## Facts

- Anchorage police responded to reports of gunfire at Matthew Wayne Henry’s residence and recovered numerous shell casings.
- Pursuant to a warrant, officers searched Henry’s home and seized a loaded .308-caliber rifle and an empty magazine found under his bed.
- State charges for discharging firearms while intoxicated were dismissed after the state declined to prosecute.
- Police later received an anonymous tip that Henry had converted the seized rifle into a machine gun.
- ATF examination determined the rifle had been converted to fire automatically.
- Federal agents obtained a warrant and searched Henry’s residence, finding numerous firearms, gun parts, conversion instructions, and an auto-sear used to convert rifles to automatic fire.
- Henry was federally indicted for unlawful possession of a machine gun and for possession of an auto-sear, both under 18 U.S.C. §§ 922(o)(1) and 924(a)(2).
- The district court denied Henry’s motion to dismiss on Second Amendment and Commerce Clause grounds, and Henry was convicted.

## Issues

1. Whether the Second Amendment protects possession of a homemade machine gun in the home, making 18 U.S.C. § 922(o) unconstitutional as applied.
2. Whether 18 U.S.C. § 922(o)’s prohibition on machine-gun possession exceeds Congress’s authority under the Commerce Clause.

## Decision

- The Ninth Circuit affirmed Henry’s convictions.
- The court held that machine guns are “dangerous and unusual weapons” outside the Second Amendment’s scope as described in District of Columbia v. Heller.
- The court held that § 922(o) is a valid exercise of Congress’s Commerce Clause power under binding circuit precedent.

## Legal Principles

- The Second Amendment does not protect weapons that are “dangerous and unusual” and not typically possessed by law-abiding citizens for lawful purposes.
- Machine guns, including homemade machine guns possessed in the home, fall outside Second Amendment protection under Heller’s framework.
- Congress may regulate intrastate possession of items when doing so is a necessary part of a comprehensive regulatory scheme addressing an interstate market.
- In the Ninth Circuit, prior precedent upholding § 922(o) under the Commerce Clause controls later challenges raising the same theory.

## Conclusion

The Ninth Circuit held that the federal machine-gun possession ban in 18 U.S.C. § 922(o) is constitutional because machine guns are not protected “arms” under the Second Amendment and, in any event, the statute is authorized by Congress’s Commerce Clause power.


United States v. Henry, 688 F.3d 637 (9th Cir. 2012)