Common Use, Not Common Possession: Tenth Circuit Holds Machineguns Fall Outside Second Amendment Protection at Bruen Step One

Introduction

United States v. Morgan (10th Cir. Sept. 2, 2025) confronts the post-Bruen landscape for challenges to 18 U.S.C. § 922(o), the federal prohibition on machinegun possession. The case arose from an as-applied Second Amendment challenge after police recovered an AM-15 machinegun and a Glock “switch” (a machinegun-conversion device) linked to the defendant, including via a Snapchat video showing automatic fire. The district court dismissed the indictment, holding § 922(o) unconstitutional as applied. The government appealed.

The Tenth Circuit reversed. Anchored in District of Columbia v. Heller, New York State Rifle & Pistol Association v. Bruen, and its own post-Bruen decision in Rocky Mountain Gun Owners v. Polis (“RMGO”), the court held that the defendant failed at Bruen’s step one: he did not show that the machineguns at issue are “arms” “in common use” by law-abiding citizens for self-defense. The panel emphasized that “common use” means actual, typical self-defense use by law-abiding citizens, not mere numbers in private hands, and that the challenger bears the burden to make that showing in an as-applied challenge.

Amici participation underscored the stakes: national gun-violence-prevention organizations supported the government; several gun-rights groups supported the defendant. The Tenth Circuit’s opinion adds a structured, evidence-focused template for evaluating “common use” claims and further consolidates the multi-circuit consensus upholding § 922(o).

Summary of the Judgment

• The Tenth Circuit reversed the district court’s dismissal of the indictment and remanded for further proceedings.
• Applying Bruen step one as articulated in RMGO, the court held:
  • Defendant did not show that the machineguns he possessed—an AM-15 and a Glock “switch”—are “arms” “in common use today for self-defense.”
  • “Common use” is not satisfied by raw counts of registered weapons or speculative assertions; it requires evidence that law-abiding citizens typically employ the weapon for self-defense.
• Because the claim failed at Bruen step one, the court did not proceed to the historical-tradition analysis at step two.
• The court underscored that it is bound by Heller’s dicta recognizing that “M-16s and the like” (i.e., weapons most useful in military service) may be banned, and it highlighted the long legislative and criminal-history backdrop of machineguns.
• Other issues:
  • The facial challenge and a Commerce Clause argument were not before the court; the latter was raised only by amici and declined.
  • Standard of review: de novo for the as-applied constitutional challenge; statutory constitutionality presumed.

Analysis

Precedents Cited and Their Influence

• Heller (2008):
  • Confirmed an individual right to keep and bear arms for self-defense, but limited by weapon type.
  • Key formulations:
    • Second Amendment does not protect weapons “not typically possessed by law-abiding citizens for lawful purposes.”
    • Protects weapons “in common use at the time.”
    • Explicitly acknowledged that “weapons most useful in military service—M-16s and the like—may be banned.”
  • Influence here: The Tenth Circuit treats Heller’s machinegun-related discussion as binding dicta, guiding the “common use” inquiry at step one.
• Bruen (2022):
  • Adopted a two-step test:
    1. Does the Second Amendment’s text cover the regulated conduct?
    2. If yes, is the regulation consistent with the Nation’s historical tradition of firearm regulation?
  • At step one, Bruen itself accepted that handguns are “in common use” for self-defense.
  • Influence here: The Tenth Circuit places the “common use” determination in step one and puts the burden on the challenger to prove coverage.
• Rahimi (2024):
  • Upheld 18 U.S.C. § 922(g)(8), reaffirming that the Second Amendment does not secure an unlimited right “to keep and carry any weapon whatsoever.”
  • Influence here: Supports the idea that disarmament in defined circumstances, and restrictions keyed to safety or dangerousness, can be consistent with the Second Amendment.
• RMGO (10th Cir. 2024):
  • Structured step-one into three sub-questions:
    1. Is the challenger part of “the people”?
    2. Is the item an “arm” “in common use” today for self-defense?
    3. Does the proposed course of conduct fall within the right to “keep and bear” arms?
  • Influence here: Provides the exact step-one framework applied to machineguns, assigning the evidentiary burden to the challenger.
• Other circuits on machineguns and “common use”:
  • Pre-Bruen: Six circuits upheld § 922(o) (e.g., 5th, 6th, 8th), concluding machineguns are not commonly used for lawful purposes (Hollis, Hamblen, Fincher, Henry, etc.).
  • Post-Bruen:
    • Fourth Circuit en banc decisions (Price; Bianchi) elaborated “common use” metrics and cautioned that counts should reflect “active employment” for lawful purposes and common-sense self-defense realities.
    • Sixth Circuit (Bridges 2025) reaffirmed § 922(o), focusing on how machineguns are not typically possessed by law-abiding citizens for lawful purposes; emphasized their unique adaptation to unlawful use.
  • Influence here: The Tenth Circuit aligns with the consensus methodology: numbers can inform but do not decide; common-sense self-defense analysis matters; and unlawful holdings do not count toward “common use.”

