United States v. Kittson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-4132

D.C. No.

Plaintiff - Appellee,

3:21-cr-00075-

IM-1

v.

DANIEL MATTHEW KITTSON, OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the District of Oregon

Karin J. Immergut, District Judge, Presiding

Argued and Submitted June 12, 2025

Portland, Oregon

Filed December 10, 2025

Before: Mary M. Schroeder, John B. Owens, and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge Owens;

Dissent by Judge VanDyke

2 USA V. KITTSON

SUMMARY *

Criminal Law

The panel affirmed Daniel Matthew Kittson’s conviction

for possessing or transferring a machinegun in violation of

18 U.S.C. § 922(o).

Section 922(o)(1) provides that “it shall be unlawful for

any person to transfer or possess a machinegun.” But

§ 922(o)(2)(A) provides that the prohibition does not apply

to “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.”

Kittson argued that § 922(o) does not apply here, as he

transferred the machinegun to a federal agent, and

§ 922(o)(2)(A) exempts any transfers to the United States,

even those to undercover agents. The panel held that the

§ 922(o)(2)(A) exemption does not apply to transfers to

undercover agents, as the exemption for transfers covers

solely those transfers authorized by the government for the

benefit of federal, state, or local government entities.

Accordingly, the district court, like every other court to

confront this issue, correctly rejected Kittson’s argument

regarding the § 922(o)(2)(A) exemption.

Kittson also argued that § 922(o) violates the Second

Amendment. In United States v. Henry, 688 F.3d 637 (9th

Cir. 2012), this court rejected that argument and held that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. KITTSON 3

machineguns are dangerous and unusual weapons that are

unprotected by the Second Amendment. Rejecting Kittson’s

argument that Henry is clearly irreconcilable with the

Supreme Court’s intervening decision in New York State Rile

& Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the panel

held that Henry controls the outcome here.

The panel addressed Kittson’s other arguments in a

concurrently filed memorandum disposition.

Judge VanDyke dissented. He wrote that in reaching a

result contrary to what the statutory text demands, the

majority relies on cases that either implicate § 922(o)’s

possession element—textually different in important ways

from the transfer element—or implicate entirely different

statutes altogether, thereby failing to deal with the unique

case at hand: a criminal defendant who transferred a

machinegun to the United States without first possessing

it. The majority’s application of off-point precedent here

effectively creates a reverse state-of-mind carveout to a

statute’s plain exception, thus expanding the reach of the

criminal prohibition that Congress created. Judge VanDyke

would not reach the Second Amendment question, but wrote

that the majority erred by merely assuming that machineguns

fall outside the ambit of constitutionally protected firearms

by finding that those arms are dangerous and capable of

inflicting injury—a definition that could apply to any

firearm.

4 USA V. KITTSON

COUNSEL

Sarah Barr (argued), Leah K. Bolstad, and Kelly A. Zusman,

Assistant United States Attorneys; Suzanne Miles, Criminal

Appellate Chief; Natalie K. Wight, United States Attorney;

Office of the United States Attorney, United States

Department of Justice, Portland, Oregon; for Plaintiff-

Appellee.

Michael C. Benson (argued) and C. Renee Manes, Assistant

Federal Public Defenders, Federal Public Defender's Office,

Portland, Oregon, for Defendant-Appellant.

Donald Kilmer Jr., Law Offices of Donald Kilmer, Caldwell,

Idaho; Carl D. Michel, Joshua R. Dale, Alexander A. Frank,

and Konstadinos T. Moros, Michel & Associates PC, Long

Beach, California; for Amici Curiae California Rifle &

Pistol Association Inc., Second Amendment Law Center

Inc., and the Second Amendment Foundation.

USA V. KITTSON 5

OPINION

OWENS, Circuit Judge:

Daniel Matthew Kittson appeals from his conviction for

possessing or transferring a machinegun in violation of 18

U.S.C. § 922(o). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm. 1

I. BACKGROUND

In January 2020, federal agents learned that Kittson, a

previously convicted felon, was willing to sell a World War

II-era Russian machinegun, which he acknowledged could

not be lawfully transferred. An undercover federal agent,

posing as a firearms and drug trafficker, exchanged phone

calls and text messages with Kittson to make a deal. While

Kittson did not physically possess the machinegun, he

arranged for Ray Bohanan, who had the weapon, to finalize

the transfer. The agent and Kittson drove to Bohanan’s

location, where they negotiated the final price and

exchanged cash for the machinegun. The agent remained

undercover, and the United States Marshals Service

subsequently arrested Kittson.

A grand jury indicted Kittson for (1) possessing and

transferring a machinegun in violation of 18 U.S.C.

§ 922(o), and (2) felon-in-possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Relevant here,

§ 922(o)(1) provides that “it shall be unlawful for any person

to transfer or possess a machinegun.” But the prohibition

1

Kittson also raises jury instruction and sentencing challenges. We

address these arguments in a concurrently filed memorandum

disposition, in which we affirm.

6 USA V. KITTSON

does not apply to “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.” § 922(o)(2)(A).

Kittson moved pretrial to dismiss the § 922(o) count,

arguing that the Supreme Court’s decision in New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022),

required the statute’s invalidation. The district court rejected

that claim. It cited United States v. Henry, 688 F.3d 637,

640 (9th Cir. 2012), in which our court held that the Second

Amendment did not cover machineguns, and concluded that

Henry was not “clearly irreconcilable” with Bruen. See

Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en

banc).

The matter proceeded to trial. At the close of the

government’s case, Kittson moved under Federal Rule of

Criminal Procedure 29 for a judgment of acquittal on the

§ 922(o) count. Kittson argued that § 922(o) did not apply

here, as he transferred the machinegun to a federal agent and,

according to Kittson, § 922(o)(2)(A) exempts any transfers

to the United States, even those to undercover agents.

The district court denied the motion, noting that

Kittson’s “interpretation of 18 U.S.C. § 922(o)(2)(A) would

provide complete immunity for any defendant who transfers

a machinegun to an undercover government agent, even if

the defendant does not know or believe the undercover agent

to be an agent of the government.” Relying on an

unpublished Ninth Circuit table disposition which addressed

this precise issue, United States v. Bascue, 97 F.3d 1461,

1996 WL 554488 (9th Cir. 1996), and Perri v. Department

of the Treasury, 637 F.2d 1332, 1337 (9th Cir. 1981), which

analyzed a similar firearms statute, the district court held that

USA V. KITTSON 7

the § 922(o)(2)(A) exemption did not apply in these

circumstances: “[Kittson] did not know that the undercover

agent was in fact an agent of the government, and therefore

cannot escape liability for the transfer under 18 U.S.C.

§ 922(o)(2)(A).”

The jury delivered a split verdict—not guilty on the

felon-in-possession count, but guilty on the possession or

transfer count. The district court sentenced Kittson to

twenty-seven months’ imprisonment, and Kittson timely

appealed.

II. DISCUSSION

A. Standard of Review

“We review de novo a district court’s denial of a Rule 29

motion for a judgment of acquittal.” United States v.

Gagarin, 950 F.3d 596, 602 (9th Cir. 2020). We also review

de novo “questions of law, including constitutional issues,

and questions of statutory interpretation.” United States v.

Mongol Nation, 56 F.4th 1244, 1250 (9th Cir. 2023) (internal

citation omitted).

B. The Regulation of Machineguns and § 922(o)

1. The National Firearms Act of 1934, Omnibus

Crime Control and Safe Streets Act of 1968,

and Gun Control Act of 1968

When we interpret “transfer” to the United States under

§ 922(o)(2)(A), we must bear in mind the unique history and

tradition of federal oversight of machineguns. “Congress

has closely regulated machine guns pursuant to its taxation

power since the National Firearms Act of 1934, which

subjected machine guns, unlike ordinary firearms, to federal

registration and a transfer tax.” United States v. Kenney, 91

8 USA V. KITTSON

F.3d 884, 890 (7th Cir. 1996). The National Firearms Act

outlawed the transfer of a machinegun without the payment

of applicable taxes and an order from the Secretary of

Treasury. See National Firearms Act of 1934, Pub. L. No.

73-757, §§ 3–4, 48 Stat. 1236, 1237–38 (1934); Haynes v.

United States, 390 U.S. 85, 87–89 (1968) (describing

requirement that “[a]ny person who wishes to transfer [a

machinegun] may lawfully do so only if he first obtains a

written order from the prospective transferee on an

‘application form issued . . . for that purpose by the

Secretary’” (citation omitted)); Mock v. Garland, 75 F.4th

563, 569 (5th Cir. 2023) (describing the National Firearm

Act’s transfer tax as “explicitly intended to tax these

weapons out of existence”).

With the Omnibus Crime Control and Safe Streets Act

of 1968 (“Omnibus Act”), Congress enacted 18 U.S.C.

§ 922, which further tightened the laws on machineguns.

