Malcolm J. BEZET v. UNITED STATES, 276 F. Supp. 3d 576

SECTION: “G”(

l) ORDER NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE In this litigation, Plaintiff Malcolm Bezet (“Plaintiff’), proceeding pro se, alleges'that certain provisions of the Gun Control Act of 1968 (“GCA”) and the National- Firearms Act (“NFA”) are unconstitutional under the Second Amendment, the Necessary and Proper Clause, and the Tenth Amendment.

Pending before the Court is Defendant United States of America’s (“the Government”) “Motion to Dismiss.” Having considered the motion, the memo-randa in support and in opposition, the record, and the applicable law, the Court will grant the Government’s “Motion to Dismiss.” Also pending before the Court is Plaintiffs “Motion for Partial Preliminary Injunction.” - Because the Court finds that the Government’s motion to dismiss should be granted, the Court will deny as moot Plaintiffs motion for a partial preliminary injunction. I. Background A.

Plaintiff’s Complaint In this litigation, Plaintiff, proceeding pro se, contends that he wants to perform a series of modifications to a semiautomatic pistol he lawfully possesses in order to convert the weapon into a fully automatic, silenced rifle. However, Plaintiff avers that he is prevented from doing so by certain provisions of the Gun Control Act of 1968 and the National Firearms Act.

With regard to the GCA, Plaintiff argues the following provisions are unconstitutional: (1) 18 U.S.C. § 922(l), which bans the importation of firearms and ammunition regulated under the GCA unless authorized by the Attorney General; (2) 18 U.S.C. § 922(r), which forbids assembling such weapons from imported parts; and (3) 18 U.S.C. § 922(o), which makes it unlawful to transfer or possess any machine gun manufactured after May 19, 1986.

With regard to, the NFA, Plaintiff contends the following provisions are also unconstitutional: (1) 26 U.S.C. § 5811, which taxes the transfer of such weapons as machine guns, silencers, short barreled rifles, and short barreled shotguns; (2) 26 U.S.C. § 5821, which taxes the making of such weapons; and (3) 26 U.S.C. § 5812, which establishes the registration and application requirements for transfers of such .weapons. Additionally, the Court notes that in his final “prayer for relief’

section of his complaint, Plaintiff requests for the first time the additional relief of an injunction against 26 U.S.C. § 5822, which establishes registration arid application requirements for the making of such weapons.

In sum, Plaintiff argues that these provisions of the GCA and NFA aré unconstitutional under the Second Amendment, the Necessary and Proper Clause, and the Tenth Amendment, as they deny him access to weapons that are “part of the ordinary military equipment and whose use could contribute to the common defense of the State of Louisiana or his own personal defense” and because they exceed the scope of Congress’s enumerated powers.

In particular,' Plaintiff avers that he is currently in lawful possession of a 5.56x45 caliber semiautomatic pistol (commonly referred to as a “Draco”), which is a derivative of a Romanian AIMR, a “short-barreled rifle” capable of both semiautomatic and automatic fire that "is banned from importation by the GCA (18 U.S.C. § 922(l)). Plaintiff contends that he wishes to restore his semiautomatic pistol to its rifle configuration. Plaintiff also seeks to add a firearm muffler (referred to under the law as a “silencer”) to protect his- hearing and a shoulder'" stock to increase his firearm’s long range accuracy.

However, Plaintiff argues that to legally add a stock and silencer to his weapon, he must: (1) register both the short-barreled rifle and silencer with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”); (2) pay a $200 tax on each pursuant to NFA (26 U.S.C. § 5811); and (3) replace key parts of the Draco pistol with American-made parts to comply with the GCA (18 U.S.C. § 922(r)). Additionally, Plaintiff seeks to restore his Draco pistol to a fully automatic AIMR configuration, but avers that, because it was manufactured after May 19,1986, the GCA prohibits him from doing so (18 U.S.C. § 922(o )).

Plaintiff further avers that the GCA also prohibits him from importing certain types of weapons, e.g., machine guns and selective fire military assault rifles, or assembling them from imported parts unless authorized by the Attorney General. Plaintiff represents that failing to comply with these provisions in the GCA or NFA would subject him, upon conviction, to imprisonment for up to ten years and/or fines of up to $10,000. Plaintiff seeks a permanent injunction against these provisions of. the GCA and NFA. Plaintiff asserts that, pursuant to District of Columbia v.

Heller, the Second Amendment confers an individual right to keep, and bear arms capable of contributing to the common defense of the states and an individual’s self-defense.

Plaintiff argues that this right, “[a]t a minimum,” encompasses the small arms that “compose ordinary military equipment, including machine guns, fully automatic assault rifles, semi-automatic assault rifles, short-barreled rifles, short-barreled shotguns, pistols, and firearm silencers.” Additionally, Plaintiff alleges that the GCA and NFA violate the Tenth Amendment and exceed the United States’ powers under the Necessary and Proper Clause, as the sale, transfer, and possession of firearms are wholly intrastate commerce,, and thus may only be regulated by the states.

Accordingly, Plaintiff asserts six causes of action seeking permanent injunctive relief against provisions of the GCA and NFA. B. Procedural History On March 29, 2016, Plaintiff filed a complaint in this matter. On June 24, 2016, the Government filed the instant motion to dismiss. On July 6, 2016, Plaintiff filed an opposition. With leave of Court, the Government filed a reply on July 22, 2016. On July 28, 2016, with leave of Court, Plaintiff filed a sur-reply. On July 26, 2016, Plaintiff filed a motion for a partial preliminary' injunction. On August 9, 2016, the Government filed an opposition. II.

Parties’ Arguments A. Defendant’s Arguments in Support of the Motion to Dismiss In this motion, the Government asserts that Plaintiff’s claims should be dismissed because:

(1) Plaintiff lacks .standing to assert three of his six' claims pursuant to Federal Rule of Civil Procedure 12(b)(1); and

(2) Plaintiff has failed to state any claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). 1. Whether Plaintiff Lacks Standing to Assert Three of His Six Claims The Government asserts that Plaintiff lacks standing to assert, three of his six claims. First, the Government argues that Plaintiff cannot show injpry-in-fact,for his challenge to the NFA under 26 U.S.C. §§ 5811, 5812. .The Government avers that Plaintiff is. challenging portions of the NFA that require individuals who wish to transfer a firearm to register the transfer and pay a tax.

The Government argues, however, that Plaintiff does not' allege he wishes to transfer a firearm, but instead wants • to have a firearm -transferred to him. According.to the Government, the NFA does not require the transferee to register the firearm transfer or pay the tax, and Plaintiff has not alleged otherwise. Moreover, the Government points out that Plaintiff has not alleged that the requirements on transferors would affect him as a potential transferee.

Thus, the Government contends that because Plaintiff- has not alleged injury-in-fact with regard to the registration and tax requirements of the NFA (28 U.S.C. §§ 5811, 5812), his claims should be dismissed for lack of standing. Second, the Government avers that Plaintiff cannot show redressability or traceability on his claims seeking to invalidate provisions of the Gun Control Act of 1968 (“GCA”) banning possession of a fully automatic weapon (commonly referred to as a “machine gun”) because Louisiana law also bars him from having one.

The Government asserts that traceability is present- when a plaintiffs injury-in-fact is “fairly traceable to the challenged action of the defendant, and not the result of the independent action of-some third party not before the court.” The Government also contends that redressability requires that it “be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” The Government argues that neither standing requirements of traceability or redressability are met because Louisiana law also bans machine guns. The Government points to Hollis v.

Lynch, a Northern District of Texas case that held that a plaintiff lacked standing to challenge the NFA and GCA when Texas state law independently prohibited the plaintiff from manufacturing a machine gun as well. Likewise, the Government asserts that the Supreme Court has also held that a plaintiff lacks standing when similar limitations imposed by state law would remain unchanged even if the plaintiff were to receive a favorable ruling. 2. Whether All Six of Plaintiffs Claims Should be Dismissed Under Rule 12(b)

(6) Next, the- Government alleges that all six of Plaintiffs claims under the Second Amendment, Necessary and Proper Clause, and Tenth Amendment fail because the NFA and GCA do not infringe on the Second Amendment, and because Congress acted within its proper authority when it passed the two statutes. a. Plaintiff’s Claims under the Second Amendment According to the Government, the Fifth Circuit applies a two-step analysis developed in NRA v. Bureau of Alcohol, Tobacco, Firearms & Explosives to determine whether a law violates the Second Amendment.

