Feds Say Wyoming Man Has No Right To Make His Own Machine Gun

Saying a federal ban on machine guns is unconstitutional under the Second Amendment, a Wapiti man is suing the ATF and the nation's top prosecutor, but the federal government says people have no right to build machine guns.

Clair McFarland

March 16, 20233 min read

Homemade M16 1 9 23
(Cowboy State Daily Staff)

After a Wapiti man sued the federal government for the right to build his own machine gun, the federal government Monday said the Second Amendment doesn’t allow citizens to own machine guns.  

Jake Stanley DeWilde in January sued U.S. Attorney General Merrick Garland and the Bureau of Alcohol, Tobacco and Firearms and Explosives (ATF), saying the government wrongfully denied his application to build his own M16 machine gun and a federal ban on such weapons is unconstitutional. 

‘Dangerous And Unusual’ 

The federal government in its Monday filing says that courts have consistently ruled that the Second Amendment protects weapons in “common use” but does not protect “dangerous and unusual weapons.”

The U.S. Supreme Court has specifically singled out M16 rifles as dangerous and unusual, the counterclaim says.  

The high court in 2008 contemplated another pro-gun argument: that weapons such as the M16, which are used in the military, should be allowed to citizens because the Second Amendment says people should keep “a well-regulated militia.”  

“But the Court rebuffed this objection,” reads the federal government’s filing, “explaining that ‘the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.’”  

Lawful Purposes 

DeWilde’s lawsuit complaint says that on Dec. 8, he submitted an ATF form asking to make and register an M16 machine gun. But 12 days later the ATF denied his application, citing a federal law that forbids both the transfer and possession of machine guns.  

The statute doesn’t apply to U.S. government and military forces or machine guns owned before 1986. 

DeWilde’s argument was nearly the opposite of the federal government’s, as he held that recent gun cases from 2008 and 2022 together indicate that the M16 is in “common use” by the U.S. military and therefore should be made legal for citizens.  

He wrote that he wants an M16 for lawful purposes, including “defense of hearth and home and militia functions.”  

Constitutional Power Limit 

DeWilde’s lawsuit initially alleged that the federal government exceeded its constitutional powers in outlawing machine guns, but he asked the court this week to strike that part of his argument and focus on the Second Amendment instead.  

The federal government in its counterclaim says it has the right to restrict firearms because the U.S. Constitution gives it the power to regulate interstate commerce.  

It is unclear how this claim applies to the suit, since DeWilde’s complaint doesn’t contemplate transferring a gun across state lines.   

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Clair McFarland

Crime and Courts Reporter