Case 1:22-cr-00109-DKW Document 155 Filed 09/03/24 Page 1 of 17 PageID.

794

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

UNITED STATES OF AMERICA, Case No. 22-cr-00109-DKW

Plaintiff, ORDER DENYING MOTION TO

DISMISS UNDER THE SECOND
vs. AMENDMENT OR THE
COMMERCE CLAUSE1
CHRISTOPHER CHAN,

Defendant.

Defendant Christopher Chan moves to dismiss Counts 1 and 2 of the Second

Superseding Indictment (“SSI”), contending that his prosecution for possession of

an unregistered short-barreled rifle and/or a machinegun violates the Second

Amendment to the United States Constitution. In the alternative, Chan seeks

dismissal of only Count 2, asserting that Congress lacked authority under the

Commerce Clause to promulgate 18 U.S.C. § 922(o)’s prohibition on possessing

machineguns. Chan fails, however, to show that either a short-barreled rifle or a

machinegun is an “arm” within the plain text of the Second Amendment.

Moreover, as Chan himself acknowledges, his Commerce Clause challenge is

foreclosed by binding Ninth Circuit precedent. Consequently, as more fully

explained herein, Chan’s Motion to Dismiss, Dkt. No. 146, is DENIED.

1
Pursuant to Criminal Local Rule 12.2(a)(1), the Court elects to decide this matter without a
hearing.
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FACTUAL & PROCEDURAL BACKGROUND 2

On August 16, 2022, following reports of erratic behavior, Honolulu Police

Department (“HPD”) officers attempted to conduct a welfare check on Defendant

Christopher Chan at his high-rise residence. Dkt. No. 64 at 4–7. Before they could

do so, however, the officers encountered Chan exiting the parking garage in his

vehicle. Id. at 7–8. Two officers attempted to stop Chan, who instead fled to his

mother’s nearby residence. Id. at 8–9. During that flight, Chan collided with

numerous vehicles—including an HPD SUV—and nearly struck several

pedestrians. Id. HPD officers eventually apprehended Chan attempting to exit the

parking garage of his mother’s high-rise residence. Id. at 9–10. After searching

his vehicle, the officers discovered a rifle bag in the trunk containing a short-

barreled firearm with no serial number or other manufacturer markings. Id. at 11.

Accordingly, on November 17, 2022, Chan was indicted by a federal Grand

Jury on a single count of possession of an unregistered firearm—“namely, a rifle

containing no serial number or appropriate manufacture markings, with a barrel

length measuring approximately 10.5 inches.” Dkt. No. 34 at 2. A Superseding

Indictment, returned on December 22, 2022, slightly modified this charge. Dkt.

2
The Court assumes the parties’ familiarity with the procedural and factual background of this
case and, thus, only sets forth the background necessary for an understanding of the instant
issues. More detailed versions are set forth in the Court’s prior Orders, see Dkt. Nos. 64 & 138,
and will not be repeated here.
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No. 47 at 2. Later, the Government discovered that the same weapon contained an

apparent “machinegun conversion device designed and intended for use in

converting a weapon into a machinegun.” Dkt. No. 71 at 2. Consequently, on

May 25, 2023, the Grand Jury returned the operative Second Superseding

Indictment, which charges Chan with both: (1) possession of an unregistered short-

barreled rifle in violation of various provisions of the National Firearms Act

(“NFA”), 26 U.S.C. §§ 5841, 5845(a)(3), 5861(d), and 5871 (Count 1); and (2)

possession of a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2)

(Count 2). Id. at 2–3.

On July 24, 2024, Chan filed a Motion to Dismiss Under the Second

Amendment or the Commerce Clause. Dkt. No. 146. The Government responded

on August 5, 2024, Dkt. No. 147, and Chan replied on August 12, 2024, Dkt. No.

149. This Order now follows.

STANDARD OF REVIEW

Pursuant to Federal Rule of Criminal Procedure 12(b), “[a] party may raise

by pretrial motion any defense, objection, or request that the court can determine

without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Under this rule, a

defendant may seek dismissal of a “defective” indictment, including those “sought

under a statute that is unconstitutional on its face or as applied.” See United States

v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007) (citing United States v. Lopez, 514

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U.S. 549 (1995)). In ruling on such motions, the Court must “presume the truth of

the allegations in the charging instruments” and may only consider evidence

“appearing on the face of the indictment.” United States v. Jensen, 93 F.3d 667,

669 (9th Cir. 1996). “Although the court may make preliminary findings of fact

necessary to decide the legal questions presented by the motion, the court may not

invade the province of the ultimate finder of fact.” United States v. Nukida, 8 F.3d

665, 669 (9th Cir. 1993) (quotation marks and citation omitted).

