We saw the first post-Bruen federal ruling against the federal machinegun ban in the National Firearms Act this week. A judge in the Tenth Circuit tossed charges against a man who was accused of possessing a fully automatic AR-15 and Glock. He said the guns were bearable arms protected by the Second Amendment, and the government didn’t identify relevant historical analogues.

Contributing Writer Jake Fogleman takes a look at the judge’s ruling and tries to reason through where things will go from here.

We also have an exclusive story that explains YouTube’s latest crackdown on firearms content.  Jon Patton, who runs The Gun Collective YouTube channel, joins the podcast to give his view on that crackdown.

Then there’s the DNC. I take a look at the contrast it created with the RNC on guns. Was it the result of a new commitment from Democrats or just an effort by Republicans to downplay the issue?

Analysis: The First Crack Forms in Federal Machinegun Ban [Member Exclusive]
By Jake Fogleman

For the first time, a federal judge has ruled the Second Amendment protects civilian machinegun possession.

On Wednesday, US District Judge John W. Broomes dismissed charges against a Kansas man for possessing a fully automatic .300 blackout AR-15 and Glock 33 handgun. He ruled that the federal ban on possessing or transferring machineguns (with limited exceptions) was unconstitutional as applied to the defendant.

“To summarize, in this case, the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation,” Judge Broomes wrote in US v. Morgan.

In many ways, the decision is the epitome of what some gun-rights advocates hoped the Supreme Court’s 2022 Bruen decision and the new test it laid down would bring to bear on America’s gun laws. The 1934 National Firearms Act (NFA), which marked the first time the federal government regulated machineguns by requiring registration and a $200 tax stamp, has rankled a vocal section of activists. The same is true of the 1986 Firearms Owners Protection Act, a provision of which known as the Hughes Amendment—18 USC § 922(o)—functionally banned civilian ownership of automatic weapons manufactured after its enactment.

Those activists view the federal regulations, enacted for the first time more than 140 years after the ratification of the Second Amendment, as incompatible with the Bruen standard because it prioritizes Founding-era approaches to weapons regulation when evaluating modern regulations. They see the ultimate liberalization of machinegun, suppressor, and short-barreled rifle regulations as the natural apotheosis of courts faithfully applying the Bruen test to America’s modern gun-control regime.

But court after court to address the question in recent years has rejected the idea the Second Amendment protects machineguns, largely based on the Supreme Court’s own words. Most often, they cite a section of the majority opinion in DC v. Heller that discusses the idea that fully automatic M-16s, which are functionally identical to the rifle at issue in Morgan, “may be banned.”

“We also recognize another important limitation on the right to keep and carry arms,” Justice Antonin Scalia wrote for the majority in Heller. “Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”

Broomes interrogated this reliance on Heller’s brief discussion of M-16 rifles and reached a different conclusion on how much it binds courts confronting an explicit challenge to the federal ban on new machineguns.

“First, the government’s interpretation of Heller relies exclusively on dicta (and circuit authority that predates the historical analysis mandated in Bruen)—machineguns were not at issue in Heller,” Broomes, a Donald Trump appointee, wrote. “Second, the government’s interpretation would run directly counter to the essential analysis in Heller: just as the Fourth Amendment applies to modern ‘searches,’ the Second Amendment applies to arms that did not exist at the country’s founding.”

He also noted that the Heller Court’s comments were based on the Court’s holding in 1939’s US v. Miller, the facts of which he differentiated from his analysis of a challenge to the Hughes Amendment.

“It bears noting that, unlike § 922(o), the National Firearms Act does not categorically prohibit the possession of the sawed-off shotgun at issue in Miller or the firearms at issue in this case; rather, that act regulates possession of such weapons by restricting possession to those who comply with the registration and taxation requirements imposed under the act.”

“Heller, because it predates Bruen, however, certainly does not say that the Second Amendment does not apply to bearable machineguns,” he added. “It merely implies that restrictions on ‘dangerous and unusual weapons’ can be consistent with this nation’s history and tradition of firearm regulation.”

As a result, he concluded that fully automatic AR-15s and Glocks are bearable arms within the plain text of the Second Amendment. Therefore, the government would have to offer sufficient historical analogs to the modern machinegun ban to justify it rather than simply relying on dicta.

The government, in turn, pointed to the English common law tradition of prohibiting riding or going armed with dangerous or usual weapons derived from the 1328 Statute of Northhampton. It also cited an 1824 North Carolina Supreme Court case recognizing an offense to arm oneself “with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people,” an example of affray laws that the Supreme Court discussed in its Rahimi decision.

Broomes dismissed those examples as not relevantly similar to the modern machinegun ban in how they regulated the use of weapons.

