USA v. Alsenat - Second Amendment Does Not Protect Machinegun Possession

USCA11 Case: 24-14058 Document: 63-1 Date Filed: 04/21/2026 Page: 1 of 8

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

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WNo. 24-14058 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

MAXON ALSENAT,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:23-cr-60209-DSL-1 ____________________

Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Cir- cuit Judges.

ILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether the Second Amendment protects the possession of machineguns. See 18 U.S.C. § 922(o)(1). A grand jury indicted Maxon Alsenat for knowingly

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2 Opinion of the Court 24-14058 possessing a machinegun conversion device. After the district court denied his motion to dismiss the indictment, Alsenat pleaded guilty. He renews his challenge to the constitutionality of section 922(o) on appeal. Because machineguns are not protected by the Second Amendment as weapons in common use for lawful purposes, we affirm.

1. BACKGROUND A grand jury indicted Maxon Alsenat for possession of a ma- chinegun. See 18 U.S.C. § 922(o)(1). The indictment alleged that Alsenat knowingly possessed a machinegun conversion device, which meets the statutory definition of a machinegun. See id. § 921(a)(24); 26 U.S.C. § 5845(b). Alsenat moved to dismiss the in- dictment on the grounds that section 922(o)(1) violates the Second Amendment as applied to adult citizens with no felony convictions. The district court denied Alsenat's motion to dismiss. It ruled that machineguns are not in common use and are dangerous and unusual. Alternatively, it ruled that machinegun conversion de- vices possessed without a separate firearm are "accessories" or "ac- coutrements" and n o t "A r m s " protected by the Second Amend- ment. Alsenat pleaded guilty. He stipulated that the government would have been able to prove that he knowingly sold three ma- chinegun conversion devices to an undercover law enforcement of- ficer. The district court sentenced him to 24 months of imprison- ment and three years of supervised release.

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24-14058 Opinion of the Court 3

1. STANDARD OF REVIEW
   We review the constitutionality of a statute that defines a criminal offense de novo. United States v. Gruezo, 66 F.4th 1284, 1292 (11th Cir. 2023).

2. DISCUSSION
   In Class v. United States, the Supreme Court held that "a guilty plea by itself " does not "bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal." 138 S. Ct. 798, 803 (2018). A guilty plea does not waive a challenge that "can be resolved by examining the face of the indictment or the record at the time of the plea without requir- ing further proceedings." United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) (citation and internal quotation marks omitted). Alsenat argues that section 922(o) is unconstitutional as applied to "adult citizen[s] who ha[ve] no felony convictions." Because Alse- nat's challenge does not contradict his indictment or his factual proffer, we may consider it. The Supreme Court in District of Columbia v. Heller made clear that the Second Amendment "does not protect those weap- ons not typically possessed by law-abiding citizens for lawful pur- poses." 554 U.S. 570, 625 (2008). It surveyed a host of ancient sources and concluded that such a "limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous

ILLIAM and unusual weapons.'" Id. at 627 (first citing 4 W

BLACKSTONE, COMMENTARIES *148-49 (1769); then citing 3 BIRD WILSON, WORKS OF THE HONOURABLE JAMES WILSON 79 (Phila.,

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4 Opinion of the Court 24-14058 Bronson & Chauncey 1804); then citing J OHN A. DUNLAP, THE NEW-YORK JUSTICE 8 (N.Y.C., Isaac Riley 1815); then citing CHARLES HUMPHREYS, COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY 482 (Lexington, William Gibbes Hunt 1822); then citing 1 W ILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 271-72 (Phila., P.H. Nicklin & T. John- son, Bos., Lilly & Wait 1831); then citing H ENRY J. STEPHEN, SUMMARY OF THE CRIMINAL LAW 48 (Phila., John S. Littell 1840); then citing E LLIS LEWIS, AN ABRIDGMENT OF THE CRIMINAL LAW OF UNITED STATES 64 (Phila., Thomas, Cowperthwait & Co. THE 1847); and then citing F RANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 726 (2d ed. Phila., James Kay, Jun. and Brother 1852)). In Heller, the Court also grounded the constitutionality of banning the possession of machineguns in this historical under- standing. The Court stated that it would be "startling" to conclude that federal "restrictions on machineguns . . . might be unconstitu- tional." Id. at 624. And it reiterated that "weapons that are most useful in military service--M-16 rifles and the like--may be banned." Id. at 627. The Supreme Court has made clear, in other contexts, that machineguns are not weapons in common use for lawful purposes.

