Hollis V Holder Opening Brief

Case: 15-10803 Document: 00513247075 Page: 1 Date Filed: 10/26/2015
No. 15-10803
In The
United States Court of Appeals

for the
Fifth Circuit
JAY AUBREY ISAAC HOLLIS, Individually and as

Trustee of the Jay Aubrey Isaac Hollis Revocable Living Trust,
Plaintiff-Appellant,
v.
LORETTA E. LYNCH, Attorney General of the United States;

THOMAS E. BRANDON, Acting Director of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives,
Defendants-Appellees.
_____________________________
On Appeal from the United States District Court for the Northern District
of Texas, Dallas Division, USDC No. 3:14-CV-3872
The Honorable Judge Barbara M.G. Lynn
BRIEF FOR PLAINTIFF-APPELLANT
ALAN ALEXANDER BECK, ESQ. STEPHEN DEAN STAMBOULIEH, ESQ.

LAW OFFICE OF ALAN BECK STAMBOULIEH LAW, PLLC
4780 Governor Drive P.O. Box 4008
San Diego, California 92122 Madison, Mississippi 39130
(619) 905-9105 (601) 852-3440
Attorneys for Plaintiff-Appellant

Jay Aubrey Isaac Hollis, Individually and as
Trustee of the Jay Aubrey Isaac Hollis Revocable Living Trust
COUNSEL PRESS • (888) 700-3226

CERTIFICATE OF INTERESTED PERSONS
Jay Isaac Hollis v. Loretta Lynch, et al., No. 15-10803
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
Plaintiff:
Jay Aubrey Isaac Hollis, Individually and as Trustee of the Jay Aubrey Isaac Hollis
Revocable Living Trust
Defendants:
Loretta Lynch
Thomas E. Brandon
Counsel:
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
Alan Alexander Beck

Law Office of Alan Beck
Elisha M. Hollis
Attorney at Law
Daniel M. Riess
Eric J. Soskin
Michael S. Raab
Patrick J. Nemeroff
U.S. Department of Justice
/s/ Stephen D. Stamboulieh

Stephen D. Stamboulieh
Counsel for Appellant
i
STATEMENT REGARDING ORAL ARGUMENT
The Appellant respectfully requests oral argument in this case. The district
court held that the Appellant did not have standing to challenge various federal
laws on Second Amendment and Fourteenth Amendment grounds and also that the
Second Amendment does not extend to machineguns. The Appellant believes that
oral argument could provide substantial assistance to this Court in understanding
the important issues in this case.
ii
TABLE OF CONTENTS
Pages(s)
CERTIFICATE OF INTERESTED PERSONS .........................................................i
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
TABLE OF AUTHORITIES .....................................................................................v
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF THE ISSUES...............................................................................1
STATEMENT OF THE CASE ..................................................................................1
A. STATUTORY AND REGULATORY BACKGROUND .................... 1
B. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY ..............................................................................................6
STANDARD OF REVIEW .......................................................................................8
SUMMARY OF THE ARGUMENT ......................................................................10
ARGUMENT ...........................................................................................................11
I. STANDING ...................................................................................................17
A. Mr. Hollis Has Standing To Bring His Second Amendment

Complaint ............................................................................................17
II. THE CHALLENGED LAWS ARE UNCONSTITUTIONAL

FACIALLY AND AS-APPLIED TO HOLLIS ............................................20
A. The Challenged Laws Burden Second Amendment Rights ................ 20
i. Defendants Misapply Heller’s Dangerous and Unusual

Language ...................................................................................20
ii. Defendants Complete Ban on Machineguns is

Categorically Invalid .................................................................26
iii. U.S. v. Marzzarella Supports Applying a Categorical

Approach ...................................................................................27
iii
iv. The 1934 Hearing on National Firearms Act Supports

That A Categorical Ban Would Be Unconstitutional ...............29
v. The Ban on Machineguns in § 922(o) is not

Longstanding or Presumptively Lawful ...................................29
vi. If Means End Scrutiny is Necessary, Strict Scrutiny

Should Be Applied ....................................................................32
vii. Even if Means End Scrutiny Applies, Defendants Fail

Their Burden .............................................................................39
viii. Defendants Misread United States v. Miller .............................45
ix. Miller Provides the Outer Limits for the Second

Amendment Right .....................................................................47
x. “Common Use” Cannot Be a Test ...........................................49
III. THE DISTRICT COURT COMMITTED TWO ADDITIONAL

ERRORS ........................................................................................................50
A. The District Court Erred in Denying Appellant’s Rule 56(d)

Motion .................................................................................................50
B. The District Court Erred in Dismissing Appellant’s

Complaint Without Allowing Appellant to Amend His
Complaint ............................................................................................52
CONCLUSION ........................................................................................................55
CERTIFICATE OF SERVICE ................................................................................57
REQUIRED CERTIFICATIONS ............................................................................58
iv
TABLE OF AUTHORITIES
Cases
44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ..............................................................................................40
Baron Snigge v. Shirton,

79 E.R. 173 (1607) ......................................................................................... 21, 22
Beverly v. Wal-Mart Stores, Inc.,

428 Fed. Appx. 449 (5th Cir. 2011)(unpublished) ...............................................50
Bustos v. Martini Club Inc.,

599 F.3d 458 (5th Cir. 2010) ..................................................................................9
Citizens United v. Fed. Election Commn.,

558 U.S. 310 (2010) ..............................................................................................33
Conley v. Gibson,
355 U.S. 41, 48, 78 S. Ct. 99, 2 L. Ed. 2d 80 .......................................................54
Davis v. Bayless,
70 F.3d 367 (5th Cir. 1995) ..............................................................................9, 51
Davis v. FEC,
554 U.S. 724 (2008) ..............................................................................................17
District of Columbia v. Heller,

554 U.S. 570 (2008) ...................................................................................... passim
English v. State,
35 Tex. 473 (1871)................................................................................................25
Foman v. Davis,
371 U.S. 178 (1962) ....................................................................................... 53, 54
v
Fotoudis v. Honolulu,
2014 WL 4662385 (D. Haw. 2014) ......................................................................44
Friedman v. City of Highland Park, Illinois,

784 F.3d 406 (7th Cir. 2015) ................................................................................36
Groupe SEB USA, Inc. v. Euro-Pro Operating LLC,

2014 WL 7172253 (3d Cir. Dec. 17, 2014) ..........................................................34
Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ..................................................................... 26, 36
In re Volkswagen of Am., Inc.,

545 F.3d 304 (5th Cir. 2008) ............................................................................ 9-10
Intl. Shortstop, Inc. v. Rally’s, Inc.,

939 F.2d 1257 (5th Cir. 1991) ..............................................................................50
Lone Star Ladies Inv. Club v. Schlotzsky’s Inc.,

238 F.3d 363 (5th Cir. 2001) ................................................................................54
Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ..............................................................................................40
Mance v. Holder,
74 F. Supp. 3d 795 (N.D. Tex. 2015) ...................................................................18
Mance v. Lynch.
Case No. 15-10311 ...............................................................................................19
McClure v. Ashcroft,
335 F.3d 404 (5th Cir. 2003) ................................................................................10
McDonald v. City of Chicago,

130 S. Ct. 3020 (2010) ............................................................................. 10, 12, 13
Meese v. Keene,
481 U.S. 465, 107 S. Ct. 1862, 95 L. Ed. 2d 415 (1987) .....................................34
vi
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) ................................................................................44
Nat’l Rifle Ass’n of Am., Inc. v.

Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185 (5th Cir. 2012). ....................................................................... passim
Natl. Fedn. of the Blind of Texas, Inc. v. Abbott,

647 F.3d 202 (5th Cir. 2011) ................................................................................17
O’Neill v. State,
16 Ala. 65 (1849) ..................................................................................................25
Priester v. JP Morgan Chase Bank, N.A.,

708 F.3d 667 (5th Cir. 2013) ..................................................................................9
Ramming v. U.S.,
281 F.3d 158 (5th Cir. 2001) ..................................................................................9
Rex v. Knight,
90 Eng. Rep. 330 (K.B. 1686) ..............................................................................23
Rex v. Rowland Phillips,

98 E.R. ( 1385 ) .....................................................................................................22
State v. Langford,
10 N.C. (3 Hawks) 381 (1824) .............................................................................25
State v. Lanier,
71 N.C. 288 (1874) ...............................................................................................26
Thomas v. Review Bd. of Ind. Employment Sec. Div.,

450 U.S. 707 (1981) ..............................................................................................39
Time Warner Cable, Inc. v. Hudson,

667 F.3d 630 (5th Cir. 2012) ..................................................................................8
Turner Broad. Sys. v. F.C.C.,

520 U.S. 180 (1997) ..............................................................................................40
vii
Tyler v. Hillsdale County Sheriff’s Dept.,

775 F.3d 308 (6th Cir. 2014), reh’g en banc granted, opinion vacated
(Apr. 21, 2015)......................................................................................................33
United States v. Chester,

628 F.3d 673 (4th Cir. 2010) ......................................................................... 37, 40
United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) ..............................................................................40
United States v. Clark, et al.,

2:10-cr-01047-ROS ..............................................................................................51
United States v. Emerson,

270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002) ........................55
United States v. Golding,

332 F.3d 838 (5th Cir. 2003) ................................................................................31
United States v. Hare,

26 F. Cas. 148 (C.C.D. Md. 1818) ........................................................................21
United States v. Kirk,

105 F.3d 997 (5th Cir. 1997) ................................................................................31
United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) ...................................................................... 27, 28, 38
United States v. Miller,

307 U.S. 174 (1939) ...................................................................................... passim
United States v. Reese,

627 F.3d 792 (10th Cir. 2010) .............................................................................40
Wright v. Barnhart,
37 Fed. Appx. 88 (5th Cir. 2002)............................................................................9
viii
Statutes
10 U.S.C. § 311(b) ...................................................................................................14
18 U.S.C. § 921 ....................................................................................................5, 34
18 U.S.C. § 922(o) ........................................................................................... passim
18 U.S.C. § 3571(b) ...................................................................................................2
18 U.S.C. § 921(a)(1) .................................................................................................6
26 U.S.C. § 5812 ........................................................................................................2
26 U.S.C. § 5822 ........................................................................................................2
26 U.S.C. § 5845 ..................................................................................................1, 52
26 U.S.C. § 5845(b) ...................................................................................................2
26 U.S.C. § 5861(d) ...................................................................................................2
26 U.S.C. § 7701(a)(1) ........................................................................................... 5-6
28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1331 ........................................................................................................1
28 U.S.C. § 1343 ........................................................................................................1
28 U.S.C. § 1346 ........................................................................................................1
28 U.S.C. § 2201 ........................................................................................................1
28 U.S.C. § 2202 ........................................................................................................1
Militia Act of 1903 ............................................................................................ 13, 46
Tex. Penal Code Ann. § 46.01 .................................................................................52
The Militia Act of 1792 .................................................................................... 13, 46
ix
The National Defense Act of 1916 ..........................................................................13
Other Authorities
132 Cong. Rec. H1750 (1986) ...................................................................................4
Armor Piercing Ammunition and the Criminal Misuse of and Availability

of Machineguns and Silencers: Hearings on H.R. 641 and Related bills
Before the Committee on the Judiciary, 98th Congress, 1st Sess. 132
(1984). ...................................................................................................................42
Centers for Disease Control: Number of Deaths from 113 Selected Causes
- Table 13 (2011) ..................................................................................................43
Charles Humphreys, A COMPENDIUM OF THE COMMON LAW IN