DISCUSSION

In his Motion to Dismiss, Chan advances two arguments: (1) that Counts 1

and 2 must be dismissed because the relevant NFA provisions and Section 922(o)

violate the Second Amendment as applied to the instant prosecution; and (2) that

Count 2 must be dismissed because Section 922(o) exceeds Congress’ legislative

authority under the Commerce Clause. The Court addresses each in turn.

I. Second Amendment

The Second Amendment to the United States Constitution 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.” U.S. Const. amend. II.

“Like most rights,” however, “the right secured by the Second Amendment is not

unlimited.” Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008). Accordingly,

in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the

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Supreme Court set forth a two-part test to determine whether firearms regulations

are constitutional under the Second Amendment. This test provides:

[W]hen the Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that conduct. To
justify its regulation . . . the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of firearm
regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct
falls outside the Second Amendment’s “unqualified command.”

Id. at 17 (quoting Konigsberg v. State Bar of California, 366 U.S. 36, 49 n.10

(1961)).

In other words, “Bruen step one involves a threshold inquiry.” 3 United

States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023). The Court must conduct “a

textual analysis” to “determin[e] whether the challenger is part of the people whom

the Second Amendment protects, whether the weapon at issue is in common use

today for self-defense, and whether proposed course of conduct falls within the

Second Amendment.” Id. (quotation marks and citations omitted). Weapons that

are “dangerous and unusual” are not “in common use” and therefore do not fall

3
The parties dispute who bears the burden at this step. See Dkt. No. 147 at 9; Dkt. No. 149 at 2–
3. Because in either case, the Court would find that both short-barreled rifles and machineguns
are “dangerous and unusual weapons” outside the protection of the Second Amendment, the
Court need not and does not resolve this question. See Rupp v. Bonta, – F. Supp. 3d –, 2024 WL
1142061, at *8, 10 n.8 (C.D. Cal. 2024) (noting “neither Bruen nor Alaniz specified who bears
the burden of proving that a weapon is protected by the Second Amendment at the step-one,
plain-text stage.”).
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within the scope of the Second Amendment. 4 See Heller, 554 U.S. at 627; Bruen,

597 U.S. at 21. In determining whether a weapon is dangerous and unusual, the

Ninth Circuit has instructed the district courts to “consider whether the weapon has

uniquely dangerous propensities and whether the weapon is commonly possessed

by law-abiding citizens for lawful purposes.” 5 Fyock v. Sunnyvale, 779 F.3d 991,

997 (9th Cir. 2015), abrogated on other grounds by Bruen, 597 U.S. 1.

If step one is satisfied, the Court will “proceed to Bruen step two, at which

the government must then justify its regulation by demonstrating that it is

consistent with the Nation’s historical tradition of firearm regulation.” Alaniz, 69

F.4th at 1128 (quotation marks and citations omitted). To do so, “the government

must produce representative analogues to demonstrate that the challenged law is

consistent with a historical tradition of regulation.” Id. Such comparators “need

4
Citing Teter v. Lopez, 76 F.4th 938, 950 (9th Cir. 2023), Chan argues that the “dangerous and
unusual” inquiry is more properly undertaken under Bruen step two. See Dkt. No. 149 at 2–5.
Teter is no longer binding on this Court. See Teter v. Lopez, 93 F.4th 1150 (9th Cir. 2024)
(vacating the panel opinion and granting rehearing en banc). Moreover, as another district court
noted, Teter “was in direct tension with Fyock, which expressly holds that dangerous and
unusual weapons are wholly unprotected by the Second Amendment[,] . . . directly contradicted
Alaniz in situating the dangerous-and-unusual inquiry in the second part of the Bruen test[,] [a]nd
[] was out of step with most courts that have considered the issue.” Rupp, – F. Supp. 3d –, 2024
WL 1142061, at *8 n.5; see also United States v. Berger, – F. Supp. 3d –, 2024 WL 449247, at
*2–6 (E.D. Pa. 2024) (rejecting the same argument). As such, the Court undertakes this analysis
under Bruen step one. See Bruen, 597 U.S. at 32 (undertaking the “in common use” analysis at
step one); Dkt. No. 149 at 3 (agreeing that “showing that a firearm is not in common use is the
same thing as showing it is dangerous and unusual.”).
5
Chan appears to concede that both short-barreled rifles and machineguns are “dangerous” for
the purposes of the instant analyses. See Dkt. No. 149 at 13 (“In the context of firearms,
moreover, what the ‘dangerous and unusual’ test really boils down to is whether the firearm is
unusual. All firearms are dangerous.”).
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not be a historical twin,” but rather must be “relevantly similar” by “at least two