See Staples v. United States, 511 U.S. 600, 611-12 (1994) ("[C]ertain

categories of guns--no doubt including the machineguns . . . that Congress has subjected to regulation--[are] items the ownership of which would have the same quasi-suspect character we attributed

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24-14058 Opinion of the Court 5 to owning hand grenades in [United States v. Freed, 401 U.S. 601 (1971)]." (emphasis added)); Haynes v. United States, 390 U.S. 85, 87 (1968) (stating that Congress intended the National Firearms Act's tax on machineguns and other weapons to affect "only weapons used principally by persons engaged in unlawful activities" (emphasis added)). Unlike handguns, "the most popular weapon" for "the core lawful purpose of self-defense," Heller, 554 U.S. at 629-30, the ability of machineguns to fire automatically is best suited for crim- inal purposes, see United States v. O'Brien, 560 U.S. 218, 230 (2010) (acknowledging the "immense danger posed by machineguns" and "the moral depravity in choosing the weapon"). Handheld machineguns like the Tommy gun entered the ci- vilian market after World War I and were quickly adopted by crim-

OHN ELLIS, THE SOCIAL HISTORY OF THE MACHINE GUN 149-inals. J

60 (1986); Robert J. Spitzer, Understanding Gun Law History after Bruen: Moving Forward by Looking Back, 51 F ORDHAM URB. L.J. 57, 61-64 (2023). At least 32 states responded by enacting anti-ma- chinegun laws between 1925 and 1934. Spitzer, supra, at 64. Many of those laws banned the possession of machineguns. See, e.g., Act of May 16, 1927, ch. 552, § 1, 1927 Cal. Stat. 938 (making it illegal to "possess[] any firearm of the kind commonly known as a ma- chine gun"); Act of July 7, 1932, No. 80, § 2, 1932 La. Acts 357 (mak- ing it "unlawful . . . to sell, keep or offer for sale, loan or give away, purchase, possess, carry or transport any machine gun"); Act of Mar. 6, 1933, ch. 64, § 1, 1933 Wash. Sess. Laws 335 (making it "un- lawful . . . to manufacture, own, buy, sell, loan, furnish, transport, or have in possession, or under control, any machine gun"). In

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6 Opinion of the Court 24-14058 1934, Congress enacted the National Firearms Act, which imposed a $200 tax on machineguns and required their registration with the federal government. Pub. L. No. 73-474, §§ 3-5, 48 Stat. 1236, 1237 (codified as amended at 26 U.S.C. §§ 5811, 5821, 5841). And in 1986, Congress enacted section 922(o) as part of the Firearm Owners' Protection Act. Pub. L. No. 99-308, § 102, 100 Stat. 449, 453 (1986). More than 35 jurisdictions "strictly regulate" machinegun possession today. See United States v. Morgan, 150 F.4th 1339, 1348 (10th Cir.) (counting 38 such jurisdictions), cert. denied, 146 S. Ct. 907 (2025). At least 13 states and the District of Columbia ban all or almost all machinegun possession. See C DAL. PENAL CODE §§ 32625(a), 32610, 32650; C OLO. REV. STAT. § 18-12-102(1), (3);

EL. CODE ANN. tit. 11, § 1444(a)(5), (b)(1); D.C. CODE § 22-4514(a);