Pub. L. No. 90-351, § 922, 82 Stat. 197, 228 (1968). In

particular, § 922(a)(4) made it unlawful “for any person,

other than a licensed importer, licensed manufacturer, or

licensed dealer, to transport in interstate or foreign

commerce any . . . machinegun . . . except as specifically

authorized.” Id. at 229. And § 922(b)(4) made it unlawful

for any licensed importer, manufacturer, or dealer to “sell or

deliver . . . to any person . . . [a] machine gun” unless certain

requirements were met. Id. at 230. When enacting the

Omnibus Act, Congress found “that the high incidence of

crime in the United States threaten[ed] the peace, security,

and general welfare of the Nation and its citizens” and that

“law enforcement efforts must be better coordinated,

intensified, and made more effective” to prevent crime. Id.

at 197; see also Bryan v. United States, 524 U.S. 184, 186

(1998) (observing that “Congress made findings concerning

USA V. KITTSON 9

the impact of the traffic in firearms on the prevalence of

lawlessness and violent crime in the United States”).

Congress thus declared that its policy was to “assist State

and local governments in strengthening and improving law

enforcement at every level by national assistance.” Omnibus

Act § 902, 82 Stat. at 198.

That same year, Congress amended the Omnibus Act as

part of the Gun Control Act of 1968 and “rewrote the

[National Firearms] Act.” United States v. Clements, 471

F.2d 1253, 1257 (9th Cir. 1972); see also Gun Control Act

of 1968, Pub. L. No. 90-618, § 201, 82 Stat. 1213, 1232

(1968). The stated purpose of the Gun Control Act is to

“provide support to . . . law enforcement officials in their

fight against crime and violence” without placing “undue or

unnecessary Federal restrictions or burdens on law-abiding

citizens with respect to . . . lawful activity.” Gun Control

Act § 101, 82 Stat. at 1213–14.

Under the reconfigured National Firearms Act, 2 it is

unlawful to transfer a machinegun unless certain

requirements are met. See 26 U.S.C. §§ 5852, 5861; 27

C.F.R. §§ 479.89–90, 479.105. For example, the

machinegun must be registered, the transfer approved by the

Secretary of the Treasury, and the applicable taxes paid. See

26 U.S.C. §§ 5811 (taxes), 5812 (transfers), 5841

(registration), 5845 (definitions). Transfers to the “United

States or any department, independent establishment, or

agency thereof” and to “any State, possession of the United

States, any political subdivision thereof, or any official

police organization of such a government entity engaged in

2

Any references to the National Firearms Act relate to provisions

regarding machineguns under the Gun Control Act. See 26 U.S.C.

§ 5849.

10 USA V. KITTSON

criminal investigations” are exempt from the tax

requirement. Id. §§ 5852–53. Nevertheless, even those

transfers must comply with certain procedures prescribed by

the Secretary. See id. §§ 5852–53; 27 C.F.R. §§ 479.89–90

(transfers to the United States and certain government

entities), 479.105 (transfer and possession of machineguns).

It is unlawful to transfer a machinegun in violation of these

requirements. See 26 U.S.C. § 5861(e), (j). And as part of

this regulatory scheme, undercover agents for decades have

regularly targeted those involved in the transferring of

machineguns. 3

2. The Firearm Owners’ Protection Act of 1986

and § 922(o)

Enacted in 1986 under the Firearms Owners’ Protection

Act (“Act” or “FOPA”), § 922(o) was part of an extensive

overhaul of federal firearms laws. See Firearms Owners’

Protection Act, Pub. L. No. 99-308, § 102, 100 Stat 449, 451

(1986); United States v. Knutson, 113 F.3d 27, 30 (5th Cir.

1997) (“Section 922(o), . . . is but the latest manifestation of

the federal government’s longstanding record of regulating

3

See, e.g., United States v. Gillis, 474 F.2d 4, 5 (9th Cir. 1973) (per

curiam) (unlawful transfer of a firearm to an undercover agent without

complying with the relevant regulations); United States v. Sorrells, 714

F.2d 1522, 1524–26 (11th Cir. 1983) (unlawful transfer of unregistered

machinegun to undercover agent); United States v. Rogers, 652 F.2d 972,

973–74 (10th Cir. 1981) (unlawful transfer of unregistered machinegun

to undercover agent); United States v. Tarr, 589 F.2d 55, 60–61 (1st Cir.

1978) (unlawful transfer of machinegun to undercover agents where

“[t]he legal requirements for the transfer of the machine gun . . . were

not met”); United States v. Dwyer, 539 F.2d 924, 925, 926 (2d Cir. 1976)

(transfer of machinegun to undercover agent in violation of 26 U.S.C.

§§ 5811 (tax requirement), 5812 (application requirement), 5861(e)

(prohibited transfer)); United States v. Pingleton, 458 F.2d 722, 724 (7th

Cir. 1972) (unlawful transfer of machinegun to undercover agent).

USA V. KITTSON 11

machineguns.”). FOPA was “designed to relieve the

nation’s sportsmen and firearms owners and dealers from

unnecessary burdens under the Gun Control Act of 1968, to

strengthen the Gun Control Act of 1968 to enhance the

ability of law enforcement to fight violent crime and

narcotics trafficking, and to improve administration of the

Act.” H.R. Rep. 99-495, at 1, as reprinted in 1986

U.S.C.C.A.N. 1327, 1327 (1986). Under the Act, “[t]he term

‘machinegun’ has the meaning given such term in section

5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).”

Firearms Owners’ Protection Act § 101, 100 Stat. at 450.

Section 922(o) 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.

18 U.S.C. § 922(o).

Under the Act, “[p]rivate citizens, whether federal

firearms licensees or members of the general public, who are

not acting under the authority of the United States or a state,

may transfer or possess only machine guns that were

12 USA V. KITTSON

registered on or before May 16, 1986.” United States v.

Rodman, 776 F.3d 638, 640–41 (9th Cir. 2015) (citing 18

U.S.C. §§ 922(o)(2)(A) – (B)). “Outside of a few

government-related uses, machine guns largely exist on the

black market.” Henry, 688 F.3d at 640. “[W]hen read

together, § 922(o) and the legislative records of the Omnibus

Act, [Gun Control Act], and FOPA ‘demonstrate that

Congress has sought to regulate the interstate flow of

firearms, including machineguns, as a means to aid local law

enforcement.’” United States v. Beuckelaere, 91 F.3d 781,

784–85 (6th Cir. 1996) (quoting United States v. Wilks, 58

F.3d 1518, 1522 (10th Cir. 1995)).

3. The § 922(o)(2)(A) Exemption Does Not Apply

to Transfers to Undercover Agents

As the history and extensive caselaw make clear, we do

not approach this statutory interpretation question with a

blank slate. For nearly four decades, courts around the

country have held that the § 922(o)(2)(A) “transfer to . . . the

United States” exemption is an extremely narrow one, see

Hardin v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 65 F.4th 895, 900 (6th Cir. 2023) (noting the two

exceptions in § 922(o)(2) are “extremely limited” (citation

omitted)), and only applies to transfers “authorized by the

government for the benefit of federal, state, or local

government entities.” United States v. Bailey, 123 F.3d

1381, 1393 (11th Cir. 1997) (citation omitted). Every circuit

to examine this provision has come to the same conclusion. 4

4

See, e.g., United States v. Warner, 5 F.3d 1378, 1381 (10th Cir. 1993)

(concluding, based on explicit language and legislative history, that

§ 922(o)(2)(A) “was enacted so that military personnel and police

officers, when acting officially, could utilize and possess machine

guns”); United States v. Aiken, 974 F.2d 446, 449 (4th Cir. 1992)

USA V. KITTSON 13

Confronted with this overwhelming consensus regarding

§ 922(o)(2)(A)’s narrow scope, the dissent invents a

distinction between the “possession exception” and the

“transfer exception.” But this ignores the plain language of

these decisions, which explicitly encompass both the

possession and the transfer of machineguns. For example,

in one of the first cases to consider § 922(o)(2)(A), the

Eleventh Circuit clearly stated: “Congress intended to limit

lawful transfer and possession of machine guns to instances

authorized by the government for the benefit of federal,

state, or local governmental entities.” Farmer v. Higgins,

907 F.2d 1041, 1045 (11th Cir. 1990) (emphasis added). The

Farmer court’s detailed recitation of the legislative history

confirms that the possession and transfer elements of

§ 922(o)(2)(A) were always meant to be read together, not

(observing that, in enacting 18 U.S.C. § 922(o)(1), “Congress made it

illegal for anyone other than government personnel to possess or transfer

a machine gun”); United States v. Neuner, 535 F. App’x 373, 374 n.1

(5th Cir. 2013) (“Clear statutory language and Congressional intent

limited lawful transfer and possession of machine guns to authorized

governmental personnel for use in their official capacities.”); Doe v.

