https://5pft.com/collections/ar-flag-pole

Case name is US v. William Robert Shepherd, III. Case number is 24-60622.

Background

Per the Defendant’s motion to suppress and US’s opposition to the MTS, on August 2, 2022, Defendant was driving a 2007 Honda Accord with a cargo carrier with no wheel or taillights attached to the Accord’s receiver hitch on the Natchez Trace Parkway. A seemingly brand new and unused wheelbarrow was tethered to the carrier per the Defendant’s MTS Exhibit. At approximately 8:34 AM, Natchez Trace Park Ranger Richard Perry pulled him over in violation of 36 CFR 7.43(c)(5), which concerns about the use of trailers. Perry then immediately smelled marijuana coming from the inside. Defendant then provided his driver’s license but couldn’t find his valid proof of insurance. Perry then inquired on whether there were firearms and illegal substances in the vehicle, to both of which the Defendant answered in the negative. Ranger Perry then asked Defendant to step out of the car and to the rear, which the latter complied, and after receiving consent to search his person and conducting the search per the US, Ranger Perry informed Defendant that he will search the car due to the marijuana’s odor. In there, Perry found a “blunt” of marijuana and a “sawed off shotgun” beside the passenger car seat. Perry also found a black bag with a glass pipe inside, and found a black container with approximately 0.79 grams of suspected marijuana. On a side note, Defendant stated that he smoked crystal meth earlier on that day.

Judicial Proceedings

Per the indictment, Defendant possessed an unserialized short-barreled Stevens, model 820B, 12 gauge shotgun that wasn’t registered to him in the National Firearms Registration and Transfer Record. What’s interesting is that given his usage of crystal meth that day and some drugs found in his car, he wasn’t indicted under 18 USC § 922(g)(3).

Defendant then moved to dismiss the indictment by saying that the NFA as applied to SBSs violated 2A facially and as applied to him. Specifically, he challenges the registration requirement, and that he claims that there are no historical analogues of permanently deprive one of 2A rights for just failing to register even if registration is consistent with the historical tradition of firearm regulation.

Defendant then talks about the history of the NFA and cites Stephen Halbrook’s article Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms. In 1924, Representatives considered handguns to be dangerous weapons because they can easily be concealed or discarded during law enforcement pursuits and they can be “replenished” by mail. Representatives thought that handguns like pistols were criminals’ “pet” firearms (and they still are today per the data), unlike others like shotguns and rifles.

Soon, in 1930, Representatives had another gun control debate in light of Prohibition-related crimes and fear of Communism, this time on pistols, revolvers, and machine guns, but at least one lawmaker noted that handguns were now considered self-defense weapons. Then, in 1934, Congress successfully passed the NFA. While Congress recognized that it can’t ban firearms under 2A, it can, under the interstate commerce clause, regulate them. Originally, it would have mandated handgun registration, but that was removed. What’s interesting is that failure to register didn’t implicate 2A rights until Congress passed the GCA per the Defendant. It then cites US v. Miller, in which SCOTUS analyzed 2A in the context of the history of militia service and held that SBS’s could not be said to be “part of the ordinary military equipment” that civil soldiers were expected to provide as part of their conscription into the militia because the Defendant (who was dead by then) failed to show how SBS’s would be useful in militia service. Miller, 307 U.S. at 178-82.

Then comes Heller, in which SCOTUS at that time interpreted Miller to hold that 2A protection “extends only to certain types of weapons”, i.e., “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” The Defendant renders the latter dicta. The Heller Court even found that Miller didn’t thoroughly examine 2A, so it set up the proper framework for evaluating whether a particular weapon falls within 2A’s scope of protection by saying that “the [text of the] Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” “Bearable arms” include those “in common use at the time” a challenge is considered. The “common use” limitation, per the Heller Court, “is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Id. at 627.

We now talk about Bruen. Here, Defendant claims that the NFA as applied to SBS possession implicates the plain text, and that the US can’t meet its burden on the registration requirement and the legal consequences of failing to register the firearm in question. However, the Defendant makes an error in the textual burden: he claims that a “bearable arm” per Heller and Hollis v. Lynch as one that “is in common use at the time,” “possessed at home,” and for “lawful purposes like self-defense.” The Defendant then cites the ATF’s data on the number of registered short-barreled firearms (not sure if that’s a good way to go, as that’s about shotguns, not rifles). The Defendant then claims that he is one of “the people” despite having some minor criminal history.

In regards to the historical analysis, his counsel found a pre-Bruen article that said that “long gun” registration requirements didn’t exist until the 1890s and were uncommon, and given that, there is no historical tradition of permanently depriving one of 2A rights for failing to register firearms. In fact, the NFA itself is a not a criminal statute, but a tax statute that carries felony criminal penalties (hmmm not sure about that), and hence wasn’t intended to permanently deprive violators of 2A rights.

