns out to be part of our nation’s historical
tradition of adjudicating arms-regulation cases, too. See Aymette, 21 Tenn. (2 Hum.) at 161
(rejecting an earlier case’s remark because “in that case no question as to the meaning of [that]
provision in the constitution arose, or was decided by the court, and the expression is only an
incidental remark of the judge who delivered the opinion, and, therefore, is entitled to no
weight”). One could take the same attitude toward Heller.
True, this court has sometimes chosen to treat Supreme Court dicta as binding. See Maj.
Op. at 7–8 (citing Holt v. City of Battle Creek, 925 F.3d 905, 910 (6th Cir. 2019)). Fair enough.
But that only works when there’s no intervening Supreme Court decision. Bruen is an
intervening decision. Bruen didn’t reverse anything in Heller, but it developed and clarified for
the lower courts the method that Second Amendment cases must follow—and which Hamblen
did not follow. Bruen says to show your work. Hamblen copied someone’s else answers.
Indeed, Heller itself was crystal clear about the limits of its own dicta. The Court
cautioned that it did not need to go into any historical depth on dangerous and unusual weapons
(or other Second Amendment limits) because “there [would] be time enough to expound upon
the historical justifications” for those limits “if and when those exceptions come before” courts.
554 U.S. at 635. Bruen and Rahimi both reiterated this admonition. Bruen, 597 U.S. at 31;
Rahimi, 602 U.S. at 702. The lesson is clear: When we, as lower courts, encounter those issues
in a case that presents them, we must go and do the historical spadework ourselves.35 We can’t
stand on offhand remarks from the Court. Taking Heller’s dicta as gospel would violate that
dicta’s explicit warning label.36
35Or, at least, the government must do the historical spadework to carry its burden at Step 2.
36For similar reasons, I give some weight, but not dispositive weight, to Heller’s oft-miscited statement
about M-16 machineguns. After making one reference to the carrying of dangerous and unusual arms, Heller
transitioned to a thought experiment about machineguns: “It may be objected that if weapons that are most useful in
military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely
detached from the prefatory clause.” Heller, 554 U.S. at 627. (The Court rejected the objection.)
This statement, carefully phrased in the hypothetical, did not actually state that machineguns may be
banned. I see no point in overclaiming that it did. Now, I’m not oblivious to the fact that Heller (or, at least, some
Justices in the majority) may have been suggesting that an M-16 ban is fine. But as I’ve described here, and below,
we don’t take Heller’s dicta as gospel. And the history, once we consult it, may be more complicated than Heller let
on. So I read this passage from Heller as studiously and strategically ambiguous—and thus mostly silent—on the

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The story of Heller to Hamblen to this case illustrates the “progressive distortion” of how
“a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”
United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting)). When you
pierce through the layers, no court has actually examined the question; it’s “turtles all the way
down.” Rapanos v. United States, 547 U.S. 715, 754 (2006) (plurality) (internal quotation marks
omitted). In my view, that’s not how judging should work.
Bruen demands historical analysis of the question before the court. Hamblen did not do
that for § 922(o), and it relied on casual remarks in a case that didn’t have § 922(o) before it.
Therefore, Bruen abrogated Hamblen and we must analyze § 922(o) anew. I concur in the
majority’s decision to perform a fresh Second Amendment analysis, but I cannot join the
majority’s additional assertion that Hamblen lives on. I worry that the majority’s approach, if
adopted elsewhere, would drain some of the rigor from Bruen’s instructions.
B.
The foregoing isn’t just my reading of Bruen’s teaching. It’s exactly how our own circuit
has already read Bruen. Just look at two of our recent cases. One case found that our old
precedent had analyzed history and tradition and thus remained binding. The other case found
that our old precedent had not analyzed history and tradition, and thus did not remain binding.
Earlier this year, we considered sentencing enhancements for using a weapon while
committing a crime in United States v. Risner, 129 F.4th 361 (6th Cir. 2025). We found that our
pre-Bruen decision in United States v. Greeno, 679 F.3d 510 (6th Cir. 2012), upholding the
enhancements, survived Bruen. See Risner, 129 F.4th at 366–69. We relied on Greeno and saw
no need to reexamine any history because Greeno had already conducted a historical analysis.
Greeno had “started and ended [its] analysis with the inquiry later embraced by Bruen.” Id. at
367. We made this point painstakingly clear. Describing Greeno, we wrote: “We began our
historical survey at common law . . . . We then moved to the laws of the states in the eighteenth
and nineteenth centuries, many of which included increased penalties for using a weapon during
question of whether military-grade machineguns may be banned. Even if the decision suggested that a ban is fine,
Bruen makes clear that courts—and the government—still have to prove it when a case presents the question.