FORCE IN KENTUCKY 482 (1822)...................................................................24
David Caplan, The Right of the Individual to Bear Arms: A Recent Judicial
Trend, DET. L. C. REV. 789 (1982) ....................................................................23
Declaration of Independence, Clause 2, July 4, 1776..............................................16
James Wilson, WORKS OF THE HONOURABLE JAMES WILSON

(Bird Wilson ed., 1804) ........................................................................................24
John A. Dunlap, THE NEW-YORK JUSTICE 8 (1815) ........................................24
Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF

AN ANGLO-AMERICAN RIGHT 104-05 (1994)..............................................23
Marianne W. Zawitz, Guns Used in Crime, U.S. DEPARTMENT OF

JUSTICE (July 1995)............................................................................................42
Michael Planty, Ph.D., and Jennifer L. Truman, Ph.D., Firearm Violence,

1993-2011, U.S. DEPARTMENT OF JUSTICE (May 2013) .............................43
National Firearms Act: Hearings Before the House Committee on Ways

and Means, 73rd Cong., 2d Sess., 6 (1934) ............................................................2
x
Treatises
4 William Blackstone, COMMENTARIES ON THE LAWS OF

ENGLAND 148-49 (1769) ...................................................................................23
A Treatise on the Criminal Law of the United States by Francis Whartson

(1874) ....................................................................................................................21
TREATISE ON THE PLEAS OF THE CROWN, ch. 63, § 9 (Leach ed.,

6th ed. 1788) .........................................................................................................23
William Oldnall Russell, A TREATISE ON CRIMES AND

INDICTABLE MISDEMEANORS 271 (1826)...................................................25
xi
STATEMENT OF JURISDICTION
Appellant invoked the district court’s jurisdiction under 28 U.S.C. §§ 2201,
2202, 1331, 1343 and 1346. ROA.10. The district court dismissed Appellant’s
claims on August 7, 2015. ROA.788, RE-47. Appellant timely filed his Notice of
Appeal on August 18, 2015. ROA.829, RE-48. This Court has jurisdiction under
28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
Whether the district court erred in granting Defendants’ Motion to Dismiss
or in the Alternative for Summary Judgement, when it held that: (A) Defendants’
conduct does not violate the Equal Protection Clause of the Fifth Amendment; (B)
18 U.S.C. § 922(o) and 26 U.S.C. § 5845 are constitutional facially and as-applied
to Appellant; (C) Appellant’s Due Process rights were not violated by the Bureau
of Alcohol, Tobacco, Firearms and Explosives (“BATFE”); (D) Appellant was not
entitled to leave to amend his Complaint; and (E), Appellant lacked standing to
bring his Second Amendment challenge.
STATEMENT OF THE CASE
A. STATUTORY AND REGULATORY BACKGROUND
The National Firearms Act (“NFA”) regulates the manufacture and transfer of
certain firearms by, in sum, requiring a person proposing to make or transfer an
NFA firearm to: (1) file an application with the BATFE; (2) obtain BATFE
1
approval; (3) have the firearm registered in the National Firearms Registration and
Transfer Record (completed by BATFE upon approval); and (4) pay a $200.00 tax
which is evidenced by the BATFE’s attachment of a tax stamp on the application,
which is then returned to the maker or transferor. 26 U.S.C. §§ 5812 and 5822.
Possession of an NFA firearm not registered to the possessor is a felony punishable
by ten years imprisonment and a fine of $250,000.00. 26 U.S.C. § 5861(d), 18
U.S.C. § 3571(b). Machineguns, defined under federal law as any firearm capable
of firing more than one round automatically by a single function of the trigger, fall
under the NFA’s purview. 26 U.S.C. § 5845(b).
The constitutionality of the original NFA bill was debated, with then-
Attorney General Homer Cummings admitting that a ban on machineguns may not
survive Constitutional scrutiny unless reached through Congress’ power to tax.
National Firearms Act: Hearings Before the House Committee on Ways and
Means, 73rd Cong., 2d Sess., 6 (1934). Cummings denied that machineguns could
be banned, because “we have no inherent police power to go into certain localities
and deal with local crime. It is only when we can reach those things under the
interstate commerce provision, or under the use of the mails, or by the power of
taxation, that we can act.” ROA.469. Specifically, Cummings felt that, if it were
purely a taxing statute, it would survive scrutiny. The following exchange is on
point:
2
Mr. David J. Lewis, Maryland: … Lawyer though I am, I have

never quite understood how the laws of the various States have been
reconciled with the provision in our Constitution denying the privilege
to the legislature to take away the right to carry arms. Concealed-
weapon laws, of course, are familiar in the various states; there is a
legal theory upon which we prohibit the carrying of weapons – the
smaller weapons.
Attorney General Homer Cummings: … Machine guns, however,

are not of that class. Do you have any doubt as to the power of the
Government to deal with machine guns as they are transported in
interstate commerce?
Mr. Lewis: I hope the courts will find no doubt on a subject like this,
General; but I was curious to know how we escaped that provision in
the Constitution.
AG Cummings: Oh, we do not attempt to escape it. We are dealing

with another power, namely, the power of taxation, and of regulation
under the interstate commerce clause. You see, if we made a statute
absolutely forbidding any human being to have a machine gun, you
might say there is some constitutional question involved. But when
you say “We will tax the machine gun” and when you say that “the
absence of a license showing payment of the tax has been made
indicates that a crime has been perpetrated,” you are easily within the
law.
Mr. Lewis: In other words, it does not amount to prohibition, but

allows of regulation.
AG Cummings: That is the idea. We have studied that very

carefully.
ROA.480.
Prior to 1986, registered machineguns were involved in so few crimes that the
then Director of the BATFE, Stephen E. Higgins, stated during congressional
3
hearings that “machineguns which are involved in crimes are so minimal so as not
to be considered a law enforcement problem.” ROA.439-440. Despite no evidence
of machineguns having any effect on interstate commerce, Congress banned an
entire class of firearms that were rarely, if ever, used in crime, without evidence it
would yield to a reduction in crime.
18 U.S.C. § 922(o) generally bans the transfer or possession of a
machinegun manufactured after May 19, 1986. The statute provides:
(1) Except as provided in paragraph (2), it shall be unlawful for

any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to—
(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or
agency thereof or a State, or a department, agency, or
political subdivision thereof; or
(B) any lawful transfer or lawful possession of a
machinegun that was lawfully possessed before the date
this subsection takes effect.
This provision was enacted in 1986 as §102(9) of the Firearm Owners’
Protection Act, which amended the GCA of 1968. The legislative history of this
amendment is, for the most part, nonexistent, except for the mention on the floor
by its sponsor, Representative Hughes, when he stated “I do not know why anyone
would object to the banning of machine guns.” 132 Cong. Rec. H1750 (1986)
4
(statement of Rep. Hughes). While the House vote on the amendment failed, the
amendment still made it into the final bill.1
The prohibition on machineguns does not apply to all machineguns. Any
machinegun lawfully owned before May 19, 1986 may still be transferred or
possessed. Accordingly, there are tens of thousands, if not hundreds of thousands,
of machineguns lawfully possessed by private individuals and, but for §922(o),
there would likely be hundreds of thousands more lawfully possessed by private
individuals. In fact, one of the most popular sporting rifles in existence today, the
AR-15 rifle, is merely a semi-automatic version of the M-16 machinegun.
The term “person” is defined in the GCA to mean “any individual, corporation,
company, association, firm, partnership, society, or joint stock company.” See 18
U.S.C. § 921. The term “person” does not include an unincorporated trust. The
BATFE, in an opinion letter dated March 17, 2014 to Dakota Silencer in Sioux
Falls, South Dakota, referenced the “person” definition and stated: “[u]nlike
individuals, corporations, partnerships, and associations; unincorporated trusts do
not fall within the definition of "person" in the GCA.” ROA.28-29. Since by the
BATFE’s own admission, the term “person” in the GCA does not include an
unincorporated trust, such a trust is not subject to the prohibition in § 922(o).
While an unincorporated trust falls under the definition of “person” in the NFA, 26
1
See Floor Vote on Hughes Amendment: https://www.youtube.com/watch?v=a6Mx2UcSEvQ
5
U.S.C. §7701(a)(1), a trust is not included in the definition of “person” under the
GCA. 18 U.S.C. §921(a)(1). Accordingly, a trust wishing to make a machinegun
on a Form 1 is subject to the provisions of the NFA, but is not subject to the
GCA’s prohibition on possession of post-1986 machineguns.
B. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Appellant Jay Aubrey Isaac Hollis, as trustee of the Jay Aubrey Isaac Hollis
Revocable Living Trust (“the Trust”), submitted the proper application to the
BATFE pursuant to the NFA for authority to manufacture an M-16 style
machinegun from an AR-15 semi-automatic lower receiver owned by the Trust.
On May 14, 2014, an application was submitted to the BATFE on ATF Form
5320.1 (this form is referred to in the industry as a “Form 1”) to make a
machinegun. Along with the Form 1, Appellant submitted the required $200.00
making tax. That Form 1 was approved on September 8, 2014. On or about
September 10, 2014, Hollis received a phone call from the BATFE stating that the
application was mistakenly approved. ROA.366.
A few days later, Special Agent Aaron R. Wheeler, BATFE, Dallas Division,
contacted Plaintiff to arrange a time to meet so he could deliver a letter. The letter,
from William J. Boyle, III, Chief of the NFA Branch, advised Plaintiff that the
“[B]ATF[E] may not approve any private person’s application to make and register
a machinegun after May 19, 1986” and “if you have already made this
6
machinegun, please abandon it to the ATF Special Agent who is delivering this
letter to you.” ROA.34.
The letter stated, in part,
The fact that an unincorporated trust is not included in the definition

