MAJOR BREAKING NEWS! FEDERAL APPEALS COURT ATTACKS MACHINE GUN BAN!

Added: 2026-05-08

[00:00:00]Major breaking news as a fight over who's going to sit on the US Supreme Court next is taking place out in the open in a huge federal case involving whether or not the federal machine gun ban under 18 USC 922 is constitutional or not. We're going to have to talk about this huge case of Wilson out of the US Court of Appeals for the Fifth Circuit down there in Louisiana, Texas, and Mississippi. a fight over machine guns and whether or not a ban on them violates among other things the second amendment. Let's break it down.

[00:00:36]Hey folks, I'm Mark Smith, host of the four box of Dino, proud American gun owner, constitutional attorney, member of the United States Supreme Court Bar and proud to say the top voice of the second amendment in America. Thank you.

[00:00:44]2025 and 2026 gun news awards. All right, folks. So, a lot of exciting news out of the United States Court of Appeals for the Fifth Circuit that covers the states of Mississippi, Louisiana, and Texas. a huge decision in United States versus Wilson, which deals with the question whether or not the federal machine gun ban, the post 1986 machine gun ban codified in federal gun control law 18 USC 922, whether or not it's constitutional or not, with multiple arguments being made.

[00:01:18]One being that 922 violates the commerce clause because there's nothing in article one of the US Constitution that would allow Congress to have the legal authority under the Constitution to ban the possession of machine guns. And number two, whether or not a ban on post 1986 machine guns violates the Second Amendment. So, this is a huge fight that has just broken out. And what's going on here? You need to understand this.

[00:01:44]There's some critical things you need to understand here before you get too excited, before you do something screwed up, and before you encourage the wrong thing. So, let me start from the beginning. This is a case of an individual who killed someone with a handgun. Damian Wilson took a handgun with a Glock switch, converting it into a machine gun, and then killed someone.

[00:02:08]He was convicted of the unlawful possession of a machine gun.

[00:02:14]There were then various arguments raised. His conviction was upheld all the way up to a three judge panel for the fifth circuit. Then what happened is the lawyers for Mr. Wilson sought on bonk review of the entire active bench of the US Court appeals for the fifth circuit of which right now there are I believe 17 17 active judges on the fifth circuit down there in Texas, Mississippi and Louisiana.

[00:02:41]Just now in a decision that is 10 to7 10 judges on the fifth circuit denied voted against rehearing this case on bon on the question of whether or not 18 USC 922 violates the second amendment and maybe even the commerce clause. Seven judges on the fifth circuit said that this case should be reheard on bonk probably because they intend to and they want to overturn bad anti-second amendment anti-gun president that was established decades ago. And until that precedent is overturned by the onbond court, it remains binding involving let's say the ban on machine gun type cases. It upholds those laws based on old law based on old Supreme Court precedent which is no longer the law of the land. So, with that said, a lot is going on here. To begin with, let me start right up top. Let me be very clear. We do not have five votes on the United States Supreme Court to give us, at least under the Second Amendment, that machine guns cannot be banned consistent with the Second Amendment. In other words, we do not have five votes to legalize machine guns on the US Supreme Court. And why did I lead off with that fact when we're talking about a case here in the fifth circuit? The reason why I remind you that we do not have five votes on the US Supreme Court to legalize machine guns, if you will, is because the last thing we want, the last thing we in the Second Amendment community want, as I see it, is for the United States Court of Appeals for the Fifth Circuit, or for any circuit for that matter, to come out right now, now at least, and say that machine guns are protected under the Second Amendment.

[00:04:23]Because if that were to occur, let's say if it were to have occurred in this Wilson case for hypothetical reasons, this case was denied, sir. I should say this case was denied reharing on bond.

[00:04:34]So it's not going to happen in the Wilson case. We'll get to the details of this case in a second. But if the fifth circuit were to rule that the federal machine gun ban under 922 is unconstitutional under the commerce clause and or under uh the second amendment. I do not think we have five votes at least on the second amendment question to protect machine guns. And what we do not want is to cause a situation where the next hardware case where the next arms case before the Supreme Court as to what is an arm and what arms can be banned if any under the second amendment. We do not want that next case going to the Supreme Court involving machine guns.

