On Tuesday, the United States Court of Appeals for the Fifth Circuit reaffirmed the constitutionality of the federal prohibition on private possession of machine guns, rejecting a direct challenge to 18 U.S.C. § 922(o) in a case involving a shooting involving a handgun modified by a machine gun conversion device (MCD).
In United States v. Jamaion Wilson, a unanimous panel led by Judge Don R. Willett affirmed Wilson’s conviction for unlawful possession of a machine gun, holding that such weapons remain outside the protection of the Second Amendment. The court said the decision reinforces longstanding circuit precedent and resists calls to reconsider it in light of evolving firearm technology or the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen.
Wilson pleaded guilty to violating § 922(o) after using a handgun equipped with a “Glock Switch”. This small, illegal machine gun conversion device (MCD) converts a semiautomatic pistol into a fully automatic machine gun. Mr. Wilson used his firearm to kill a seller who allegedly sold him a fake firearm in a 2023 Texas gas station parking lot confrontation. Prosecutors charged him with a machine gun possession offense, which carries a maximum 10-year sentence.
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On appeal, Wilson argued that the near-total ban on machine guns enacted in 1986 through the Hughes Amendment violates the Second Amendment, particularly post-Bruen. He claimed that modern proliferation of conversion devices has made machine guns “common” today.
The Fifth Circuit disagreed, relying heavily on its 2016 decision in Hollis v. Lynch, which held that machine guns are “dangerous and unusual” weapons not in “common use” for lawful purposes and thus unprotected. Under the circuit’s rule of orderliness, panels are bound by prior decisions unless overruled en banc or by the Supreme Court.
Wilson attempted to bypass Hollis by citing updated ATF statistics showing hundreds of thousands, or potentially millions, of machine guns in circulation when including illegal devices. The court dismissed this as irrelevant, noting that only lawfully possessed firearms count toward “common use” for self-defense, the core purpose protected by the Second Amendment.
Citing the most recent Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) data from June 2025, the panel pointed out that while 740,000 machine guns are registered in the National Firearms Registration and Transfer Record, the vast majority are owned by government entities, law enforcement, or dealers for official purposes such as selling to the government. Critically, only approximately 234,718 are transferable to private civilians, a figure, according to the court, is comparable to the 175,000 cited by Hollis nearly a decade ago.
“Firearms held by police and military entities are irrelevant to the ‘common use’ inquiry,” the opinion stated, emphasizing that private, lawful ownership for self-defense remains extraordinarily rare.
The court also rejected the argument that Bruen—which requires gun regulations to align with historical tradition—implicitly overruled Hollis. Nothing in Bruen unequivocally disturbed Hollis‘s conclusion, anchored in District of Columbia v. Heller‘s description of machine guns like the M-16 as quintessential “dangerous and unusual” arms.
The Fifth Circuit stressed that illegal proliferation does not render machine guns “common” under the Second Amendment. Only widespread, lawful use by law-abiding citizens for legitimate purposes qualifies.
Gun rights advocates view the decision as another lower court resisting Bruen‘s full implications, while supporters of restrictions hail it as preserving a critical limit on machine guns. The opinion solidifies the machine gun ban in Texas, Louisiana, and Mississippi, where the Fifth Circuit holds sway.
Unless reheard en banc or taken up by the Supreme Court, private civilians remain barred from possessing new machine guns or conversion devices made after 1986. They could face up to 10 years in federal prison for violations.
Wilson, who received the statutory maximum sentence, saw his conviction and 120-month term affirmed in full.
DOJ Declares Federal Ban on Mailing Handguns Unconstitutional in Landmark Opinion
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
NFA was the first ever law on firearms nationally, so it has no analogue and is blatantly unconstitutional per Bruen and common sense.
and Why is every comment held for moderation?
They are not dangerous and unusual, as they admit 234k are owned by civilians, and Caetano ruled that 200k stun guns was the magic number for “ in common use”. Plus they used circular reasoning saying we don’t own enough while ignoring the unconstitutional law that prevents us from buying more or any made after 1986… annnd… the fifth circuit ruled in 1991 Rock Island case that NFA is unconstitutional because the FBATFE refuses to accept tax for new machine guns since 1986! These judges are wrong, activists and we will keep filing till we beat them to submission.
They used circular reasoning, stating there are too few machine guns in lawful use to be common, while ignoring that citizens cannot legally purchase any made after 1986 because of the unconstitutional Hughes debacle. If we can’t buy more, how will we ever have more? In edition, they acknowledged there are over 234k in civilian hands… well f them, as SCOTUS in Caetano stated that 200k is the magic number…” “approximately 200,000 civilians owned stun guns” as of 2009” was enough to be considered “ in common use. Plus, the fifth ruled in 1991 in the Rock Island Armory case… Read more »
The federal courts are absolutely mired in made up nonsense and violations of the constitution and even an illegal catch 22 to create a b.s. scenario that we the people CAN’T GET OUT OF. They make up this total bullsh** about “common use” KNOWING FULL WELL they’ve conspired to prevent us from putting them in “common use.” WE CAN’T MAKE OUR OWN PROPERTY “LAWFUL” BECAUSE OF THEIR CONSPIRING TREASON. Thank a stupid federalist for all of this. The idiots who had to be drug kicking and screaming to adopt the bill of rights because all they wanted was an all… Read more »
See why “common use” is idiotic and only used to bite us in the ass? If James Madison had meant “the right of the people to keep and bear arms in common use shall not be infringed“ he would’ve written it that way!
using a case where someone uses something deemed illegal by statute to kill someone is a bad way to try and overturn a law in my opinion. what is needed is where the only crime is merely possessing the weapon. judges are human with human nature and trying to overturn a gun law when the gun in question was actually used to do murder is bad optics. is the law un constitutional ?? absolutely!!!! but the optics are just bad here.
Machine guns are what is needed to protect from an out of control government and boy do we have that even the courts are out of control
Decisions like these are founded upon courts’ misunderstanding of the meaning and intent of the 2nd Amendment and the Bill of Rights in general. From Preamble to the Bill of Rights: “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…” As above, the amendment’s acknowledgement of a natural right to arms was meant to guarantee to the States that Congress had no authority to break into the right. The amendment… Read more »
Here’s a thought… maybe the reason full-auto firearms aren’t “in common use” is because they’re banned!
Personally, I think over 200,000 privately owned machine guns qualifies as “common”. Are they as ubiquitous as Glocks? Of course not; but full-auto weapons are also a lot more cost-inhibitive than the almighty Glock, too. So where is the point on the graph where a firearm transitions from uncommon to common???
I knew “in common use” would come back to bite us in the ass someday!
What if We the People decide that the black robes of the judicial are too racial. Should we disrobe them?
HLB