The Government avers that the “first ■ step is . to determine whether the challenged law impinges upon a right protected by the Second Amendment.” If the challenged law falls within the scope of the Second Amendment, the Government contends, then “the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny.” First, the Government argues that the challenged provisions of the GCA and NFA fall outside the scope of the Second Amendment, and thus Plaintiff has failed to satisfy the first prong of the Fifth Circuit’s two-step NRA analysis.

The Government represents that the Supreme Court held in District of Columbia v. Heller that the Second Amendment right “extends only to certain types of weapons.” According to the Government, the Supreme Court made clear that the only weapons protected under the Second Amendment are those “in common use” and “typically possessed by law-abiding citizens for lawful purposes.” Thus, the Government asserts that, as numerous courts have held, the Second Amendment does not protect the possession of silencers, short-barreled rifles, or machine guns.

The Government represents that both statutes were passed by Congress for the constitutional purpose of reducing the use of a certain set of especially dangerous weapons by criminals or those who might misuse them. The Government argues that because there is no right to possess a silenced, short-barreled machine gun, then Plaintiff cannot have a constitutional right to transfer, make, or import such a weapon either.

Moreover, the Government avers that the “longstanding nature” of the NFA and GCA challenged by Plaintiff supports the holding that they do not implicate Second Amendment rights. • The Government points out that the Fifth Circuit has previously held that a “longstanding, presumptively lawful regulatory measure—whether or not it is specified on Hellers illustrative list—would likely fall outside the ambit of the Second Amendment; that is, such a measure would likely be upheld at step one of our framework.” The Government contends that Congress first began placing restrictions on machine guns, silencers, and short-barreled rifles when it passed the NFA in 1934, making the challenged regulations “longstanding.” The Government further asserts that no court has found these statutes facially invalid for any reason.

Second, the Government avers that, even if the Court found that the NFA and GCA did implicate Plaintiffs Second Amendment rights, they would be upheld under the second step of the NRA analysis.

The Government'contends that regulations that do not encroach on the core of the Second Amendment, ie, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” receive intermediate' scrutiny* Here, the Government argues that intermediate scrutiny would apply, as ■Plaintiff already has access to a handgun for the purpose of self-defense and there is no similar tradition for using silenced, short-barreled machine guns for self-defense in one’s home.

In fact, the Government asserts, Congress passed the NFA and GCA “to regulate .... certain unusually dangerous weapons .., for which Congress saw no- legitimate uses.” The Government represents that the Fifth Circuit has previously held that “machine guns, shortbarreled shotguns, and short-barreled rifles are primarily weapons of war and have no appropriate sporting use or use for personal .protection.” Therefore, the Government argues that there are reasonable fits between the challenged laws and the important government objectives they serve, and thus they pass intermediate scrutiny. b.

Plaintiffs Necessary and Proper Clause and Tenth Amendment Claims The Govérnment further contends that binding precedent forecloses all of Plaintiffs claims under the Necessary and Proper Clause and the Tenth Amendment, as it is clear that Congress had the constitutional authority to enact the GCA and NFA.

According to the Government, “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact [or apply] a particular federal statute, [courts] look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Likewise, the Government asserts that Congress, does not exceed the limits of the Tenth Amendment when it acts within the scope of the powers delegated by the Constitution.

Thus, a law that is found to be a “necessary and proper exercise of a delegated power,” by definition, does not violate the Tenth Amendment. Here, the Government avers- that a “multitude of cases” have held that the NFA and GCA were valid exercises, of the United States’ delegated powers. First, the Government argues that .the NFA’s taxation and registration requirements were passed pursuant to Congress’s taxing power.

The Government points out that both the Supreme Court and the Fifth Circuit have held that the taxing power gives Congress the authority. to impose taxes on. the making and transferring of firearms. Thus, the Government avers, the NFA does not violate the Tenth Amendment or the Necessary and Proper Clause. Second, the Government asserts that the GCA was constitutionally enacted pursuant to the Commerce Clause.

According to the Government, the Fifth Circuit has previously held that the GCA’s prohibition on transferring or owning a machine gun is a valid exercise of' Congress’s Commerce Clause powers, as the provision regulates conduct with a substantial effect on interstate commerce. Likewise, the Government argues that the same rationale applies to Congress’s ban on importing or assembling firearms from imported parts, as it directly involves regulations on foreign commerce.

Therefore, the Government contends that because Congress acted within its authority in enacting the NFA and GCA, and because those acts are rationally relatéd'to Congress’s enumerated powers, Plaintiffs Tenth Amendment and Necessary and Proper Clause challenges fail. B. Plaintiff’s Arguments in Opposition to the Motion to Dismiss In response, Plaintiff argues that he only wishes to convert his pistol 'into a version of a Romanian AIMR because the allegedly unconstitutional regulations under the GCA and NFA .prevent him from acquiring an actual AIMR.

However, Plaintiff asserts that the primary intent of his-complaint is not to make an AIMR, -but to “obtain weapons that are part of-‘the ordinary military-equipment and whose use could contribute tb the common defense of the State of Louisiana or his own personal defense as is his right under the Second Amendment.” 1. Whether Plaintiff has Standing to Assert Three of his Six Claims Plaintiff contends that the plain language of the NFA’s taxation and registration requirements for transfers of'certain firearms (18 U.S.C. §§ 5811, 5812) apply to Plaintiff.

According to Plaintiff, in order to transfer a firearm covered by the NFA, a written application must be filed with the Secretary of the Treasury that identifies the transferee arid includes the transferee’s fingerprints and photograph. Plaintiff states that the application must also show that the Secretary of the Treasury has approved the transfer and the-registration of the firearm to the transferee.

Moreover, Plaintiff points out that the statute simply requires the tax to be paid and a tax stamp affixed to the original application form, and Plaintiff argues that such costs would be ultimately passed on to the transferee. Plaintiff further avers that if he succeeds in striking down the GCA’s ban on machine guns (18 U.S.C. § 922(o)) on Second Amendment grounds, “he can then immediately move to strike down” Louisiana’s state law ban on machine guns (Louisiana Revised Statute § 40:1752) on the same grounds.

Moreover, Plaintiff .avers that Louisiana’s state ban only applies within Louisiana; if he succeeds in striking down the federal ban, Plaintiff contends, he can then lawfully possess and maintain machine guns in areas outside of Louisiana. Thus, Plaintiff asserts that the Government’s traceability and redressability arguments are without merit. 2. Whether All of Plaintiffs Claims Should be Dismissed Under Rule 12(b)(6) a. Plaintiff’s Claims under the Second Amendment Plaintiff avers that in Heller and Caeta-no, the.

Supreme Court held that the rights provided by the Second Amendment extend to “all instruments that constitute bearable arms.” Plaintiff represents that the term “arms” is defined by the Supreme Court as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Plaintiff argues that the Government’s definition of “arms” protected by the Second Amendment as weapons that are in common use or typically possessed by law-abiding citizens for lawful purposes is contrary to controlling Supreme Court precedent.

Plaintiff asserts that the fact that he already possesses a handgun is irrelevant to this constitutional analysis. According to Plaintiff, the Supreme Court held in Miller that the' Second Amendment protects the right to keep arms' used as “ordinary military equipment” or ones that “could contribute to the common defense.” Plaintiff alleges that this is because, the Second Amendment aims to preserve the citizens’ militia in each state to counter a potential oppressive military force or threats from the federal government.

Plaintiff.argues that, contrary to the Government’s claim that shortbarreled machine guns are not in “common use,” the Government “has issued millions of’ these types of weapons to members of the military and law enforcement officers as standard issue equipment. Plaintiff asserts that the Government is attempting to do exactly what the Second Amendment seeks to prevent: the elimination of citizens’ militia by taking away the people’s arras.

