United States of America v. Jermaine Brown

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0227p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERMAINE BROWN,
Defendant-Appellant.
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No. 24-6029
Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:23-cr-20241-2—Jon Phipps McCalla, District Judge.
Decided and Filed: August 14, 2025
Before: MOORE, GRIFFIN, and NALBANDIAN, Circuit Judges.
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COUNSEL
ON BRIEF: Needum L. Germany, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Mary H. Morris, Gregory A. Wagner, UNITED STATES
ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court in which GRIFFIN, J., concurred, and
NALBANDIAN, J., concurred in the judgment. NALBANDIAN, J. (pg. 5), delivered a separate
concurring opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-appellant Jermaine Brown brings
an as-applied Second Amendment challenge to the constitutionality of his conviction for
violating 18 U.S.C. § 922(o), which prohibits the transfer or possession of machineguns. As a
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matter of circuit law, the Second Amendment does not protect a right to possess machineguns.
Accordingly, we AFFIRM Brown’s conviction.
I. BACKGROUND
Brown was convicted of possessing a machinegun in violation of 18 U.S.C. § 922(o). R.
65 (Judgment at 1) (Page ID #182).1 Brown timely appealed, arguing—as he did unsuccessfully
before the district court, R. 61 (Order Den. Mot. to Dismiss the Indictment at 4) (Page ID
#173)—that his conviction under § 922(o) is an unconstitutional deprivation of his Second
Amendment rights.2 Circuit precedent requires the opposite conclusion.
II. ANALYSIS
A. Standard of Review
We review de novo the district court’s denial of Brown’s motion to dismiss the
indictment and Brown’s resulting conviction and sentence because they “implicate[] the
constitutionality of a federal statute.” United States v. Morton, 123 F.4th 492, 495 (6th Cir.
2024).
B. Section 922(o)
The instant appeal asks whether this court’s precedent—holding that the possession of
machineguns covered by 18 U.S.C. § 922(o) is unprotected by the Second Amendment—is still
good law under the Supreme Court’s holding in Bruen. Our circuit has now answered that
question in the affirmative. United States v. Bridges, No. 24-5874, slip op. (6th Cir. Aug. 7,
2025).
1Brown was charged with possession of a machine-gun conversion device, also known as a Glock switch,
R. 2 (Indictment at 2) (Page ID #4), which neither party contests is a machinegun for purposes of 18 U.S.C.
§ 922(o). See Appellant Br. at 3; Appellee Br. at 4.
2After having pleaded guilty pursuant to a plea agreement, R. 27 (Plea) (Page ID #39), Brown moved to
dismiss his indictment on Second Amendment grounds, R. 44 (Mot. to Dismiss at 5) (Page ID #74). On appeal,
neither party challenges the district court’s holding that Brown’s earlier plea agreement does not preclude his
challenge to the constitutionality of 18 U.S.C. § 922(o). See R. 61 (Order Den. Mot. to Dismiss the Indictment at 3–
4) (Page ID #172–73).

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No. 24-6029 United States v. Brown Page 3
Shortly after the Supreme Court issued its landmark decision in District of Columbia v.
Heller, 554 U.S. 570 (2008), “we rejected a constitutional challenge to § 922(o), holding that
Heller ‘directly foreclosed’ it.” Bridges, slip op. at 5 (quoting Hamblen v. United States, 591
F.3d 471, 474 (6th Cir. 2009)). Our decision in “Hamblen relied on Heller’s statement that ‘the
Second Amendment does not protect those weapons not typically possessed by law-abiding
citizens for lawful purposes.’” Id. at 5–6 (quoting Hamblen, 591 F.3d at 474).
Brown argues that Hamblen is no longer good law because “it is clearly irreconcilable”
with the Supreme Court’s recent holding in New York State Pistol & Rifle Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022). Appellant Br. at 22. Brown argues that “Hamblen relied upon Heller, which
employed the means-end analysis rejected in Bruen.” Id. This misreads both Bruen and Heller.
The Supreme Court in Bruen “did not call Heller into question; to the contrary, Bruen was an
unqualified endorsement of Heller.” Bridges, slip op. at 7. “When Bruen articulated its text-
and-history test, it stated that it was making Heller’s standard ‘more explicit,’ . . . that the test
was ‘[i]n keeping with Heller,’ . . . and that this test was the same one ‘set forth in Heller.’” Id.
(alteration in Bridges) (quoting Bruen, 597 U.S. at 31, 17, 26). Bruen overturned only those
post-Heller decisions that “had misapplied Heller by erroneously adding a means-end-scrutiny
step to Heller’s text-and-history standard.” Id. at 8. Any “pre-Bruen case[] that did not
wrongfully apply means-end scrutiny remain[s] binding.” Id. Hamblen did not apply means-end
scrutiny. Id.
Hamblen “relied entirely on Heller’s clear statements, rooted in historical analysis, that
applied to machineguns.” Id. “The historical sources that Heller reviewed demonstrate a
‘tradition of prohibiting the carrying of dangerous and unusual weapons.’” Id. (quoting Heller,
554 U.S. at 627). “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. (quoting Heller, 554 U.S. at 625). Heller specifically identified machineguns and M-16s as
examples of such weapons. Heller, 554 U.S. at 624, 627. “Hamblen did not conduct interest-
balancing or means-end tests; rather, it straightforwardly applied Heller, a case that Bruen
emphatically endorsed.” Bridges, slip op. at 8. “Thus, even in Bruen’s wake, Hamblen remains