Legal Reasoning

• Burdens at Bruen Step One:
  • The challenger must demonstrate that the specific weapon type is an “arm” covered by the Second Amendment because it is in common use today for self-defense by law-abiding citizens.
  • The court faulted the defendant for attempting to invert this burden by criticizing the government’s lack of statistics rather than supplying his own proof of common defensive use.
• Common Use vs. Common Possession:
  • Raw numbers of registered machineguns (e.g., ATF data suggesting approximately 234,718 transferable as of June 2025, and potentially fewer) are relevant but not dispositive.
  • The court stressed that “common use” means typical, actual defensive employment—not just ownership totals. Courts should not equate widespread possession with common defensive use.
  • Unregistered machineguns (unlawful since 1934) cannot count toward “law-abiding citizens” or lawful purposes.
• Common-Sense Self-Defense Analysis:
  • Machineguns are designed to deliver as many rounds as fast as possible; civilian self-defense “rarely—if ever—calls for” such rapid and uninterrupted fire.
  • The risk profile and offensive character of automatic fire make machineguns “uniquely adapted for unlawful purposes,” reinforcing that they are not typically used by law-abiding citizens for self-defense.
• State Law Landscape:
  • At least 38 jurisdictions impose strict machinegun controls: 12 states plus D.C. ban them outright; 25 more allow private possession only if federally lawful; two require registration and make public carry presumptively unlawful.
  • This breadth and longevity of regulation undermine claims that machineguns are commonly used for lawful defensive purposes among law-abiding citizens.
• Heller’s Dicta and Historical-Legislative Backdrop:
  • The panel describes itself as bound by Heller’s clear dicta that “M-16s and the like” may be banned.
  • Historical narrative: following notorious criminal use in the 1920s–1930s (St. Valentine’s Day Massacre; Kansas City Massacre), Congress imposed strict regulation (NFA 1934) and later capped civilian supply (FOPA 1986). Legislative reports consistently identify machineguns as criminal tools and as posing unique risks to law enforcement and the public.
  • These strands support the conclusion that machineguns have not been commonly used by law-abiding citizens for self-defense.
• As-Applied Posture and Scope:
  • The court analyzed the “particular circumstances” of the defendant and the specific items (AM-15 configured for automatic fire; Glock “switch” qualifying as a machinegun part under 26 U.S.C. § 5845(b)).
  • Nonetheless, its reasoning sweeps more broadly: the defendant failed to show that any type of machinegun is commonly used for self-defense by law-abiding citizens.

Impact and Forward-Looking Consequences

• Within the Tenth Circuit:
  • As-applied challenges to § 922(o) face a formidable step-one hurdle: challengers must marshal affirmative, credible evidence of common, lawful defensive use of machineguns—not merely ownership figures or speculative hypotheticals.
  • Conversion devices such as Glock “switches” are squarely within the machinegun definition and will be analyzed identically.
  • Because the case is resolved at step one, lower courts need not reach historical analogues at step two for machinegun possession challenges absent a different evidentiary showing.
• Circuit Alignment and Supreme Court Trajectory:
  • The outcome and reasoning align with a broad, multi-circuit consensus upholding § 922(o). Some circuits have resolved on step two; the Tenth Circuit reinforces a step-one route grounded in Heller’s “common use” limitation.
  • Given convergence across circuits, Supreme Court intervention on § 922(o) may be unlikely unless a circuit split emerges or the Court redefines “common use.”
• Beyond Machineguns:
  • The opinion’s treatment of “common use” as “common defensive employment,” not “common possession,” will influence challenges to other weapon categories and accessories.
  • The state-law survey method, endorsement of “common-sense” use analysis, and exclusion of unlawful possessions as data points provide a replicable template for courts assessing other arms (e.g., certain conversion devices, unusually dangerous weapons). The court’s reliance on Heller’s “military use” dictum also underscores a limiting principle for arms primarily suited for warfare.
  • By contrast, weapons with robust records of lawful civilian ownership and defensive use (e.g., handguns; AR-15s per some Justices’ statements) may receive different treatment based on evidence and state-law prevalence.
• Evidentiary Expectations:
  • Morgan signals that litigants must present concrete, usage-focused evidence. Anecdotes or generalized assertions will not carry the step-one burden.
  • Because defensive uses of machineguns are vanishingly rare—and because unlawful holdings do not count—the practical effect is to insulate § 922(o) from as-applied Second Amendment attacks premised on “common use.”