Plaintiff contends that questions regarding whether certain weapons are in common use or typically possessed by law-abiding citizens for lawful purposes are questions of fact to be determined at trial. Plaintiff further avers that silenced, short-barreled machine guns are the “most effective weapons for defense of hearth and home,” because: (1) the silencer protects the shooter’s hearing from permanent damage; (2) the short barrel makes the weapon more maneuverable in confined spaces such as hallways; and (3) fully automatic fire allows a shooter to more quickly address any threat.

Plaintiff alleges that these weapons thus have personal protection uses, which Plaintiff contends is supported by the fact that the GCA and NFA provisions do not apply to law enforcement personnel who face the same criminals that law-abiding citizens do. Plaintiff argues that the GCA and NFA place Plaintiff at a disadvantage compared to criminals who do not follow the law and can easily arm themselves with the types of weapons Plaintiff seeks.

Plaintiff avers that the Supreme Court rejected the Government’s arguments that “longstanding” provisions are constitutional in Heller, where the Supreme Court held that “nothing in our precedents forecloses our adoption of the original understanding of the Second' Amendment.” Plaintiff argues that the Government’s laws restricting the use of certain arms that would be used in defense of hearth and home are subject to strict scrutiny. However, Plaintiff asserts'that, under any standard of scrutiny that .the Court may apply, these provisions cannot pass constitutional muster. . ■ 6.

Plaintiff’s Necessary and Proper Clause and Tenth Amendment Claims Next, Plaintiff contends that the Government lacks an enumerated power in the Constitution to infringe on Plaintiff’s right to keep and bear arms. Plaintiff argues that because Congress has no general police power or specific power to enact gun control, these laws are neither “necessary and proper” nor within the bounds of the federal government’s authority under the Tenth Amendment.

Additionally, Plaintiff avers that the Commerce Clause does not permit Congress to regulate intrastate commerce, which is reserved to the states under the Tenth Amendment. According to Plaintiff, the GCA was passed to control the possession and trafficking of arms “within the Several States.” Plaintiff points to United States v. Lopez, where the Supreme Court struck down 18 U.S.C. § 922(q), a provision of the GCA criminalizing the possession of a firearm in a school zone.

Plaintiff represents that the Supreme 'Court held in Lopez that the statute had “nothing to do with ‘commerce’ or any sort of economic enterprise,” and it was not “an essential part of a larger regulation of economic activity[.]” Plaintiff asserts that the same logic applies here to 18 U.S.C. § 922(o), as the possession of a silenced, shortbarreled machine gun in his home is not an economic activity and does not have a substantial -effect on any interstate commerce. Plaintiff likewise argues that the Government’s taxation power cannot be used to regulate the possession of firearms.

Plaintiff contends that Congress’s taxation power is a revenue raising power, and not a general police power. Plaintiff asserts that the NFA’s tax- on transfers of certain firearms is a pretext to regulate weapons, not raise -revenue, and thus violates the Necessary and Proper Clause and the Tenth Amendment.

Plaintiff points out that the Government admits in its own motion to dismiss that the NFA was passed to regulate weapons, and that the ATF’s National Firearms Act Handbook explicitly states .that the NFA “had an underlying purpose unrelated to. revenue collection.” Plaintiff avers that allowing the Government to tax'the type of arms a citizen can keep and bear under - the .Second Amendment is the equivalent of allowing the Government to tax the content of speech protected by the First Amendment.

Plaintiff argues that the Government does not have the power to tax what it cannot otherwise impede, burden, • or control through an enumerated power. C. Defendant’s Reply in Further Support of its Motion to Dismiss The Government contends, that Plaintiff lacks standing to assert, his-three claims challenging, the NFA transfer requirements, as the NFA only imposes requirements on the transferors, not transferees.

The Government asserts that Plaintiffs argument that there is injury in fact here because the transfer application must include Plaintiffs name, photograph, and fingerprints and a transferor might pass on the cost of the $200 tax to Plaintiff is insufficient in light of existing case law.'The Government points out that in Lane v.

Holder, the Fourth Circuit Court of Appeals found that the plaintiffs lacked standing to challenge the GCA’s “requirement that interstate transfers of firearms take place through federal firearms licensees” because the plaintiffs were not federal firearm licensees, and thus the challenged laws and regulations did not apply to them. According to the Government, Plaintiffs claims are even weaker, as he has not articulated how providing identifying information would appreciably burden .his rights.under the Second Amendment.

Likewise, the Government argues that Plaintiffs “unsupported assertion” that the tax on transferors would be passed on to him fails as a matter of law. . The Government also asserts that Plaintiff has not shown redressability or traceability for his challenge to the GCA’s machine gun ban because Plaintiff did not seek tp ^strike down. Louisiana ■ state law ban.on.machine guns in his complaint.

The Government avers that Plaintiff’s argument that, if the federal law is invalidated, he could possess a machine gun outside Louisiana fails, as his complaint makes clear that he is a Louisiana citizen who seeks to exercise his Second Amendment rights “in his home” and as a member of the Louisiana militia. Thus, the Government argues that Plaintiffs claims cle,arly contemplate conduct within .Louisiana. D.

Plaintiff’s Sur-Reply in Opposition to the Motion to Dismiss Plaintiff asserts that the Supreme Court in Heller expanded the constitutional protections provided by the Second Amendment, beyond Millers limited holding that the Second Amendment extends only to certain types of weapons. Plaintiff notes that Heller explicitly stated that the Second Amendment extends to all instruments that constitute bearable arms, even if they did not exist at the time of the founding. Plaintiff points out that the Supreme Court has found handguns and stun guns to be protected under the Second Amendment.

Plaintiff argues that there is “no doubt” that short-barreled machine guns are “ordinary military equipment” capable of contributing to the “common defense” similar to the standard issue M-4 carbine rifle used in the United States military. Plaintiff avers that the.Government’s citation to the Fourth Circuit’s decision.,in Lane v. Holder is inapplicable to Plaintiffs standing to challenge the NFA’s registration and taxation requirements, as Lane dealt with the GCA’s separate requirements and a Virginia state law. Moreover, Plaintiff contends that in Carey v.

Population Services International, the Supreme Court held that “[a] plaintiff who alleges an injury based on restriction of distribution channels may be able to show standing if the defendant’s actions directly affect that plaintiff.” Here, Plaintiff argues that the NFA’s registration and taxation requirements on the transfer of certain firearms directly affects Plaintiff. In addition, Plaintiff represents that, according to the ATF’s website, it takes an average of nine months to obtain permission to add a stock or a silencer to a pistol, which Plaintiff contends' shows he is directly affected by the law.

Plaintiff asserts that paying a $200 tax, waiting an' average of nine months, and requiring the approval of the federal government transforms his individual Second Amendment right “into a privilege subject to the whim and denial of Defendant.” Plaintiff further avers that the fact that he can be prosecuted under the NFA for unknowingly possessing an unregistered firearm if the transferor fails to register the weapons shows he has standing to challenge the requirements.

Plaintiff also asserts that there is no requirement that he must attempt to invalidate both Louisiana’s and the federal separate bans on machine guns to have standing. Plaintiff avers that the Fifth Circuit has rejected that argument, because finding a federal law unconstitutional under the Second Amendment would apply equally to state bans. Moreover, Plaintiff argues that the GCA’s ban on machine guns is ineffective, as it only prevents law-abiding citizens from acquiring such weapons while criminals have the ability to easily construct such a weapon.

Likewise, Plaintiff asserts that the NFA’s requirements only apply to lawful transactions by law-abiding citizens. III. Law and Analysis A. Legal Standing for Motion to Dismiss Pursuant to Rule 12(b)

(1) Motions to dismiss pursuant to Federal Rule of Procedure 12(b)(1) seek to challenge the subject matter jurisdiction of the district court to hear a case.

Courts may find they lack subject matter jurisdiction by considering: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ultimately, a court should dismiss a case for lack of subject matter jurisdiction “only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” The burden to prove that jurisdiction exists is on the party asserting jurisdiction.