Biden, No. 2022-1197, 2022 WL 16545125, at *4 (Fed. Cir. Oct. 31,

2022) (“[W]e agree with the Eleventh Circuit that Congress intended for

the phrase ‘under the authority’ in § 922(o)(2)(A) ‘to limit lawful

transfer and possession of machine guns to instances authorized by the

government for the benefit of federal, state, or local governmental

entities.’” (citation omitted)); cf., e.g., McCutchen v. United States, 14

F.4th 1355, 1359 (Fed. Cir. 2021) (“[The § 922(o)] language makes it

unlawful to possess or transfer a ‘machinegun,’ with exceptions for

governments and pre-FOPA lawful possession.”); United States v.

Fisher, 149 F. App’x 379, 382 (6th Cir. 2005) (“[One of] [t]he only

exceptions to [§ 922(o)(1)] occur[s] when the transfer or possession is

authorized by the United States or any of its agencies or political

subdivisions . . . .”).

14 USA V. KITTSON

separated into two exceptions of drastically different scope. 5

See id. at 1044–45. Thus, contrary to the dissent’s

characterization, it is not accidental that courts “typically

just collapse the [transfer and possession] exceptions

together when discussing them.” It is for good reason that

court after court has followed Farmer—and none has

disagreed with it—in finding both the “lawful transfer and

possession of machine guns” limited to “instances

authorized by the government.” Bailey, 123 F.3d at 1393

(quoting Farmer, 907 F.2d at 1045) (emphasis added); Doe,

2022 WL 16545125, at *4 (quoting Farmer, 907 F.2d at

1045); Warner, 5 F.3d at 1381 (quoting Farmer, 907 F.2d at

1045); see also Neuner, 535 F. App’x at 374 n.1 (citing

Bailey, 123 F.3d at 1393).

5

During the Senate floor debate, consideration of whether various

machinegun transfers would be lawful under the proposed bill assumed

that lawful transfers would need to take place under the authority of the

United States. For instance, while discussing the application of

§ 922(o)(2)(A) to the sale of weapons to foreign allies, Senator Hatch

explained that “these [sales] should be considered transfers under the

authority of the United States” and therefore fall under the exemption.

Farmer, 907 F.2d at 1045 (quoting 132 Cong. Rec. 9600 (1986)

(statement of Sen. Hatch)). When manufacturers sell machineguns to the

military, such activity falls under the exemption because “these sales and

other transactions would clearly take place under the authority of the

United States.” Id. (quoting 132 Cong. Rec. 9600 (1986) (statement of

Sen. Hatch)). Discussing whether the exemption would permit a police

force to authorize its officers to purchase machineguns in their personal

capacity, Senator Hatch noted that “possession or transfer of those

weapons would cease to enjoy the authorization of the State agency or

subdivision when the officer was no longer on the police force. The

police force would then have to exercise its authority to guarantee that

the machinegun was transferred to another entity authorized by the State

or the United States to possess such weaponry.” Id. (quoting 132 Cong.

Rec. 9601 (1986) (statement of Sen. Hatch)).

USA V. KITTSON 15

The Supreme Court also has held for decades “that, in

the detection of many types of crime, the Government is

entitled to use decoys and to conceal the identity of its

agents.” Lewis v. United States, 385 U.S. 206, 208–09

(1966). Accordingly, in cases featuring other statutes

regulating the transfer of firearms, we have held that the

involvement of an undercover agent does not shield a

defendant from liability. 6

In Perri, we came to this same conclusion when

examining a very similar statute, 18 U.S.C. § 925(a)(1). 637

F.2d at 1337. Section 925(a)(1) provides a government

exemption for “the transportation, shipment, receipt,

possession, or importation of any firearm . . . imported for,

sold or shipped to, or issued for the use of, the United States

or any department or agency thereof or any State or any

department, agency, or political subdivision thereof.”

Rejecting a virtually identical argument to the one that

Kittson makes, we held that the section “does not exempt a

sale of firearms through an undisclosed under-cover agent of

6

See, e.g., United States v. Ubaldo, 859 F.3d 690, 701–03 (9th Cir. 2017)

(holding that the involvement of an undercover FBI agent in an arms

smuggling scheme does not absolve the defendant from liability); Gillis,

474 F.2d at 5–6 (noting that the transfer of an unregistered machinegun

to an undercover agent was illegal unless it met requirements under the

relevant regulations); see also United States v. Bogden, 865 F.2d 124,

127 n.4 (7th Cir. 1988) (dismissing as without merit the argument that a

defendant who “was making [a] gun for an undercover ATF agent” was

exempted from liability under 26 U.S.C. §§ 5851, 5852); cf., e.g.,

Peterson v. United States, 405 F.2d 102, 108 (8th Cir. 1968) (noting the

“obvious purpose” of a statutory exception for the “sale” or “giving away

of narcotic drugs to any officer of the United States Government” was

“to allow legitimate transfers to government officials” and holding the

exception did not apply to the sale of narcotics to an undercover agent

(citation omitted)).

16 USA V. KITTSON

the United States.” Id. “To excuse a dealer’s willful

violation of the Act by selling to an unlawful purchaser

simply because the government ultimately receives the

firearm would circumvent the Act in a way that Congress did

not intend.” Id. We also noted that if the defendant “knew

the purchaser was a government agent and received a

statement from the latter’s agency that the firearm would be

used for official business, the transaction might fall within

the exemption.” Id.; see also Hyland v. Fukuda, 580 F.2d

977, 979 (9th Cir. 1978) (“We agree with the district judge

that the plain terms of section 925(a)(1) remove firearms

owned by the state and used exclusively for its purposes from

the limitations of section 922.” (emphasis added)).

In light of this compelling statutory interpretation

background, it is not surprising that two panels of our court

already have rejected the argument that § 922(o)(2)(A)

provides a get out of jail free card when a defendant transfers

a machinegun to an undercover agent posing as a drug

trafficker, terrorist leader, mass school shooter, or other vile

criminal. See Bascue, 1996 WL 554488 at *2 (“Section

922(o)’s government agency exemption was not meant to

exempt from criminal liability sellers of unlawful firearms

caught in government sting operations.”); United States v.

Nadal, 64 F.3d 667 (9th Cir. 1995) (table) (rejecting

defendant’s “contention that his convictions under 18 U.S.C.

§ 922(o)(1) must be overturned because he was acting under

the authority of an agent of the United States” as “frivolous”

because he “had no knowledge that he was interacting with

government officials at the time of the transactions, and thus

he was not acting pursuant to governmental authority”). A

Fifth Circuit panel even went as far to call this argument

“absurd.” Neuner, 535 F. App’x at 374 n.1.

USA V. KITTSON 17

Without citing a single case, Kittson demands that we

sweep away decades of case law and logic and hold that there

is nothing illegal about transferring machineguns to

undercover agents posing as the most odious criminals. He

asserts that the “plain language” of the statute establishes

that the word “transfer” in § 922(o)(2)(A) covers his

“transfer” in this case, so he is in the clear. To support this

argument, he suggests that the language “under the authority

of” modifies only “possession” and not “transfer” because

there is a comma separating “transfer to or by” and

“possession by or under the authority of.” Thus, according

to Kittson, any transfer to the United States is exempted

under § 922(o)(2)(A), regardless of whether it is authorized.

Kittson also argues that because § 922(o)(2)(B)’s exemption

for “lawful transfer[s]” of machineguns before a certain date

includes the word “lawful,” and § 922(o)(2)(A) does not

include the modifier “lawful” before “transfers,” Congress

intended § 922(o)(2)(A) to exempt any transfers to the

United States, regardless of whether they are lawful or

authorized.

Kittson’s argument that the “transfer” in § 922(o)(2)(A)

must be the same as “transfer” in § 922(o)(1) ignores the

Supreme Court’s sage advice: “In law as in life, . . . the same

words, placed in different contexts, sometimes mean

different things.” Yates v. United States, 574 U.S. 528, 537

(2015) (plurality opinion); see also, e.g., Marshall v. Green

Goddess Avocado Corp., 615 F.2d 851, 854 (9th Cir. 1980)

(“[T]he same word may, depending on context, have

different meanings within the same statute.”); Atl. Cleaners

& Dyers v. United States, 286 U.S. 427, 433 (1932) (“Most

words have different shades of meaning, and consequently

may be variously construed, not only when they occur in

18 USA V. KITTSON

different statutes, but when used more than once in the same

statute or even in the same section.”).

Simply put, context matters, which is why we still have

human beings interpret statutes, rather than MU-TH-UR

6000, Skynet, or Hal 9000 donning black robes. “When

interpreting words in a statute, we start with the premise that

the words of a statute must be read in their context and with

a view to their place in the overall statutory scheme.” United

States v. Wing, 682 F.3d 861, 867 (9th Cir. 2012) (citation

and internal marks omitted). “Our goal is to understand the

statute as a symmetrical and coherent regulatory scheme and

to fit, if possible, all parts into a harmonious whole.” Id.

(citation and internal marks omitted).

Congress did not enact FOPA in isolation. And “as a

matter of statutory construction, we ‘presume that Congress

is knowledgeable about existing law pertinent to the

legislation it enacts.’” United States v. Hunter, 101 F.3d 82,

85 (9th Cir. 1996) (quoting Goodyear Atomic Corp. v.