of “person” under the GCA does not mean that an individual may
avoid liability under section 922(o) by placing a machinegun “in
trust.” Where a trust is not an entity recognized as a “person” under
the applicable law, it cannot make or hold property and is disregarded.
Consequently, in terms of an unincorporated trust, ATF must
disregard such a non-entity under the GCA and consider the
individual acting on behalf of the trust to be the proposed
maker/possessor of the machinegun.
ROA.35.
Mr. Hollis then filed his Complaint for Declaratory and Injunctive Relief on
October 30, 2014. ROA.8. Defendants filed their Motion to Dismiss, or in the
Alternative, For Summary Judgement on January 16, 2015. ROA.74. Hollis filed
his Response in Opposition to Defendants’ Motion to Dismiss, or in the
Alternative, for Summary Judgement on February 4, 2015. ROA.310. The
Appellant’s Brief in Opposition was filed simultaneously with his Response in
Opposition. ROA.315. The Appellant additionally included an Affidavit in his
Brief in Opposition to support his request for discovery under Rule 56(d).
ROA.367.
Defendants’ filed their Reply Brief on February 23, 2015. ROA.542. Appellant
filed his Sur-Reply on March 3, 2015. ROA.592. Defendants filed their Response
7
to Appellant’s Sur-Reply on March 11, 2015. ROA.605. The district court heard
argument from both parties on April 23, 2015. ROA.833.
The district court entered its Memorandum Opinion and Order August 7,
2015, granting Defendants’ 12(b)(1) Motion to Dismiss Plaintiff’s Second
Amendment and Commerce Clause claims for lack of standing; and granting
Defendants’ 12(b)(6) Motion to Dismiss Plaintiff’s due process, equal protection,
and alternative request for declaratory relief that §922(o) does not apply to
Appellant. ROA.788. RE-7.
The district court’s standing analysis found that the Appellant had satisfied the
injury-in-fact requirement but “…he failed to satisfy the traceability and
redressability of Article III standing with respect to his Second Amendment and
Commerce Clause claims…” ROA.808. RE-27. The district court however, went
on to analyze Hollis’ Second Amendment claim on the merits under the two step
framework adopted by the Fifth Circuit in Nat’l Rifle Ass’n of Am., Inc. v. Bureau
of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir.2012).
ROA.808. RE-27.
STANDARD OF REVIEW
This Court reviews questions of standing de novo. Time Warner Cable, Inc.
v. Hudson, 667 F.3d 630, 635 (5th Cir.2012). This Court reviews the
constitutionality of federal statutes de novo. National Rifle Ass’n of Am., Inc. v.
8
Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 192 (5th Cir.
2012). “… [A] motion to dismiss for lack of subject matter jurisdiction should be
granted 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.” Ramming v. U.S., 281
F.3d 158, 161 (5th Cir. 2001) (additional citation omitted).
This Court reviews “a dismissal under Federal Rule of Civil Procedure
12(b)(6) de novo, ‘accepting all well-pleaded facts as true and viewing those facts
in the light most favorable to the plaintiff.’” Priester v. JP Morgan Chase Bank,
N.A., 708 F.3d 667, 672 (5th Cir. 2013) cert. denied sub nom. Priester v.
JPMorgan Chase Bank, N.A., 134 S. Ct. 196 (2013) (quoting Bustos v. Martini
Club Inc., 599 F.3d 458, 461 (5th Cir.2010)). “Federal courts are permitted to
refer to matters of public record when deciding a 12(b)(6) motion to dismiss.”
Davis v. Bayless, 70 F.3d 367, 372 (5th Cir. 1995) (citation omitted).2
This Court reviews “a denial of leave to amend a complaint for abuse of
discretion.” Priester, 708 F.3d at 672. “A district court abuses its discretion if it:
(1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions
of law; or (3) misapplies the law to the facts.” In re Volkswagen of Am., Inc., 545
2
“PACER, or the Public Access to Court Electronic Records System, is used by many federal
courts to offer public access to docket information over the internet.” Wright v. Barnhart, 37
Fed. Appx. 88 (5th Cir. 2002) (unpublished) (bold added).
9
F.3d 304, 310 (5th Cir. 2008) (quoting McClure v. Ashcroft, 335 F.3d 404, 408
(5th Cir.2003)).
SUMMARY OF THE ARGUMENT
Since the adoption of §922(o) and the NFA, the United States Supreme
Court issued the landmark decision District of Columbia v. Heller, 554 U.S. 570
(2008). In that case, the Court held that “ban[s] on handgun possession in the home
violate the Second Amendment as does [a] prohibition against rendering any
lawful firearm in the home operable for the purpose of immediate self-defense.”
Heller, 554 U.S. at 635. Two years after Heller, in McDonald v. City of Chicago,
130 S. Ct. 3020 (2010), the Court held that the right to keep and bear arms was a
fundamental right, made applicable to the states through the Fourteenth
Amendment.
In Heller, the Court ruled the "Second Amendment extends prima facie, to
all instruments that constitute bearable arms, even those that were not in existence
at the time of founding." Heller, 128 S. Ct. at 2817. In order to strike down the ban
on handguns, it ruled a complete ban on a protected arm cannot withstand any level
of scrutiny. Id. This case is analogous and ultimately rises out of the federal
government’s maintaining a complete ban on the ownership of post-1986
machineguns. Similar to Washington D.C.’s ban on handguns, Defendants ban on
a complete class of arms cannot withstand constitutional muster. Moreover, even if
10
this ban were to survive constitutional muster if equally applied, Defendants
current application of the law violates the Equal Protection Clause of the United
States Constitution. Likewise, the BATFE’s unilateral revocation of an approved
Form 1 denies Hollis his Due Process protection.
Additionally, the plain language of §922(o) mandates a finding that a “trust”
is not precluded from making a machinegun and the district court failed to allow
Appellant to allow his Complaint and the court also conflated the NFA and GCA
as providing the same basis for the Complaint.
ARGUMENT
Mr. Hollis is a law abiding citizen, a United States Marine Corps reservist,
and maintains a Top Secret clearance. ROA.365. The M-16 at issue is considered
a rifle by the military, even though it is referred to as a machinegun under federal
law because it fires more than one shot by a single function of the trigger. This
brief will address the M-16 rifle as a machinegun, consistent with federal law. Mr.
Hollis makes that distinction to the Court to alleviate any confusion between the
terms “rifle” and “machinegun” in this case.
The instant matter brings into question the constitutionality of the Firearm
Owners’ Protection Act of 1986’s ban on the ownership of machineguns found in
18 U.S.C. § 922(o). It is a decades-old law; one of many now unconstitutional
laws passed prior to the United States Supreme Court holding that the Second
11
Amendment confers an individual right to keep and bear arms in Heller. This law
was passed during a time of uncertainty regarding the nature of the Second
Amendment. Now that this uncertainty has passed, this complete ban on the
ownership of a type of bearable arm cannot pass constitutional muster. This ban is
analogous to the one struck down in Heller, and for many of the same reasons it is
unconstitutional.
When the United States Supreme Court ruled in the case District of
Columbia v. Heller, 554 U.S. 570 (2008) that the Second Amendment confers an
individual right to self-defense, it did not overrule United States v. Miller, 307 U.S.
174 (1939). 3 Miller’s core holding is that:
in the absence of any evidence tending to show that possession or use

of a ‘shotgun having a barrel of less than eighteen inches in length’ at
this time has some reasonable relationship to the preservation or
efficiency of a well-regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an
instrument…it is not within the judicial notice that this weapon is any
part of the ordinary military equipment or that its use could contribute
to the common defense.
Id at 177. Accordingly, Miller holds that, if evidence is presented or judicial notice
can be taken of whether an item is part of the ordinary military equipment, then it
is protected by the Second Amendment.