When a Rule 12(b)(1) motion is' filed alongside other Rule' 12 challenges, the district court “should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Under

Article III of the United States Constitution, federal courts only have jurisdiction over “cases” or “controversies.” One requirement for a “case” or “controversy” is that the plaintiff must have standing to sue. “The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit[.]” The plaintiff must show that he has a “personal stake” in the dispute, and that the injury alleged in the complaint is particularized as to him.

To establish standing, the plaintiff must show: (1) he suffered an “injury in fact,” which is a “concrete and particularized invasion of a legally protected interest” that is actual or imminent, and not conjectural or hypothetical; (2) there is a causal connection between the alleged harm and the defendant’s conduct, such that the injury is fairly traceable to the challenged action rather than the result of a third party’s independent action; and (3) it is likely, rather than merely speculative, that a favorable decision will redress the injury. B. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)

(6) Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for failure to state a claim upon which relief can be granted.” To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” A claim “has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” A complaint need not contain “detailed factual allegations,” but rather “must provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” In resolving a motion to dismiss, this Court “draw[s] all reasonable inferences in the Plaintiff[s’] favor.” Motions to dismiss under Rule 12(b)(6) are “viewed with disfavor and [are] ... rarely granted.” On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and all facts pleaded are taken as true.

However, although required to accept all “well-pleaded facts” as true, a court is not required to accept legal conclusions as true. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Similarly, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not suffice.

The complaint need not contain detailed factual allegations, but it must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a, cause of action, That , is, the complaint must, offer more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” From the face of. the complaint, there must be enough factual matter to raise a reasonable expectation that discovery will reveal- evidence as to each element of the asserted claims.

If factual allegations are insufficient to raise a right to relief above the. speculative level, .or if it is apparent from the face of the complaint that there is an “insuperable” bar to relief, the claim must be dismissed. In evaluating a .complaint .under Rule 12(b)(6), the district court should confine itself to the pleadings.. “If the district court considers information outside of the. pleadings, the court must treat the motion [to dismiss] as a motion for

summary judgment.. Although the court -may not go outside the complaint, the court may consider documents attached to the complaint.” C.

Analysis In this litigation, Plaintiff seeks to convert a pistol into, a silenced, short-barreled machine gun and to generally acquire weapons that he contends are part of the “Ordinary military equipment and whose use could contribute to the common defense of the State of Louisiana or his own personal defense.” However, Plaintiff asserts that he is prevented or hindered from doing so by certain provisions of the Gun Control Act of 1968 (“GCA”) and the National Firearms Act (“NFA”),. which Plaintiff contends are unconstitutional under the Second Amendment, the Necessary and- Proper Clause, and the Tenth Amendment.

With regard to the GCA, 'Plaintiff argues that the following -provisions are- unconstitutional: (1) 18 U.S.C. § 922(l), which bans the importation of firearms and ammunition regulated under the- GCA" unless authorizéd by the -Attorney General; (2) 18 U.S.C. § 922(r), which forbids assembling such weapons from imported parts; and (3) 18 U.S.C. § 922(o), which makes it unlawful to transfer or possess any machine gun manufactured after May 19,1986.

With regard to the NFA, Plaintiff contends the following provisions are also unconstitutional: (1) 26 U.S.C. § 5811, which taxes the transfer of such weapons as machine guns, silencers, short barreled rifles, and short barreled shotguns; (2) 26 U.S.C. § 5812, which.establishes the registration and application requirements for transfers of such weapons; and (3) 26 U.S.C. § 5821, which taxes the making- of such weapons. Additionally, the Court notes that in the final “prayer for relief'

section of his com-plaint, Plaintiff requests for the first time the additional relief of an injunction against 26 U.S.C. § 5822, which establishes registration and application requirements for the making of such weapons. While Plaintiff did not directly assert a cause of action challenging 26 U.S.C. § 5822, because Plaintiff is proceeding pro se, the Court will assume Plaintiff intended to bring a claim challenging 26 U.S.C. § 5822.

Moreover, because the Government has argued that “none of [Plaintiffs] claims have legal merit ... [and] [t]he Court should therefore dismiss this case in its entirety,” the Court will consider whether Plaintiff has failed to state a claim challenging 26 U.S.C. § 5822 pursuant to Rule 12(b)(6) as well.

The Government asserts that Plaintiffs claims should be dismissed on two grounds: first, because Plaintiff, lacks standing to assert three of his claims pursuant to Federal Rule of Civil Procedure 12(b)(1); and second, because Plaintiff has failed to state any claim upon which relief can be granted pursuant to Federal ,Rule of Civil Procedure 12(b)(6). 1. Whether Plaintiff has standing to bring three of his six claims First, the .Government argues., that Plaintiff lacks standing to bring three of his six claims. In particular, the Government asserts that:

(1) Plaintiff cannot show redressability or traceability to challenge 18 U.S.C. § 922(o), the GCA’s ban on machine guns, because Louisiana law also prohibits the possession of machine guns; and

(2) Plaintiff cannot show an injury-in-fact for his challenges to 26 U.S.C. § 5811 and § 5812, the NFA’s application and tax .requirements on transfers of certain weapons, as-Plaintiff has not alleged that he wishes to transfer a firearm.

In response, Plaintiff argues: (1) that if he succeeds in striking down the federal ban on machine guns on Second Amendment grounds, he can then possess a machine gun in areas outside Louisiana and immediately move.to strike down the Louisiana ban on the same grounds; and (2) that, even-though Plaintiff has not alleged -that he wants to transfer, a firearm, he has still suffered an injury-in-fact.because a transferee must be identified in the transfer application, must provide a photograph and fingerprints, and must wait until the application is approved, and because the costs of the $200 tax paid :by the transferor will ultimately be paid for by the transferee. . a.

Plaintiff’s standing to challenge

Section 922(

o) As stated supra, 18 U.S.C. § 922(

o) makes it unlawful to transfer or possess any machine gun manufactured after May 19, 1986. In addition, Louisiana Revised Statute § 40:1752 makes it unlawful for any -person to “sell, keep or offer for sale, loan' or give away, purchase, possess, carry, or transport any machine gun within this state,” with limited exceptions’. Here, the Government does not appear to contest that Plaintiff can .establish the. first element of standing, injury-in-fact, to challenge

Section 922(o), as it is undisputed that, he is barred from possessing a xna-chine gun. Rather, the Government avers that, because Louisiana law prohibits the same conduct that federal law prohibits, Plaintiff cannot prove traceability (the second standing element) or redressability (the third standing element). In Hollis v. Lynch, the Fifth Circuit reviewed a district court’s finding that a plaintiff lacked standing to challenge 18 U.S.C. § 922(

o) because an existing Texas statute prohibiting the possession or manufacture of a machine gun would also bar the plaintiffs claim. There, Texas Penal Code § 46.05(a)(1)(A)-(

B) provided: (

a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells: (1)- any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives ...: (

A) an explosive weapon; [or] (

B) a machine gun. Thé Fifth Circuit “disagree[d] with the district court that the Texas statute moots the federal claim.” The Fifth Circuit noted that the Second Amendment applies with equal force to the states, and held that, if

Section 922(

o) was found to be unconstitutional, “it is likely that

Section 46.05, a state law, would also be unconstitutional.” The Fifth Circuit further acknowledged that striking down the federal ban would likely put plaintiff in compliance with Texas state law, as it is contingent on whether the plaintiff could obtain federal approval of an application to make a machine gun. Here, unlike the Texas state law in Hollis, the Louisiana state law banning possession of machine guns is not contingent on the federal application process. However, because a ruling that finds

Section 922(

o) to be unconstitutional under the Second Amendment would mean that Louisiana’s state ban would “likely” also be unconstitutional, the Court finds that, under the Fifth Circuit’s reasoning in Hollis, Plaintiff has standing to challenge 18 U.S.C. § 922(o). b. Plaintiff’s standing to challenge 26 U.S.C. § 5811 and § 5812 Next, the Government argues that Plaintiff has failed to show injury-in-fact to establish standing to challenge 26 U.S.C. § 5811 and § 5812.