metrics: how and why the regulations burden a law-abiding citizen’s right to armed

self-defense.” Id. (quotation marks and citations omitted); accord United States v.

Rahimi, 602 U.S. –, 144 S. Ct. 1889 (2024) (“The law must comport with the

principles underlying the Second Amendment, but it need not be a dead ringer or a

historical twin.” (quotation marks and citation omitted)).

a. Count 1: Short-Barreled Rifles

Chan first challenges Count 1, asserting that: (1) short-barreled rifles are

“arms” within the plain text of the Second Amendment; and (2) that the

Government cannot provide a Founding-era analogue which is “relevantly similar”

to the provisions of the NFA at issue. Dkt. No. 146 at 3–17. With regard to Bruen

step one, the parties principally dispute whether short-barreled rifles constitute

“dangerous and unusual weapons”6 that fall outside the scope of the Second

6
Chan contends that the “dangerous and unusual” test is conjunctive—that is, that “[a] weapon
may not be banned unless it is both dangerous and unusual.” Dkt. No. 146 at 5 (quoting Caetano
v. Massachusetts, 577 U.S. 411, 417 (2016) (Alito, J., concurring)); Dkt. No. 149 at 13–14.
Notably, however, Chan cites only to Justice Alito’s non-binding concurrence in Caetano for this
proposition. See Dkt. No. 146 at 5. Moreover, the lower courts have split over precisely this
issue. Compare Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp. 3d 63, 89–91 (D. Conn. 2023)
(finding that neither Bruen nor Heller compel a conjunctive interpretation), with Delaware State
Sportsmen’s Ass’n, Inc. v. Delaware Dep’t of Safety & Homeland Sec., 664 F. Supp. 3d 584, 595
(D. Del. 2023) (holding that because “[t]he test is ‘dangerous and unusual,’ [] to fall outside the
Second Amendment’s protection, a weapon must check both boxes.”). Here, because the Court
finds that short-barreled rifles and machineguns are both dangerous and unusual, it need not
address whether both elements are necessary under Bruen.
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Amendment.7 Chan claims that because there are “532,725 short-barreled rifles []

registered and lawfully possessed in the United States,” the statistics command a

finding that such weapons are in “common use.”8 Dkt. No. 146 at 6 (quoting

Caetano, 577 U.S. at 420 (Alito, J., concurring)). The Government counters that

registered short-barreled rifles make up a miniscule fraction of firearms in the

United States and that Chan’s arguments “‘run[] smack into Heller’s finding that

short-barreled shotguns are not’ commonly used for self-defense.” Dkt. No. 147 at

6–7 (quoting United States v. Miller, 2023 WL 6300581, at *2 (N.D. Tex. Sept. 27,

2023)).

Joining every other district court to have considered this issue in the wake of

Bruen, the Court agrees with the Government that short-barreled rifles are

“dangerous and unusual weapons” that fall outside the protection of the Second

Amendment.9 As an initial matter, it is far from clear that the number of lawfully