The US opposes by saying that the NFA as applied to SBSs doesn’t implicate conduct protected by 2A, and claims Miller and Heller, which Bruen didn’t overturn, held that 2A doesn’t guarantee the right to keep and bear SBSs. It then claims that the NFA’s registration scheme for SBSs is no more burdensome than the shall-issue as noted in footnote 9 of Bruen, even if there’s no historical analogue. Regarding the historical burden, it cites to laws regarding arms trade, and a 1631 Virginia law that mandated recording of new arrivals and arms into the colony.  It then even cited the barrel proofing laws and other safety regulations like gunpowder inspections. This set of laws are mainly commercial regulations for quality control purposes, and unlike the NFA, they didn’t have criminal sanctions. The US says that those laws were mainly there to impose record-keeping and attendant payment requirements for documentation purposes, and to ensure traceability for crime investigations.

Defendant replies by saying that the US didn’t address whether SBS are protected by 2A, and that the historical analogues fail the historical test. When the US cited the NY 1652 statute regarding trade of guns, gunpowder, and lead, the Duke Center for Firearms Law pointed out that the exact text has been lost to history, so that isn’t really much of a help.

Regarding the VA 1631 registration statute, it was mainly a broad registration requirement for property (like a sales tax vs. 2A excise tax), and that it had no criminal penalty, let alone forfeiture of arms, so that is dissimilar to the NFA.

As for the 17th century Connecticut and Virginia laws regarding firearm and ammo sales to colonial residents only, that was enacted to prevent Indians from owning firearms, not to categorically regulate specific types of arms. Also, violations of those statutes didn’t result in permanent disarmament.

Unfortunately, District Judge Carlton Reeves, the same one who held that 18 USC § 922(g)(1) violated only Jessie Bullock’s 2A rights (which got reversed as of November 25, 2024), and even called out how baseless qualified immunity is in an order denying that this year, denied Shepherd’s motion to dismiss. Judge Reeves errs in his denial by pointing out that the Defendant hasn’t persuasively shown that SBS’s are “in common use today for self-defense”, which comes from the passage in Bruen below:

[N]o party disputes that handguns are weapons "in common use" today for self-defense.

This statement was added because this is about whether the proper cause requirement for concealed carry permits violated the right to carry handguns for self-defense in that specific case. Judge Reeves then claims that SCOTUS has held that “dangerous and unusual” weapons are not protected by 2A, and even cites to other district court decisions upholding the NFA. Judge Reeves then says that Shepherd hasn’t explained why the NFA infringed on his rights, as it simply requires registration.

In summary, Judge Reeves erred for the following reasons:

1. He pointed out that Shepherd failed his burden on proving that SBS’s are “in common use for self-defense” when it was the US’s burden on proving that SBS’s are not “in common use” for lawful purposes like self-defense,
2. He failed to realize that the NFA registration requirement is a firearm regulation, specifically a regulation on "keep ... arms", which is being challenged on 2A grounds. Given that, the US must show that it is consistent with the historical tradition of firearm regulation.

Shepherd, who originally pled not guilty, changed his plea to guilty, but reserved his right to appeal the order denying the motion to dismiss. Judgment was entered on 12/4, and Shepherd appealed on 12/5.

So, they want to send semi-auto, .22 “weapons of war” to the Ukrainian armed forces because they can’t send their own modern small arms. As well as semi-auto RPD’s, of all things.

There are a lot of factors playing into why they wanted to seize them. There are a lot of things that can happen to them in the one-year amnesty they’ve issued. They spat in the face of Canadian gun owners, and they should get their own back while they can.

9mm

Opening brief here.

Wilson points out that 18 USC § 922(o) criminalizes the possession of post-1986 machineguns, which flies in the face of the portion "to keep (and bear) arms" of 2A's text.

Trump appointee Mark Pittman held that Wilson failed his as-applied challenge because he misused the machine gun, which Wilson thought that it is incorrect, as he cites to US v. Diaz, 116 F.4th 458 (5th Cir. 2024), which held that conduct outside the elements of the challenge statute didn't bear on its constitutionality, even as applied to the defendant. The judge instead should have asked whether the constitution permits the government to ban the possession of a machinegun, which is the limit of the statutory prohibition at issue.

Judge Pittman then cites Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir. 2016), which held that full autos are unusual weapons outside the scope of 2A protection. Hollis said that those are unusual because at that time, there were 175,977 pre-1986 civilian owned machine guns per this FOIA request. Wilson then tries to counter the "unusual" status by saying that there are 741,146 registered full autos in total (which in my opinion is a bit of a stretch).

Wilson then even says that this number is rather a floor because there are firearms that meet the machinegun definition after factoring in the switch.

Anyway, Wilson finally takes the historical jab by pointing that 2A doesn't permit any prohibition on the mere possession of bearable arms, unusual or otherwise. If anything, they were really scant at best.

On a side note, I am thinking of making a list of Trump judges who should not be elevated because of their anti-2A rulings.