3
“…the Heller plaintiff sought only dispensation to keep an operable firearm in his home for
lawful self-defense, see id., at ––––, 128 S.Ct., at 2788, and n. 2), and the Court’s opinion was
bookended by reminders that its holding was limited to that one issue…” McDonald v. City of
Chicago, Ill., 561 U.S. 742, 885 (2010) (Stevens, J. dissenting).
12
In McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010), the Supreme
Court held that the Second Amendment confers an individual right by ruling on an
arm; specifically, a handgun. It applied Heller’s analysis as to arms in finding that
the Second Amendment as a whole has been made applicable to the States.
Accordingly, Miller’s holding is now applicable to the States.
The Militia Act of 1903, or better known as the Dick Act, was named after
former congressman and Senator of Ohio Charles Dick, Chairman of the House
Militia Affairs Committee, who also served as President of the National Guard
Association of the United States. Charles Dick held the rank of Major General as
commander of the Ohio National Guard, reformed the Militia Act of 1792 and
created the National Guard distinctly separated into two classes: (1)the uniformed
and organized militia under service to the State or Federal governments that
receive federal support; and (2) the non-uniformed “unorganized” reserve militia
of all able-bodied men between the ages of 18 thru 45 or former military veterans
or retirees from the Army, Navy, Air Force, Marines, or National Guard or Army
Reserve. The Militia Act of 1903 was further modified by several amendments in
1908, and again modified with the National Defense Act of 1916.
The Anti-Federalists feared that Congress would permit the militia to
atrophy, leaving the states defenseless against the central government. They
argued that the national Congress could render the militia useless by disarming
13
them. Under various pretenses, Congress may neglect to provide for arming and
disciplining the militia; the state governments cannot do it, for Congress has an
exclusive right to arm them. The desire to prevent enfeebling state militias, which
provided a check to a standing army, prompted the ratifying conventions to call for
an amendment guaranteeing the right of citizens to bear arms. The First Congress
responded, but the Second Amendment did not remove national control over armed
forces or the state militias. However, the Second Amendment, by saying that the
“…Right of the People to keep and bear arms shall not be infringed” and that the
Right was a constitutionally protected, individual right, it qualified and defended
against U.S. Constitution, Article I, Section 10, Clause 4: “No State shall, without
the consent of Congress … keep troops, or ships of war in time of Peace….”
Hence, forthwith, there exists two classes of Militias the “organized” and the
“unorganized.” (10 U.S.C. § 311(b)).
Both State and Federal governments provide no support to the
“unorganized” militia as far as financial, equipment, or arms, with the exception
that there is an avenue to voluntarily obtain former military surplus individual
arms, i.e. rifle, pistol, bayonet, ammunition, and equipment; formerly through the
Civilian Marksmanship Program. Both the President of the United States and the
National Congress can call forth the “militia,” both organized and unorganized.
The “unorganized” militia, on a voluntary basis and through their own financial
14
means, obtain military or “militia” standard rifles, magazines, and ammunition, to
practice shooting to gain familiarity, knowledge and competency.
The Federal government and the State government, by banning the
“Standard” arms, would diminish, denigrate, and render impotent the efficiency of
a reserve pool of the “unorganized” militia, which is every able-bodied male
between the ages of 18 and 45, and, as of 2011’s veterans survey, is also composed
of 21.5 million veterans of foreign wars who have had first-hand familiarity and
knowledge of the M-16 and AR-15, .45 cal. Model 1911 semi-automatic pistol,
and the Beretta 9mm, 15-round magazine capacity semi-automatic pistol. Ever
since 1963 and the introduction to the Vietnam war, every single soldier and
veteran possesses military experience, tactical knowledge, military leadership and
discipline and - quite naturally - in-depth familiarity and knowledge of the M-16,
hand-held, shoulder-fired, gas-operated, 30-round individual rifle.
The Second Amendment exists, not as a privilege granted by the
Constitution, Federal Government or even State Governments, but it acknowledges
the fact that the “right to keep and bear arms” is an individual right and that it is a
right that was specifically withheld by the People, who have exercised their
individual right to cast one vote as a citizen of the United States. It is not created
for hunting, target-shooting, or other “sporting purposes.” It exists in support of
“…That whenever any Form of Government becomes destructive to these ends, it
15
is the Right of the People to alter or abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in such form, as
to them shall seem most likely to effect their Safety and Happiness….”
(Declaration of Independence, Clause 2, July 4, 1776).
As such, one must take into consideration today’s environment and
militarization of civilian law enforcement. Local law enforcement is routinely
equipped with .50 caliber sniper rifles and “personal defense weapons” to include
machine guns (M-16s with 30 round magazines and semi-automatic handguns with
standard capacity 15 round magazines). This “load-out” is routine, either when
serving simple warrants or court-ordered subpoenas or an office search with a fully
armed SWAT or Hostage Rescue Team. 4
The Second Amendment ensures that there is equality on an individual basis
with the “organized” militia, in preparation for one on one conflicts or violent
confrontations, limited to land war. The Federal and State governments have no
authority to subordinate the individual firearms of the “unorganized” militia or to
limit magazine content and lesser quality or inferior ammunition. Nor can the
Federal or State governments single out and subject constitutionally protected
firearms, magazines, and ammunition to excessive and punitive taxes, insurances,
4
Even the Department of Agriculture arms itself with machineguns
.https://www.fbo.gov/index?s=opportunity&mode=form&id=9fc3a01217d03b0354e1e18b69aa7
bad&tab=core&_cview=0 (last accessed October 7, 2015).
16
or over burdensome qualifying factors to exercise such protected rights. Simply
being a citizen of the United States and acknowledgement that the Second
Amendment exists is sufficient.
I. Standing
A. Mr. Hollis Has Standing To Bring His Second Amendment Complaint
To demonstrate standing, “a claimant must present an injury that is concrete,
particularized, and actual or imminent; fairly traceable to the defendant’s
challenged behavior; and likely to be redressed by a favorable ruling.” Natl. Fedn.
of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208-09 (5th Cir. 2011) (quoting
Davis v. FEC, 554 U.S. 724, 733, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008)). The
district court found Hollis faced an “injury-in-fact.” ROA.797-798. The district
court held that Hollis’ Second Amendment challenge was both facial and as-
applied. ROA.802. The district court’s further noted a similar case in the Eastern
District of Pennsylvania, with almost identical fact patterns, where the plaintiff in
that case was found to have standing to assert his Second Amendment and NFA
challenges. ROA.807. RE-27. See also ROA.758-781. The district court
distinguished the Pennsylvania case with the instant case and noted:
[t]hat the differences in the Texas statute and the NFA are meaningful
enough for this Court to refrain from concluding that the Texas statute
merely ‘piggybacks’ on the NFA, or that a ruling that the NFA is
violative of the Second Amendment would automatically ‘sweep
away’ the Texas statute.
17
ROA.807. However, the Texas statute does piggyback upon the NFA, as the court
noted, “It is a defense to prosecution under this section that the actor’s possession
was pursuant to registration pursuant to the [NFA]….” ROA.802. RE-18.
Texas does not independently ban machineguns, and but for the federal
machinegun ban, Hollis would be allowed to possess machineguns registered with
the BATFE. A ruling from this Court (or the district court) that the machinegun
ban is unconstitutional as-applied to Hollis would redress his injury-in-fact. Stated
a different way, Texas law does not prohibit Hollis from having his machinegun
and Texas is an unnecessary party. The district court did not take into account that
Hollis’ approved machinegun was registered before the BATFE unilaterally
revoked his issued Form 1, and was compliant with the Texas safe harbor.
Therefore, at the time of the filing of the Complaint, Texas was not a necessary
party, as Hollis challenged the revocation of his Form 1 approval and thus ability
to make a machinegun, registered to him in the National Firearms Registration and
Transfer Record and fully compliant with Federal (and Texas) law. The conduct
challenged is not only fairly traceable to Defendants, but is actually traceable to
Defendants, as the BATFE revoked his approved Form 1 and generally bans post-
May 19, 1986 machineguns.
The district court additionally distinguished another Northern District of Texas
case, Mance v. Holder, 74 F.Supp.3d 795 (N.D. Tex. 2015) wherein that court
18
found an almost identical attack on the Mance plaintiffs’ standing to be without
merit. 5 In any event, to avoid this issue, as discussed below in further detail, Hollis
requested he be allowed to amend his Complaint to either add Texas as a party or
voluntarily dismiss his challenge against the NFA. However, the district court then
stated, “Even if the Court were to find that Hollis has standing to assert his Second
Amendment Claim, Hollis’ Second Amendment claim is unsustainable as a matter
of law,” and analyzed the challenge under the familiar Fifth Circuit framework.
The district court did so because the analysis was required for the court to reach its
holding for Hollis’ Equal Protection claim. ROA.824. RE-43.
Finally, even if this Court finds that Hollis does not have standing to pursue his
claim against the NFA, it still should find that Hollis has standing to pursue the
remainder of his claims against the GCA’s complete ban on post-1986
machineguns. The two provisions operate as independent regulatory schemes.
The NFA regulates the ownership of machineguns already in existence. The GCA
bans the creation of new machineguns. The bulk of Hollis’s relief can be obtained,
even if his NFA. challenge were to fall away. A successful challenge to the GCA
allows Hollis the relief of building a machinegun that would be regulated under the
5
Now styled Mance v. Lynch, that case is currently pending before this Court; Case No. 15-
10311. It is worth noting that, while the same attack on the Mance plaintiffs’ standing was made
in the district court, the government did “not press the standing argument on appeal.” Footnote 5
of Appellant’s Opening Brief.
19
NFA. Defendants’ standing argument deals with the NFA only, and the lower
court erred by conflating the two statutes as one single regulatory scheme which
could not be reviewed independent of one another. The NFA and GCA are two
analytically distinct statutes. The lower court standing analysis erred by finding
that lack of standing for one equates to lack of standing for the other. Even if this
Court finds Hollis does not have standing to pursue his NFA, this Court should
allow him to pursue his GCA claim.
II. THE CHALLENGED LAWS ARE UNCONSTITUTIONAL

FACIALLY AND AS-APPLIED TO HOLLIS
A. The Challenged Laws Burden Second Amendment Rights
i. Defendants Misapply Heller‘s Dangerous and Unusual Language

As set forth below, the dangerous and unusual doctrine does not pertain to
the mere possession of a firearm (or other weapon), but only applies to the manner
in which that right is exercised. This case is not about the carrying of “dangerous
and unusual weapons”, but mere possession of a firearm.
Justice Scalia clarified this recently: “For example, there was a tort called
affrighting, which if you carried around a really horrible weapon just to scare
people, like a head ax or something that was, I believe, a misdemeanor,” he
explained.6
6
See http://cnsnews.com/news/article/justice-scalia-2nd-amendment-limitations-it-will-have-be-
decided (last visited 10/7/2015). Justice Scalia further stated, "I mean, obviously, the (2nd)
20
Justice Scalia’s comments likely stem from A Treatise on the Criminal Law
of the United States by Francis Whartson (1874):
An affray, as has been noticed, is the fighting of two or more persons

in some public place, to the terror of the citizens. (footnote omitted)
There is a difference between a sudden affray and a sudden attack. An
affray means something like a mutual contest, suddenly excited,
without any apparent intention to do any great bodily harm. (footnote
omitted). ... yet it seems certain that in some cases there may be an
affray where there is no actual violence; as where a man arms himself
with dangerous and unusual weapons, in such a manner as will
naturally cause a terror to the people, which is said to have been
always an offence at common law, and is strictly prohibited by the
statute. Id. at 527.
In this context, the Common Law’s definition of “dangerous” was any item
that could be used to take human life through physical force. (“[S]howing weapons
calculated to take life, such as pistols or dirks, putting [the victim] in fear of his life
… is … the use of dangerous weapons” United States v. Hare, 26 F. Cas. 148, 163
- 64 (C.C.D. Md.1818)). “Any dangerous weapon, as a pistol, hammer, large stone,
&c. which in probability might kill B. or do him some great bodily hurt” See Baron
Snigge v. Shirton 79 E.R. 173 (1607). In this context, “unusual” meant to use a
protected arm in a manner which creates an affray. Timothy Cunningham’s 1789
law dictionary defines an affray as “to affright, and it formerly meant no more, as
where persons appeared with armour or weapons not usually worn, to the terror.”
amendment does not apply to arms that cannot be hand-carried. It’s to ‘keep and bear.’ So, it
doesn’t apply to cannons. But I suppose there are hand-held rocket launchers that can bring down
airplanes that will have to be -- it will have to be decided.”
21
An unusual use of weapons in common use led to Baron Snigge v. Shirton 79 E.R.
173 (1607), this case involved a landlord - lessee dispute. The tenant “kept the
possession [of the house] with drum, guns, and halberts”. The Court found he used
“unusual weapons” to maintain possession of the house. Id. Rex v. Rowland
Phillips 98 E.R. (1385) holds “if an officer in the impress service, fire in the usual
manner at the hallyaras of a boat, in order to bring her to, and happen to kill a man
it is only manslaughter”. Id.
The “dangerous and unusual” doctrine is not merely a restatement of
Heller‘s tests for protected arms. Heller offered that its test for what arms are
protected by the Second Amendment is “supported by” the prohibition on the
carriage of dangerous and unusual weapons, Heller, 554 U.S. at 627 (citations
omitted), but that is not to say the two concepts—the scope of the arms protected
by the Second Amendment, and the “dangerous and unusual” doctrine—are
identical. They are very different.
As the sources Heller cited indicate, the longstanding prohibition on the
carrying of “dangerous and unusual weapons” does not, in fact, refer to types of
weapons, but to types of conduct with weapons. A necessary element of this
common law crime of affray, to which the “dangerous and unusual” prohibition
refers, had always required that the arms be used or carried in such manner as to
22
terrorize the population, rather than in the manner suitable for ordinary self-
defense.
Heller‘s first source on the topic, Blackstone, offered that “[t]he offence of
riding or going armed, with dangerous or unusual weapons, is a crime against the
public peace, by terrifying the good people of the land.” 4 William Blackstone,
COMMENTARIES ON THE LAWS OF ENGLAND 148-49 (1769) (emphasis
added). Blackstone referenced the 1328 Statute of Northampton, which, by the
time of the American Revolution, English courts had long limited to prohibit the
carrying of arms only with evil intent, “in order to preserve the common law
principle of allowing ‘Gentlemen to ride armed for their Security.’” David Caplan,
The Right of the Individual to Bear Arms: A Recent Judicial Trend, DET. L. C.
REV. 789, 795 (1982) (citing Rex v. Knight, 90 Eng. Rep. 330 (K.B. 1686)). “[N]o
wearing of arms is within the meaning of this statute, unless it be accompanied
with such circumstances as are apt to terrify the people,” by causing “suspicion of
an intention to commit an[ ] act of violence or disturbance of the peace.”
TREATISE ON THE PLEAS OF THE CROWN, ch. 63, § 9 (Leach ed., 6th ed.
1788); see Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS
OF AN ANGLO-AMERICAN RIGHT 104-05 (1994).
Heller‘s additional citations regarding the “dangerous and unusual” doctrine
are in accord. “[T]here may be an affray, where there is no actual violence; as
23
where a man arms himself with dangerous and unusual weapons, in such a manner,
as will naturally diffuse a terrour among the people.” James Wilson, WORKS OF
THE HONOURABLE JAMES WILSON (Bird Wilson ed., 1804) (footnote
omitted) (emphasis added). “It is likewise said to be an affray, at common law, for
a man to arm himself with dangerous and unusual weapons, in such manner as will
naturally cause terror to the people.” John A. Dunlap, THE NEW-YORK
JUSTICE 8 (1815) (emphasis added).
Riding or going armed with dangerous or unusual weapons, is a crime

against the public peace, by terrifying the people of the land … But
here it should be remembered, that in this country the constitution
guar[]anties to all persons the right to bear arms; then it can only be a
crime to exercise this right in such a manner, as to terrify the people
unnecessarily.
Charles Humphreys, A COMPENDIUM OF THE COMMON LAW IN FORCE
IN KENTUCKY 482 (1822); see also Heller, at 588 n.10 (quoting same). It is the
manner of how the right is exercised, not the type of weapon that is carried, that
constitutes the crime. At no point is a test referred to regarding the commonality
of the usage of the weapons carried. Said another way, just because a firearm or
other weapon is in common usage at the time does not make the manner in which
the right is exercised excused or excusable simply due to the type of firearm or
weapon carried.
24
“[T]here may be an affray … where persons arm themselves with dangerous
and unusual weapons, in such manner as will naturally cause a terror to the
people.” William Oldnall Russell, A TREATISE ON CRIMES AND
INDICTABLE MISDEMEANORS 271 (1826). But:
it has been holden, that no wearing of arms is within [meaning of