[00:05:17]What we want in the Second Amendment community because we're strategic here at the Four Boxes Diner. We don't just scream shall not be infringed. We do not just race our cases to the Supreme Court, even though there's an excellent chance we're going to lose like the transgender movement did in the Scanmani case that got their movement set back decades uh in that case involving uh whether or not minors had a constitutional right to had gender altering surgery. Obviously, that lose big lost big time before the Supreme Court. We do not want to embrace that methodology of rushing cases to the Supreme Court and losing and establishing bad precedent that will kick us in the dupa for decades to come.

[00:05:52]So whatever happens folks, we do not want any court of appeals to rule right now that machine guns are protected arms under the second amendment because if that were to occur, the federal government would seek cert and the supreme court would undeniably issue a bad second amendment ruling finding that machine guns are not protected under the second amendment. So we do not want that precedent. Now, with that backdrop in mind, where we are here is in this Wilson case, 10 judges said we should rehear the case on Bach and reconsider whether or not the federal machine gun ban is constitutional under the commerce clause and or the second amendment.

[00:06:28]Seven said no can do. But here's the interesting part. Two of the judges, two of the 10 judges that said we should not hear this case wrote a concurring opinion essentially saying that while we don't think this Wilson case is the proper vehicle to decide the question of whether or not the federal machine gun ban is constitutional, we don't think this Wilson case in particular is the right vehicle to decide this question.

[00:06:55]We meaning Don Willlet, Judge Don Willlet and Judge Jennifer Lrod, both very good judges. Both of those judges have indicated and indicate here that this is not the right vehicle. But down the road, if the proper case came, we would be inclined to rule that the federal machine gun ban likely is unconstitutional and likely illegal and likely needs to go bye-bye.

[00:07:22]And in many respects, that's very good.

[00:07:24]that Judge Willlet and Judge Elrod believe that because that's arguably true. But it's very important that that ruling in favor of machine guns does not occur for the next few years. Because if it were to occur, there is an excellent chance, an excellent chance that the Supreme Court would take the machine gun case in front of an AR-15 semi-automatic rifle ban case. And that would be terrible for many reasons, including that, as you know, as I've explained before, the Supreme Court is much more likely to establish favorable Second Amendment precedences if there's a case against an outlier state. That's why in Heler knocked out a DC law, McDonald knocked out a Chicago law, Breuan knocked out a New York State law, Katano knocked out a Massachusetts law. Wolford in Hawaii is going to knock out the Hawaii law very soon. in contrast to Raheem which upheld a federal law. So we do not want a federal machine gun ban case going to the US Supreme Court before we win three cases before we win an AR-15 semi-automatic rifle uh ban case which we will win if the Supreme Court grants her hopefully next term. We do not want a machine gun becoming the next case over an AR-15 case. We do not want a machine gun ban case going to the Supreme Court ahead of a suppressor ban case. That would be also bad. And we do not want a machine gun band case going ahead of a magazine band case like Duncan versus Bontter Custom Gator or Gator Custom Guns. So, it's very important in terms of sequencing that we go AR-15s, magazine, suppressors, and some combination thereof and not do anything with machine guns. So, I'm very happy that the fifth circuit has indicated they think the machine gun ban is problematic constitutionally, but they did not do anything about it. Now, with that said, there is a potential fly in the ointment here. And then we're going to break down some of the comments made by the judges in this case. And the fly in the ointment is that you and I in the Second Amendment community do not control what criminal defendants who are violent thugs do when it comes to the Second Amendment. Because if you're a criminal defendant like Mr. Wilson who killed someone with a handgun with a Glock switch, you don't care about the future of the Second Amendment. You don't care about the Bill of Rights. You don't care about anything than getting your dupa out of prison and not going to jail for the rest of your life. So, you're going to make any and all arguments that are conceivably possible that might buy you some time or get you out of prison.

