United States v. Berger: Machine-Gun Bans Survive Bruen Step Two; NFA Silencer Registration Treated as a Non-Infringing “Shall-Issue” Condition

1. Introduction

In United States v. Joseph Berger (3d Cir. Sept. 1, 2026), the Third Circuit addressed a post-Bruen Second Amendment challenge to two federal regimes: (1) the federal prohibition on possessing machine guns, 18 U.S.C. § 922(o), and (2) the National Firearms Act’s (“NFA”) requirement that silencers be registered, 26 U.S.C. §§ 5841, 5861(d).

Parties. The United States prosecuted Joseph Paul Berger, a Navy veteran living with his father in Bethlehem, Pennsylvania. After agents intercepted a package of silencers sent from China, a search uncovered thirteen fully automatic firearms (mostly AK-47 variants), a dozen silencers, and conversion parts.

Key issues. Berger argued (as applied) that the Second Amendment protects his possession of machine guns and unregistered silencers. The appeal was held pending the Third Circuit’s en banc decision in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General of New Jersey (ANJRPC), which clarified where “common use” fits within Bruen’s framework.

2. Summary of the Opinion

The panel (Bibas, J.) affirmed. It held:

  • Machine guns may be banned consistent with the Second Amendment because, at Bruen step two, they are not in common use for lawful purposes and fit within the Nation’s tradition of prohibiting “dangerous and unusual weapons.”
  • The NFA silencer-registration requirement is constitutional as applied because it is a minimal, objective, “shall-issue” process that does not “infringe” the Second Amendment right (and thus, in the majority’s view, falls outside the Amendment’s scope).

Important limitation. Judge Chung did not join Part III (the “no infringement” rationale for registration), joining the judgment on a narrower ground drawn from Wolford v. Lopez: registration of a silencer (an accessory) does not restrict “keeping” or “bearing” arms, and an item is covered by the text only if “necessary” for a gun to function as intended (citing ANJRPC, Duncan v. Bonta, and United States v. Cox).

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1) The Supreme Court’s core Second Amendment cases

District of Columbia v. Heller supplies the decision’s central doctrinal anchor: it recognized an individual right centered on self-defense, but preserved limits—most importantly the distinction between arms “in common use” and “dangerous and unusual weapons.” The Berger panel leans heavily on Heller’s statement that it would be “startling” to read Second Amendment doctrine to protect machine guns, and its observation that weapons most useful in military service (“M-16 rifles and the like”) may be banned.

N.Y. State Rifle & Pistol Ass'n v. Bruen provides the governing methodology (text first, then historical tradition), and reiterates “common use” language. Berger’s key move is to implement Bruen through the Third Circuit’s en banc placement of “common use” at step two (via ANJRPC).

United States v. Rahimi is cited for refining step two: a challenged regulation must be “consistent with the principles that underpin our regulatory tradition,” judged by “why and how” it burdens the right. Berger treats “dangerous and unusual” as a historically distilled principle (already recognized by Heller) that satisfies Rahimi’s “why/how” inquiry for machine guns.

United States v. Hemani and Wolford v. Lopez are cited as part of the Court’s recent post-Bruen landscape, with Wolford featuring prominently in Judge Chung’s separate reasoning about whether an instrument’s regulation restricts “keeping” or “bearing” arms.

2) Third Circuit en banc guidance: where “common use” belongs

Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General of New Jersey (en banc) is pivotal. Berger treats ANJRPC as resolving ambiguity left by Bruen: the “common use” inquiry belongs at Bruen step two (historical tradition), not step one (text). That placement matters because it frames “common use” not as a threshold definitional exclusion from “Arms,” but as a historically grounded limit on protected conduct.

Berger also draws from ANJRPC to support using a weapon’s features (and relationship to self-defense) to assess common use, and to equate “not in common use for lawful purposes” with “dangerous and unusual.”

