The Second Amendment does not provide protection of machine gun creation, according to a federal appeals court decision in late June 2016. The 5th Circuit ruled that the manufacturing of a machine gun is not a Second Amendment right.

Hollis v. Lynch and Brandon involved trustee Jay Hollis who applied to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to manufacture a machinegun. Hollis is trustee of his revocable living trust. Hollis received an approval from the ATF, but two days later they issued a denial. After receiving the denial from the ATF, Hollis sued Loretta Lynch, Attorney General of the United States, and Thomas Brandon, Acting Director of the ATF. The suit was subsequently dismissed. Upon appeal, the court affirmed the original decision and cited a few laws:
  • National Firearms Act of 1934 – The NFA prohibits approval of weapon manufacturing if it puts the person in possession of the firearm in violation of the law.
  • ​Gun Control Act of 1968 (amended in 1986) – This piece of law makes possession of a machinegun illegal. The ATF has not had the authority to approve applications to make or register machine guns since amendments took effect on May 16, 1986.

The judges interpreted the NFA provisions with respect to the Gun Control Act; if possessing a machinegun is illegal, then an individual who makes and possesses one would be in violation of the law.

Hollis argued that he personally wasn’t making the machinegun, his trust was the entity used in the transaction. Since the Gun Control Act prohibits persons from making machineguns, Hollis disputed his trust did not violate the law. The court stated this “misunderstands trust law.”

Regarding Second Amendment rights, the court referenced District of Columbia v. Heller:

Heller, therefore, distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are “possessed at home” and are in “common use at the time for lawful purposes like self-defense.”…The individual right protected by the Second Amendment applies only to the second category of weapons…

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