[00:09:54]That means that the criminal defense bar, and I'm not beating them up, it's just true. the criminal defense bar, the the federal defender system, they all have an obligation and correctly so to fight for their clients and make any conceivable argument they can make to win for their clients regardless of whether or not it hurts, for example, Second Amendment juristp prudence. So, what's going to keep happening is these criminal defendants across America that keep getting arrested and convicted of possessing illegal machine guns or handguns with switches and Glock switches and all this, they're going to keep asserting Second Amendment defenses, including in the states of Mississippi, Louisiana, and Texas, and Fifth Circuit. So at some point a machine gun case could bubble up in the next couple years in the fifth circuit and there could be a ruling in favor of machine guns in favor of the second amendment which on its face is great news until you realize that the next move will be for the federal government to seek cert and the US Supreme Court will not allow federal machine gun bans to go away right now. We do not have the votes today as you see from for example comments made during the oral argument in the bumptock case of Michael Cargill's case there where there was enough indication that yeah you could ban machine guns but you know they didn't do it right with bump stocks yada yada yada. Okay. Now before I give you some of the quotes from some of these judge I want to tell you another thing that's going on here.

[00:11:14]two of the judges that descent remember it was 10 to seven to deny rehearing on bon and by extension and by effect the three judge panel ruling against Mr. Wilson was upheld so Mr. Hilton sought on bang. It was denied 10 to7. Now two of the judges in the seven dissenters that said we should rehear these cases on bond. We should rehear this case onb.

[00:11:36]We should overturn our bad president on the second amendment. Two of the judges here. One is Andrew Olden and the other is James Hoe. Andrew, James Hoe.

[00:11:46]They are both top five contenders likely along with Dave Strauss of the eighth circuit and Larry Van Djk or Lawrence van Djk I should say out of the ninth circuit for the next Supreme Court vacancy. So if you look at the descents here by James Hoe and by Andrew Odin, you will see two people auditioning in my opinion for that next Supreme Court slot that opens up and they write great stuff. But do understand that context.

[00:12:21]And by the way, I think that both Andrew ODM, Judge Andrew ODM and Judge James Hoe are excellent and would be excellent Supreme Court justices. Either would be great 100%. But it's interesting how I do think they wrote separately basically um as part of an addition or try out to get that next Supreme Court vacancy and they want to demonstrate how good they are on the second amendment. Uh again, nothing wrong with that because again, you know, they do look to how how did you perform as a lower court judge as to whether or not you get on the Supreme Court. So I don't blame them one bit.

[00:12:51]Now, with that said, here is what uh the concurrence by Judge Don Willlet and Judge uh Jennifer Lrod had to say about why they do think the machine gun man is unconstitutional, but why they think the vehicle here is no good. Let's check out why they say there's a problem with this particular law even though they're not going to overturn in the Wilson case because what's Mr. Wilson did not make the proper arguments. Here's what Judge Willlet and Judge Lrod had to say about it. By enumerating both powers and rights, the framers embraced a belt and suspenders constitution. They denied Congress the power to enact a comprehensive criminal code and for added security, they hard-coded some liberties, including the right of the people to keep and bear arms into the constitution itself. The design was straightforward. If the enumerated powers belt slipped, if the enumerated powers belt slipped, the enumerator right suspenders would still hold. Then, Judge Willlet and Judge Alrod go on to say that they have concerns about whether or not this law violates the Second Amendment. Here's what they say next. Mere possession of a firearm fits uneasily with the Supreme Court's three recognized categories of commerce regulation. And the fact that the firearm happens to be a machine gun does not make a regulation of simple possession any more compatible with a commerce clause. Likewise, although the Supreme Court has offered only minimal guidance for determining whether a weapon is dangerous and unusual, it is hard to see how millions of machine guns registered with a BATF make them in any sense unusual. Now, I disagree with that, by the way, because Judge Willlet is making a mistake when it comes to the numbers. There's only about 160,000 civilian-owned machine guns in the United States that were in existence as of 1986. All the other machine guns that have been registered are either registered to local or to local or state law enforcement andor to gun dealers, gun makers, gun manufacturers, and the like. So, I think his numbers are not right when he says millions of machine guns because I think he's not looking at the right number. Nevertheless, as you know, we do not want to win machine gun cases today because we will get messed up at the Supreme Court to say the least. So, we want to keep losing the machine gun cases until we win suppressors, magazines, and AR-15s at the Supreme Court. Then, we can move on to the machine gun issue. Just think about how the gay rights movement got to gay marriage. They didn't jump to gay marriage in 1972 when they started talking about this. They went step by step by step and then got to gay marriage. When it comes to protecting and and and preserving the right to keep a machine gun, we have to be strategic about how we go about doing this and sequencing this, right? But now, let's turn to some of the excellent language from the descent. Let's turn to Judge uh Andrew Odum and see what he has to say about why he thinks the machine gun man likely violates the Second Amendment.