HAW. REV. STAT. §§ 134-8(a), 134-11; 720 ILL. COMP. STAT. 5/24- 1(a)(7)(i), 5/24-2(c); I OWA CODE §§ 724.1(a), 724.3, 724.2; MASS. GEN. LAWS ch. 140, § 131(f ), ch. 269, § 10(c); MINN. STAT. § 609.67; N.J. STAT. ANN. §§ 2C:39-5(a), 2C:39-6, 2C:58-5; N . Y. PENAL LAW §§ 265.02, 265.20; 11 R.I. G EN. LAWS §§ 11-47-8(a), 11-47-9(a), 11-47- 9.1; W ASH. REV. CODE § 9.41.190(1)(a), (3); WIS. STAT. § 941.26(1g)(a), (3). And at least another 21 states ban private ma- chineguns unless the weapon is legal under federal law. See A LASKA STAT. § 11.61.200(a)(3), (c), (h)(1)(C); ARIZ. REV. STAT. §§ 13- 3101(A)(8)(a)(iii), (B), 13-3102(A)(3); F LA. STAT. § 790.221(1), (3); GA. CODE ANN. §§ 16-11-122, 16-11-124(4); IND. CODE §§ 35-47-5-8, 35-47-5-10(7); K AN. STAT. ANN. § 21-6301(a)(5), (h); LA. STAT. ANN. § 40:1752(A), (B)(3); ME. STAT. tit. 17-A, §§ 1051(1), 1052; MICH. COMP. LAWS §§ 750.224(1)(a), (3)(c); MO. REV. STAT.

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24-14058 Opinion of the Court 7 § 571.020(1)(6)(a); N EB. REV. STAT. § 28-1203; NEV. REV. STAT. § 202.350(1)(b), (6); N.C. GEN. STAT. § 14-409(b); N.D. CENT. CODE § 62.1-05-01(1); OHIO REV. CODE ANN. §§ 2923.11(K)(1), 2923.17(A), (C)(5); O R. REV. STAT. § 166.272(1), (3); 18 PA. CONS. STAT. § 908(a)- (c); S.C. CODE ANN. §§ 16-23-230, 16-23-250; TENN. CODE ANN. § 39- 17-1302(a)(3), (d); T EX. PENAL CODE ANN. § 46.05(a)(1)(B); W. VA. CODE § 61-7-9. Nothing in Bruen or Rahimi altered how Heller described the scope of the Second Amendment. See N.Y. State Rif le & Pistol Ass'n

1. Bruen, 142 S. Ct. 2111, 2128 (2022) (citing Heller for the proposi-
   tion that the Second Amendment only "protects the possession and use of weapons that are in common use at the time" and not those that are "dangerous and unusual" (citation and internal quotation marks omitted)); United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024) (explaining that the Second Amendment right is subject to limita- tions such as "ban[s] [on] the carrying of dangerous and unusual weapons" (citation and internal quotation marks omitted)). So we join several sister circuits in holding that the Second Amendment does not protect the possession of machineguns. See Morgan, 150

2. 4 t h at 1345-51; United States v. Simmons, 143 F.4th 200, 207 (4th
   Cir. 2025); United States v. Bridges, 150 F.4th 517, 522-29 (6th Cir. 2025); United States v. One (1) Palmetto State Armory PA-15 Machinegun

Receiver/Frame, Unknown Caliber Serial No. LW001804, 822 F.3d 136,

141-43 (3d Cir. 2016); United States v. Henry, 688 F.3d 637, 639-40 (9th Cir. 2012); United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008); see also Capen v. Campbell, 134 F.4th 660, 672 (1st Cir. 2025);

United States v. Rush, 130 F.4th 633, 637 (7th Cir. 2025); Hanson v.

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8 Opinion of the Court 24-14058

District of Columbia, 120 F.4th 223, 239 (D.C. Cir. 2024), cert. denied,

145 S. Ct. 2778 (2025). Alsenat's status as a non-felon citizen does not alter our con- clusion. Alsenat's claim is "quasi-facial" in that he "contends that [section 922(o)] cannot be constitutionally applied to a defined sub- set of people the law covers," including him. McGuire v. Marshall, 50 F.4th 986, 1003 (11th Cir. 2022) (citation and internal quotation marks omitted). He "must therefore satisfy our standards for a fa- cial challenge to the extent" his claim "reach[es] beyond the partic- ular circumstances" of his appeal. Doe v. Reed, 561 U.S. 186, 194 (2010). A facial challenge requires Alsenat to "establish that no set of circumstances exists under which" section 922(o) is constitu- tional. Rahimi, 144 S. Ct. at 1898 (citation and internal quotation marks omitted). Because section 922(o) is constitutional as applied to Alsenat, his quasi-facial challenge fails.

1. CONCLUSION We AFFIRM Alsenat's conviction.