Miller, 486 U.S. 174, 185 (1988)). The surrounding statutes

closely regulating machineguns thus provide additional

context to the meaning of “transfer to” the United States. As

explained, machineguns must be registered, and machinegun

transfers, even those to the United States, must meet certain

requirements and be approved by the Secretary of Treasury,

none of which occurred here or would ever happen in

undercover operations. See 26 U.S.C. §§ 5812, 5852–53; 27

C.F.R. §§ 479.89–90, 479.105; see also United States v.

Freed, 401 U.S. 601, 605 (1971) (noting that a “lawful

transfer” of machinegun must include an application

supported “by a certificate of a local or federal law

enforcement official that he is satisfied that the photograph

and fingerprints are those of the transferee and that the

weapon is intended for lawful uses”). Construing

USA V. KITTSON 19

§ 922(o)(2)(A) to exempt any machinegun “transfer” to

undercover agents—regardless of compliance with

applicable requirements—would essentially sanction the

very conduct Congress intended to prohibit and regulate.

Such a reading also would undermine the goals of Congress

to aid law enforcement officers to combat crime. See

Beuckelaere, 91 F.3d at 785; see also United States v. Meek,

366 F.3d 705, 719 (9th Cir. 2004) (rejecting interpretation of

statute that would “frustrate” the purpose of a statute and

hinder law enforcement efforts).

Indeed, what these firearm statutes demonstrate is what

courts have been saying for decades—that the exemptions

for transfers cover solely those transfers “authorized by the

government for the benefit of federal, state, or local

government entities.” Bailey, 123 F.3d at 1393 (citation

omitted). Kittson’s inability to identify a single case to

support his “absurd” reading of § 922(o)(2)(A), as the Fifth

Circuit put it, Neuner, 535 F. App’x at 374 n.1, is telling.

The district court’s reading is consistent with our

precedent regarding other statutes regulating machineguns.

As noted, in Perri we held that the exemption in § 925(a) for

firearms sold to the United States did not apply to sales to

undercover agents. 637 F.2d at 1337. Kittson attempts to

distinguish Perri by arguing that the Fifth Circuit case upon

which Perri relied, United States v. Brooks, 611 F.2d 614

(5th Cir. 1980), overruled on other grounds by United States

v. Henry, 749 F.2d 203 (5th Cir. 1984), purportedly held that

the exemption did not apply to a sale to an undercover agent

because § 925(a)(1) applies only to “transportation,

shipment, receipt, or importation” and not “sales.” Kittson

misreads Brooks and cannot avoid Perri’s direct application

here.

20 USA V. KITTSON

As in Perri, the Fifth Circuit in Brooks rejected the

defendant’s argument that his sales to an undercover federal

agent were exempt under § 925(a)(1). 611 F.2d at 617. The

Fifth Circuit held that § 925(a) “does not exempt any sale or

delivery of firearms; it expressly covers only the

‘transportation, shipment, receipt, or importation’ of

firearms ‘for the use of the United States.’” Id. (emphasis

added). “If such a sale is indeed exempt, the seller must have

knowledge that the buyer is a police officer and must secure

a signed statement from an official of the agency for which

the buyer works stating that the firearm is to be used in the

buyer’s official duties.” Id. at 618. Contrary to Kittson’s

argument, Brooks does not stand for the proposition that the

§ 925(a)(1) exemption excludes all “sales.” Rather, the Fifth

Circuit narrowed the exemption to encompass only the sales

and deliveries of firearms “for the use of the United States.”

Id. at 617.

In analyzing a statute similar to § 922(o)(2)(A), Brooks

and Perri demonstrate that the placement of a comma is not

dispositive. Section 925(a)(1), like § 922(o)(2)(A), has

commas separating “sold or shipped to,” “or issued for the

use of,” and “the United States.” Under Kittson’s view, the

language “for the use of” would modify only “issued” and

not “sold,” meaning that any firearm sold to the United

States would be exempted under § 925(a)(1). Such a reading

directly conflicts with Perri. See 637 F.2d at 1337 (noting

that sales to a government agent may be exempted if there

was a statement from the applicable agency “that the firearm

would be used for official business”); see also Brooks, 611

F.2d at 618 (same).

If Congress had intended to disrupt the history and

tradition of law enforcement using undercover agents to stop

arms traffickers from peddling exceedingly dangerous,

USA V. KITTSON 21

military grade automatic weapons, it could have easily done

so by inserting such language into § 922(o). It never did,

and we are not in the business of doing so, especially when

it would lead to the absurd result of trying to catch arms

traffickers after they have transferred the weapon to a mass

killer, rather than stopping them before the carnage ensues.

See United States v. Casasola, 670 F.3d 1023, 1029 (9th Cir.

2012) (“[C]ourts do not construe statutes in a manner that

would lead to absurd results.”). We do not believe that

questionable comma placement trumps decades of case law,

history, or common sense. See Sorrells v. United States, 287

U.S. 435, 446 (1932) (“Literal interpretation of statutes at

the expense of the reason of the law and producing absurd

consequences or flagrant injustice has frequently been

condemned.”).

The dissent’s many arguments, ranging from speed limit

hypotheticals to unwell uncles, branch from the same

thought tree—that Congress would care deeply about

someone possessing a machinegun, but couldn’t care less

about someone who wanted to transfer that same

machinegun to the vilest of criminals.

The dissent’s explanation for this logical disconnect?

That “[i]n the vast majority of cases involving an undercover

sting, that distinction doesn’t matter much because the

defendant will inevitably have both transferred the

machinegun and necessarily possessed it when he personally

handled it before transferring it.” In other words, the transfer

language of 922(o) vanishes from the statute when

undercover agents are involved.

The dissent never explains why we should erase transfer

liability from section 922(o). It presents no support for its

claim that the “vast majority” of undercover sting cases will

22 USA V. KITTSON

involve a defendant who both transfers and personally

possesses a machinegun. One can easily conjure up

countless examples of when someone would be guilty of

transferring firearms even if they did not possess them—a

sophisticated arms dealer who uses a third party to transfer

the machinegun to a terrorist organization who will attack a

Veterans Day Parade, the cartel leader who orders his foot

soldiers to transfer a machinegun to the sicario, a white

supremacist who commands his new recruit to trade the

machinegun for fentanyl, and so on. Or a simpler case, like

this one, where Kittson caused the transfer of a machinegun

to someone he thought was a drug dealer.

But what the dissent cannot conjure up is why Congress

would ever intend for this Legion of Doom to avoid

prosecution. Much like Kittson, the dissent cannot cite a

single case, law review article, or even scrap of legislative

history to prop up its reading of Section 922. Instead, it

speculates that “[b]y granting immunity to individuals who

transfer machineguns to the federal government, Congress

encourages the central goal of § 922(o): limiting

machineguns in private ownership and stopping the

interstate transfer of those weapons.” But it is hard to see

how immunizing defendants like Kittson could help stem the

interstate transfer of machineguns. A defendant in Kittson’s

position, looking to transfer a machinegun to someone he

believes to be an arms trafficker, should reasonably feel

emboldened under the dissent’s interpretation of Section

922. If the buyer is in fact an arms trafficker, then he has

avoided capture in a government sting operation. If the

buyer is an undercover officer, he is home free under the

dissent’s reading of § 922(o)(2)(A). On the other hand, the

dissent’s interpretation does nothing to promote lawful

transfers to government. Merely excluding defendants

USA V. KITTSON 23

caught in sting operations from the razor-thin ambit of

§ 922(o)(2)(A) immunity, as the majority does here, has no

effect on individuals intending to make lawful machinegun

transfers to the government.

The dissent also proclaims that we read a “reverse state-

of-mind element” into the § 922(o)(2)(A) exemption. It

asserts that “under [the majority’s] holding, Kittson must not

only transfer a firearm to the government, but must also do

so knowingly.” But nothing in the majority opinion suggests

this. To be clear, we do not hold that the exemption in

§ 922(o)(2)(A) requires a defendant to prove any particular

mental state, much less the mental state of knowledge.

Rather, we simply reaffirm the validity of sting operations

involving machineguns. A defendant like Kittson, whose

attempt to illegally transfer a machinegun is intercepted by

an undercover agent, is not protected under § 922(o)(2)(A).

This is the same principle that governs all undercover

cases. Following the dissent’s logic to its natural conclusion

would curtail the use of sting operations in many traditional

contexts. Courts, including this one, have long accepted the

validity of convictions resulting from undercover operations.

Such cases include the export of illegal arms, 7 the

distribution of child pornography, 8 and the distribution of

7

See, e.g., United States v. Hendron, 43 F.3d 24, 25 (2nd Cir. 1994) (per

curiam) (affirming the defendant’s sentence for violating the Arms

Export Control Act after he contracted to sell AK-47s to undercover

agents posing as representatives of the Republic of Iraq).

