Indiana Court Says Second Amendment Doesn’t Include Machine Guns

An Indiana man arrested for illegally possessing a machine gun back in 2023 has lost another round in court over his conviction, with the Indiana Court of Appeals concluding that the Second Amendment doesn’t protect fully-automatic firearms. 

Jacob McGee, who was 18-years-old when he was caught with a gun equipped with an illegal auto sear converting the pistol from semi-auto to full-auto, had argued that his right to keep and bear arms includes the ability to possess a machine gun, but earlier this month the appellate court issued an opinion turning away his challenge to existing state law. 

In a Feb. 19 opinion, a three-judge panel cited a long history of recognition that this constitutional right is “not unlimited.” It agreed with “the overwhelming number” of federal district courts and federal appellate courts that “have uniformly concluded” that the Second Amendment’s plain text doesn’t protect machine guns because they’re “dangerous and unusual weapons.”

“McGee’s Second Amendment challenge thus fails,” Judge Nancy Vaidik, the opinion’s author, wrote.

The judicial panel also decided there was enough evidence to support McGee’s conviction.

It noted that McGee said he bought the Glock 22 in a private sale for $800 the day before his arrest, and that it came with the switch. He testified the seller told him “what it was.” When asked what one does, he responded that it “make(s) your gun shoot fast basically” but said he didn’t realize it would enable the firearm to shoot multiple bullets in a single pull of the trigger.”

McGee’s argument was two-fold: first, that he had a Second Amendment right to possess a machine gun, but also that he didn’t willfully violate Indiana law because he was ignorant of what the switch would do when it was attached to the semi-automatic firearm. Though the appellate court relied largely on the Supreme Court’s language in Heller to defend the ban on full-auto firearms, the panel rejected McGee’s claims of ignorance by essentially stating he should have known better. 

The trial court opined that McGee still understood the switch would amplify the gun’s ability to fire beyond semi-automatic functions. Vaidik wrote that he’d asked her court to “reweigh the evidence, which we don’t do.”

“The evidence is sufficient to prove McGee knew the switch made his gun a machine gun,” Vaidik concluded.

As I wrote a few days ago after the Alabama Senate unanimously approved a ban on switches, aligning state law with federal statute, both courts of law and the court of public opinion are stacked against the notion that the right to keep and bear arms encompasses those bearable arms that go pewpewpew with a single pull of the trigger.

… machine guns remain the third rail of 2A politics, and given the unanimous approval of Barfoot’s bill in the Senate, it’s pretty clear that even the most staunch conservative lawmakers aren’t really afraid of any pushback from their constituents about banning conversion devices. In fact, I doubt that any of the senators who backed the ban would even describe it as a gun control bill. 

… The Supreme Court’s decision in Heller noted that “weapons that are most useful in military service—M-16 rifles and the like” may be banned; a line that multiple courts around the country have cited in support of bans on semi-automatic rifles, shotguns, and pistols under the theory that AR-15s and other semi-automatic  firearms are “like” machine guns. Justice Clarence Thomas has pointed out that SCOTUS has yet to flesh out which arms are covered by the Second Amendment’s protections, but given the reluctance by the High Court to take up a semi-auto ban it’s inconceivable that the current makeup of the Court would conclude that we the people have the right to keep and bear fully automatic firearms. 

There may come a day when the Supreme Court’s “dangerous and unusual” language doesn’t suffice to cast full-auto firearms out from under the Second Amendment’s protections, but we’re a long way from that happening. Like it or not, a little plastic attached to a semi-automatic firearm can lead to a lengthy prison stay, and McGee should count himself lucky that prosecutors kept the case in state court instead of turning his case over to the DOJ for prosecution, where he could have received a 10-year sentence for his trouble instead of the two years behind bars he received from a circuit court in the Hoosier State.