Jim Porter
Special to the Sun

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August 24, 2012
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Jim Porter: Everyone is entitled to keep a machine gun under the bed

TRUCKEE, Calif. — “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Constitution, Second Amendment.

Clearly the Second Amendment allows each of us to own a machine gun; that’s part of our right to “keep and bear Arms.” Right? We need to protect ourselves and a machine gun is perfect. Can’t we each be our own Militia?

Homemade Machine gun

On Oct. 30, 2009, the Anchorage Police Department dispatched officers to Matthew Wayne Henry’s home after receiving reports of gunfire. They found shell casings everywhere. A search warrant turned up a loaded .308-caliber assault rifle under Henry’s bed. Henry was charged with discharging firearms while intoxicated. The case was later dismissed as the State declined to prosecute. Shooting guns while intoxicated must be standard fare in Anchorage.

Anonymous Tip

After Henry was released, the Anchorage police received an anonymous tip that he had converted the .308 rifle into a machine gun, which they had not noticed. They went back with another search warrant and discovered under the bed 20 guns, gun parts and machine gun conversion instructions to convert semiautomatics to full automatics. How’d they miss that cache the first time?

Henry was charged with all sorts of weapons violations which he defended claiming, (a) he had a right to keep a machine gun pursuant to the Second Amendment and (b) laws against machine guns are not authorized under the Commerce Clause — the same Clause that came into play in the U.S. Supreme Court’s recent health care decision.


A jury found Henry guilty of knowingly and unlawfully possessing a machine gun. He was sentenced to twenty-four months in prison and forfeited his machine gun. Henry appealed. He didn’t mind the time in prison but didn’t want to lose his precious gun.

Second Amendment/Machine guns

Congress defines “machine gun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot, without manual reloading, by a single function of the trigger.” Machine guns were first widely used during World War I. A modern machine gun can fire more than 1,000 rounds per minute. That’s some serious lead.

Many hunters use “automatic” shotguns and rifles, but in fact they are semi-automatic, requiring a trigger pull for each shot. A good thing.

Henry’s first challenge — that the Second Amendment gives him a right to own a machine gun — came down to whether a machine gun is a “dangerous and unusual weapon,” which is not protected by the Second Amendment. The Federal Court of Appeals had no problem finding Henry’s machine gun a dangerous and unusual weapon, not “typically possessed by law abiding citizens for lawful purposes.” Let’s hope.

Commerce Clause

Henry next asserted that the Commerce Clause did not give Congress the power to prohibit possession of homemade machine guns.

The Commerce Clause allows Congress to “regulate commerce ... among the several States.”

In short, the Federal Court of Appeals had no problem finding the Commerce Clause gave Congress authority to outlaw homemade machine guns.

Footnote 5

What’s interesting in this Opinion is Footnote 5. Footnote 5 discussed the Supreme Court decision upholding the Obama federal health care law requiring individuals to purchase health insurance as a valid exercise of Congress’ tax power, not under the Commerce Clause.

In that decision, the Supreme Court limited Congress’ power under the Commerce Clause, but in the end, this Court, notwithstanding the new health care case, predictably found the Commerce Clause empowered Congress to outlaw machine guns.

Conviction and two-year sentence upheld; machine gun to the scrap pile.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor’s appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, foreclosures, mediation and other transactional matters. He may be reached at porter@portersimon.com or at the firm’s website www.portersimon.com.

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Tahoe Daily Tribune Updated Aug 24, 2012 12:12PM Published Aug 24, 2012 12:11PM Copyright 2012 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.