7
The Government does not appear to contest that Chan is an American citizen, and thus, part of
the “people” covered by the Second Amendment. See Dkt. No. 146 at 3; Dkt. No. 147.
8
Chan also claims that because the ATF issued a Final Rule in 2023 which “amended[] the
definition of ‘rifle’ in the NFA to reclassify pistols equipped with stabilizing braces as short-
barreled rifles,” there are now “at least 3 million . . . short-barreled rifles” possessed “for lawful
purposes.” Dkt. No. 146 at 6. This method of calculation, however, is unconvincing,
particularly in light of ongoing litigation over the Final Rule. See Firearms Regul.
Accountability Coal., Inc. v. Garland, – F.4th –, 2024 WL 3737366, at *13 (8th Cir. 2024)
(finding that plaintiffs were likely to succeed on their claims that the Final Rule was arbitrary
and capricious and remanding to the district court to consider the scope of injunctive relief);
Mock v. Garland, 2024 WL 2982056, at *5–6 (N.D. Tex. June 13, 2024) (vacating the Final Rule
as unlawful).
9
At least, the Court is not aware of a single case holding otherwise. See, e.g., Miller, 2023 WL
6300581, at *1–4; United States v. Danielson, 2023 WL 5288049, at *4–5 (D. Minn. Aug. 17,
2023); United States v. Saleem, 659 F. Supp. 3d 683, 692–94 (W.D.N.C. 2023); United States v.
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possessed short-barreled rifles should be the primary consideration in determining

whether such weapons are “unusual and dangerous” within the meaning of the

Second Amendment. Although Chan cites to Justice Alito’s concurrence in

Caetano that the “relevant statistic is that hundreds of thousands of [weapons] have

been sold to private citizens,” this reasoning was not adopted by the majority. See

Dkt. No. 146 at 6; Caetano, 577 U.S. at 420. Moreover, Chan does not provide

any reason why Justice Alito’s approach should be followed, other than generally

concluding that “it is logical, coherent, and correct.” See Dkt. No. 149 at 8; see

also United States v. Lane, 689 F. Supp. 3d 232, 251 (E.D. Va. 2023) (declining to

follow Justice Alito’s Caetano concurrence).

Even assuming that this inquiry is proper, however, the overall number of

lawfully possessed short-barreled rifles says little about whether such weapons are

“in common use,” let alone “in common use today for self-defense.” See Bruen,

597 U.S. at 32 (quotation marks and citations omitted). Indeed, as the Government

points out, 532,725 registered short-barreled rifles may amount to as little as “.13%

Royce, 2023 WL 2163677, at *2–3 (D.N.D. Feb. 22, 2023); United States v. Myers, 2024 WL
2924081, at *3–4 (D. Nev. June 10, 2024); United States v. Rush, 2023 WL 403774, at *2 (S.D.
Ill. Jan. 25, 2023); United States v. Broadbent, 2023 WL 6796468, at *4 (E.D. Cal. Oct. 13,
2023); United States v. Shepherd, 2024 WL 71724, at *4–5 (S.D. Miss. Jan. 5, 2024); United
States v. DeFelice, 2024 WL 3028425, at *6 (D. Conn. June 17, 2024); United States v.
Williams, 695 F. Supp. 3d 1295, 1299–1302 (N.D. Okla. 2023). Nor, despite Chan’s lengthy
Reply, does he address a single one of these cases—many of which were flagged by the
Government in its Opposition. See Dkt. No. 147 at 5–6 n.2; see generally Dkt. No. 149.
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of all firearms in the United States.” 10 Dkt. No. 147 at 7. As such, once put in

context, the numbers Chan cites are far from sufficient to render short-barreled

rifles “typically possessed by law-abiding citizens for lawful purposes.” See

Heller, 554 U.S. at 625; see also United States v. Thompson/Ctr. Arms Co., 504

U.S. 505, 517 (1992) (noting that “short-barreled rifles” are regulated by the NFA

precisely because they are the type of “concealable weapon” which is “likely to be

used for criminal purposes”); Hollis, 827 F.3d at 449–50 (surveying cases and

finding the threshold for “common use” to be in the millions). Consequently, the

Court does not find that short-barreled rifles fall within the plain text of the Second

Amendment.

Moreover and perhaps more importantly, beyond the numbers, the Supreme

Court has repeatedly held that “the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for lawful purposes, such

as short-barreled shotguns.” See Heller, 554 U.S. at 625 (emphasis added);

United States v. Miller, 307 U.S. 174, 178 (1939) (“[W]e cannot say that the

Second Amendment guarantees the right to keep and bear [a short-barreled

10
Chan responds to this statistic by asserting that the number of lawfully possessed short-barreled
rifles has been artificially lowered by the onerous registration requirements of the NFA. See
Dkt. No. 149 at 6–7. Any speculation, however, as to the number of short-barreled rifles that
might otherwise be possessed does not provide grounds for this Court to find today that such
weapons are commonly possessed by law-abiding citizens for lawful purposes, such as self-
defense. See Caetano, 577 U.S. at 420 (Alito, J., concurring); see also Hollis v. Lynch, 827 F.3d
436, 451 (5th Cir. 2016) (noting the Heller majority rejected a similar argument).
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shotgun].”). Although Chan tries to overcome this by arguing that Miller and

Heller no longer control, he provides no reason beyond the purported depth of the

Supreme Court’s Second Amendment analyses and the “different type of weapon

involved here” as to why this should be so. See Dkt. No. 146 at 9–10; Dkt. No.