8

See, e.g., United States v. Hernandez, 795 F.3d 1159, 1162–63 (9th Cir.

2015) (affirming the defendant’s sentence for distribution of child

pornography after he shared files with undercover agents).

24 USA V. KITTSON

narcotics. 9 This has never been understood as creating a

“reverse state of mind” requirement. Under the dissent’s

reasoning, all defendants caught up in sting operations are

being punished for failing to prove an innocent state of

mind—had they shown they knew the person on the other

end was an undercover agent, they would have been innocent

of any crime. But this exotic framing obscures the fact that

sting operations are a common law enforcement practice. 10

Section 922 bears no indication that Congress intended to

interfere with them.

Accordingly, the district court, like every other court to

confront this issue, correctly rejected Kittson’s argument

regarding the § 922(o)(2)(A) exemption. 11

C. The Constitutionality of § 922(o) after Bruen

Kittson also argues that § 922(o) violates the Second

Amendment. In Henry, we rejected that argument and held

that “machine guns are ‘dangerous and unusual weapons’

that are unprotected by the Second Amendment.” 688 F.3d

at 638 (quoting Dist. of Columbia v. Heller, 554 U.S. 570,

627 (2008)). As he did before the district court, Kittson

9

See, e.g., United States v. Privett, 443 F.2d 528, 529 (9th Cir. 1971)

(affirming the defendant’s conviction for selling cocaine after he

completed a transaction with an undercover agent); Barnett v. United

States, 171 F.2d 721, 721–22 (9th Cir. 1949) (affirming the defendant’s

conviction for selling narcotics after he agreed to make a sale to an

undercover agent).

10

See Lewis, 385 U.S. at 208–09; see also cases cited supra note 6.

11

In the alternative, Kittson argues that the district court erred in denying

his request for an affirmative defense jury instruction based on the

exemption for transfers to the United States under § 922(o)(2)(A). We

address this argument in a concurrently filed memorandum disposition,

in which we affirm.

USA V. KITTSON 25

argues that Henry is clearly irreconcilable with Bruen. We

agree with the district court that Henry remains good law and

controls the outcome here.

1. Heller and the Second Amendment

Jurisprudence

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. In Heller, the Supreme

Court held that the Second Amendment “protect[s] an

individual right to keep and bear arms for self-defense.”

Bruen, 597 U.S. at 17. However, the Court emphasized the

right “is not unlimited,” and “was not a right to keep and

carry any weapon whatsoever in any manner whatsoever and

for whatever purpose.” Heller, 554 U.S. at 626.

One “important limitation” is that only certain types of

weapons are protected under the Second Amendment. Id. at

627; see also id. at 623 (“[T]he Second Amendment

right . . . extends only to certain types of weapons.”). For

example, “the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for

lawful purposes, such as short-barreled shotguns.” Id. at

625. In other words, “the sorts of weapons protected were

those ‘in common use at the time.’” Id. at 627 (quoting

United States v. Miller, 307 U.S. 174, 179 (1939)). Heller

recognized that this “limitation [was] fairly supported by the

historical tradition of prohibiting the carrying of ‘dangerous

and unusual weapons.’” Id. (citation omitted); see also id.

at 625 (noting the limitation “accords with the historical

understanding of the scope of the right”).

In considering the types of weapons protected, Heller

rejected a “startling reading” of its precedent that would

26 USA V. KITTSON

protect “only those weapons useful in warfare[,] . . . since it

would mean that the National Firearms Act’s restrictions on

machineguns . . . might be unconstitutional, machineguns

being useful in warfare in 1939.” Id. at 624. The Court also

explained that “weapons that are most useful in military

service—M–16 rifles and the like—may be banned.” Id. at

627.

Then in Henry, we applied Heller to conclude “machine

guns are highly ‘dangerous and unusual weapons’ that are

not ‘typically possessed by law-abiding citizens for lawful

purposes.’” 688 F.3d at 640 (quoting Heller, 554 U.S. at

625, 627). We relied on sources explaining the history of

machinegun usage and the weapon’s characteristics to

conclude machineguns are dangerous, with “few weapons

that are more dangerous.” Id. For example, the machinegun

was “first widely used during World War I, where it

‘demonstrated its murderously effective firepower,’” and

now modern machineguns have the ability to “fire more than

1,000 rounds per minute, allowing a shooter to kill dozens of

people within a matter of seconds.” Id. (citations omitted).

We also determined that machineguns were unusual

because “private possession of all new machine guns, as well

as all existing machine guns that were not lawfully possessed

before the enactment of § 922(o), has been unlawful since

1986.” Id. We found that “[o]utside of a few government-

related uses, machine guns largely exist on the black

market.” Id. Accordingly, we held “the Second Amendment

does not apply to machine guns,” and therefore, did not

consider the applicable “level of constitutional scrutiny”

required under our pre-Bruen interest balancing test. Id.

In Bruen, the Supreme Court rejected the two-step

“interest balancing” or “means-end” test our Circuit and

USA V. KITTSON 27

several others employed as “one step too many.” 597 U.S.

at 18–19 & 23 n.5. But Bruen did not disturb Heller. Rather

Bruen stated that its holding was “[i]n keeping with Heller,”

id. at 17, that the text and history test applied was the one

“set forth in Heller,” id. at 26, and that it was making “the

constitutional standard endorsed in Heller more explicit,” id.

at 31.

As in Heller, Bruen emphasized the Second Amendment

was “not unlimited.” Id. at 21 (quoting Heller, 554 U.S. at

626). It also reiterated that in Heller, the Court “found it

fairly supported by the historical tradition of prohibiting the

carrying of dangerous and unusual weapons that the Second

Amendment protects the possession and use of weapons that

are in common use at the time.” Id. at 21 (internal quotation

marks omitted) (quoting Heller, 554 U.S. at 627); see also

id. at 47 (noting the Court “already acknowledged” in Heller

that “colonial legislatures sometimes prohibited the carrying

of ‘dangerous and unusual weapons’”). Bruen further

acknowledged that in Heller, the Court was “[d]rawing from

this historical tradition” and had “explained there that the

Second Amendment protects only the carrying of weapons

that are those ‘in common use at the time,’ as opposed to

those that ‘are highly unusual in society at large.’” Id. at 47

(quoting Heller, 554 U.S. at 627). As the Sixth Circuit

recognized, Bruen “did not call Heller into question; to the

contrary, Bruen was an unqualified endorsement of Heller.”

United States v. Bridges, 150 F.4th 517, 523 (6th Cir. 2025);

see also United States v. Morgan, 150 F.4th 1339, 1349

(10th Cir. 2025) (“Bruen said nothing contrary to Heller’s

‘in common use’ language” (citing Bruen, 597 U.S. at 21, 32

(quoting Heller, 554 U.S. at 627))).

Most recently in United States v. Rahimi, the Supreme

Court again reaffirmed that the Second Amendment “right

28 USA V. KITTSON

was never thought to sweep indiscriminately” and reiterated

Heller’s finding that there is a historical tradition of

prohibiting the carrying of “dangerous and unusual

weapons.” 602 U.S. 680, 691 (2024) (quoting Heller, 554

U.S. at 627); see also id. at 696–98 (discussing historical

laws).

2. Henry is Not Clearly Irreconcilable with

Bruen

“Generally, a panel opinion is binding on subsequent

panels unless and until overruled by an en banc decision of

this circuit.” United States v. Eckford, 77 F.4th 1228, 1233

(9th Cir. 2023) (citation omitted). Under Miller v. Gammie,

one exception to this rule is where “intervening Supreme

Court authority is clearly irreconcilable with our prior circuit

authority.” 335 F.3d at 900. “[T]he clearly irreconcilable

requirement is a high standard that demands more than mere

tension between the intervening higher authority and prior

circuit precedent.” Eckford, 77 F.4th at 1233 (alteration in

original) (citation and quotation marks omitted). “[I]f we

can apply our precedent consistently with that of the higher

authority, we must do so.” Id. (alteration in original)

(citation omitted). Here, Henry is not clearly irreconcilable

with Bruen.

As an initial matter, Bruen’s rejection of the interest

balancing or means-end test did not affect Henry. “Bruen

overturned only those post-Heller decisions that ‘had

misapplied Heller by erroneously adding a means-end-

scrutiny step to Heller’s text-and-history standard.” United

States v. Brown, 147 F.4th 687, 689 (6th Cir. 2025)

(emphasis in original) (quoting Bridges, 150 F.4th at 523).

But Henry did not conduct any such test. See 688 F.3d at

640. Accordingly, to the extent Bruen abrogated some of

USA V. KITTSON 29

our cases, it did not necessarily affect our other Second

Amendment precedents that “straightforwardly applied

Heller, a case that Bruen emphatically endorsed.” Bridges,

150 F.4th at 523.

And while Henry’s review of history was not as thorough

as some post-Heller cases, it did independently conduct a

historical analysis, noting that machineguns rose in

prominence during World War I, were considered to be

dangerous, and are uncommon as they now exist mainly in

the black market. See Henry, 688 F.3d at 640; cf. Bridges,

150 F.4th at 523 (noting pre-Bruen precedent could “rel[y]

entirely on Heller’s clear statements, rooted in historical

analysis, that applied to machineguns” rather than “conduct

its own independent review of text and history”).

