On September 1, 2026, a three-judge panel of the Third Circuit affirmed a Pennsylvania man’s conviction for possessing machine guns and unregistered silencers. Writing for the panel in United States v. Berger, Judge Bibas rejected Berger’s as-applied Second Amendment challenges to both charges. Judge Chung concurred in part and in the judgment.
Berger is notable for two reasons. First, the panel joined its sister circuits in treating machine guns as “dangerous and unusual” weapons and upholding federal restrictions on their possession. Second, the court took a novel approach to silencer regulation, focusing on the meaning of “infringement” under the Second Amendment’s text rather than asking whether silencers qualify as “Arms” (as other courts have done).
Background
The case originated from a federal search of Berger’s house, during which agents discovered thirteen fully automatic weapons and a dozen unregistered silencers.
Berger faced three different charges under two different firearms laws. A grand jury indicted Berger for possessing machine guns, possessing unregistered machine guns, and possessing unregistered silencers. He was prosecuted under 18 U.S.C. § 922(o), which criminalizes the transfer or possession of a machine gun. For the silencers, however, he was prosecuted under the National Firearms Act (“NFA” or “Act”). The Act requires silencer owners to submit an application, register their devices, pass a background check, and (at the time) pay a $200 tax on each silencer. Possessing an unregistered silencer is a federal felony.
The district court denied Berger’s as-applied Second Amendment challenges because (1) machine guns, as “dangerous and unusual weapons,” are not in common use for self-defense purposes, and (2) silencers do not constitute “bearable arm[s].”
Berger subsequently pleaded guilty to possessing a machine gun and an unregistered silencer. As part of the plea agreement, the government dismissed the unregistered machine gun charge while Berger reserved his right to appeal the Second Amendment ruling.
The Machine Gun Ruling
The Third Circuit applied the two-step framework the Supreme Court established in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). Bruen’s first step asks whether the Second Amendment’s plain text covers the regulated conduct. Because machine guns are firearms, the panel explained, Berger’s challenge satisfied step one.
Step two of Bruen, however, proved fatal to Berger’s challenge. At this step, the government must demonstrate that the restriction is consistent with the nation’s historical tradition of firearm regulation. The Third Circuit relied on its recent 2026 en banc decision in Association of New Jersey Rifle and Pistol Clubs et al. v. New Jersey (the subject of my previous blog) and evaluated common use at step two.
The “common use” test traces its origins to the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which borrowed the concept from the otherwise overruled United States v. Miller, 307 U.S. 174 (1939). Heller interprets the Second Amendment as protecting weapons “in common use” for “lawful purposes.” By the same token, weapons “not typically possessed by law-abiding citizens for lawful purposes” fall outside the Amendment’s protection. In drawing that distinction, the Court cited the nation’s “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Here, the Third Circuit panel concluded that “[m]achine guns are not in common use for lawful purposes” and therefore classified them as dangerous and unusual. Specifically, the court characterized machine guns as weapons of war whose high rate of fire makes them difficult to control, leading to inaccuracy and elevated risk of collateral harm. Drawing on a U.S. Army Field Manual, the Senate Report on the Gun Control Act of 1968, and the historical reluctance of police and civilians to purchase early commercially available machine guns, the panel reinforced the view that these weapons are poorly suited for lawful civilian use. The court also pointed to the Gun Control Act’s conference report, which labeled machine guns “gangster-type weapons.”
Turning to historical tradition, the panel relied heavily on Heller’s recognition of a historical tradition of prohibiting dangerous and unusual weapons, concluding that machine guns fit squarely within it. The court likewise noted that at least 29 states and the District of Columbia enacted machine gun bans between 1925 and 1934 and posited that this rapid regulatory consensus underscores the perceived danger of these weapons.
The Silencer Holding
Both parties agreed that silencers qualify as “Arms,” so the court “need not decide that question.” But even if silencers were “Arms,” the majority explained, the NFA’s registration requirements did not “infringe” Berger’s Second Amendment right. Therefore, Berger’s silencer claim fell outside the plain text of the Amendment entirely, failing Bruen step one.
The majority anchored this conclusion in the text of the Second Amendment itself, which protects the right to bear arms against “infringement.”
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.
The court defined “infringe” as destroying or illegitimately restricting the right, citing scholarship on the word’s usage from the Magna Carta through the early 19th century, Founding-era dictionaries, and Blackstone’s Commentaries.