149 at 14–18. Such arguments are not convincing, particularly given that the

Supreme Court has explicitly characterized Bruen as being “consistent with

Heller,” see 597 U.S. at 19, and federal courts have generally extended the

principle articulated in Miller and Heller with identical force to short-barreled

rifles.11 See, e.g., Myers, 2024 WL 2924081, at *3 (“Heller’s statement that the

Second Amendment does not apply to short-barreled shotguns applies with equal

force to short-barreled rifles.”); Rush, 2023 WL 403774 at *2 (“There is no reason

the exclusion from Second Amendment protection of ‘dangerous and unusual

firearms’ should not apply as well to short-barreled rifles . . . Bruen did not change

this”); United States v. Cox, 906 F.3d 1170, 1185–86 (10th Cir. 2018) (explaining

that there is “no meaningful distinction” between a short-barreled shotgun and

short-barreled rifle as each is “a long gun with a shortened barrel” which “is both

dangerous, because its concealability fosters its use in illicit activity, and unusual,

11
To the extent that Chan characterizes Miller and Heller’s holdings regarding short-barreled
weapons as mere “dicta,” see Dkt. No. 149 at 15, courts “do not treat considered dicta from the
Supreme Court lightly.” United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.
2000) (en banc). Indeed, rather than “blandly shrug them off because they were not a holding,”
the lower courts “must accord [them] appropriate deference . . . as prophecy of what that Court
might hold.” Id.
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because of its heightened capability to cause damage.” (quotation marks and

citations omitted)). Accordingly, this Court also follows the reasoning outlined in

Miller and Heller and joins the “[n]umerous lower courts [which] have held, post-

Bruen, that unregistered short-barreled rifles are not protected by the Second

Amendment because they are ‘dangerous and unusual weapons’ which are not

typically possessed by law-abiding citizens for lawful purposes.” Myers, 2024 WL

2924081, at *3. Chan’s motion to dismiss Count 1 of the SSI under the Second

Amendment is therefore DENIED. 12

b. Count 2: Machineguns

Next, Chan challenges Count 2 of the SSI, similarly asserting that: (1)

machineguns are “arms” protected by the Second Amendment; and (2) the

Government cannot provide a historical analogue requiring complete disarmament

of any type of firearm. See Dkt. No. 146 at 3–17. This argument, however, has at

least one glaring issue. As Chan acknowledges, in United States v. Henry, 688

F.3d 637 (9th Cir. 2012), the Ninth Circuit held that because “machine guns are

highly ‘dangerous and unusual weapons’ that are not ‘typically possessed by law-

12
Because the Court finds that short-barreled rifles are “dangerous and unusual weapons” which
fall outside the scope of the Second Amendment, it need not and does not reach whether Chan’s
conduct is covered by the plain text of the Second Amendment or whether the Government has
provided a sufficient historical analogue under Bruen step two. See Dkt. No. 146 at 3; Dkt. No.
147 at 10; Dkt. No. 149 at 8; Alaniz, 69 F.4th at 1128.
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abiding citizens for lawful purposes’ . . . the Second Amendment does not apply to

machine guns.” Id. at 640.

Undeterred, Chan asserts that because Henry applied the pre-Bruen interest-

balancing approach, “the Court should view Henry as overruled” and “no longer

binding on this Court.” See Dkt. No. 146 at 7–8; see also Dkt. No. 149 at 18–21.

This argument, however, lacks merit. In the Ninth Circuit, “where the reasoning or

theory of prior circuit authority is clearly irreconcilable with the reasoning or

theory of intervening higher authority, a [court] should consider itself bound by the

later and controlling authority and should reject the prior circuit opinion as having

been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)

(emphasis added). “The clearly irreconcilable requirement is a high standard . . .