But even if its historical analysis was not as exhaustive

as some may prefer, Henry faithfully applied the reasoning

in Heller and relied on the Supreme Court’s own finding of

a “historical tradition of prohibiting the carrying of

‘dangerous and unusual weapons.’” Henry, 688 F.3d at 640

(quoting Heller, 554 U.S. at 627). As Justice Kavanaugh

noted in his concurrence in Rahimi, “[a]lthough Heller

declined to ‘undertake an exhaustive historical analysis,’ it

recognized a few categories of traditional exceptions to the

right.” Rahimi, 602 U.S. at 735 (Kavanaugh, J., concurring)

(quoting Heller, 554 U.S. at 626). One such category is that

“the Second Amendment attaches only to weapons ‘in

common use’ because ‘that limitation is fairly supported by

the historical tradition of prohibiting the carrying of

dangerous and unusual weapons.’” Id. (quoting Heller, 554

U.S. at 626–27).

Bruen did not disturb the parts of Heller upon which

Henry relied, and actually endorsed Heller’s finding of a

30 USA V. KITTSON

“historical tradition of prohibiting the carrying of ‘dangerous

and unusual weapons.’” Bruen, 597 U.S. at 21 (quoting

Heller, 554 U.S. at 627). Bruen further acknowledged that

Heller was “[d]rawing from this historical tradition” when it

“explained there that the Second Amendment protects only

the carrying of weapons that are those ‘in common use at the

time,’ as opposed to those that ‘are highly unusual in society

at large.’” Id. at 47 (quoting Heller, 554 U.S. at 627).

The Sixth and Tenth Circuits have rejected post-Bruen

challenges to the constitutionality of § 922(o). See, e.g.,

Bridges, 150 F.4th at 519; Brown, 147 F.4th at 689; Morgan,

150 F.4th at 1341. The Sixth Circuit has likewise held that

Bruen did not disturb its pre-Bruen precedent. Pre-Bruen,

the Sixth Circuit held the Second Amendment “does not

authorize an unlicensed individual to possess unregistered

machine guns for personal use.” Hamblen v. United States,

591 F.3d 471, 474 (6th Cir. 2009). Hamblen did not conduct

any means-end test and relied solely on Heller. See id. Post-

Bruen¸ the Sixth Circuit concluded “pre-Bruen cases that did

not wrongfully apply means-end scrutiny remain binding.”

Bridges, 150 F.4th at 523. As such, the court held Hamblen

“remains good law after Bruen” because it did not conduct a

means-end test and instead “straightforwardly applied

Heller, and Bruen did nothing to displace those aspects of

Heller on which Hamblen relied.” Id. “Although Hamblen

did not conduct its own independent review of text and

history,” the Sixth Circuit determined “it did not have to” as

“it instead relied entirely on Heller’s clear statements, rooted

in historical analysis, that applied to machineguns.” Id. It

stated, “[i]f Heller was rooted in history, then so too was

Hamblen.” Id. at *5.

Similarly, Henry straightforwardly applied the reasoning

in Heller, which Bruen endorsed. As such Bruen has not

USA V. KITTSON 31

“undercut the theory or reasoning underlying [Henry] in

such a way that the cases are clearly irreconcilable.” Miller,

335 F.3d at 900. Accordingly, the district court correctly

concluded Henry remains binding, and Kittson’s Second

Amendment challenge fails.

AFFIRMED.

VANDYKE, Circuit Judge, dissenting:

It is a bedrock principle of statutory interpretation that

all people are entitled to the benefit of the law as written.

That principle is particularly weighty here—where an

unsympathetic criminal defendant asks us for nothing more

than the plain application of a criminal statute. Because

(1) Daniel Kittson transferred a machinegun to the United

States and (2) Congress expressly did not criminalize that

conduct, Kittson should never have been convicted of a

crime that doesn’t exist. This court should have vacated his

conviction and remanded his case for a new trial.

The majority declines to do so. In reaching a result

contrary to what the statutory text demands, the majority

applies an uncritical approach to precedent, taking as good

enough any application of federal law’s machinegun

prohibitions, without considering whether those applications

of § 922(o) are relevant to the exception at issue here. That

approach fails to grapple with the specifics of the case before

us by relying on cases that either implicate § 922(o)’s

possession element—textually different in important ways

from the transfer element we are considering here—or

implicate entirely different statutes altogether. Simply put,

the majority fails to deal with the unique case at hand: a

32 USA V. KITTSON

criminal defendant who transferred a machinegun to the

United States without first possessing it. As explained

below, the cases the majority relies upon do not support its

argument.

Nor could they. Section 922(o)(2)(A) excepts from

liability any machinegun transfer to the government. To

uphold Kittson’s conviction, the majority must read an

implicit reverse mens rea element into a criminal statute’s

exception. That is, to receive the benefit of a criminal

statute’s plain carveout, a defendant must first show an

innocent state of mind. That requirement is nowhere in the

text. Adding it expands criminal liability beyond what

Congress created and, worse yet, sets a dangerous precedent

for judicially expanding criminal liability by reading

unwritten innocent state of mind requirements into otherwise

clear exceptions to criminal conduct. Because the district

court erroneously instructed the jury that it could convict

Kittson of a crime that does not exist, and because this error

was not harmless, I would vacate the conviction and remand

for further proceedings.

Although I would not reach the Second Amendment

question, in response to the majority’s analysis of that issue

I observe only that it fails to grapple with Bruen’s analogical

reasoning requirement and merely assumes that

machineguns fall outside the ambit of constitutionally

protected firearms. That assumption is inappropriate given

the Supreme Court’s demand that the government support

firearm regulations with historical analogues. It’s especially

inappropriate here, where the majority assumes machinegun

ownership is overwhelmingly criminal in nature without any

fact-finding from the district court on that question.

USA V. KITTSON 33

I. The majority fails to muster a single case that

controls or even informs the proper interpretation

of § 922(o)’s exception in this case.

As the majority tells it, today’s outcome was already

decided by an overwhelming majority of our sister circuits,

or at least inevitable in light of our own caselaw. But that’s

not what those decisions show. To the contrary, it doesn’t

appear that any court—ours or otherwise—has considered a

case like this: where a defendant did not possess the

machinegun that he transferred to a federal agent. Because

no decision controls ours today, I would not preordain the

analysis by incorrectly claiming that we are merely

following a well-trodden path.

A. No decision from our sister circuits lends

credibility to the majority’s holding.

The majority drafts behind nine out-of-circuit decisions,

claiming that each blesses its reading of § 922(o)(2)(A)’s

transfer exception. None do. But first it’s worth noting a bit

of nuance on this point—and briefly summarizing some

important facts that make this case different.

Section 922(o) generally criminalizes the transfer or

possession of machineguns, but § 922(o)(2)(A) sets out two

distinct exceptions from liability. First, the statute exempts

“a transfer to or by … the United States or any [state or

federal agency].” Id. Second, it exempts “possession by or

under the authority of, the United States or any [state or

federal agency].” Id. Notice that while lawful “possession”

must be “under the authority of” the government, the text

applies no such requirement to the transfer exception.

In the vast majority of cases involving an undercover

sting, that distinction doesn’t matter much because the

34 USA V. KITTSON

defendant will typically have both transferred the

machinegun and necessarily possessed it when he personally

handled it before transferring it. Indeed, in the examples

cited by the majority the defendant was often arrested before

he ever had a chance to actually transfer the machinegun, so

he is necessarily prosecuted only for possessing it. That

perhaps explains why the specific issue presented in this case

apparently has never been addressed by a court before. But

that distinction matters immensely in this case, because here

we must assume that Kittson never possessed the

machinegun. Instead of bringing a machinegun to an

undercover agent, Kittson brought the agent to a third person

who then sold the gun to the agent. At all times that third

person had physical possession of the firearm. We cannot

know whether the jury in this case concluded that Kittson

ever possessed the machinegun. 1

1

It’s important to recognize why—for purposes of this appeal—we must

assume that the jury convicted Kittson for transferring, but not

possessing, a machinegun. There is no evidence in the record that

Kittson ever physically possessed the machinegun, and the government

doesn’t argue that he did. And while in theory a jury might have

convicted Kittson for constructively possessing the machinegun, that

seems unlikely since it acquitted him on the felon in possession charge.

But even if we focused on the machinegun charge alone, we would still

have to set aside that conviction if the jury might have relied on an

erroneous transfer instruction. See United States v. Galecki, 89 F.4th

713, 739 (9th Cir. 2023) (requiring vacatur of conviction that could have

relied on a legally erroneous ground). Because we can’t know with

certainty whether the jury convicted Kittson under § 922(o) for

transferring or possessing the machinegun, we must assume the jury

convicted under the transfer theory. So, for purposes of my analysis, I

assume that Kittson never “possessed” the machinegun. Although I

expand on this point later in more detail, along with the importance of

Kittson preserving this issue and why the error wasn’t harmless, I don’t

read the majority as disputing this legal point.

