The United States Court of Appeals for the Third Circuit ruled on September 1, 2026, that the federal ban on unregistered machine guns is constitutional under the Second Amendment. On its face, that is a defeat for gun rights. Look at the timing, and it is one of the better outcomes the movement could have gotten this year.
In United States v. Berger, No. 24-2125, a unanimous three-judge panel — Judge Stephanos Bibas writing, joined in full by Judge Felipe Restrepo — held that machine guns fall outside Second Amendment protection because they are not “in common use for lawful purposes” and are, in the language of District of Columbia v. Heller, 554 U.S. 570 (2008), “dangerous and unusual.” Judge Cindy Chung joined the machine-gun holding but declined to join Part III, the majority’s separate reasoning on the National Firearms Act’s silencer-registration requirement, an issue this article sets aside for another day. On the machine-gun holding itself, the panel spoke with one voice.
The Weakest Case Should Never Go First
Litigation strategy is not just about winning the case in front of you. It is about controlling which questions reach the Supreme Court, and in what order. Right now, three questions matter far more to the Second Amendment than machine guns: whether AR-15-platform rifles are protected arms, whether suppressors are protected arms, and whether magazines holding more than ten rounds are protected arms. Those are the cases that determine whether tens of millions of Americans keep the rifles, accessories, and magazines already in their homes and safes. Machine guns, by contrast, are a marginal case — fewer than 200,000 remain in private hands nationwide, none manufactured for civilian sale since 1986.
A disciplined litigant does not let its weakest issue set precedent for its strongest ones. If the machine-gun question had reached the Supreme Court first, and the Court had ruled that machine guns receive no Second Amendment protection, that holding would not have stayed neatly confined to machine guns. It would have handed lower courts, and a hostile administration, language to use against every other class of “unusually dangerous” firearm equipment — precisely while the AR-15, suppressor, and magazine cases are still working their way up. The Third Circuit’s ruling forecloses that scenario. It resolves the machine-gun question in a lower court, on a body of case law already settled since the Third Circuit’s own precedent a decade earlier, without ever putting the issue in front of the nine Justices who will decide the cases that matter.
The Calendar Explains the Strategy
The consolidated cases of Viramontes v. Cook County, Illinois, No. 25-238, and Grant v. Higgins, No. 25-566, present the question whether the Second and Fourteenth Amendments protect AR-15-platform and similar semiautomatic rifles. The Supreme Court granted certiorari on June 30, 2026, and oral argument is scheduled for December 2, 2026, with a decision expected by the end of the Court’s term. That timeline is precisely why a machine-gun case had no business reaching the Court this fall. As I see it, we do not currently have five votes to hold that fully automatic weapons are protected arms, and a loss now would not stay confined to machine guns — it would become precedent the government cites against every gun-rights argument for years, defended by the doctrine of stare decisis long after the Court’s composition might otherwise have shifted in our favor. Better to have no precedent on a hard question than bad precedent that has to be dismantled case by case.
What Judge Bibas Actually Wrote
Judge Bibas grounded his opinion in the same collateral-damage rationale I have argued for on this channel: a machine gun’s high rate of fire makes it uncontrollable, and uncontrollable weapons endanger bystanders as much as they endanger a criminal. He wrote:
“Gun bans are strong medicine. But occasionally, they are just what the doctor ordered. History teaches that governments may ban weapons when they are commonly used principally for crime.”
And on the weapon’s unsuitability for self-defense:
“Modern machine guns can fire more than 1,000 rounds in one minute, killing dozens of enemies in seconds… . But the very trait that makes machine guns excellent combat weapons also makes them unsuited to self-defense. Their high rate of fire makes them inaccurate, risking collateral damage.”
That reasoning matters because it draws a clean analytical line between weapons designed for indiscriminate fire and semiautomatic rifles designed for aimed, single-trigger-pull shots — the exact line the Supreme Court will need when it decides Viramontes and Grant.
The Discipline the Trans-Rights Movement Lacked
Compare this sequencing to two very different civil-rights strategies. The gay-rights movement moved from Bowers v. Hardwick, 478 U.S. 186 (1986), through decades of incremental state-level and lower-court victories before Obergefell v. Hodges, 576 U.S. 644 (2015), recognized a constitutional right to marry. It won by choosing its battles. The transgender-rights movement, by contrast, took a case asking whether minors have a constitutional right to gender-transition medical treatment straight to a Supreme Court it could not win, and United States v. Skrmetti, decided June 18, 2025, delivered a lasting defeat. I intend to keep the Second Amendment on the first path. A ruling against machine guns, arriving now rather than in front of the Supreme Court, is how that discipline holds.
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.