[i]t is not enough for there to be some tension between the intervening higher

authority and prior circuit precedent, or for the intervening higher authority to cast

doubt on the prior circuit precedent.” Close v. Sotheby’s, Inc., 894 F.3d 1061,

1073 (9th Cir. 2018) (quotation marks and citations omitted). Rather, “[s]o long as

the court can apply [the] prior circuit precedent without running afoul of the

intervening authority it must do so.” Id. (quotation marks and citation omitted).

Here, there is no indication that Henry is “clearly irreconcilable” with Bruen

or its progeny. Notably, contrary to Chan’s assertions, the Henry court never

reached the interest-balancing step assertedly prohibited by Bruen. See Henry, 688

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F.3d at 640; Dkt. No. 146 at 8. Rather, the Ninth Circuit determined that

machineguns are “dangerous and unusual weapons . . . not typically possessed by

law-abiding citizens for lawful purposes” under step one of the pre-Bruen test,

which required it to determine whether Section 922(o) came within the “scope of

the [Second Amendment] right as originally understood . . . based on its historical

meaning.” Henry, 688 F.3d at 640; Bruen, 597 U.S. at 18 (quotation marks and

citations omitted). Far from being “clearly irreconcilable” with Bruen, the

Supreme Court explicitly affirmed this approach, explaining that it was “broadly

consistent with Heller.” Bruen, 597 U.S. at 19. As a result, Henry remains

binding precedent, such that this Court must find that machineguns are “dangerous

and unusual weapons . . . not entitled to Second Amendment protection.” 13 Henry,

688 F.3d at 640; cf. United States v. Duarte, 101 F.4th 657, 664–666 (9th Cir.

2024) (finding Ninth Circuit firearms precedent no longer controlled where it “did

not follow the textually and historically focused ‘mode of analysis’ that Bruen

established”), vacated and reh’g en banc granted, 108 F.4th 786 (9th Cir. 2024).

Even if Henry did not control,14 the Court would still find that machineguns

13
Indeed, as far as the Court is aware, every other district court within this Circuit to have
considered this issue has similarly found that Henry remains good law. See, e.g., United States v.
Kittson, 2023 WL 5015812, at *2 (D. Or. Aug. 7, 2023); Broadbent, 2023 WL 6796468, at *4;
Cox v. United States, 2023 WL 4203261, at *7 (D. Alaska June 27, 2023).
14
Of course, even if the Court was not bound by Henry, it would be bound by Heller, which
indicated that it would be “startling” for the Second Amendment to encompass machineguns.
See Heller, 554 U.S. at 624, 627.
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are “dangerous and unusual weapons”, which fall outside the protection of the

Second Amendment. As before, Chan relies on statistics, claiming that because

there are “741,146 lawfully registered and possessed machineguns,” such weapons

are necessarily in “common use” by “law-abiding citizens for lawful purposes

today.”15 Dkt. No. 146 at 6–7 (citing Caetano, 577 U.S. at 420 (Alito, J.,

concurring)). This argument, however, fails for the same reasons already

discussed above. See supra 8–10. Even presuming that the numerical approach is

the correct inquiry, the number of machineguns, in the abstract, does not establish

such weapons are in common use by law-abiding citizens for lawful purposes such

as self-defense. Indeed, when evaluated in context, it appears that the precise

opposite is true. See United States v. Wilson, 2024 WL 1144251, at *3 (N.D. Tex.

Mar. 15, 2024) (“While correct that the number of civilian-owned machineguns

has increased to about 740,000 as of May 2021 . . . this amount remains too

insignificant for machineguns to be considered in common use, especially when

factoring in the total increase in firearm usage nationwide”); United States v.

Simien, 655 F. Supp. 3d 540, 553 (W.D. Tex. 2023) (“Although the number of

civilian-owned machineguns has increased to about 740,000, this amount—which

15
Chan claims that the number of machineguns may be even higher due to the “estimated
280,000 to 520,000 legal bump stock devices in circulation in the United States.” Dkt. No. 146
at 7. This argument, however, is unavailing in light of the Supreme Court’s recent decision in
Garland v. Cargill, 602 U.S. 406 (2024), which held that such devices are not machineguns. See
Dkt. No. 147 at 17 n.14.
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is less than .2% of total firearms in the United States—remains too insignificant for