3) Circuit authority (machine guns) and the Third Circuit’s own precedent

The panel reaffirms United States v. One Palmetto State Armory PA-15 Machinegun Receiver/Frame, where the Third Circuit held machine guns unprotected under Heller because they are “exceedingly dangerous” and not in common use for lawful purposes. Berger updates that conclusion under the Bruen framework (rather than abandoning it).

The panel reinforces its machine-gun holding by citing other circuits’ post-Bruen outcomes: United States v. Bridges (6th Cir. 2025), United States v. Morgan (10th Cir. 2025), and the earlier United States v. Henry (9th Cir. 2012).

It also uses Staples v. United States (via ANJRPC) to underscore that machine guns occupy a distinct, more heavily regulated category than typical semi-automatic firearms—supporting the idea that banning them fits within accepted regulatory principles.

4) Historical and secondary sources (dangerous-and-unusual principle)

Berger takes Heller’s invitation seriously: it cites 4 William Blackstone, Commentaries for the “dangerous and unusual” tradition and includes congressional and historical evidence about machine guns’ association with crime (e.g., the Thompson “Tommygun”), including Bianchi v. Brown (4th Cir. en banc 2024) as a synthesis of that history.

Notably, the panel cites a wave of 1925–1934 state machine-gun bans (collected in Bianchi) not as direct Founding-era analogues, but as evidence of rapid consensus about the weapon’s danger—while acknowledging ANJRPC’s caution that the Founding era remains the “primary time period.”

5) “Infringement” and licensing/registration precedent by analogy

For silencers, the panel leans on Heller’s “presumptively lawful” carveout for “conditions and qualifications on the commercial sale of arms,” and on Bruen’s explicit approval (in footnote 9) of objective “shall-issue” licensing regimes, background checks, and training requirements—unless they operate through excessive delays, discretion, or exorbitant fees.

To defend its conceptual move (that minimal objective requirements are not “infringements”), the panel cites: Grey v. Combs, State v. Buzzard, and contrasts Bliss v. Commonwealth as an “outlier decision” condemned by later authority; it also analogizes to incidental burdens doctrine drawn from Luis v. United States (Thomas, J., concurring), Ward v. Rock Against Racism, and Crawford v. Marion Cnty. Election Bd.

Finally, it aligns with other circuits sustaining the NFA registration requirement: United States v. Peterson (5th Cir. 2025) and United States v. Speed (4th Cir. 2026).

Judge Chung’s separate writing highlights a live doctrinal dispute, citing the accessory/coverage debate and the circuit split: United States v. Comeaux (5th Cir. 2026) (contra), with coverage discussion also referencing Duncan v. Bonta and United States v. Cox.

B. Legal Reasoning

1) Methodological structure: Bruen’s two steps, clarified by ANJRPC

Berger applies Bruen as filtered through ANJRPC:

  1. Step one (text): determine whether the Second Amendment’s text covers the person and conduct. The panel treats machine guns as “Arms” at step one because they are firearms.
  2. Step two (history/tradition): the government must justify the regulation as consistent with historical tradition, measured by the “why” and “how” of the burden (Rahimi). Here, the panel places “common use for lawful purposes” and “dangerous and unusual” within step two.

2) Machine guns: not in common use for lawful purposes; fit the dangerous-and-unusual tradition

The machine-gun analysis has two mutually reinforcing prongs:

  • Functional fit with lawful self-defense: The panel emphasizes self-defense as the “central component” of the right (Heller; Bruen) and reasons that a weapon optimized for sustained automatic fire is ill-suited to civilian defensive use, citing inaccuracy, recoil, and collateral-risk concerns (including U.S. Army Field Manual 3-22.9 and congressional findings).
  • Association with crime and extraordinary danger: The panel relies on legislative findings and historical accounts describing machine guns (and silencers) as “gangster-type weapons,” plus evidence of broad early 20th-century prohibitions, to show they fall within the “dangerous and unusual” category recognized by Heller and Bruen.

Under Rahimi’s “why/how” lens, the “why” is preventing uniquely indiscriminate, high-casualty weaponry associated with crime, and the “how” is an outright ban on civilian possession of post-1986 machine guns, a burden the panel deems consistent with the historically accepted ability to prohibit “dangerous and unusual weapons.”

