Third Circuit: Machine Guns Aren’t Heller Arms — Silencer Registration Survives Too

The U.S. Court of Appeals for the Third Circuit filed United States v. Berger, No. 24-2125, on September 1, 2026. Judge Stephanos Bibas wrote. Judge Felipe Restrepo joined. Judge Cindy Chung joined the judgment. The panel affirmed convictions of Joseph Paul Berger, a Navy veteran in Bethlehem, Pennsylvania, for possessing machine guns and unregistered silencers. The appeal was from Judge Joseph F. Leeson, E.D. Pa., No. 5:22-cr-00033-002. Agents found thirteen fully automatic weapons — mostly AK-47 variants — and a dozen silencers after intercepting a package from China.

Quote from the opinion: “Gun bans are strong medicine. But occasionally, they are just what the doctor ordered.” Bibas: machine guns “are not in common use for lawful purposes.” He called them “indiscriminate weapons of war and crime, not self-defense ones.” Possession of post-1986 machine guns remains a federal crime under 18 U.S.C. § 922(o). On silencers, the majority said the registration requirement “imposes only an incidental burden” — in the opinion’s words, “a minimal, objective hoop that buyers must jump through.” Chung joined the judgment but, in a footnote described by Bloomberg Law, would have held that a silencer is not an “arm” unless it is necessary for the firearm to function.

This is not the New Jersey AR-15 case. The en banc Third Circuit already struck that ban in Cheeseman. Berger is a panel decision about machine guns and NFA silencer paperwork as applied to this defendant. The two holdings can sit in the same circuit. Readers should not confuse a machine-gun conviction with a green light to re-ban ARs. They are not the same analog, and Bibas said so by hanging the result on common use.