Critically, the panel drew a distinction between “infringements” and “incidental burdens,” relying on early American case law from Kentucky and Arkansas. Similarly, Judge Bibas highlighted Supreme Court precedent permitting incidental burdens on constitutional rights in the Sixth Amendment, First Amendment, and voting contexts.
The court likewise cited Supreme Court endorsements of shall-issue permitting regimes, including Bruen’s express statement that “nothing in our analysis should be interpreted to suggest the unconstitutionality of . . . ‘shall-issue’ licensing regimes,” including required “background checks,” which “do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right.” Accordingly, the court reasoned that because “neither Heller nor Bruen relied on a historical tradition of permitting . . . [t]heir discussions of licensing thus make sense as glosses on the meaning of ‘infringe[ment]’ at step one.”
Applying this framework, the court concluded that the NFA’s registration requirements were “objective, minimally burdensome, and aimed at ensuring orderly exercise of the right,” making them permissible incidental burdens rather than prohibited infringements. Moreover, Berger presented no evidence, and the record contained none, showing that the NFA permitting regime imposed subjective standards, lengthy wait times, or exorbitant fees. The court therefore deemed the silencer regulations constitutional as applied.
Judge Chung declined to join the majority’s silencer analysis, noting “tension between this approach and the Supreme Court’s rejection of means-end scrutiny and interest balancing.” Instead, Judge Chung would uphold the constitutionality of the silencer regulations on the ground that, because silencers are accessories and are not necessary for a gun to function as intended, the silencer regulations therefore do not restrict the “keeping” or “bearing” of arms.
Machine Guns Remain the Third Rail
Machine guns continue to occupy a uniquely untouchable position within Second Amendment jurisprudence. Of the nine federal Courts of Appeals that have considered the issue, none has struck down § 922(o). This is especially notable given the ongoing litigation challenging assault-weapons bans on Second Amendment grounds. Just weeks before Berger, the same Third Circuit, sitting en banc in Association of New Jersey Rifle and Pistol Clubs et al. v. New Jersey, struck down a New Jersey state law criminalizing possession of semi-automatic rifles. Meanwhile, the Supreme Court has agreed to hear challenges to Connecticut’s and Cook County’s assault-weapons bans in Viramontes and Grant. Oral arguments for those will take place on December 2.
So, why do machine guns receive such different treatment? For starters, Heller itself singled out the M-16 as an example of a weapon that the government could ban (although machine guns were not at issue in Heller). The Heller Court also stated that the government could restrict weapons “most useful in military service,” and machine guns have an inextricable connection to the military. Practical norms likely play a role as well: circuits are typically hesitant to break with sister circuits, particularly when those courts are all in agreement.
Although momentum favors upholding § 922(o), applying the “common use” test to machine guns shows a different weakness in the test. Much of the debate over “common use” has focused on semi-automatic firearms, and specifically on whether circulation numbers are enough to establish common use. Machine guns show the opposite problem: circularity. Machine guns lack protection because they are not in common use, yet § 922(o) prevents them from becoming common in the first place, so machine guns can never meet the “common use” threshold. Given that the problems with “common use” cut both ways, it will be interesting to see whether the Court tightens or clarifies the test in the upcoming Viramontes and Grant cases.
Are Silencers “Arms”?
Berger’s silencer holding enters a landscape of growing disagreement among the circuits. Earlier in 2026, the Fifth Circuit held in United States v. Comeaux that silencers qualify as “Arms” because they facilitate armed self-defense by reducing loudness, lowering recoil, and improving accuracy. The Ninth Circuit has taken the opposite view in United States v. DeBorba, categorizing silencers as “optional accessories” that fall outside a firearm’s ordinary operation.
The Third Circuit’s approach in Berger is distinctive because it sidesteps the “Arms” question altogether and instead asks whether the regulatory burden amounts to an “infringement.” Although this approach follows the “plain text” command of the Bruen framework, it raises important questions. Does this approach conflict with Wolford v. Lopez, 609 U.S. ____ (2026), which implied that step one is an easy hurdle for Second Amendment challengers to clear? And, as Judge Chung’s critique underscores, does focusing on “infringement” effectively reintroduce means-end scrutiny into step one – the very analytical approach that Bruen sought to displace?