USA V. KITTSON 35

Because a case like this one is unusual, courts have rarely

needed to distinguish between the possession and transfer

elements of § 922(o)(2)(A). Instead, they typically just

collapse the exceptions together when discussing them.

United States v. Neuner, 535 F. App’x 373 (5th Cir. 2013),

illustrates this well. The majority cites that unpublished case

from our sister circuit for the proposition that § 922(o)

“limit[s] lawful transfer and possession of machine guns to

authorized governmental personnel for use in their official

capacities.” The majority’s implicit point seems to be that

the Fifth Circuit held that § 922(o)(2)(A)’s “by or under the

authority of” language applies to the transfer exception too.

But the Fifth Circuit couldn’t have held that because Neuner

involved only a defendant’s possession of a machinegun and

did not involve a transfer at all. See 535 F. App’x at 374 n.1

(holding § 922(o)(2)(A) “do[es] not except unwary targets

of undercover operations … from criminal liability for

possessing machine guns” (emphasis added)).

The defendant in Neuner never claimed his conduct fell

within § 922(o)(2)(A)’s transfer exception but relied instead

on a defense that the United States authorized his

machinegun possession. Id. I hardly see how the Fifth

Circuit rejecting the premise that a defendant “act[ed] under

the authority of the government to legally possess a machine

gun” has anything to do with Kittson, who avails himself of

§ 922(o)(2)(A)’s transfer exception only. Id. (emphasis

added). Neuner was only about the possession exception.

This case is only about the transfer exception. 2

2

This makes it more than a little unfair for the majority to repeatedly

wrap itself in Neuner’s characterization of the defendant’s argument

there as “absurd.” 535 F. App’x at 374 n.1. That is particularly true

given that, as discussed, the statutory exception for possession expressly

36 USA V. KITTSON

That’s a common theme in the majority’s cited out-of-

circuit decisions. United States v. Warner also involved a

defendant found guilty of “the crime of illegally possessing

a machine gun,” who relied only on an argument that state

law authorized his conceded possession of that firearm. 5

F.3d 1378, 1379–81 (10th Cir. 1993). So too in Doe v.

Biden, which turned entirely on the possession exception to

§ 922(o)’s prohibition and considered whether the

possession prong’s “under the authority of the United States”

modifier allowed the ATF to authorize machinegun

possession for private purposes. No. 2022-1197, 2022 WL

16545125, at *4 (Fed. Cir. Oct. 31, 2022). The court

concluded that it didn’t by explaining that “under the

authority of” required a nexus to a governmental purpose.

Id. at *4. And it’s the same story in United States v. Fisher,

where a defendant—you guessed it—possessed, but did not

transfer, a machinegun. 149 F. App’x 379, 382 (6th Cir.

2005). That court briefly considered § 922(o)’s exception

only to reject the idea that “possession of [the defendant’s]

four machine guns was … authorized by the National Guard

requires that it be “under the authority of the government,” while the

transfer exception has no such requirement. While Neuner did mention

the word “transfer” once, the defendant in Neuner only “argue[d] that he

should be given … the exemption … to legally possess a machine gun,”

not to transfer one. Neuner, 535 F. App’x at 374 n.1 (emphasis added).

It was “[t]hat argument [the Fifth Circuit] rejected as utterly meritless.”

Id. It only labeled as “absurd” Neuner’s contention that the statute’s

exemption for “possessing machine guns” should encompass possession

under a supposed “official capacity” notwithstanding that he intended to

use the machineguns “to harm law enforcement personnel.” Id. And the

Fifth Circuit was right—that is an absurd argument. But it has nothing

to do with the transfer exemption.

USA V. KITTSON 37

or ‘reasonably connected to his militia service.’” Id. at 383

n.2. 3

Neither Aiken nor McCutchen cleanly involved a transfer

to the government either. See United States v. Aiken, 974

F.2d 446, 448–49 (4th Cir. 1992) (considering a taxing

power challenge to the National Firearms Act’s shotgun

possession regulations); McCutchen v. United States, 14

F.4th 1355, 1359 (Fed. Cir. 2021) (considering a class-action

challenge to bump-stock regulations by “possessors of such

devices”). But regardless, I don’t necessarily disagree with

the principle the majority pulls from these two cases: that

§ 922(o)(2)(A)’s exceptions require government

involvement in the transfer or possession of a firearm. It

seems self-evident that a transfer “to or by … the United

States” requires governmental involvement, which no one

disputes.

But the majority’s biggest reach in its strange misreading

of § 922(o) is its reliance on Farmer v. Higgins, 907 F.2d

1041 (11th Cir. 1990), which it reads to “confirm[] that the

possession and transfer elements of § 922(o)(2)(A) were

always meant to be read together.” Farmer held no such

thing. 4 In that case, the Eleventh Circuit considered whether

federal law “prohibits private persons from possessing

3

And the story continues in Hardin and Bailey, which the majority cites

briefly for broad principles about how narrowly we should read the

transfer exception. See United States v. Bailey, 123 F.3d 1381, 1384 (8th

Cir. 1997) (challenging conviction for “possession of machineguns”);

Hardin v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 65 F.4th

895, 897 (6th Cir. 2023) (considering regulatory challenge by an

individual who possessed bump stocks).

4

See Farmer, 907 F.2d at 1045 (“In sum, we hold that section 922(o)

prohibits the private possession of machine guns not lawfully possessed

before May 19, [1986].”).

38 USA V. KITTSON

machine guns.” Id. at 1042 (emphasis added). That court

had no occasion to consider the scope of § 922(o)(2)(A)’s

transfer exception because the plaintiff did not wish to

transfer a firearm and only applied “to legally make and

register a machine gun for his personal collection.” Id.

Nonetheless, the Eleventh Circuit consulted the legislative

history surrounding § 922(o)’s passage (more on that later)

to reach the conclusion “that Congress intended to limit

lawful transfer and possession of machine guns to instances

authorized by the government.” Id. at 1045. From this, the

majority pulls its principle that the Eleventh Circuit

authoritatively held that § 922(o)(2)(A)’s exception clauses

collapse upon each other and “court after court” has

endorsed that view.

That’s a stretch to say the least. The majority’s logical

mistakes first rely on Farmer’s forbidden peek into

legislative history in a case that did not even involve

§ 922(o)(2)(A)’s transfer exception. Then the majority

contends that court after court relied on that analysis in cases

that also did not encompass the transfer exception. The

majority insists that our sister circuits all adopted its view of

§ 922(o)(2)(A)’s statutory language, but none of this lengthy

discussion even arguably shows that. It does not identify a

single case that had occasion to consider the transfer

exception at issue here.

Aside from the important fact that the cases don’t say

what the majority says they say, I fear that the majority’s

failure to engage with the facts of the cases it cites betrays

an even more fundamental misunderstanding of this court’s

role. In the majority’s view, “the plain language of these

decisions” demonstrates an “overwhelming consensus” that

those other courts adopted an atextual reading of

§ 922(o)(2)(A)’s transfer exception. And our court is now

USA V. KITTSON 39

duty bound to follow the “plain language” of our sister

circuits. But of course, even if that was true—which again,

it isn’t—it is not the “plain language” of unprecedential

court opinions that matter when interpreting statutes, but the

plain text of the law itself. The majority’s contentions to the

contrary—that other courts’ drive-by characterizations of

statutes must be accorded more weight than the text of those

statutes—would elevate judicial musings over enacted law.

Such a misunderstanding departs from the proper role the

judiciary plays in our constitutional order. See New Prime

Inc. v. Oliveira, 585 U.S. 105, 113 (2019) (warning

departures from a statute’s plain text “risk amending

legislation outside the ‘single, finely wrought and

exhaustively considered, procedure’ the Constitution

commands” (quoting INS v. Chadha, 462 U.S. 919, 951

(1983))); see also Trump v. CASA, Inc., 606 U.S. 831, 857

(2025) (rejecting assertion that a court’s opinion alone “has

the legal force of a judgment”).

In sum, the majority’s bold assertion that “[e]very circuit

to examine this question has come to the same conclusion”

misfires. To the contrary, the majority fails to point to a

single case that turned on § 922(o)(2)(A)’s transfer

exception and relies only on possession cases to support its

conclusions in this case. If the majority could do better than

pulling unrelated dicta from sister circuit decisions, I’m

confident it would have. Its failure to do so refutes its view

that “extensive caselaw” from outside our circuit makes

today’s decision “clear.” 5

5

I don’t address the majority’s collected cases in its footnote six for the

obvious reason that “other statutes regulating the transfer of firearms”

contain different prohibitions and differently worded exceptions than

§ 922(o).

40 USA V. KITTSON

B. Ninth Circuit caselaw does not require the

majority’s result.