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the commission of a crime.” Id. at 368 (cleaned up). That all meant Greeno had done enough to
keep its job as binding precedent. So all we had to do in Risner was apply Greeno.
Contrast that situation with United States v. Williams. 113 F.4th 637. Williams
addressed the statute banning felons from owning firearms. Id. at 642. Again, we had pre-Bruen
precedent upholding the statute. See id. at 645 (citing United States v. Carey, 602 F.3d 738, 741
(6th Cir. 2010)). So again, we asked whether our pre-Bruen precedent remained good law. This
time, we found that it did not. Why? Because the old caselaw had not performed a history-and-
tradition analysis. Id. We explained at length:
[O]ur pre-Bruen precedent isn’t binding here because intervening Supreme Court
precedent demands a different mode of analysis. . . . And while Bruen didn’t
overrule any aspect of Heller, it set forth a new analytical framework for courts to
address Second Amendment challenges. Under Bruen, courts must consider
whether a law’s burden on an individual’s Second Amendment rights is
“consistent with the principles that underpin our regulatory tradition.” . . . .
Our circuit’s pre-Bruen decisions on § 922(g)(1) omitted any historical analysis.
They simply relied on Heller’s one-off reference to felon-in-possession statutes.
Those precedents are therefore inconsistent with Bruen’s mandate to consult
historical analogs. Indeed, applying Heller’s dicta uncritically would be at odds
with Heller itself, which stated courts would need to “expound upon the historical
justifications” for firearm-possession restrictions when the need arose. Thus, this
case is not as simple as reaffirming our pre-Bruen precedent.
Id. at 647–48 (citations omitted).
Hamblen falls in the Williams-Carey camp, not the Risner-Greeno camp. Unlike Greeno,
Hamblen didn’t show its work. Hamblen “simply relied on Heller’s one-off reference[s],” and is
“therefore inconsistent with Bruen’s mandate to consult historical analogs.” Williams, 113 F.4th
at 648.
End of story? Not so much. As discussed, the majority tries to save Hamblen by
pointing out that Hamblen relied on Heller’s history. Maj. Op. at 8–9. But (at the risk of
repeating myself ad neauseam) Heller’s “history” on dangerous and unusual arms consisted of
two whole sentences of dicta. After Bruen, simply parroting those lines doesn’t fly. That
gestures at the history without engaging it. Williams couldn’t have made the point clearer:
“[A]pplying Heller’s dicta uncritically would be at odds with Heller itself, which stated courts

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would need to expound upon the historical justifications [for laws] when the need arose.”
Williams, 113 F.4th at 648. And Williams has good company. See Friedman, 784 F.3d at 409
(Easterbrook, J.) (“[C]ourts should not read Heller like a statute rather than an explanation of the
Court’s disposition.”); Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Barrett, J., dissenting)
(noting that we should be “reluctant to place more weight on [Heller’s] passing references than
the Court itself did.” (internal quotation marks omitted)).
* * *
Sticking by Hamblen is wrong twice over. By keeping the case on life support, the
majority opinion conflicts not only with Supreme Court precedent, but with our own circuit
precedent about that Supreme Court precedent.
We had it right in Williams. We had it right in Risner. When we next audit our
precedent for Bruen compliance, those cases should provide sounder guidance than this one.
IV.
For the reasons I’ve laid out, I part ways with some of the majority’s reasoning. But
I join the bottom line and agree that we should affirm Bridges’s conviction. I concur in part and
concur in the judgment.

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