Complex Concepts Simplified

• Bruen Step One vs. Step Two:
  • Step one asks whether the Second Amendment even covers the weapon or conduct at issue. If not, the analysis ends.
  • Step two examines whether the challenged law fits within the nation’s historical tradition of firearm regulation. Courts get here only if step one is satisfied.
• “Arms” and “Common Use”:
  • Not every weapon is an “arm” for Second Amendment purposes. Weapons outside typical lawful self-defense use can fall outside the Amendment’s scope.
  • “Common use” focuses on whether law-abiding citizens typically use the weapon for self-defense today. It is not enough that many are owned; what matters is how they are typically used and by whom.
• “Law-Abiding Citizens”:
  • Counts of unlawfully possessed weapons do not establish “common use.” If possession is illegal, those instances do not show that law-abiding people commonly use the weapon for self-defense.
• Heller’s “M-16s and the like”:
  • Heller’s statement that military-style weapons “may be banned” guides lower courts. The Tenth Circuit treats that guidance as controlling dicta, especially where later Supreme Court cases have not undermined it.
• As-Applied Challenge:
  • Looks at whether applying a law to this particular person, in these circumstances, is unconstitutional. It does not necessarily invalidate the law for everyone.
• Machinegun “Switches”:
  • Under federal law, certain parts designed to convert a semiautomatic firearm to fire automatically are themselves “machineguns.” Possession of such a part triggers the same analysis as possession of a complete machinegun.

Key Doctrinal Moves in Morgan

• Reaffirmation that the challenger bears the burden at Bruen step one and must present evidence of “common defensive use.”
• Adoption of a multi-pronged method for assessing “common use”:
  • Numbers may matter, but only if tied to lawful, typical self-defense use by law-abiding citizens.
  • Common-sense assessment of self-defense realities.
  • Survey of state laws to gauge ordinary lawful possession and use.
• Treating Heller’s machinegun dicta as binding guidance and reinforcing it with history and legislation.

What Morgan Does Not Decide

• Facial constitutionality of § 922(o): The district court rejected it; the defendant did not appeal; the Tenth Circuit addressed only the as-applied claim.
• Commerce Clause: An amicus raised it, but the Tenth Circuit declined to consider arguments not raised by a party.
• Historical-tradition analysis (Bruen step two): The court did not reach it because the claim failed at step one.
• Other categories of weapons or accessories: The reasoning may inform, but does not resolve, questions about other arms that might be argued to be in common self-defense use.

Conclusion

United States v. Morgan cements a clear, administrable rule in the Tenth Circuit: the “common use” inquiry is a threshold, step-one question under Bruen, and the challenger bears the burden to demonstrate that the weapon is commonly used by law-abiding citizens for self-defense. The court’s insistence on usage rather than mere possession, its reliance on common-sense self-defense realities, and its state-law survey together form a robust framework that machineguns cannot satisfy. Reinforced by Heller’s dicta and a century of legislative and historical context, Morgan leaves § 922(o) intact as applied and provides lower courts a detailed roadmap for evaluating future Second Amendment challenges to unusually dangerous, military-adapted weaponry.

The practical takeaway is twofold. First, for machineguns and conversion devices, as-applied Second Amendment challenges will almost certainly fail in the Tenth Circuit absent dramatic new evidence of lawful defensive use. Second, for other arms, litigants should expect courts to demand concrete, usage-focused proof—not just ownership counts—that law-abiding citizens typically employ the weapon for self-defense. Morgan thus clarifies the “common use” filter and fortifies the doctrinal boundary between protected civilian self-defense arms and weapons chiefly suited to military or criminal purposes.