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No. 24-6029 United States v. Brown Page 4
binding authority.” Id. Brown’s challenge3 to § 922(o) must therefore fail as a matter of circuit
precedent. Hamblen, 591 F.3d at 474; see also Bridges, slip op. at 9–16 (conducting “a fresh
application of the Heller/Bruen text-and-history” methodology and concluding that § 922(o) is
constitutional because machineguns are “both dangerous and unusual” under Bruen’s second
step).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Brown’s conviction.
3Brown argues that § 922(o) is unconstitutional as applied to him because he did not bear a machinegun “in
such a manner as to ‘terrorize the people.’” Appellant Br. at 21 (quoting Bruen, 597 U.S. at 46–47). But this
argument and its reliance on Bruen misunderstands the nature of the statute at issue here, which does not regulate
“the manner of public carry,” as the statute in Bruen did. Bruen, 597 U.S. at 59. Rather, § 922(o) bans the
possession and transfer of “certain types of weapons.” Heller, 554 U.S. at 623. Brown’s reliance on United States
v. Williams, 113 F.4th 637 (6th Cir. 2024), is thus inapposite. Williams concerned 18 U.S.C. § 922(g)(1), which
prohibits any gun ownership by a particular class of people—felons. 113 F.4th at 642. There, we found that the
plain text of the Second Amendment presumptively protected the prohibited conduct, but that, as applied to
dangerous felons, § 922(g)(1) was constitutional because it was consistent with the nation’s history and tradition of
disarming dangerous people. Id. at 648–50, 663. In contrast, Brown’s dangerousness or lack thereof is not relevant
to our consideration of § 922(o) because it is well established that the historical scope of the Second Amendment
does not extend to certain types of weapons—namely dangerous and unusual weapons—regardless of the manner in
which they are carried or the specific characteristics of their bearers. Heller, 554 U.S. at 627; Bridges, slip op. at 11.

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No. 24-6029 United States v. Brown Page 5
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OPINION
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NALBANDIAN, Circuit Judge, concurring in the judgment. In United States v. Bridges,
this circuit recently rejected a Second Amendment challenge to 18 U.S.C. § 922(o), the federal
statute banning machinegun possession or sale. See — F.4th — (6th Cir. 2025). We held that
§ 922(o) comports with our nation’s history and tradition of regulating “dangerous and unusual
weapons.” Id. at —.
I sat on the panel in Bridges. And although I concurred in the judgment, I would have
decided the case on narrower grounds. Bridges’ facial challenge failed and his as-applied
challenge came to us on plain error. See Bridges, — F.4th at — (Nalbandian, J., concurring in
part and concurring in judgment). So I would have resolved Bridges on the grounds that any
alleged error by the district court wasn’t plain. I also disagreed with the majority’s treatment of
our pre-Bruen precedent in Hamblen v. United States, 591 F.3d 471 (6th Cir. 2009), which the
majority in this case reaffirms. As I explained, I believe that Hamblen is not consistent with
Bruen’s command to conduct a historical analysis. Id. at —. Nor did I fully share the Bridges
majority’s view of how to analyze the “dangerous and unusual weapons” doctrine. Id. at —.
But Bridges is now binding circuit precedent. And Jermaine Brown was convicted of
possessing the same type of machinegun-conversion device as Bridges. So I agree that we
should apply Bridges to this case. And while future courts likely will find some preserved as-
applied challenges that Bridges does not govern, this case isn’t it.1 So Brown’s conviction
should be affirmed.
With these observations, I concur in the judgment.
1It’s true that Bridges did not preserve his as-applied argument, which meant that we reviewed his Second
Amendment challenge for plain error. And Brown preserved his challenge. Nevertheless, I read the majority
opinion in Bridges as concluding that the district court made no “error” in rejecting Bridges’ as-applied challenge,
plain or otherwise.
And as I explained in Bridges, even if some machineguns warrant constitutional protection, a Glock switch
appears to fall within the traditional definition of dangerous and unusual weapons—particularly adapted for private
violence and criminal activity, and not commonly owned for lawful purposes. Id. at —.

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