Statute of Northampton] unless it be accompanied with such
circumstances as are apt to terrify the people; from whence it seems
clearly to follow, that persons of quality are in no danger of offending
against the statute by wearing common weapons … in such places,
and upon such occasions, in which it is the common fashion to make
use of them, without causing the least suspicion of an intention to
commit any act of violence, or disturbance of the peace.
Id. at 272.
The other treatises Heller cites in support of the “dangerous and unusual”
doctrine are in accord, as are the cases Heller cites. See O’Neill v. State, 16 Ala.
65, 67 (1849) (affray “probable” “if persons arm themselves with deadly or
unusual weapons for the purpose of an affray, and in such manner as to strike
terror to the people”) (emphasis added); State v. Langford, 10 N.C. (3 Hawks) 381,
383-384 (1824) (affray “when a man arms himself with dangerous and unusual
weapons, in such a manner as will naturally cause a terror to the people”)
(emphasis added); English v. State, 35 Tex. 473, 476 (1871) (affray “by terrifying
the good people of the land”). In fact, one does not even need to be armed with a
firearm to commit the crime of affray under the dangerous and unusual doctrine.
25
See State v. Lanier, 71 N.C. 288, 290 (1874) (riding horse through courthouse,
unarmed, is “very bad behavior” but “may be criminal or innocent” depending on
whether people alarmed).
As Heller summarized, the traditional right to arms “was not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.” Heller at 626. Thus, carrying of dangerous and unusual weapons refers
to a time, place, and manner restriction on the carrying of protected arms. As
Hollis’ challenge is about mere possession of a machinegun, and not carrying, the
dangerous and unusual doctrine simply does not apply. Accordingly we are left
with the proposition that Hollis’s machinegun is a protected arm. Hence we must
determine the constitutionality of government’s prohibition on this arm.
ii. Defendants Complete Ban on Machineguns is Categorically

Invalid
In Heller, applying heightened scrutiny was unnecessary. The Court found,
no matter what standard of review to which the Court might have held the D.C.
restrictions, “banning from the home the most preferred firearm in the nation to
keep and use for protection of one’s home and family would fail constitutional
muster.” Id. at 628–629 (internal quotation marks and citation omitted). A law
effecting a “destruction of the right,” rather than merely burdening it, is, after all,
an infringement under any light. Heller at 629 (emphasis added) (quoting Reid, 1
Ala. at 616–17); see also Heller v. D.C., 670 F.3d 1244, 1271 (D.C. Cir. 2011)
26
(Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt
that courts are to assess gun bans and regulations based on text, history, and
tradition, not by a balancing test such as strict or intermediate scrutiny.”).
This matter is analogous. Here, the government completely bans a class of
bearable firearms. Hollis concedes that the ownership of machineguns can be
regulated to a point, just as all firearms are regulated. However this complete ban
can fulfill no level of scrutiny. See Heller 628–35. “[C]onstitutional rights are
enshrined with the scope they were understood to have when the people adopted
them….” Id. at 634-635. (A law that “under the pretense of regulating, amounts to
a destruction of the right, or which requires arms to be so borne as to render them
wholly useless for the purpose of defense, would be clearly unconstitutional”).
However, if this Court rejects the approach applied by Heller then, at a minimum,
strict scrutiny should apply.
iii. U.S. v. Marzzarella Supports Applying a Categorical Approach

U.S. v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) supports applying a
categorical approach to this complete ban on a class of arms. The defendants in
Marzzarella argued that the Court should apply a categorical approach finding the
ban on firearms with obliterated serial numbers unconstitutional. The Court found
this argument unpersuasive:
His argument rests on the conception of unmarked firearms as a

constitutionally recognized class of firearms, in much the same way
27
handguns constitute a class of firearms. That premise is unavailing.

Heller cautions against using such a historically fact-bound approach
when defining the types of weapons within the scope of the right. 128
S.Ct. at 2791 (“Some have made the argument, bordering on the
frivolous, that only those arms in existence in the 18th century are
protected by the Second Amendment. We do not interpret
constitutional rights that way”). Moreover, Marzzarella himself
asserts that serial numbers on firearms did not exist at the time of
ratification. Accordingly, they would not be within the contemplation
of the pre-existing right codified by the Second Amendment. It would
make little sense to categorically protect a class of weapons bearing a
certain characteristic when, at the time of ratification, citizens had no
concept of that characteristic or how it fit within the right to bear
arms.
Furthermore, it also would make little sense to categorically protect a

class of weapons bearing a certain characteristic wholly unrelated to
their utility. Heller distinguished handguns from other classes of
firearms, such as long guns, by looking to their functionality. … But
unmarked firearms are functionally no different from marked
firearms. The mere fact that some firearms possess a nonfunctional
characteristic should not create a categorically protected class of
firearms on the basis of that characteristic. Marzzarella at 93-94.
Clearly, Marzzarella supports applying a categorical approach on bans on arms
functionally different from a handgun. Such is the case here, as Hollis’s M-16 is
considerably different in form and function than a handgun. As established above,
it is a protected arm. Accordingly, the government’s complete ban on these
protected arms should be deemed categorically invalid. However, if any level of
scrutiny need apply, then strict scrutiny must apply.
28
iv. The 1934 Hearing on National Firearms Act Supports That A

Categorical Ban Would Be Unconstitutional
Unlike the machinegun ban in § 922(o), the constitutionality of the original
NFA bill was actually debated, with then-Attorney General Homer Cummings
admitting that a ban on machineguns may not survive Constitutional scrutiny
unless reached through Congress’ power to tax. Cummings denied that
machineguns could be banned, because “we have no inherent police power to go
into certain localities and deal with local crime. It is only when we can reach those
things under the interstate commerce provision, or under the use of the mails, or by
the power of taxation, that we can act.” ROA.480.
While Congress may have the power to regulate under the auspices of a tax,
Section 922(o) goes beyond that and is treated as a categorical ban on a bearable
arm. Even in 1934, Congress understood (and the Attorney General conceded)
there may be a constitutional issue with a categorical ban.
v. The Ban on Machineguns in § 922(o) is not Longstanding or

Presumptively Lawful
The government argued that the restrictions on possession of a machinegun
are longstanding and presumptively lawful. 7 ROA.810. RE-29. The federal ban on
machineguns, as stated supra, is not a longstanding law, as it became law only in
7
As shown below, Heller does not hold longstanding doctrines are presumptively lawful,
however, even if it did, the federal ban on machineguns discussed supra is not a longstanding
law as it only became law in 1986.
29
1986. And Heller, not a case about machineguns, did not stand for the proposition
that the ban is presumptively lawful.
The government cited to a number of cases regarding machineguns being
regulated at the state level, so that must mean that the ban on machineguns is
longstanding. But that demonstrates nothing other than states regulate firearms.
The district court stated that:
At least twenty-one states have enacted restrictions on the possession,

acquisition, and sale of machine guns, and Defendants argue that
many of those states had Second Amendment analogues in their
respective States constitutions, which shows that machine guns are
presumptively not protected from regulation by the Second
Amendment.
ROA.810. RE-29. This begs the question about the remaining twenty-nine states
and further, how could a minority of States “show machineguns are presumptively
not protected from regulation by the Second Amendment?”
The federal ban is the statute being considered, and that the states regulate or
regulated machineguns is a matter for another time. What matters is that Texas
does not prohibit machineguns, as long as they are properly registered per federal
law, and Hollis would be able to manufacture a machinegun, pursuant to federal
law, if Defendants were not prohibiting him from doing so. If it did matter that
machineguns were subject to longstanding regulations, the D.C. gun ban would
likewise have been classified a “longstanding law,” forbidding residents from
keeping and bearing arms in the home, and thus the Heller court would have found
30
in D.C.’s favor. But as we know, D.C.’s categorical ban did not survive, no matter
how long it had been in effect.
While the Fifth Circuit has held that the “unlawful possession of a machine
gun is a crime of violence” under the Sentencing Guidelines (see U.S. v. Golding,
332 F.3d 838, 839 (5th Cir. 2003)) and has affirmed convictions for the unlawful
possession (i.e., not in compliance with the NFA) of a machinegun (see U.S. v.
Kirk, 105 F.3d 997, 998 (5th Cir. 1997)), those cases are easily distinguishable as
those cases dealt with a felon in possession and an unregistered machinegun,
respectively. In fact, most of the cases dealing with machineguns are those
entwined in criminal prosecutions, not remotely close to the Plaintiff in this case
that applied for and received permission from the BATFE to build a machinegun.
Cases regarding criminal behavior are simply not applicable to the case at hand, as
Hollis is not prohibited from owning firearms.
When Heller refers to certain longstanding prohibitions surviving it is not
giving a temporal test. It simply is providing examples of existing firearms laws
which are constitutional post-Heller. It is a misreading of Heller to argue all long
standing prohibitions are presumptively constitutional. Heller states:
Although we do not undertake an exhaustive historical analysis today

of the full scope of the Second Amendment, 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
forbidding the carrying of firearms in sensitive places such as schools
31
and government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms.
Heller at 626-27. This passage is simply to give assurances that reasonable
regulations would continue to be constitutional post-Heller. This is evidenced by
Heller referencing both modern restrictions such as those on commercial sales and
historical restrictions on Common law felons and the mentally ill. Moreover, a
natural reading of this passage supports that these are simply examples of
restrictions that survive constitutional muster. While Heller teaches us that text and
history are essential to analyzing the scope and nature of the Second Amendment
right, Defendants position finds no support in Heller.
vi. If Means End Scrutiny is Necessary, Strict Scrutiny Should Be