[00:15:29]Judge Andrew ODM, joined by James Hull, by the way, Judge James Hull, they both agreed with this. Our court's approach to the Second Amendment is historically bankrupt. As far as I am aware, there is no historical justification for banning machine guns. To the contrary, repeating arms have existed since the 15th century, and numerous different repeating arms existed at the American founding. Merryweather Lewis famously carried one, the Geredoni air rifle on the Lewis and Clark expedition. And despite the prevalence of repeating arms, literally no jurisdiction banned them. There were no prohibitions on any particular type of arm, ammunition, or accessory in the English colony that later became an American state. The only restriction in the English colonies involving specific arms was a handgun and knife carry restriction enacted in the Quakerowned East New Jersey in 1686.

[00:16:14]And now here's a disscent specifically by Judge James Ho, not signed on to by Judge Andrew Odum. But here's what Judge Ho has to say about why he thinks the machine gun man violates the Second Amendment. Check it out. Our analysis of the Second Amendment must be guided by history, not a fear of guns. Using a fancy word, I recognize that some citizens associate certain firearms with violent crime, just as some citizens regard speech as violence. But other citizens assoc associate firearms with self-defense, not violence, just as other citizens regard free speech as enlightening, not frightening. They agree that violent criminals should be prosecuted, convicted, disarmed, incarcerated. But they respect law-abiding citizens and presume innocence, not violence. And the job of the judge is not to take sides in political controversies, but to enforce the rights guaranteed to every American by our Constitution. Our founders were not afraid of firearms. To the contrary, they required all able-bodied men between the ages of 18 and 45 to obtain a firearm citing to the Militia Act of 1792.

[00:17:14]And there's other great stuff in this this opinion in the descents and also even by the concurring decision by Judge Willlet and Judge Elro. I'll put a link to uh this decision below. But the bottom line is it is clear that if the fifth circuit had its dires, the federal machine gun ban would go bye-bye.

[00:17:29]probably because there's no commerce clause hooked to article one of the US Constitution that identifies the powers of Congress to legislate and probably because also machine gun ban violates the second amendment. And real quick, I just want to say the reason why uh Judge Elrod and Judge Willlet thought that there was a vehicle problem is they basically said that the machine gun ban doesn't just cover bearable machine guns, meaning are machine guns you can carry. It also covers machine guns that you cannot carry. uh you know, weapons that perhaps are only mounted onto a tank and or onto a a airplane or a Blackhawk helicopter. And because the Second Amendment's tech tax only protects bearable arms, facially facially 922 uh could be constitutional in some applications again as to uh things other than bearable machine guns.

[00:18:16]But again, whatever it is, I'm glad that they ruled against us or ruled against the Second Amendment in this particular case because we cannot afford a machine a case to go to the US Supreme Court. It will cause be a huge opportunity cost for other important cases we need to win that we can win and we will definitely lose it and we do not need more bad precedence when it comes to our second amendment rights at the Supreme Court because we have to live with that for decades and decades and we don't want that. All right folks, hope you enjoyed today's episode. Make sure you follow me on x4box. Don't forget to subscribe both YouTube and run one. I'll talk to you again real soon here at the Horox Designer.

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