The Government asserts that these federal statutes only impose registration requirements and the payment of a $200 tax on prospective transferors on certain firearms, whereas Plaintiff has only alleged that he seeks to have certain firearms be transferred to him. Moreover, the Government avers that Plaintiff has not pointed to any basis for his assertion that the tax paid by trans-ferors would be passed on to him, and that Plaintiff has not alleged how providing identifying information for a firearm transfer application would burden his Second Amendment rights.

In response, Plaintiff argues that he has sufficiently alleged an injury-in-fact, as: (1) he must provide a photograph and fingerprints for the transfer application; (2) the cost of the $200 tax ■will be passed on to him as the transferee; (3) he is directly affected because he cannot obtain a transferred firearm- unless and until he receives approval from the federal government, thus restricting his access to firearms and his rights under the Second Amendment; and (4) the significant delay between submitting an application and receiving approval further burdens his Second Amendment rights.

Title 26 Ü.S.G. § 581.1 provides that for every firearm transferred, a $200 tax must fee paid “by the transferor.” Title 26 U.S.C. § 5812(

a) establishes that a firearm shall not be transferred unless: (1) “the trans-feror of the firearm” files a written application for the transfer and registration of the firearm to the transferee; (2) the application must include evidence that any tax payable on the transfer has been paid by affixing the proper stamp to the application form; (3) the transferee is identified in the application, and the identification must include the transferee’s fingerprints and photograph; (4) the transferor is identified in the application; (5) the firearm is identified in the application; and (6) the application form shows that the Secretary of the Treasury has approved the transfer and the registration of the firearm to the transferee.

Title 26 U.S.C, § 5812(

b) further provides that the transferee of a firearm may not take possession of 'the firearm unless the Secretary has approved the transfer and registration of the firearm to the transferee as required by

Section 5812(a). Here, Plaintiff does not allege that he wishes to transfer a firearm to another individual or that any application to transfer a firearm to him has been filed. Instead, Plaintiff only argues that, as a prospective transferee seeking to obtain a firearm via transfer in the future, he has standing to challenge 26 U.S.C. § 5811 and § 5812. However, neither statute imposes any obligations or requirements on the recipient of a transferred weapon; rather, both statute's clearly state that the “trans-feror” must pay a $200 tax and file a written application to transfer and register the firearm. In order to have standing under

Article III, the plaintiff must show he has a “personal stake” in the dispute, and that the injury alleged in the complaint is concrete and particularized as to him, rather than merely conjectural or hypothetical. As stated supra, the burden to prove that jurisdiction exists is on Plaintiff.

Here, Plaintiff has not sufficiently alleged how these laws directed to transferors impose an obligation on potential transferees, and Plaintiff has not articulated how the requirements that another individual pay a tax and provide information about Plaintiff violate his Second Amendment rights or otherwise impose a concrete and particularized injury on him.

Moreover, the Court notes that neither 26 U.S.C. § 5811 or § 5812 act as an absolute prohibition on transferring firearms as Plaintiff desires, but rather establish an approval and taxation process which would allow transfers of firearms to Plaintiff once the requirements are satisfied by the transferor. In National Rifle Association of America, Inc. v. McCraw, the Fifth Circuit considered whether 18-to-20-year-old plaintiffs had standing to challenge a concealed handgun licensing law and the accompanying criminal law banning carrying a handgun in public.

There, the Fifth Circuit held that the plaintiffs had standing, as the criminal statute “forbids them from carrying a handgun altogether” and the licensing program “declines to grant their age group, specifically, a limited exception in the form of a concealed handgun license from this alleged burden on their Second Amendment rights.” “Thus, both laws, as part of a statutory scheme, combine to deprive plaintiffs of their alleged constitutional rights.” Here, by contrast, the challenged statutes do not forbid Plaintiff from being transferred a firearm altogether, but instead establish a regulatory application and taxation scheme to oversee the lawful transfer of firearms between individuals.

The Fourth Circuit’s reasoning in Lane v. Holder provides additional support for the Court’s analysis here. In Lane v. Holder, the Fourth Circuit considered whether plaintiffs who desired to acquire handguns out-of-state had standing to challenge the GCA’s provision requiring interstate transfers of firearms to take place through federal firearm licensees (“FFLs”).

The Fourth Circuit rejected the plaintiffs’ argument that restricting the range of retailers, available was sufficient to establish an injury-in-fact, and instead held that the plaintiffs lacked standing because the laws applied to the FFLs rather than to the handgun purchasers.

The Fourth Circuit noted that the plaintiffs were not prevented from obtaining the handguns, and “[a]t worst, they are burdened by additional costs and logistical hurdles.” The Fourth Circuit held that “minor inconveniences are distinct” from those cases where plaintiffs were “prevented outright from obtaining or possessing firearms.” Thus, unlike the Fifth Circuit’s holding in National Rifle Association of America, Inc., where a 20-year-old was found to have standing because he was absolutely barred from buying firearms from FFLs, the plaintiffs in Lane were able to obtain out-of-state firearms, as long as they went through an FFL to do so.

Similarly here, Plaintiff is not absolutely barred from' being transferred a firearm, but may receive a firearm if the transferor satisfies the provisions’ requirements. Finally, the Court notes that Plaintiff has not alleged that an application to transfer a firearm to him was filed or rejected, or that Plaintiff faces any imminent threat of prosecution for failing to comply with either statute. In Westfall v.

Miller, the Fifth Circuit considered whether a plaintiff had standing to challenge an ATF requirement that a local law enforcement official must certify that the official has no knowledge that the firearm will be used for an unlawful purpose. The district court found that, because the plaintiff had not pursued certification from all specified persons after being denied approval by some of them, the plaintiff lacked standing.

The Fifth Circuit agreed, and held that’ '“[j]ust because [the plaintiff] does not like the firearms regulation does not give him standing to complain about its legality.” The Fifth Circuit determined that the plaintiff “made no effort to obtain certifications from” other acceptable local officials, and therefore it “can only conclude that his inaction has caused any injury he has suffered.” Here, Plaintiffs claims are even more attenuated, as Plaintiff has not alleged that any application was ever filed or denied.

Likewise, the Second Circuit has held that, “[a]s a general matter, to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.” For example, in United States v. Decastro, the Second Circuit held that a plaintiff who fails to apply for a- gun license lacks standing to challenge those state licensing laws. According to the Second ■ Circuit, a plaintiff may only challenge licensing laws without first submitting an application if he can make a “substantial showing” that submitting an ■application “would have been futile.” In support of this

interpretation, the Second Circuit in- Decastro pointed out that in Moose Lodge No. 107 v. Inns, the Supreme Court held that an African-American who never actually applied for membership to the Moose Lodge lacked standing to challenge the club’s all-white membership requirement. In. Moose Lodge No. 107, the Supreme Court clearly stated that the plaintiff “has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others.” Similarly, in Allen v.

Wright, the Supreme Court held that plaintiffs, parents of children who had never applied for admission to private schools with allegedly racially .discriminatory admissions policies, had no standing to challenge the tax-exempt status of those private ‘schools. This Court further notes that the Eighth Circuit, Ninth Circuit, and the D.C. Circuit have also concluded that a plaintiff who failed to submit required applications or filings in other contexts lacked standing to challenge the requirements.

Here, Plaintiff challenges two federal laws that only impose obligations on trans-ferors of firearms, whereas Plaintiff seeks to have a firearm transferred to him. Moreover, Plaintiff has not alleged an application to transfer was ever filed or rejected. The Court finds that such speculative and conjectural allegations of- injury are insufficient to establish a case or controversy under

Article III. The Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an

Article III case or controversy.” As the Fifth Circuit has made clear, “[t]he requirements of

Article III are not satisfied merely because a party requests a court of the United States to declare its legal rights.” Accordingly, the Court concludes that Plaintiff has not sufficiently alleged thé injury-in-fáct requirement and lacks standing under

Article III of the United States Constitution to pursue this claim challenging the NFA’s registration and taxation requirements for transfers of firearms. Therefore, the Court will grant the Government’s motion to dismiss Plaintiffs challenges to 26 U.S.C. § 5811 and § 5812 for lack of standing pursuant to Rule 12(b)(1). 2.