Applied
The Fifth Circuit applies a two-step analysis as framed out in Natl. Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700
F.3d 185, 194 (5th Cir. 2012). Accordingly, if the Second Amendment right is
implicated at all, the presiding Court must apply (at the very least) some form of
means end scrutiny. Here, the complete ban on a protected class of arms should
trigger a categorical approach. However, if means end scrutiny applies, then this
Court should adopt the Sixth Circuit recent approach.
While the opinion in the United States Court of Appeals for the Sixth Circuit
was vacated and rehearing en banc granted, that court recently stated that:
32
“Heller‘s footnote 27—even aside from the Court’s flat rejection of Justice
Breyer’s interest-balancing inquiry—strongly suggests that intermediate scrutiny
‘could not be used to evaluate’ Second Amendment challenges.” Tyler v. Hillsdale
County Sheriff’s Dept., 775 F.3d 308, 328 (6th Cir. 2014), reh’g en banc granted,
opinion vacated (Apr. 21, 2015). Under strict scrutiny, a challenged law will
satisfy scrutiny “if it furthers a compelling interest and is narrowly tailored to
achieve that interest.” Citizens United v. Fed. Election Commn., 558 U.S. 310, 312
(2010). Section 922(o) furthers no compelling interest, or if it does, is not
narrowly tailored, as it is a categorical ban on machineguns.
We turn back to the two-pronged approach in Natl. Rifle Ass’n. First, the
court must ascertain “whether the conduct at issue falls within the scope of the
Second Amendment right.” Natl. Rifle Ass’n, 700 F.3d at 194. “To determine
whether a law impinges on the Second Amendment right, we look to whether the
law harmonizes with the historical traditions associated with the Second
Amendment guarantee.” Id. If the conduct is not burdened, then the court’s
inquiry is complete as the “conduct … falls outside the Second Amendment’s
scope….” Id. However, if the conduct is burdened, the court will “then proceed[ ]
to apply the appropriate level of means-end scrutiny.” Id.
The court’s first inquiry is whether 18 U.S.C. § 922(o) regulates conduct
within the scope of the Second Amendment. The first prong is not difficult to
33
answer in the affirmative; § 922(o) regulates conduct within the Second
Amendment. As stated in Heller, “… the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.” Heller at 582. The Second Amendment
does not only protect “those arms in existence in the 18th century.” Id. “The very
enumeration of the right takes out of the hands of government—even the Third
Branch of Government—the power to decide on a case-by-case basis whether the
right is really worth insisting upon.” Id. at 634.
18 U.S.C. § 922(o) generally bans the transfer or possession of a
machinegun manufactured after May 19, 1986. This provision was enacted in
1986 as §102(9) of the Firearm Owners’ Protection Act, which amended the GCA
of 1968. Further, the term “person” is defined in the GCA to mean “any
individual, corporation, company, association, firm, partnership, society, or joint
stock company.” See 18 U.S.C. § 921. The statutory definition of the term
“person” does not include an unincorporated trust. As the plain language excludes
“unincorporated trust” from the definition, this court (and the BATFE) should not
read into the statute what is not there. See Groupe SEB USA, Inc. v. Euro-Pro
Operating LLC, 14-2767, 2014 WL 7172253, at *6 (3d Cir. Dec. 17, 2014) (citing
Meese v. Keene, 481 U.S. 465, 484, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (“It is
34
axiomatic that the statutory definition of the term excludes unstated meanings of
that term.”).
Defendants, mindful of the definition of the term “person,” stated in an
opinion letter on March 17, 2014 to Dakota Silencer in Sioux Falls, South Dakota,
referenced the “person” definition and stated: “[u]nlike individuals, corporations,
partnerships, and associations; unincorporated trusts do not fall within the
definition of “person” in the GCA.” ROA.8-24. By the BATFE’s admission, the
term “person” in the GCA does not include an unincorporated trust and such a trust
cannot be subject to the prohibition in § 922(o). ROA.25-26.
But delving further into the constitutionality of § 922(o), Heller does not
stand for the proposition that the types of firearms at issue in this case are not
protected by the Second Amendment, only that it would be a “startling reading of
the [Miller] opinion since it would mean that the NFA’s restrictions on
machineguns (not challenged in Miller) might be unconstitutional, machineguns
being useful in warfare in 1939.” Id. at 624. (See U.S. v. Miller, 307 U.S. 174
(1939) (Absence of evidence showing that short-barreled shotguns have reasonable
relationship to preservation or efficiency of well-regulated militia, Court cannot
say Second Amendment protects such a firearm). It is also important to note the
Supreme Court’s “startling” language was directed at the NFA, not the GCA which
encompasses the categorical ban on post-May 19, 1986 machineguns. The NFA
35
places restrictions on machineguns by taxing them and making the possessor file
certain paperwork. The GCA, 18 U.S.C. § 922(o), is the provision that bans
possession by “persons” for any machinegun not lawfully possessed prior to its
enactment.
The district court mistakenly conflated the GCA and NFA when it enlarged
upon the Supreme Court’s dicta regarding the “startling” provision, when it stated,
“It is also worth noting that the Supreme Court clearly found startling the prospect
that the machine gun ban would have been unconstitutional, thereby suggesting the
constitutional validity of the machine gun restrictions in the NFA and GCA.”
ROA.814. Yet as discussed above, the Supreme Court in Heller never stated the
ban under the GCA is constitutional.
The lower court cites to Friedman v. City of Highland Park, Illinois, 784
F.3d 406, 408 (7th Cir. 2015) (“Heller deemed a ban on private possession of
machine guns to be obviously valid “) and Heller v. District of Columbia, 670 F.3d
1244, 1270 (D.C. Cir. 2011) (“Fully automatic weapons, also known as machine
guns, have traditionally been banned and may continue to be banned after Heller.”)
for the proposition that machineguns are not protected by the Second Amendment
ROA.814. However, these opinions misinterpret Heller. Machineguns are bearable
arms and they have not “traditionally been banned,” but only highly regulated and
taxed. It was not until 1986 that the federal ban came into existence. The circuit
36
court opinions relied upon by the district court are plainly incorrect in their post-
Heller analysis.
Section 922(o) is simply overbroad as it bans all machineguns; machineguns
that are protected by the Second Amendment as bearable arms and machineguns
that are not bearable arms. But reading Miller and Heller together, clearly an M-16
(under Miller) has “some reasonable relationship to the preservation or efficiency
of a well-regulated militia” as every branch of the armed forces (and multitude of
federal and state agencies) utilizes the M-16 for some purpose. Miller, 307 U.S. at
178. Thus, Hollis’s desire to own one falls within Second Amendment protection.
Accordingly the question is what level of constitutional scrutiny is to be applied.
Under the second prong, the court will “then proceed[ ] to apply the
appropriate level of means-end scrutiny.” Natl. Rifle Ass’n, at 194. The level of
scrutiny that is appropriate “depends on the nature of the conduct being regulated
and the degree to which the challenged law burdens the right. See Chester, 628
F.3d at 682 (observing that “a ‘severe burden on the core Second Amendment right
of armed self-defense should require a strong justification,’ but ‘less severe
burdens on the right’ and ‘laws that do not implicate the central self-defense
concern of the Second Amendment[ ] may be more easily justified’ (quotation and
citation omitted)).” Id. at 195. The intermediate scrutiny test cannot be a rational
basis review, as Heller forbids a rational basis application to evaluate an
37
“enumerated right.” Id. If intermediate scrutiny applies, the government must
demonstrate a “reasonable fit between the challenged regulation and an important
government objective.” Id. (internal quotations and additional citations omitted).
The ban contained in § 922(o) is a complete ban on the possession of post-
May 19, 1986 machineguns. All of them. The ban discriminates not on bearable
arms or crew served machineguns. If the firearm fires more than one shot with a
single function of the trigger, then it is classified as a machinegun. The burden
imposed by § 922(o) severely limits the possession of a protected class of firearms.
Substituting machineguns for handguns, it is not difficult to make the leap that §
922(o) does “not just regulate possession of [a machinegun]; it prohibited it, even
for the stated fundamental interest protected by the right—the defense of hearth
and home.” U.S. v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (citing Heller, 128
S. Ct. at 2818). Thus, strict scrutiny must apply.
However, under any means end scrutiny, Defendants have failed their
burden in showing a compelling or important government interest in banning
machineguns as applied to Hollis. Defendants cannot, in fact, demonstrate a
compelling government interest, or if they can demonstrate an interest, it is not a
compelling interest. If the Defendants were serious about banning machineguns,
then they would attempt to simply ban them. But Defendants instead ban
machineguns solely based upon date of manufacture, even though the NFA already
38
regulates the ownership, possession and transfer of all machineguns. Section
922(o) simply goes too far.
vii. Even if Means End Scrutiny Applies, Defendants Fail Their