“Both examples are disanalogous to what Defendant is charged with here—simple possession of a machinegun,” he wrote. “In contrast with the aforementioned historical examples, § 922(o) says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”

Beyond the analogs offered by the government for the modern machinegun ban, Judge Broomes also faulted the government for failing to demonstrate that machineguns aren’t in common use. He cited 2021 data from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), recording over 740,000 legally registered machineguns in circulation throughout the country at the time. Broomes also noted that civilians can continue to purchase and possess machineguns if they were registered before the 1986 ban.

“In that sense, machineguns are not unusual,” he wrote. “The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the Second Amendment.”

The ruling is only a single district court decision. Thus, it doesn’t necessarily have any formal sway over how other courts might decide the question. It was also limited to the law as applied to one criminal defendant, which leaves the federal machinegun ban still in effect.

Furthermore, though it has not done so yet, the Department of Justice will almost certainly file an appeal to the liberal-leaning Tenth Circuit. So, there is good reason to think the ruling won’t last.

Beyond that, it is difficult to imagine the Supreme Court choosing to weigh in. After all, the Justices have already proved hesitant to take up the much less controversial issue of semi-automatic gun bans. Even if it did take up a machinegun case, there’s reason to think a majority might uphold the 1986 ban. After all, multiple conservatives on the Court expressed sympathy for banning bump stocks for merely simulating automatic fire.

Accordingly, the prospect of gun-rights advocates overturning the federal machinegun ban remains unlikely. But the odds were worse before this ruling. At the very least, advocates have a tangible ruling to point to in other challenges.

YouTube Says Links to Gun, Ammo Dealers Will Trigger Channel Bans
By Stephen Gutowski

The world’s largest video site is in the midst of a renewed crackdown on gun content that could have far-reaching consequences for those who make a living on the platform.

In the wake of YouTube revising its firearms policy, a number of high-profile channels that produce gun videos have voiced concerns the impact is more significant than expected. While the changes detailed in an update to the company’s firearms policy focused on home gun making and bump stock installation, a simultaneous unwritten change in how YouTube enforces an older restriction on gun and ammo dealer promotion has driven most of the backlash. YouTube confirmed to The Reload it had taken a more aggressive approach to deleting videos, and even whole channels, that direct viewers to websites where they can buy firearms, ammunition, or certain accessories–whether the videos provide direct written links or the host just verbally directs viewers to a website.

The company said it is working with creators to try and help them navigate the policy change.

“The recent updates to our firearms policy are part of our continued efforts to maintain policies that reflect the current state of content on YouTube,” a spokesperson for the company, who declined to be named, told The Reload. “For example, 3D printing has become more readily available in recent years so we’ve expanded our restrictions on content involving homemade firearms. We’ll continue to work with creators to help them understand this update and how they might manage its impact on their channels.”

The official comments from YouTube provide some level of added clarity to creators who make gun content on the platform. The new crackdown could imperil the businesses of many of those creators because YouTube will put a strike on each video that violates its gun policy, such as by including a sponsored link to a gun or ammo dealer, and three strikes within 90 days result in channels being completely deleted. Since many gun media companies on YouTube have a backlog of hundreds of videos, the enforcement focus change could result in many videos being flagged at once without specific forewarning.

A pair of YouTube spokespeople told The Reload it generally doesn’t issue retroactive strikes on videos uploaded before an announced policy change. While they said the link policy that has caused the most consternation among creators was implemented in 2018, they also said videos uploaded before the June 18th changes are unlikely to be flagged for spoken links. The spokespeople defended the company’s moderation practices, the bulk of which are automated, as largely accurate but said there wouldn’t be any new processes to prevent videos from before the deadline from being flagged.

YouTube’s enforcement policies and practices have been controversial for creators of all stripes for years. That has been especially true for gun content, with criticism from gun channels and gun-control advocates alike. Even when content creators have complied with the company’s policies, they have sometimes faced strikes or channel deletion due to what YouTube claimed were internal enforcement errors. Last year, the company told The Reload videos that included silencers were taken down by accident when mid-level moderators were given the wrong instructions on how to enforce the platform’s rules on the sound suppressing devices.

“Upon review, we determined the videos in question are not violative of our Community Guidelines and have reinstated them,” a YouTube spokesperson told The Reload in February 2023. “When it’s brought to our attention that content has been mistakenly removed, we review it and take appropriate action, including reinstating and removing associated strikes.”