machineguns to be considered in common use.”). As such, in line with nearly

every district court to have addressed Section 922(o) post-Bruen, this Court

concludes that machineguns remain “dangerous and unusual weapons” that are not

entitled to the protections of the Second Amendment.16 Chan’s motion to dismiss

Count 2 of the SSI pursuant to the Second Amendment is therefore DENIED. 17

II. Commerce Clause

Chan further argues that even if Count 2 survives Bruen, it must be

dismissed, as Section 922(o) exceeds Congress’ legislative power under the

Commerce Clause. See Dkt. No. 146 at 17–21. According to Chan, Section

922(o) offends the Commerce Clause because it “does not contain an express

interstate commerce element” and the “simple possession of a firearm, even an

16
See, e.g., Lane, 689 F. Supp. 3d at 250–53; Kittson, 2023 WL 5015812, at *2–3; Cox, 2023 WL
4203261, at *7; Simien, 655 F. Supp. 3d at 553; Wilson, 2024 WL 1144251, at *3; Berger, – F.
Supp. 3d –, 2024 WL 449247, at *7; United States v. Kazmende, 2023 WL 3872209, at *2–4
(N.D. Ga. May 17, 2023); DeWilde v. United States, 2023 WL 4884582, at *6–8 (D. Wyo. July
17, 2023); United States v. Dixon, 2023 WL 2664076, at *2–3 (N.D. Ill. Mar. 28, 2023); United
States v. Fisher, 2024 WL 589115, at *1–3 (W.D.N.C. Feb. 13, 2024); United States v. Sturgeon,
2023 WL 6961618, at *3 (E.D. Ky. Oct. 20, 2023); United States v. Alsenat, – F. Supp. 3d –,
2024 WL 2270209, at *3–7 (S.D. Fla. 2024); United States v. Hicks, 2024 WL 1840326, at *5
(W.D. La. Apr. 26, 2024); United States v. Hernandez, – F. Supp. 3d –, 2024 WL 964213, at *4–
5 (D. Del. 2024); United States v. Berríos-Aquino, 2024 WL 1468488, at *5 (D.P.R. Apr. 4,
2024); United States v. Mitchell, – F. Supp. 3d –, 2024 WL 2272275, at *3–5 (N.D. Ohio 2024);
United States v. Bachmann, 2024 WL 730489, at *2–3 (M.D. Fla. Feb. 22, 2024); United States
v. Cousar, 2024 WL 1406898, at *11–13 (D. Kan. Apr. 2, 2024); but see, e.g., United States v.
Morgan, 2024 WL 3936767, at *1–2 (D. Kan. Aug. 26, 2024).
17
As before, because the Court concludes that machineguns do not fall within the plain text of the
Second Amendment, it need not and does not reach the second step of the Bruen test. See supra
n.12.
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Case 1:22-cr-00109-DKW Document 155 Filed 09/03/24 Page 17 of 17 PageID.810

automatic firearm, is the type of noneconomic, private conduct that the Commerce

Clause cannot reasonably reach.” Dkt. No. 146 at 18, 20. As such, Chan claims

that his prosecution under Section 922(o) is unconstitutional and must be

dismissed.

As Chan recognizes, however, this argument is again foreclosed by Ninth

Circuit precedent—specifically, United States v. Stewart, 451 F.3d 1071, 1078 (9th

Cir. 2006), which upheld Section 922(o)’s constitutionality under the Commerce

Clause. See Dkt. No. 146 at 20 (“Chan recognizes that this Court is likely bound

by Stewart []’s holding.”); Henry, 688 F.3d at 642 (explaining that despite Heller,

“Stewart’s Commerce Clause holding remains binding precedent in our circuit.”).

Consequently, this Court must “reject [Chan’s] claim that Congress did not have

authority to enact § 922(o)’s ban on machineguns pursuant to the Commerce

Clause.” Henry, 688 F.3d at 642. Chan’s alternative motion to dismiss Count 2 on

Commerce Clause grounds is, therefore, DENIED.

CONCLUSION

For the reasons set forth herein, Chan’s Motion to Dismiss Under the Second

Amendment or the Commerce Clause, Dkt. No. 146, is DENIED.

IT IS SO ORDERED.

DATED: September 3, 2024 at Honolulu, Hawai‘i.

___________________________
Derrick K. Watson
Chief United States District Judge
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