On July 8, 2025, the U.S. Court of Appeals for the Tenth Circuit heard oral argument in United States v. Morgan, No. 24-3141 — a case squarely asking whether the federal machine-gun ban, 18 U.S.C. § 922(o), can survive the text-and-history methodology that Bruen demands. The panel — Judges Matheson, Bacharach, and McHugh — heard from William Glaser for the government and Daniel Hansmeier for the defense. What emerged was a window into just how confused some federal judges remain about where the burden of proof lies in a Second Amendment challenge. That confusion is not a small thing — it is the whole ballgame.
The Case: From Kansas to Denver
Tamori Morgan was indicted in the District of Kansas in April 2023 for allegedly possessing an Anderson Manufacturing AM-15 in .300 Blackout fitted with an auto-sear device, along with a Glock converted to fire automatically via a Glock switch. Judge John W. Broomes — a Trump appointee in the Wichita division — dismissed the indictment in August 2024, finding § 922(o) unconstitutional as applied under Bruen. He concluded that machine guns are arms within the plain text of the Second Amendment and that the government had failed to demonstrate a historical tradition sufficient to justify the ban. The government appealed to the Tenth Circuit, and the argument raised every foundational question in Second Amendment doctrine: Where does the “in common use” test sit in the Bruen framework? And who bears the burden?
The Burden of Proof Is Everything
Here is where my frustration boils over. The single most important issue in Morgan is whether the “dangerous and unusual” / “in common use” test arises at Bruen step one (plain text, claimant’s burden) or step two (historical tradition, government’s burden).
The correct answer is step two. Heller, 554 U.S. at 626–627, derived the “dangerous and unusual” concept from the historical tradition of prohibiting the carrying of such weapons. That is historical analysis. Under Bruen, the burden at step two is on the government. Full stop.
But the Tenth Circuit’s own precedent in Rocky Mountain Gun Owners v. Polis, No. 23-1251 (10th Cir. 2024), planted that test at step one — which means the defendant bears it. That is the wrong reading of Heller and Bruen. Watch the exchange from oral argument:
“The court, this court in Rocky Mountain said that at Bruen step one, a court must determine whether the item at issue is an arm that is in common use for self-defense. Why doesn’t that foreclose an argument that common use is a Bruen step-two inquiry?”
Defense counsel Hansmeier responded:
“The burden for the plaintiff or the challenger or the defendant — the person challenging the law — to show that their conduct falls within the Second Amendment is simple. It’s the textual part of it. This is a bearable arm. Therefore it’s protected by the Second Amendment. Government, go justify the regulation.”
That is the correct analysis. Bearability is a textual question. “In common use” and “dangerous and unusual” are historical questions — the government must carry the weight.
A Judge Who Has the Burden Backwards
One moment from argument showed how badly courts can miss this. One panel judge pressed defense counsel on how the court could affirm the district court’s ruling without knowing whether the roughly 170,000 registered civilian machine-gun owners on the record were law-abiding citizens rather than gang members:
“My only question is really how can we affirm — I mean you make really good arguments, as you always do — but how in the world can we say we can look at this record and affirm based on this record because we can determine that it is reasonable for a district court to infer that the 170,000 people that are registered [machine gun] owners are not members of the Crips, they’re not collectors, they’re not YouTubers that go around boasting about their ability to use these automatic weapons?”
This gets the methodology exactly backwards. The “in common use” inquiry places the burden on the government to show that machine guns are not in common use among law-abiding citizens. If the government cannot make that showing, the Second Amendment presumption of freedom prevails. A judge demanding that the rights-claimant prove ownership patterns before ruling in their favor has inverted Bruen entirely.
The NFA Registry Numbers and Why They Matter
The government apparently relied on approximately 740,000 NFA-registered machine guns to undercut the “common use” argument. That number is misleading: the NFA registry includes manufacturer and dealer samples and law-enforcement registrations — all legally required. The figure for transferable, civilian-owned machine guns sits around 234,000. That is the number that matters for any honest “common use” analysis.
What This Case Really Means — And Why SCOTUS Is a Trap
My read is clear: under a correct application of Bruen and Heller, machine guns are textually arms, and the government bears the burden of showing a historical tradition of prohibition sufficient to sustain § 922(o). Whether the Tenth Circuit applies that framework faithfully — given Rocky Mountain’s step-one placement of the common-use test — remains to be seen.
But I have to say something you may not want to hear. There are not five votes on the U.S. Supreme Court to hold machine guns are protected arms. Not even close. If Morgan or any machine-gun case reaches the Supreme Court, we lose — and we hand the Second Amendment a binding adverse precedent for a generation. If I were advising the Department of Justice, I would be working to resolve these cases well short of SCOTUS review.
The Tenth Circuit’s decision in Morgan will bear watching.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.