Many of the most prominent gun channels have raised the alarm about the most recent changes and how they might deteriorate their video productions. Hickok45, who has nearly eight million subscribers, released a dire video warning the policy update and focus on spoken links to gun or ammo dealers put them “at the risk of losing everything.” The channel, run by a retired teacher Greg Kinman and his son in rural Tennessee, posted an update noting they’d talked to YouTube representatives and figured out a path forward despite still saying they believe the more than 2,700 videos they’ve made over the years are still in jeopardy.

Other channels were more direct in their criticism of the policy, including the way it will severely limit sponsorship opportunities for gun creators and the industry.

“YouTube once again has changed policies that will further stifle gun content creators,” Jon Patton, host of The Gun Collective, said in a video about the changes. “We’ve seen this before, but this is worse than normal. This time, it could kill the entire gun industry.”

The relatively vague nature of YouTube’s content policies, which the company defended as necessary to foil bad actors looking to skirt its rules, has also been a sticking point for creators for years. That remains one of the top complaints in the new controversy.

“This policy doesn’t exist in writing anywhere,” Patton said of the link policy. “We can’t even fully understand what is or is not acceptable.”

To that point, the YouTube spokespeople who talked to The Reload said the policy against linking or directing viewers to websites that sell certain items includes ammunition dealers, even though the company’s written policy doesn’t list them. Instead, the written policy bars links to sites that sell accessories that either “enable a firearm to simulate automatic fire” or “convert a firearm to automatic fire” and sites that sell “high capacity magazines or belts carrying more than 30 rounds.” The written policy does have a disclaimer that the enumerated restrictions don’t represent “a complete list,” though.

YouTube did not have a clear answer on where promotions for gun or ammo dealers that didn’t call out direct links, such as advertising discount codes, are treated under the linking policy. However, the spokespeople who talked to The Reload said general sponsorships by gun or ammo companies may be allowed, but any effort to direct people to sites they can purchase guns or ammo through could be considered a violation of the policy.

“None of this stuff about sponsorship is on their firearms policy page at all,” Patton said. “This unwritten policy will kill The Gun Collective.”

Beyond demonetizing or adding strikes to videos featuring certain gun content, YouTube said it planned to age-restrict some content. The company said videos featuring the use of automatic or homemade weapons, as well as magazines that hold more than 30 rounds of ammo, would be limited to only viewers over the age of 18. It also said those rules wouldn’t apply to fictional videos or videos in the public interest, such as news stories or police and military footage.

The company claimed the recent policy changes were not the result of any specific recent event, such as the assassination attempt on Donald Trump, or pressure from government officials, such as Manhattan District Attorney Alvin Bragg’s (D.) recent letter calling for YouTube to restrict homemade gun videos. It said the firearms policy change took months to finalize and implement. The spokespeople who talked to The Reload said YouTube consulted outside experts when deciding on the updates, including what it called law enforcement and public safety “stakeholders,” but wouldn’t identify which groups it worked with. They described those kinds of outside consultations as common for policy changes affecting any kind of content on the platform.

Podcast: The Gun Collective’s Jon Patton on YouTube’s Latest Crackdown on Firearms Content [Member Early Access]
By Stephen Gutowski

This week, we’re talking about a major moderation issue on YouTube.

It’s not the first time we’ve discussed this. It probably won’t be the last, either. But this time the platform is deleting videos and, potentially, whole channels focused on gun content after a new policy update that’s only partially written out.

I talked with YouTube spokespeople about the changes and got more details this week. But things are still a bit vague. Purposefully so. That’s why we’ve got Jon Patton of The Gun Collective on the show to share what he’s been told and to discuss how serious the impact of the changes could be.

Patton argued the fallout of the new policy against directing viewers to lawful gun or ammo dealers could be huge. He said it makes it harder for gun channels to survive on the platform and for gun companies to advertise their products. He also worried about the often chaotic nature of YouTube enforcement and how it has the potential to lead to instant bans for people who rely on the platform to make a living–without warning or explanation.

You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is here. Reload members get access on Sunday, as always. Everyone else can listen on Monday.

Plus, Contributing Writer Jake Fogleman is on vacation this week. So, I host the news update. I give a recap of how the Democratic National Convention approached guns. From the platform, to the keynote speeches, to an entire programing block in primetime on the final day the DNC highlighted gun control. Kamala Harris also called for a “red flag” law, universal background checks, and an “assault weapons” ban. That all contrasts with how Donald Trump and the RNC handled guns, which is to say they didn’t really at all. I also go over the latest gun polling and a new ruling against one of California’s gun restrictions.

Audio here. Video here.

Analysis: DNC Emphasis on Guns Contrasts RNC Silence [Member Exclusive]
By Stephen Gutowski

That’s it for now.

I’ll talk to you all again soon.

Thanks,
Stephen Gutowski
Founder
The Reload