3) Silencers: a registration regime treated as a minimal, objective hoop (but with a notable intra-panel divide)

The panel states that, even assuming silencers are “Arms,” the NFA’s registration process is constitutional because it is: objective, definite, and shall-issue, with denial required only when possession would be unlawful (26 U.S.C. § 5822). The majority’s doctrinal move is to treat such requirements as not “infringing” the right at all—i.e., outside the Amendment’s scope—drawing on Heller’s “presumptively lawful” language and Bruen’s approval of shall-issue regimes.

Judge Chung’s separate writing flags possible tension: if courts declare some burdens too “minimal” to trigger Bruen step two, they may implicitly reintroduce burden-balancing that Bruen rejected. She therefore concurs in the judgment on a different ground: registration of a silencer “does not place any restrictions” on keeping or bearing arms (quoting Wolford), and she notes the ongoing dispute over whether accessories qualify as “Arms.”

C. Impact

1) Machine-gun litigation: consolidating post-Bruen outcomes

Berger strengthens a growing appellate consensus that machine-gun bans survive Bruen. Its significance in the Third Circuit is that it explicitly reaffirms Palmetto State using the Bruen / Rahimi framework and ANJRPC’s step-two placement of “common use.” Future as-applied challenges to § 922(o) in the circuit will face a steep barrier unless the Supreme Court revises the “dangerous and unusual” / “common use” architecture established in Heller.

2) Registration and “infringement”: a potential fault line

The more novel (and potentially contested) contribution is Part III’s theory that objective, minimal purchase/ownership regulations do not “infringe” the Second Amendment at step one. Because Judge Chung did not join that reasoning and pointed to tension with Bruen’s anti-balancing stance, Berger may invite:

  • future panels to cabin or refine the “no infringement” pathway,
  • litigants to press for step-two historical testing even for objective administrative regimes,
  • continued debate about whether silencers (and other accessories) are “Arms” and what test governs that inquiry.

3) Practical effect for NFA silencers

Berger reinforces the constitutionality of NFA silencer registration—at least as a “shall-issue” process without evidence of excessive delays, discretion, or prohibitive cost. The opinion also suggests a roadmap for challengers: develop an as-applied record of “lengthy wait times” or “exorbitant fees” (Bruen n.9) if they seek to overcome the presumption.

4. Complex Concepts Simplified

  • “Bruen step one” vs. “step two”: Step one asks whether the Second Amendment’s text covers the conduct (e.g., possessing “Arms”). Step two asks whether the government can nevertheless regulate because history and tradition show the right has long had that kind of limit.
  • “Common use”: A weapon is more likely protected if law-abiding citizens commonly possess it for lawful purposes, especially self-defense. Berger treats this as part of the historical limit analysis (step two), per ANJRPC.
  • “Dangerous and unusual”: A historical category for weapons that governments could prohibit because they posed distinct threats and were not typical tools of lawful civilian defense. Berger treats machine guns as squarely within this category.
  • “Shall-issue” regulation: A licensing/registration system with objective criteria and little discretion; if you qualify, the permit/approval must be issued. Berger characterizes NFA silencer registration this way.
  • “As-applied” challenge: The defendant argues that a law is unconstitutional in his specific circumstances, even if it might be valid in other applications.

5. Conclusion

United States v. Berger establishes (within the Third Circuit’s post-ANJRPC framework) two key propositions: (1) machine-gun possession bans are constitutional because machine guns are not in common use for lawful purposes and fall within the historically recognized “dangerous and unusual” exception; and (2) NFA silencer registration is constitutional as applied, with the majority viewing objective, minimally burdensome “shall-issue” requirements as non-infringing, while a concurring judge warns of methodological tension and prefers a narrower rationale.

The decision thus both consolidates appellate agreement on machine guns and highlights an emerging doctrinal boundary question: whether courts should treat certain firearms regulations as outside the Second Amendment’s scope at step one, or instead require historical justification at step two even for “minimal” administrative conditions.