Background
Federal agents intercepted a package containing three silencers addressed to Joseph Paul Berger’s home in Bethlehem, Pennsylvania. A warranted search uncovered more than five dozen firearms, including thirteen fully automatic weapons, mostly AK-47 variants, as well as twelve silencers and evidence that Berger and his father had purchased parts used to convert semiautomatic firearms into machine guns.
Berger was charged with possessing a machine gun, possessing an unregistered machine gun, and possessing an unregistered silencer. After the District Court rejected his as-applied Second Amendment challenge, he pleaded guilty to possessing a machine gun and an unregistered silencer while reserving the right to appeal that constitutional ruling. The government dismissed the remaining count.
The Court’s Holding
The Third Circuit affirmed Berger’s conviction and sentence. Applying the framework clarified by the en banc court in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, the panel held that machine guns are “Arms” covered by the Second Amendment’s text at Bruen’s first step. At the second step, however, the court concluded that machine guns are not commonly used for lawful purposes such as self-defense and fall within the historical tradition permitting restrictions on dangerous and unusual weapons commonly associated with crime or war.
The court also upheld the National Firearms Act’s silencer-registration requirement as applied to Berger. The majority reasoned that the objective, minimally burdensome, shall-issue process—including an application, identifying information, fingerprints, a photograph, registration, serial-number marking, law-enforcement notification, and the then-applicable $200 tax—did not “infringe” the Second Amendment at Bruen’s first step. Berger offered no evidence of lengthy delays, discretionary standards, or an exorbitant fee that effectively denied access.
Judge Chung joined the judgment but did not join the majority’s analysis of the silencer issue. She would not decide without further briefing whether a de minimis burden on an arm falls outside Bruen’s first step. Instead, she concluded that a silencer is an accessory rather than an arm because a firearm does not need one to function as intended, so requiring its registration does not restrict the keeping or bearing of arms.
Key Takeaways
- Machine guns fall within the Second Amendment’s textual reference to “Arms,” but the government may prohibit possession outside statutory exceptions because they are not commonly used for lawful purposes and fit the dangerous-and-unusual-weapons tradition.
- The federal machine-gun prohibition at issue is not categorical: the opinion recognizes exceptions for qualifying weapons registered before 1986 and weapons owned by law enforcement.
- All three judges upheld Berger’s silencer conviction, but Judge Chung relied on a different rationale and declined to join the majority’s conclusion that minimal, objective registration rules do not constitute infringement.
Why It Matters
The decision applies the Third Circuit’s post-Bruen framework to sustain the federal restriction on machine-gun possession as applied to Berger while recognizing that federal law preserves limited exceptions, including for qualifying machine guns registered before 1986. It also treats a nondiscretionary silencer-registration system as constitutionally permissible when the challenger cannot show that delays, subjective criteria, or excessive fees effectively obstruct the asserted right.
The separate views on silencers identify an unresolved analytical question: whether minimally burdensome firearm regulations fall outside the Second Amendment because they do not “infringe” the right, or whether courts should instead ask whether the regulated item is an “Arm” or proceed to Bruen’s historical inquiry.