Burden
Here, the burden is on the government to show that their complete ban on
machineguns meets the requisite level of scrutiny. As the government did not
address a strict scrutiny analysis in the district court, they presumably concede that,
if the Court applies strict scrutiny, then their complete ban on a protected arm is
unconstitutional. In order to fulfill strict scrutiny, the government must show that
there is compelling governmental interest and that the restriction is narrowly
tailored and is the least restrictive means. See Thomas v. Review Bd. of Ind.
Employment Sec. Div., 450 U.S. 707, 718 (1981).
Here, protecting public safety and combating crime is what Defendants offer
as their interest in regulating machineguns. However, a complete ban is not in any
way, shape, or form narrowly tailored and it is certainly not the least restrictive
means to achieve this government interest. Defendants could simply regulate their
use, such as requiring strict registration, background checks, imposing storage
requirements, and otherwise making it possible for Hollis and other law abiding
citizens to own automatic firearms while ensuring that these weapons are stored
safely so that they do not fall into the hands of criminals. The BATFE does this
already within the purview of the already onerous NFA.
39
However, even if this Court finds intermediate scrutiny is proper,
Defendants complete ban on these protected arms still fails. Why? Defendants
have not actually shown that lawfully owned machineguns are actually linked to
crime. Under intermediate scrutiny, “the government has the burden of
demonstrating that its objective is an important one and that its objective is
advanced by means substantially related to that objective.” United States v. Reese,
627 F.3d 792, 802 (10th Cir.2010).
Defendant bears the burden of proving a “reasonable fit” or a “substantial
relationship” between the ban and a “significant, substantial, or important”
government objective. United States v. Chovan, 735 F.3d 1127, 1139 (9th
Cir.2013) (citing United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010)). This
requires a demonstration that the law is likely to advance that interest “to a
material degree.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996).
The government’s “burden is not satisfied by mere speculation or
conjecture”; instead, it “must demonstrate that the harms it recites are real and that
its restriction will in fact alleviate them.” Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 555 (2001) (emphasis added). Defendants must prove with “substantial
evidence” that the statute “will alleviate” the identified harm “in a material way.”
Turner Broad. Sys. v. F.C.C., 520 U.S. 180, 195 (1997) (Turner II); Edenfield, 507
U.S. at 770-71 (“will in fact alleviate them to a material degree”).
40
While machineguns certainly can be dangerous weapons (as can be cars,
knives, and even matches to an arsonist), no evidence was presented that, even if
available, they are the weapon of choice for criminals. That is the case because
Appellees cannot produce that evidence. The weapon of choice for criminals are
cheap handguns that can be disposed of easily, not $10,000.00 machineguns that
are worth more than any convenience store register could possibly have. Thus,
applying any level of heightened scrutiny; Appellees’ complete ban fails.
Specifically with regard to crime, as Defendants repeatedly pointed to
government’s compelling interest in protecting public safety and combating crime,
if we look at the actual statistics and congressional testimony, they do not
demonstrate the parade of horribles posited exists. ROA.114. In fact, in 1984 at a
hearing before Congress, then-Director Stephen E. Higgins testified about the NFA
and lawfully registered machineguns specifically. Director Higgins stated,
These weapons are held by collectors and others; only rarely do they
figure in violent crime. In this connection, the question of why an
individual would want to possess a machinegun or, more often, a
silencer, is often raised. We would suggest that ATF’s interest is not
in determining why a law-abiding individual wishes to possess a
certain firearm or device, but rather in ensuring that such objects are
not criminally misused. The regulatory scheme for dealing in or
legally possessing NFA weapons and silencers is straightforward and
provides safeguards which are adequate, in normal circumstance, to
ensure that the firearms remain in the hands of law abiding
individuals.
41
Armor Piercing Ammunition and the Criminal Misuse of and Availability of
Machineguns and Silencers: Hearings on H.R. 641 and Related bills Before the
Committee on the Judiciary, 98th Congress, 1st Sess. 132 (1984). ROA.439-440.
(underling added). Further, Director Higgins testified that “registered machineguns
which are involved in crimes are so minimal so as not to be considered a law
enforcement problem.” Id.
Director Higgins testified that, as of September 30, 1984, there were 105,125
registered machineguns, with 20,499 registered to governmental entities (law
enforcement agencies and the like), 41,419 registered to Special Occupational
Taxpayers (dealers and manufacturers), and 43,207 registered to individuals.
ROA.443. Adding together the “private” owners, dealers, and individuals; 84,626
of those machineguns did not belong to a governmental entity, or approximately
80.5% of registered machineguns were in private hands.
The statistics from the Bureau of Justice Statistics (“BJS”), a U.S.
Department of Justice, Office of Justice Program, tell the same tale. In the
Highlights section of the 1995 Firearms, crime, and criminal justice report by
Marianne W. Zawitz, BJS Statistician, it states “Although most crime is not
committed with guns, most gun crime is committed with handguns.” (italics
added). ROA.493. The report states that “Of all firearm-related crime reported to
the survey, 86% involved handguns,” and that 57% of all murders in 1993 were
42
committed with handguns, 3% with rifles, 5% with shotguns and 5% where the
type was unknown. ROA.496. With regard to machineguns, the report states that
in 1995, the BATFE had 240,000 automatic weapons registered. ROA.496.
However, the number of “trace requests,” (meaning when a firearm is used in a
crime and a police agency requests the National Tracing Center at the BATFE to
trace the original point of sale) for machineguns barely registered on the report. In
1994, handguns constituted 79.1% of all trace requests; Rifles 11.1%; Shotguns
9.7%; and “Other including machinegun” 0.1%. ROA.496. Out of the ten most
frequently traced firearms in 1994, (a mere eight years after the ban) not
surprisingly, machineguns do not appear. In fact, nine out of those ten are pistols,
with the majority of those pistols being inexpensive handguns, commonly referred
to as “Saturday night specials.” ROA.497.
In May 2013, another report from the BJS regarding Firearm Violence from
1993-2011 shows the government’s position regarding machinegun crime or public
safety is untenable. The report’s findings show that handguns account for “about
83% of all firearm homicides in 1994, compared to 73% in 2011 … For nonfatal
firearm violence, about 9 in 10 were committed with a handgun….” ROA.500. In
2011, there were 11,101 firearm homicides, down from 18,253 in 1993. Compare
that with 38,023 deaths related to motor vehicle accidents; 27,483 deaths due to
43
falls, 43,544 deaths related to drugs; and 26,654 deaths related to alcohol.
ROA.530. Yet vehicles and alcohol are not banned.
Assuming arguendo that public safety and/or the prevention of crime was a
serious contention for the banning of an entire category of weapons, handguns
would not have been allowed or specifically protected under Heller. This bears
repeating. Despite the majority of homicide and firearms crime being committed
with handguns, the Heller court protected that category of firearm. See Moore v.
Madigan, 702 F.3d 933, 939 (7th Cir. 2012) (the “mere possibility” that a gun
control law may save lives is not enough or “Heller would have been decided the
other way” if it were).
Yet even if we ignored the government’s own statistics, the Supreme Court
has rejected the notion that arms bans for the law-abiding are justified to prevent
unlawful use by criminals. Heller at 636; McCullen v. Coakley, Id. at 712 (Breyer,
J., dissenting) (arguing that lawfully-owned handguns could be stolen by
criminals); cf. Fotoudis v. Honolulu, 2014 WL 4662385 at *5 (D. Haw. 2014)
(prohibition of gun ownership by lawful permanent resident aliens is not “narrowly
tailored,” because it applies “regardless of whether they are otherwise qualified to
acquire firearms, and regardless of whether they might pose a threat to others”).
And there is no argument that Hollis is a prohibited person or would be dangerous
with a machinegun.
44
viii. Defendants Misread United States v. Miller

Defendants misread the holding of United States v. Miller, 307 U.S. 174
(1939) and argue it holds short-barrel shotguns are not protected by the Second
Amendment. Miller holds that
… in the absence of any evidence tending to show that a possession or

use of ‘a shotgun having a barrel of less than eighteen inches in
length’ at this time has some reasonable relationship to the
preservation or the efficiency of a well-regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within the judicial notice that
this weapon is any part of the ordinary military equipment or that its
use could contribute to the common defense.
Id.
For background on Miller, Jack Miller and Frank Layton were accused of
transporting a double barrel, a Stevens Shotgun, with a barrel length of less than 18
inches, without registering it and paying a $200.00 tax; a violation of the NFA.
Jack Miller, Frank Layton and their representative attorney-at-law did not appear
in court for the hearing. The lower trial court found the NFA violated the Second
Amendment’s right to keep and bear arms and ultimately dismissed the
government’s case. The government then appealed to the Supreme Court.
Interestingly, neither Miller nor his counsel filed any briefing with the Court nor
did they appear. As such, the Court ruled as it did and remanded the case to the
lower Court for further proceedings consistent with its opinion. Unfortunately this
did not occur, as both Miller and Layton died shortly after the Court’s decision.
45
Heller relies on Miller for the historical fact that when militia men “were
called for service these men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.” While this historical fact
has been misinterpreted as a test, Miller cites this historical fact solely to support
its holding. The Court provided one example of how something can aid in the
preservation or the efficiency of a well-regulated militia. That is to show
something is “part of the ordinary soldier’s equipment.” Heller expands on Miller
to hold handguns (and other arms) designed for personal self-defense receive
Second Amendment protection regardless of whether they have military value.
Defendants argue that the Second Amendment right does not foreclose
“categorical legislative prohibitions [as] … the right protected by the Second
Amendment is a right to ‘keep and bear Arms,’ not a right to possess a specific
firearm or type of firearm.” This argument borders on the frivolous as it was
explicitly rejected in Heller. “It is no answer to say, as petitioners do, that it is
permissible to ban the possession of handguns so long as the possession of other
firearms (i.e., long guns) is allowed.” Heller at 629. The Supreme Court rejected
the argument that a ban on handguns is constitutional as long as long arms are legal
to own. Further, Defendants’ reference to the Militia Acts is unpersuasive. Hollis
has no duty to standardize his small arms collection for mandatory military
training, nor were members of colonial militias limited to owning weapons
46
authorized for militia duty. However, Defendants’ concession that arms tied to
militia duty are part of the historical right supports finding an M-16 is protected by
the Second Amendment.
Defendants argue that bearable machineguns are not needed for personal
self-defense. This fails to acknowledge there are millions of veterans who are most
comfortable defending themselves with this arm due to training received in the
armed forces. However, even if Defendants’ argument was valid, the M-16
machinegun receives Second Amendment protection on independent grounds as it
is the standard issue weapon of the ordinary soldier. As such, it is the
quintessential militia arm. Accordingly, just as colonial Americans had a
fundamental right to own and familiarize themselves with the rifles which
constituted the militia arms of the time, Hollis has a fundamental right own his
modern day equivalent which is the M-16 rifle for the Defense of himself and the
State.
ix. Miller Provides the Outer Limits for the Second Amendment
Right
This Court may have legitimate concerns that a ruling in Hollis’ favor will
open the floodgates to legalizing deadlier bearable weapons, such as surface-to-air
missiles. This Court should be assured that it will not. Heller‘s ruling that the
Second Amendment right extends prima facie to all bearable arms should be read
in tandem with Miller‘s holding that the Second Amendment right extends to items
47
that are part of the ordinary soldier’s equipment. Hollis’ M-16 rifle clearly falls
within the scope of the military equipment issued to the average infantry soldier.
Moreover, they are bearable upon the person. Thus, M-16s fall within Second
Amendment protection in lock step with the framework established by Heller and
Miller. Arms such as shoulder-fired rockets, mortars, and heavy machineguns
probably do not. Either the aforementioned weapons require a crew of two or
more, or they are not part of the ordinary soldier’s equipment.
The M-16 is the quintessential militia-styled arm for the modern day. Since
the Founding of Jamestown in 1607 the militia firearm has evolved from the
following:
• Muzzleloader – Musket.
• Manual breach load – rifle or pistol.
• Clip load (normally five rounds on an inline clip) deposited into a built in
magazine located in the mechanics of the firearm.
• Detachable Box-magazine from the firearm usually holding 5,
10,15,20,30 rounds.
• Detachable Drum-type magazine holding up to 100 rounds.
• Belt-fed ammunition expending indefinite number of rounds.
The M-16 service rifle is the standard issue firearm for all branches of the
military. Since 1965 and the introduction of the M-16 rifle, from conscription draft
days to the modern volunteer armed forces, every single man and woman has been
trained and possesses knowledge and experience with the firearms, and is familiar
with the maintenance and care and repair of the firearm. The advantage to owning
and training with the standard military weapon is the shortness of time to re-
48
familiarize returning personnel back to active duty; assisting in instructing new and
unfamiliar personnel; standardizing the ammunition and maintenance tools; and to
lessen the burden of the State and Federal government to resupply the returning
forces with arms and ammunition. Accordingly, Hollis’ M-16 fulfills the Miller
test of aiding in the preservation or the efficacy of the militia and Heller‘s bearable
on the person requirements for Second Amendment protection.
x. “Common Use” Cannot Be A Test
There is much discussion about some undefined “common use” test. This
cannot be a legitimate test. There is no other Amendment to the Constitution that
relies on consumerism to dictate whether citizens have rights. Further, even if it
were a test, a musket, the “commonly used” rifle at the time the Second
Amendment was ratified, would not be a protected firearm in 2015 as it is not
“commonly used.” It simply produces absurd results and should not even be
considered a legitimate test. It cannot be a test because, if a new weapon was
developed at some point in the future, the government could quickly move to ban it
before its ownership met this mythical standard, and thus would not be considered
protected. No other Amendment suffers from this consumerist mindset, and the
Second Amendment should not be subject to it either.
49
III. THE DISTRICT COURT COMMITTED TWO ADDITIONAL ERRORS
i. The District Court Erred in Denying Appellant’s Rule 56(d)