Whether the challenged provisions of the GCA and NFA violate the Second Amendment The Government argues that this Court should dismiss Plaintiffs claims under the Second Amendment against certain provisions of the GCA and NFA pursuant to Rule 12(b)(6), because, the Government avers, the provisions do not infringe on Plaintiffs Second Amendment rights. According to the Government, the Fifth Circuit applies a two-step analysis for Second Amendment challenges.

The Government argues that Plaintiffs challenge fails at the first step of the analysis because it is clear that the longstanding, presumptively lawful regulations of the GCA and NFA do not fall within the scope of the Second Amendment. The Government asserts that the Second Amendment-does not confer the right to possess a silenced, short-barreled machine gun.

Even if the GCA and NFA provisions did implicate Second Amendment rights, the Government contends that the law should still be upheld under the second step of the analysis, as the Court should only apply intermediate scrutiny and find that there is a reasonable fit between the challenged regulation and an important government objective. Plaintiff argues in response that the Second Amendment extends to all instruments that constitute bearable arms.

Plaintiff avers that the Supreme Court held in Miller that the Second Amendment protects those arms that are used as “ordinary military equipment” or ones that “could contribute to the common defense.” Plaintiff argues that short-barreled machine guns are in “common use,” as the Government uses them to equip law enforcement officers and members of the military.

Plaintiff further avers that silenced, short-barreled machine guns are the “most effective weapons for defense of hearth and home.” Plaintiff argues that the GCA and NFA place Plaintiff at a disadvantage to criminals who do not follow the law and can easily arm themselves with the types of weapons Plaintiff seeks. Plaintiff argues that the Govern-merit’s laws restricting the use of certain arms, that' would be used in defense of hearth and home are subject to strict scrutiny.

However, -Plaintiff asserts that, under any standard of scrutiny that' the •Court may apply, these provisions under the GOA'and NFA cannot pass constitutional muster.

The Second Amendment provides: “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 Fifth' Circuit employs a two-step inquiry to analyze challenges under the Second Amendment: [T]he first step is to determine whether the challenged law impinges upon a right protected by the Second Amendment—that is, whether the law regulates conduct that falls within the scope of-the Second Amendment’s guarantee; the second step is to determine whether to apply intermediate or strict scrutiny to the law, and then to deteruiine. whether the law survives the proper level of scrutiny.

Thus, the first question the Court must consider is whether the challenged provisions of the GCA and NFA regulate conduct that falls within the scope of the rights protected by the Second Amendment.

If the Court finds in the affirmative, the Court must then address the second step in the Fifth Circuit’s two-step inquiry: “whether to apply intermediate or strict scrutiny to the law, and then to determine whether the law survives the proper level of scrutiny.” The appropriate level of scrutiny “depends on the nature of the conduct- being regulated and the degree to which the challenged law burdens the right.” When a regulation “threatens a right-at'the core of the Second Amendment,” such 'as the right to possess and use a-handgun to defend the home, courts should apply strict scrutiny.

Less severe regulations that do not encroach on the core of the Second Amendment are reviewed under the more lenient “intermediate” scrutiny, which requires the government to demonstrate that there is a “reasonable fit” between the regulation and an “important” government objective. a. Whether Title 18 U.S.C. § 922(

o) violates the Second Amendment First, Plaintiff argues that 18 U.S.C. § 922(o )’s ban on machine- guns -violates his rights pursuant to the Second Amendment. In United States v. Miller, the Supreme Court held that the NFA’s prohibition on transporting unregistered “sawed-off shotguns” was constitutional under the Second Amendment.

The Supreme Court noted that there was no evidence that possession or use of a sawed-off shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia” or “that this weapon is any part of the ordinary military equipment or .., could, contribute to the common defense;” Nearly 70 years after’ Miller, the Supreme Court explored the scope and meaning of the Second Amendment in greater depth in District of Columbia v. Heller, In Heller, the Supreme Court held that the Second Amendment was intended to protect a pre-existing individual right to keep and bear arms.

As the Fifth Circuit has noted, the Supreme Court made clear in Heller that, while preserving the effectiveness of militias was one goal of the Framers, the primary purpose of the Second Amendment was to “guarantee the individual right to possess and carry weapons in case of confrontation” and establish “an individual right to bear arms for defensive purposes.” In Heller, the Supreme Court reasoned that because the Second Amendment was focused on the right to defend one’s “hearth and home,” and because “the American people have considered the handgun to be the quintessential self-defense weapon[,] ... a complete prohibition of their use” was unconstitutional.

However, Heller also established that “[l]ike most rights, the right secured by the Second Amendment is. not unlimited.” The Supreme Court acknowledged that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions” of certain “presumptively lawful” prohibitions and limitations on the possession of firearms. In Hollis v. Lynch, the Fifth Circuit considered whether, pursuant to the Supreme Court’s reasoning in Heller, the GCA’s prohibition on possessing machine guns (Title 18 U.S.C. .§ 922(o)) unconstitutionally infringed on the Second Amendment.

In Hollis, the Fifth Circuit rejected, the plaintiffs argument that Miller stands for the proposition that the Second Amendment establishes a right to possess weapons that.are part of the modern day ordinary military equipment, such-as an M-16. The Fifth Circuit held that Heller rejected this .interpretation of Miller, as machine guns were being used in warfare in 1939 when the Supreme Court upheld the NFA’s restrictions on such weapons in Miller.

The Fifth Circuit noted that the Supreme Court had acknowledged that a “traditional militia” was “a pool of men bringing arms in common use at the time for lawful purposes like self-defense” using “the sorts of lawful weapons that they possessed at home.” Accordingly, in Hollis, the Fifth Circuit interpreted the Supreme Court’s holdings in Miller and Heller .to mean that the individual right established, by the Second Amendment only .protects the category of weapons that are “possessed at home” and are in “common use at the- time for lawful purposes-like self-defense,-’’.and not those weapons .that may be useful for military service..

The Fifth Circuit pointed out that the Supreme Court .held that there was a historical tradition of prohibiting “dangerous and unusual weapons,” and noted that modern .militias,, such as the National Guard, would require “sophisticated arms that are highly unusual in society at large.” Therefore, the Fifth' Circuit held that protected weapons are “those in common use at the time,” and that, if a weapon is dangerous and unusual, it is not in common use and is not protected. Likewise, the Fifth Circuit pointed to the Supreme Court’s decision in Caetano v.

Massachusetts, where the Supreme Court •rejected the argument that stun guns are not protected by the Second Amendment because they are not commonly used in the military. Thus, the Fifth Circuit found that “whether a weapon has a nexus to military utility is not the test as to whether that weapon receives Second Amendment protection.” ' The Fifth Circuit, applying its two-step inquiry for Second Amendment challenges, ultimately held in Hollis that bearing an M-16 machine gun did not fall ivithin the scope of the Second Amendment right, and thus

Section 922(

o) was constitutional. The Fifth Circuit found that a “dangerous and unusual” firearm is not “in common use,” and that both the majority and dissent in Heller had identified the M-16 as a dangerous and unusual weapon. Accordingly, the Fifth Circuit in Hollis found that machine guns do not receive Second Amendment protection, and thus upheld 18 U.S.C. § 922(

o) at step one of its framework, affirming the district court’s decision to grant a motion to dismiss. Similarly, in United States v. Golding, the Fifth Circuit held that violating

Section 922(

o) by possessing a machine gun was a “crime of violence,” as it “constitutes conduct that presents a serious risk of physical injury to another” due to the “inherently dangerous nature of machine guns.” Likewise, in United States v. Jennings, the Fifth Circuit noted that machine guns and pipe bombs were both “primarily weapons of war and have no appropriate sporting use or use for personal protection.” Here, Plaintiff argues that

