Opinion in Kittson (Ninth Circuit machine gun case.) Schroeder and Owens in majority, VanDyke in dissent. Not a surprising result. We did an amicus in this one but I was not hopeful. Summary of ruling and dissent:
This one wasn't your typical machine gun case you often see these days (gang member with Glock switch). Instead, Kittson was charged with trying to arrange a transfer a PPSh-41 to an undercover officer. That's a WW2-era gun, and not some common weapon of modern criminals.
Kittson argued that because the person he was arranging to transfer the gun to was an undercover fed, that an exemption applies for transferring to the United States. I love the creative argument, but the majority didn't buy it.
OK while I definitely won't agree with his upcoming 2A analysis in this case, I like Judge Owens and his writing style. 🤣 (He's been the most friendly of the Dem-appointed judges on the Ninth Circuit to gun rights, but I figured machine guns was about five bridges too far for him)
The majority declined to do a Bruen analysis, and just says prior Ninth Circuit precedent that relied on the Heller dicta on machine guns remains controlling. That's disappointing. As our amicus brief argued, machine guns are clearly "arms" under the plain text of the Second Amendment, and so a full historical analysis is necessary to determine whether or not they fit the historical tradition of dangerous and unusual weapons. The district court failed to do that analysis, and so at minimum this case should have been remanded so it would do so. Instead, the majority lazily just relies on precedent that never engaged with a true historical analysis.
While I won't get into too much depth on the statutory interpretation front as that isn't my area of particular expertise, I think I tend to agree with Judge VanDyke that the law as written does seem to support Kittson's argument. Yes, that does lead to an apparently silly situation where transferring a machinegun to an undercover fed you think is a drug dealer makes you fall within an exception meant for legitimate transfers to the US government, as the majority mockingly reminds us. But the solution to silly results like that is for Congress to edit the law, not for people to not get the benefit of the plain meaning of the words.
As to the Second Amendment, Judge VanDyke says he wouldn't have reached the issue as Kittson should have won on statutory interpretation. However, he argues (as we did in our brief) that Ninth Circuit pre-Bruen precedent on machineguns should not be controlling given Henry never did any serious historical analysis.
Our amicus brief referenced! ✔️