Motion
A central theme of the case is that the BATFE has allowed other post-May
19, 1986 machineguns to be transferred and possessed by non-governmental
entities. This is a fact, although not considered by the district court as it was not
“attached to the Complaint….” ROA.824. RE-43. BATFE maintains these records
and a simple query could provide Appellant the necessary information. Appellant
argued in his Brief in Opposition to Defendants’ Motion to Dismiss, or in the
Alternative, for Summary Judgment that he “be allowed discovery on these issues
to ascertain how many more approvals since 1986 exist.” ROA.358.
Fed. R. Civ. P. 56(d) provides that the party opposing a summary judgment
motion can request additional discovery if he is unable to present facts to justify
the opposition to the motion. The non-movant must request the continuance from
the court and “present an affidavit containing specific facts explaining [his] failure
to respond to the adverse party’s motion for summary judgment via counter
affidavits establishing genuine issues of material fact for trial.” Intl. Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991) (additional citations
omitted). The Fifth Circuit has “observed that Rule 56(d) motions are generally
favored and should be liberally granted.” Beverly v. Wal-Mart Stores, Inc., 428
Fed. Appx. 449, 451 (5th Cir. 2011)(unpublished).
50
The BATFE denies that any Form 1 machineguns have ever been approved
for manufacture for non-governmental entities after May 19, 1986. However,
Appellant provided an affidavit averring that he has knowledge of at least one, and
a reasonable belief that at least two more have been approved in requesting that the
district court allow discovery under Rule 56(d) on this issue. ROA.365-368. The
district court, however, denied Appellant’s Motion for Discovery under Rule 56(d)
as moot, even though Appellant complied with the affidavit requirement, and even
though this Court stated that type of motion is “generally favored and should be
liberally granted.” Id. Had the district court allowed this discovery to take place,
it would prove that the BATFE allows non-governmental entities to possess post-
May 19, 1986 machineguns, eliminating the BATFE’s argument that it has never
allowed their possession. Of course, it is known that the BATFE has allowed this,
as evidenced (but not considered) by the district court. ROA.433.
“Federal courts are permitted to refer to matters of public record when
deciding a 12(b)(6) motion to dismiss.” Davis v. Bayless, 70 F.3d 367, 372 (5th
Cir. 1995) (citation omitted). There is no doubt that the document attached as
evidence of the BATFE allowing post-May 19, 1986 machineguns to exist is a
“matter of public record.” That document was first filed in the case US v. Clark, et
al; 2:10-cr-01047-ROS in the United States District Court for the District of
Arizona. ROA.619-624. As such, the district court could have considered the
51
attached filing evidencing other post-May 19, 1986 machineguns, easily
demonstrating that the BATFE allows certain classes of non-governmental entities
to possess “forbidden” machineguns.
ii. The District Court Erred in Dismissing Appellant’s Complaint

Without Allowing Appellant to Amend His Complaint
Appellant requested in at least two places that he be allowed to amend his
Complaint. The amendments were discussed with regard to the standing issue
Defendants raised in their Motion to Dismiss. In Appellant’s sur-reply, Appellant
requested that “if this Court were to entertain the Defendant’s argument regarding
the necessity of Texas being a defendant, [Appellant] should simply be allowed to
revise his complaint and name the State of Texas as an additional Defendant.”
ROA.579. It was not necessary to add Texas as a defendant in the case, because
Texas law defines machineguns differently than federal law. Machineguns are
defined under federal law as “any weapon which shoots, is designed to shoot, or
can be readily restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” 26 U.S.C.A. § 5845. Under Texas
law, a machinegun is defined to mean “any firearm that is capable of shooting
more than two shots automatically, without manual reloading, by a single function
of the trigger.” Tex. Penal Code Ann. § 46.01. This is not a distinction without a
difference. Under federal law, if it shoots more than one shot by a single function
of the trigger, it is a machinegun. Under Texas law, it needs to shoot more than
52
two shots by a single function. Since the Appellant could have made his
machinegun a two-round burst machinegun and remain legal under Texas law,
Texas was not a necessary party. Of course, federal law would still classify the
two-round burst firearm as a machinegun. This was explained to the district court
during oral argument. ROA.865. However, to avoid the issue of whether Texas
was a proper party, the Appellant sought to either add Texas as a party or to
voluntarily dismiss the NFA claim to eliminate the necessity of Texas as a party.
The district court stated that, since there was “…no allegation or evidence
before the Court that Plaintiff sought to make such a [two-round burst] machine
gun, which makes Plaintiff’s argument merely academic.” ROA.805. RE-24. This
is a tacit admission that, had Appellant placed these words in his Complaint (or
been allowed to amend his Complaint), the outcome might have been different.
During the oral argument, Appellant requested that, if the district court was
inclined to “dismiss the case because the [NFA] is doing an adequate job of
regulating machineguns…”, he be allowed to dismiss his challenge to the [NFA]
“…[and] proceed against the ban…” ROA.849. The district court later asked
counsel for the government if the court “should [] let them amend to try to flesh
that out?” ROA.866. The government answered in the negative. ROA.866.
The district court should have allowed Appellant to amend his Complaint.
As the Supreme Court said in Foman v. Davis, 371 U.S. 178, 182 (1962):
53
If the underlying facts or circumstances relied upon by a plaintiff may

be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be ‘freely given.’
“The Federal Rules reject the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on the
merits.” Foman, 371 U.S. at 181-82 (quoting Conley v. Gibson, 355 U.S. 41, 48,
78 S.Ct. 99, 103, 2 L.Ed.2d 80.) The Fifth Circuit stated, “Not surprisingly,
denying leave to amend, absent articulable reason, is ‘not an exercise of discretion’
but rather ‘abuse of ... discretion.’” Lone Star Ladies Inv. Club v. Schlotzsky’s
Inc., 238 F.3d 363, 367 (5th Cir. 2001). It is clear from the record and the
supporting evidence attached to Appellant’s Response to the government’s Motion
to Dismiss, that the Appellant should have been allowed to amend the Complaint.
There can certainly be no argument that leave to amend would be futile
because, if the Appellant dismissed his NFA claim, standing would not be an issue.
Alternatively, if Appellant pursued the NFA claim and amended the Complaint to
add Texas as a party, that would satisfy the standing argument as well.
There is likewise no bad faith, undue delay, or dilatory motive on behalf of
the Appellant in requesting leave to amend. The Appellant, while not filing a
54
formal motion for leave to amend, requested leave to amend from the court at least
twice. The district court stated in its Order that Appellant “has not sought leave to
amend.” ROA.800. RE-19. However, it is clear from the record that Appellant did
so request leave to amend. At the oral argument, the court could have simply
ordered an amendment within a certain number of days, however there was no
such authority given to Appellant at the hearing. Additionally, no prejudice would
come from such an amendment to the Complaint, as a scheduling order had not
been entered and the government could certainly renew its Motion to Dismiss after
the amendment if it so chose.
CONCLUSION
When the constitutional rights of every single U.S. citizen were jeopardized
by the collective rights theory, this Court’s Circuit stood up for the Second
Amendment. Thus, in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert.
denied, 536 U.S. 907 (2002), the Fifth Circuit looked to the text, history, and
tradition of our nation and became the first Circuit to find the Second Amendment
confers an individual right to keep and bear arms. If this Court does the same, and
it would not be a stretch for it to do so, it will find that Defendants’ ban on the
quintessential militia arm of the modern day defies the protections our Constitution
guarantees.
55
For the foregoing reasons, the Fifth Circuit should review the district court’s
analysis of Hollis’ Second Amendment challenge as it is a crucial component of
Hollis’ Equal Protection argument upon which the district court ruled. Hollis
submits that this Court should reach the merits as to whether the Second
Amendment protects Hollis’ M-16 or, in the alternative, to remand this case to the
district court with instructions to allow Hollis to amend his Complaint and to be
allowed discovery on matters which would be applicable under the mooted Rule
56(d) motion.
Respectfully Submitted,
/s/ Alan Beck /s/ Stephen D. Stamboulieh

Alan Alexander Beck Stephen Dean Stamboulieh
Counsel for Appellant Counsel for Appellant
56
CERTIFICATE OF SERVICE
I hereby certify that on October 26, 2015, a true and correct copy of the
foregoing Brief for Plaintiff-Appellant were served via electronic filing with the
Clerk of Court and all registered ECF users.
Patrick G. Nemeroff
Email: [email protected]
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 305-8727
Daniel M. Riess
Civil Division Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, DC 20530
(202) 514-1259
Dated: October 26, 2015
/s/Stephen D. Stamboulieh
CERTIFICATE OF COMPLIANCE
This brief has been prepared using 14-point, proportionately spaced, serif
typeface, in Microsoft Word. Excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii), this brief contains 13,612 words.
/s/ Stephen D. Stamboulieh

Hollis V Holder Opening Brief

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Case: 15-10803 Document: 00513247075 Page: 1 Date Filed: 10/26/2015

United States Court of Appeals

JAY AUBREY ISAAC HOLLIS, Individually and as

LORETTA E. LYNCH, Attorney General of the United States;

BRIEF FOR PLAINTIFF-APPELLANT

ALAN ALEXANDER BECK, ESQ. STEPHEN DEAN STAMBOULIEH, ESQ.

Attorneys for Plaintiff-Appellant

COUNSEL PRESS • (888) 700-3226

CERTIFICATE OF INTERESTED PERSONS

Jay Isaac Hollis v. Loretta Lynch, et al., No. 15-10803

Alan Alexander Beck

/s/ Stephen D. Stamboulieh

STATEMENT REGARDING ORAL ARGUMENT

A. Mr. Hollis Has Standing To Bring His Second Amendment

II. THE CHALLENGED LAWS ARE UNCONSTITUTIONAL

A. The Challenged Laws Burden Second Amendment Rights ................ 20

i. Defendants Misapply Heller’s Dangerous and Unusual

ii. Defendants Complete Ban on Machineguns is

iii. U.S. v. Marzzarella Supports Applying a Categorical

iv. The 1934 Hearing on National Firearms Act Supports

v. The Ban on Machineguns in § 922(o) is not

vi. If Means End Scrutiny is Necessary, Strict Scrutiny

vii. Even if Means End Scrutiny Applies, Defendants Fail

viii. Defendants Misread United States v. Miller .............................45

ix. Miller Provides the Outer Limits for the Second

x. “Common Use” Cannot Be a Test ...........................................49

III. THE DISTRICT COURT COMMITTED TWO ADDITIONAL

A. The District Court Erred in Denying Appellant’s Rule 56(d)

B. The District Court Erred in Dismissing Appellant’s

44 Liquormart, Inc. v. Rhode Island,

Baron Snigge v. Shirton,

Beverly v. Wal-Mart Stores, Inc.,

Bustos v. Martini Club Inc.,

Citizens United v. Fed. Election Commn.,

District of Columbia v. Heller,

Friedman v. City of Highland Park, Illinois,

Groupe SEB USA, Inc. v. Euro-Pro Operating LLC,

Heller v. District of Columbia,

In re Volkswagen of Am., Inc.,

Intl. Shortstop, Inc. v. Rally’s, Inc.,

Lone Star Ladies Inv. Club v. Schlotzsky’s Inc.,

Lorillard Tobacco Co. v. Reilly,

McDonald v. City of Chicago,

Nat’l Rifle Ass’n of Am., Inc. v.

Natl. Fedn. of the Blind of Texas, Inc. v. Abbott,

Priester v. JP Morgan Chase Bank, N.A.,

Rex v. Rowland Phillips,

Thomas v. Review Bd. of Ind. Employment Sec. Div.,

Time Warner Cable, Inc. v. Hudson,

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