Section 922(o )’s ban on machine guns is unconstitutional. However, Plaintiff has not identified any rationale to distinguish his case from Hollis or articulated any new argument as to why the Fifth Circuit’s décision in Hollis upholding 18 U.S.C. § 922(

o) does not apply here. Rather, Plaintiff relies in large part on the very same argument that the Heller and Hollis courts rejected: that, because machine guns are used by military and law enforcement, private citizens must also have a right to possess such weapons. The Court finds this argument unpersuasive pursuant to the Fifth Circuit’s analysis in’ Hollis, where the Fifth Circuit explicitly determined that “dangerous and unusual” weapons such as machine guns are not in common use and thus not protected by the Second Amendment. Plaintiff appears to further argue that

Section 922(

o) is unconstitutional- because its ban on machine guns places him at a disadvantage when defending his home against criminals who do not follow the law and can easily arm themselves with the types of weapons that Plaintiff seeks. However, the Court notes that this legislation was passed to prevent any person from obtaining these weapons, and criminals who have machine guns banned under 18 U.S.C. § 922(

o) do not have them lawfully. Moreover, Plaintiff has pointed to no authority to support the proposition that the scope of the Second Amendment is determined by the existence of violations against the challenged law regulating firearms, or that an otherwise “dangerous and unusual” firearm can receive Second Amendment protection if it could be used by criminals. Indeed, the Fifth Circuit in Hollis noted that it has considered weapons such as machine guns, pipe bombs, and hand grenades to be “dangerous,” and thus likely unprotected under the Second Amendment, despite, the fact that criminals could acquire each of those weapons in violation of the law. Finally, Plaintiff avers that Title 922(

o) is unconstitutional under the Second Amendment because silenced, short-barreled machine guns are the most effective weapons for self-defense of the home. However, neither Heller nor Hollis stands for the proposition that the effectiveness of a weapon determines whether there is a right to bear it under the Second Amendment. Indeed, the Fifth Circuit determined in Hollis that the dangerousness of a firearm weighs against finding that the Second Amendment establishes a right to bear such weapons appears to undercut Plaintiffs argument.

The Hollis court made clear that courts must consider whether the weapon is one “in common use at the time” to determine if it receives Second Amendment protections, not whether it is the most efficient means of eliminating targets indoors. As previously stated, the Fifth Circuit concluded that a- firearm is not “in common use”' if it is “dangerous and unusual,” and that machine guns thus do not receive Second Amendment protections.

Moreover, the Court notes that in Heller, the Supreme Court considered and rejected the argument that effective, sophisticated arms are required for a militia to be as effective as militias in the 18th century. Plaintiff has not articulated any rationale or cited any authority to differentiate his claim here from the Hollis or Heller courts’ decisions. Accordingly, considering the first step in the Fifth Circuit’s two-step analysis for Second Amendment claims, and in light of the Fifth Circuit’s analysis in Hollis, this Court finds that 18 U.S.C. § 922(

o) does not “impinge[ ] upon a right protected by the Second Amendment.” That is, because “a law that regulates a class of weapons that are not in common use will be . upheld at step one,” such as machine guns, the Court finds that

Section 922(o) “passes constitutional muster.” Thus, the Court will grant the Government’s motion to dismiss Plaintiffs Second Amendment . challenges to 18 U.S.C, § 922(

o) pursuant to Federal Rule of Civil Procedure 12(b)(6). b. Whether Title 18 U.S.C. § 922(1) and § 922(

r) violate the Second Amendment. Plaintiff also brings a Second- Amendment challenge to two other provisions of the GCA: 18 U.S.C. § 922(1), which bans the importation of any firearm or ammunition, subject to certain exceptions listed under 18 U.S.C. § 925(d); and (2) 18 U.S.C. § 922(r), which forbids, assembling any semiautomatic rifle or shotgun from imported -parts, with limited exceptions. The Government argues that Plaintiffs claims challenging Sections 922(Z). and (

r) should be dismissed because there is no right to possess a silenced, short-barreled machine gun, and thus there cannot be a right to transfer, make, or import such a weapon. The Government points out that the GCA is a longstánding, presumptively lawful measure, which supports the holding that it does not implicate Second Amendment rights.

In response, Plaintiff asserts the same arguments discussed supra: that Heller established that the Second Amendment extends, prima facie, to all, instruments that constitute bearable arms, and that silenced, short-barreled machine guns are the most effective weapons . for defense of hearth and home.

As a preliminary matter, the Court notes that, while the Government' focuses on-Plaintiffs desire to obtain or create a silenced, • short-barreled machine gun, Plaintiff also alleges in his complaint that he “wishes to obtain weapons that are part of the ordinary military equipment” for use .in the militia or for personal defense that is prevented or hindered by the challenged provisions of the GCA and NFA.

Therefore, while the Court found supra that Plaintiff does not -have a Second Amendment right to machine guns, the Court will now consider whether Sections 922(£) and' (r)’s broader prohibitions on imported firearms and ammunition violate the Second Amendment.

Using the Fifth Circuit’s two-step inquiry, the Court will first determine “whether the challenged law[s] impinge[ ] upon a right protected by the Second Amendment—that is, whether the law[s] regulate[] conduct that falls within the scope of the Second Amendment’s guarantee.” To decide if a law implicates a Second Amendment right, courts must look to “whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee.” As discussed above, the Supreme Court held in Heller that, while there is a pre-existing individual right to keep and bear arras, the “right secured by the Second Amendment is not unlimited.” The Supreme Court further noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ... or laws imposing conditions and qualifications on the commercial sale of arms.” It is unclear if, under existing Fifth Circuit precedent, federal laws banning the importation of firearms and ammunition and prohibiting the use of imported parts to assemble a firearm would be considered “longstanding” and, if so, whether it would pass step one of the Fifth Circuit’s two-step analysis.

As the Fifth Circuit previously noted, it is ambiguous from the holding in Heller whether those “longstanding” and “presumptively lawful regulatory measures” either (1) “presumptively fail to burden conduct protected by the Second Amendment,” and thus do not proceed beyond step one; or if (2) they “presumptively trigger and pass constitutional muster under a lenient level of scrutiny” under step two of the analysis. The Court notes that 18 U.S.C. § 922(0 and § 922(

r) were first enacted as-part of the GCA in 1968, and neither party has identified any earlier known provision complete-1y prohibiting the importation of firearms.

As the Fifth Circuit has clarified, a regulation can be “longstanding” even if it was not in existence during the founding era, as Heller considered. modern laws passed in the mid-20th century that banned felons and mentally ill persons from possessing firearms to be “longstanding.” Moreover, the Second Circuit has opined that the Supreme Court in Heller identified these regulations as presumptively lawful because “time, place and manner restrictions may not significantly impair the right to possess a firearm for self-defense, and may impose no appreciable burden on Second Amendment rights.” However, as the Third Circuit has held, Heller should not be interpreted to.stand for the proposition that all commercial regulations on the sale of firearms are outside the scope of the Second Amendment.

Thus, the Court notes that, although these federal laws only restrict the importation of firearms or the use of imported parts to assemble a firearm, such restrictions likely impinge on the rights of law-abiding,- responsible citizens under the Second Amendment to possess and carry firearms because they inhibit the ability to acquire such weapons. Accordingly, the Court will proceed to step two of the Fifth Circuit’s two-step analysis.

Under the second step in the Fifth Circuit’s two-step inquiry, the Court must consider “whether to apply intermediate or strict scrutiny to the law,” and then “determine whether the law survives the proper level of scrutiny.” The appropriate level of scrutiny “depends on the nature of the conduct being'regulated and the degree to which the challenged law burdens the right.” When a regulation “threatens a right at the core of the Second Amendment,” such as the right to possess and use a handgun to defend the home, courts should apply strict scrutiny.

Less severe regulations that do not encroach on the core of the Second Amendment are reviewed under the more lenient “intermediate” scrutiny, which requires the government to demonstrate that there is a “reasonable fit” between the regulation and an “important” government objective. Here, the challenged federal laws banning the importation of firearms and ammunition and prohibiting the use of imported parts to assemble a firearm do not burden the céntral core of the Second Amendment guarantee, but instead limit one particular source to obtain firearms, ie. imported parts and weapons.

Moreover, laws imposing conditions and qualifications on the commercial sale of arms generally were identified as longstanding presumptively lawful regulatory measures in Heller, which the Fifth Circuit has held should merit, at most, intermediate scrutiny. Other circuits have noted that strict scrutiny should only be applied to those restrictions that operate as a “substantial burden” on the core purposes of the rights established by the Second Amendment. Accordingly, this Court will apply intermediate scrutiny here.

As stated supra, a challenged law may survive intermediate scrutiny if there is a “reasonable fit” between the regulation and an “important” government objective. Courts routinely look to the legislative history of a law challenged under the Seeond Amendment to aid their intermediate scrutiny inquiry.

According to the GCA’s legislative history, the objective of the law was “to provide support of Federal, State, and local law enforcement officials in their fight against crime and violence,” while avoiding “any undue or unnecessary” burdens on law-abiding citizens’ ability to acquire, possess, or use firearms for lawful activities.

The legislative history reveals that Congress was centrally concerned with buttressing the states’ individual efforts to curb “crime, delinquency, and violence” and “keep firearms out of the hands of those not legally entitled to possess them” through a uniform firearm regulatory scheme at the federal level. As the Supreme Court has recognized, the GCA “did not intend merely to restrict interstate sales but sought broadly -to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.

These persons are comprehensively barred by the Act from acquiring firearms by any means.” Congress noted that the existing federal firearm controls at the time were “not sufficient to enable the States to effectively cope with the firearms traffic within their own borders,” especially in light of the “ease with which any person can anonymously acquire firearms.” The Court further notes that an additional objective of Congress in imposing a complete ban on importing firearms was that, prior to the enactment of the GCA, executive agencies had the discretionary authority to limit certain firearm imports, but Congress determined that they had failed to effectively exercise it to limit the flow of imported firearms.

As one member of the House of Representatives stated at the time, Congress’s solution-was to ban imported weapons entirely: “Because the discretionary measures given [to] the agencies have not been acted upon by them, we must take the steps of barring the weapons outright,” The representative further noted that stopping the “flood of inexpensive foreign weapons, most of which have little or no value to the sportsman,” would allow Congress to “cut off a major source of weapons available to criminals.” Moreover, members of Congress opined that a complete ban was necessary to support a comprehensive national response: “Without stiff import controls that are strictly enforced, weapons which are even now illegal to import will continue to. trickle in.” As the Government further points out, the GCA’s prohibition on importing firearms was also necessary to “ensure that criminals cannot bypass the NFA’s registration requirements.” Based on the above, the Court finds that important government objectives underlie Congress’s decision to impose strict controls on the importation of firearms or the use of imported parts to assemble firearms.

Moreover, the Court finds that banning the- importation of firearms and use of imported parts has a “reasonable fit” with Congress’s important government objectives. Unlike in Heller, where the Supreme Court found that D.C.’s challenged regulation requiring handguns to be disabled made it “impossible for citizens to use them for the core lawful purpose of self-defense,” the challenged provisions here restrict only one commercial avenue to acquire firearms.

The laws do not prevent someone from acquiring firearms through alternative means, such as purchasing a firearm domestically or acquiring firearms through transfers. Members of Congress also recognized that previous efforts to grant executive agencies the discretionary authority to impose import controls were not successful. Moreover, the challenged provisions establish some exceptions to the import ban for those lawful purposes for which an imported firearm may be required.

In other words, the “practical impact” and burden of the laws on the core purposes and rights of the Second Amendment are minimal, and the laws are reasonably fitted to accomplish the Government’s purpose. Accordingly, the Court finds that 18 U.S.C. § 922(¿) and § 922(

r) do not violate the Second Amendment. Thus, the Court will grant the Government’s motion to dismiss Plaintiffs Second Amendment challenges to these provisions pursuant to Federal Rule of Civil Procedure 12(b)(6). c. Whether the challenged provisions of the NFA violate the Second Amendment Next, Plaintiff argues that several provisions of the NFA imposing taxation and application requirements on transferring and making certain weapons violate the Second Amendment.

In particular, Plaintiff challenges the following provisions: (1) 26 U.S.C. § 6811, which taxes the transfer of such weapons as machine guns, silencers, ' short barreléd rifles, and short barreled shotguns; (2) 26 U.S.C. § 5812, which establishes the registration and application requirements for transfers of such weapons; and (3) 26 U.S.C. § 5821, which taxes the making of such weapons. Additionally, construing Plaintiffs pro se complaint liberally, it appears that Plaintiff also seeks to challenge 26 U.S.C. § 5822, which establishes registration and application requirements for the making of certain weapons.

As discussed supra, the Court found that Plaintiff lacks standing to challenge 26 U.S.C. § 5811. and 26 U.S.C. § 5812. Accordingly, the Court mil now consider Plaintiffs Second Amendment challenges to 26 U.S.C. § 5821 and § 5822. Pursuant to

Section 5821, a person making a firearm must pay a tax of $200 for each firearm made, while

Section 5822 establishes application and registration requirements for the making of a firearm analogous.to the requirements of 26 U.S.C. § 5812. The Government asserts that Plaintiffs Second Amendment challenge to these provisions fails because the provisions are a longstanding, presumptive lawful measure and because there is no constitutional right to make a firearm without paying taxes on it.

Plaintiff argues that the Government’s registration and taxation scheme was passed to discourage or eliminate firearm sales and that it violates his individual right; t° keep and bear arms guaranteed by the Second Amendment. Plaintiff avers that the Government “does not have the power to tax, and therefore destroy, what it has been forbidden by the Second Amendment to infringe.” To determine whether 26 U.S.C. § 5821 and § 5822 violate Plaintiffs rights as established by the Second Amendment, the Court will again employ the Fifth Circuit’s two-step analysis. Thus, the Court will first consider whether either

section “impinges upon a right protected by the Second Amendment—that is, whether the law regulates conduct that falls within the scope of the Second Amendment’s guarantee.” First, the Court notes that

Section 5821’s $200 tax and

Section 5822’s application requirements for making a firearm do not effect a ban on firearms, but only impose certain tax and registration requirements on the making of a firearm. Additionally, the Court notes that, similar to its discussion of the GCA provisions, under the Fifth Circuit’s holding in National Rifle Association of America, Inc., regulations provided for by the NFA of 1934 may constitute a “longstanding” and presumptively lawful measure.

Based on the foregoing, the Court finds that 26 U.S.C. § 5821 and § 5822’s requirements on making a firearm impose only a minimal burden on Plaintiffs Second Amendment rights. However, the provisions do, in some measure, inhibit a law-abiding,' responsible citizen from making a firearm without first paying the $200 tax and obtaining government approval prior to. making the firearm.

Accordingly, the Court will proceed to step two of the Fifth Circuit’s two-step analysis. ' Under the second step of the Fifth Circuit’s two-step inquiry, the Court must consider “whether' to apply intermediate or strict scrutiny to the law,” and then “determine whether the law survives the proper level of scrutiny.” The appropriate level of scrutiny “depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” When a regulation “threatens a right at the core of the Second Amendment,” such as the right to possess and use. a handgun to defend the home, courts should apply strict scrutiny.

Less severe regulations that do not encroach on the core of the Second Amendment are reviewed under the more lenient “intermediate” scrutiny, which requires the government to demonstrate that there is a “reasonable fit” between the regulation and an “important” government objective. Here, the challenged provisions of the NFA pose even less of a burden on Plaintiffs rights under the Second Amendment than the ban on importation of firearms considered supra, as they do not absolutely prohibit making one’s own firearms and merely imposes a tax and application requirement prior to making the firearm.

Thus, because it cannot be said that the tax threatens a core right of the Second Amendment, the Court finds that intermediate scrutiny is the appropriate level of review to apply here. , As stated supra, a challenged law may survive intermediate scrutiny if there is a “reasonable fit” between the regulation and an “important” government objective/ Prior to the enactment of the NFA, Congress recognized that the' country struggled to control the violence wrought by “gangsters, racketeers, a

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