The majority also argues that our own precedent, while

not controlling, counsels in favor upholding Kittson’s

conviction. But none of those cases justify the majority’s

outcome in this one either.

The majority first cites two cases as “[r]ejecting a

virtually identical argument” under “a very similar statute.”

I agree with the first part of that, since those defendants also

argued that their illegal firearm sales to undercover officers

were exempted from criminal liability. See Perri v. Dep’t of

Treasury, 637 F.2d 1332, 1337 (9th Cir. 1981) (arguing

“sales to the undercover agents fall within the exemption”);

United States v. Brooks, 611 F.2d 614, 617 (5th Cir. 1980),

overruled on other grounds by United States v. Henry, 749

F.2d 203 (5th Cir. 1984) (en banc) (same). But I disagree

that the different statute at issue in Perri and Brooks is “very

similar” to the one here.

Those cases considered whether a firearm sale to an

undercover “straw purchaser” fell within federal law’s

prohibition on selling firearms to convicted felons. 6 Perri,

637 F.2d at 1336; Brooks, 611 F.2d at 616. The defendants

in those cases argued that their sales to undercover officers

were not criminalized because federal prohibitions on those

sales “shall not apply” to “the transportation, shipment,

receipt, possession, or importation of any firearm or

ammunition imported for, sold or shipped to, or issued for

6

A “straw purchase” or “strawman purchase” is any sale where one

person enlists another individual to purchase the firearm in order to

transfer it to the first person. Abramski v. United States, 573 U.S. 169,

180–81 (2014). Usually the first person is legally prohibited for some

reason from purchasing the firearm directly themselves.

USA V. KITTSON 41

the use of, the United States or any [applicable agency].” 18

U.S.C. § 925(a)(1); see Perri, 637 F.2d at 1336; Brooks, 611

F.2d at 616.

While the defendants argued that their conduct was

exempted since the firearms were “sold … to … the United

States,” it’s not surprising that both Perri and Brooks

rejected that argument. That’s because the statutory

exception they argued for only applies where the firearm or

ammunition was “imported for, sold or shipped to, or issued

for the use of, the United States [or applicable agency].”

18 U.S.C. § 925(a)(1). In other words, the requirement in

§ 925(a)(1) that a firearm be “sold” to the United States is a

modifier, further limiting the class of “transported, shipped,

received, possessed, or imported” firearms that are exempted

under the criminal statute. Unlike § 922(o)(2)(A)’s transfer

exemption for machineguns, selling a firearm to the

government is not an action that alone is exempted under

§ 925(a)(1). See Brooks, 611 F.2d at 617 (“This subsection

does not exempt any sale or delivery of firearms; it expressly

covers only the ‘transportation, shipment, receipt, or

importation’ of firearms ‘for the use of the United States.’”);

see also United States v. Cruz, 50 F.3d 714, 716 (9th Cir.

1995) (“While § 925(a)(1) excepts use of a firearm for a

government purpose and in turn, receipt of the firearm for

government use, it does not permanently exempt those

firearms from the federal gun laws.”).

It is true that Perri and Brooks also further opined that if

the undercover agent announced himself as law

enforcement, then the transaction might fit within

§ 925(a)(1)’s exemption. Perri, 637 F.2d at 1337; Brooks,

611 F.2d at 618. But those gratuitous statements, casually

“uttered in passing without due consideration of the

alternatives,” would not bind this court even if this was a

42 USA V. KITTSON

§ 925(a)(1) case. United States v. McAdory, 935 F.3d 838,

843 (9th Cir. 2019) (quoting United States v. Ingham, 486

F.3d 1068, 1078 n.8 (9th Cir. 2007)). There’s no serious

argument that either Perri or Brooks—which involved sales

to undercover government agents—needed to make law

about a hypothetical case where the government agent’s

identity was known. See, e.g., Perri, 637 F.2d at 1337

(“Those were not the facts here.”). And Perri’s and Brooks’s

one-sentence, afterthought dicta did not analyze or explain

why this knowledge would make any difference. Id.;

Brooks, 611 F.2d at 618. 7 Accordingly, neither Perri’s nor

Brooks’s unexplained dicta involving a hypothetical about

another statute would control even as to the statute at issue

in those cases—much less the very differently worded

statute at issue here. 8

7

Indeed, the entire discussion of § 925(a)(1) in both Perri and Brooks is

very truncated—just a few sentences in each opinion that are heavy on

assertion and short on any actual analysis. I’m not sure that Perri’s fly-

by interpretation of § 925(a)(1) would merit binding deference even in a

§ 925(a)(1) case. See McAdory, 935 F.3d at 843. It certainly merits none

in this § 922(o)(2)(A) case.

8

There is yet another reason the terse statements in those cases are

unpersuasive. The dicta employed in Perri and Brooks are “relic[s] from

a bygone era of statutory construction,” where courts were far more

comfortable replacing Congress’s chosen text with legal constructions

derived from the judges’ own legislative preferences. Food Mktg. Inst.

v. Argus Leader Media, 588 U.S. 427, 437 (2019). Thankfully, courts

now widely recognize that it is not our role to endorse such “a casual

disregard of the rules of statutory interpretation,” and we should instead

engage “in a careful examination of the ordinary meaning and structure

of the law itself.” Id. at 436. That point is well illustrated by the bizarre

statement in Perri and Brooks that a gun seller must receive a “signed

statement” from a government official’s agency before falling within the

statutory exception—a Miranda-style requirement simply pulled from

the judges’ own legislative imaginations with no basis whatsoever in the

USA V. KITTSON 43

Finally, the majority confidently overreads Perri as

controlling the outcome reached in two unpublished

decisions of our court that, unlike Perri itself, were

considering § 922(o)’s exceptions: Bascue and Nadal. But

both those cases involved defendants who possessed

machineguns. See United States v. Bascue, 97 F.3d 1461,

1461 (9th Cir. 1996) (“[Defendants] were convicted of

transferring and possessing machine guns.”); United States

v. Nadal, 64 F.3d 667, 667 (9th Cir. 1995) (“[Defendants]

appeal their convictions … for conspiring to manufacture,

transfer and possess machineguns.”). So whatever language

the majority pulls from those nonbinding cases about

§ 922(o)(2)(A)’s transfer exception was necessarily dicta,

and—as is common with our court’s unpublished

dispositions—also unsupported by any reasoned analysis at

all. So those cases hold no persuasive value. See Small v.

Allianz Life Ins. Co. of N. Am., 122 F.4th 1182, 1195 (9th

Cir. 2024) (dismissing “truncated reasoning” in unpublished

decision as unpersuasive).

At bottom, the majority finds no decision that controls,

or even provides reasoning that directly supports, its reading

of § 922(o)(2)(A)’s transfer exception. That alone doesn’t

make the majority’s position untenable, of course. But its

representation—that an overwhelming body of precedent

demands today’s outcome—obscures the fact that today’s

decision breaks novel ground. Because it does so, I would

squarely analyze the plain text of § 922(o)(2)(A)’s

exceptions to determine whether Kittson’s machinegun

transfer to the United States did or did not constitute a crime.

statutory text. Perri, 637 F.2d at 1337; Brooks, 611 F.2d at 618. I see

no reason to transplant such illegitimate dicta into an entirely new

statutory context.

44 USA V. KITTSON

II. The majority errs in reading a reverse state-of-

mind element into § 922(o)’s exception.

When you focus on the text itself of § 922(o)(2)(A)’s

exceptions, a fair reading precludes upholding Kittson’s

conviction. Although § 922(o) generally criminalizes the

possession or transfer of machineguns, it does not

criminalize any possession under the authority of the

government or any transfer to the government. Those

exceptions are distinct and must be read disjunctively. A

defendant who avails himself of the transfer exception need

not show that he did so “under the authority” of the

government.

In fact, § 922(o)(2)(A)’s transfer exception contains no

state of mind requirement at all. Any person who transfers

a machinegun to the government does not commit a crime

by doing so, even if he is mistaken about the legality of his

action. The majority’s conclusion to the contrary effectively

reads a reverse state of mind element into the statute’s plain

exception—forcing defendants to prove an innocent state of

mind to avoid conviction. Worse still, the majority broadens

“transfer” to encompass the entirety of the federal register’s

technical procedures for transferring firearms to the

government. Such a reading creates an impossibly

complex—and hidden—labyrinth for everyday Americans

to navigate, creating serious notice concerns and

undercutting Congress’s aim to encourage the transfer of

privately owned machineguns to the government.

Since it’s impossible to determine whether Kittson was

convicted for possessing a machinegun or transferring one,

the jury could have (and likely did) convict Kittson on the

legally erroneous theory that transferring a machinegun to

the government constitutes a crime. For that reason, we

USA V. KITTSON 45

should have vacated Kittson’s conviction and remanded his

case for a new trial.

A. Section 922(o)(2)(A)’s transfer exception is read

disjunctively from the possession exception.

Federal law makes it “unlawful for any person to transfer

or possess a machinegun.” 18 U.SC. § 922(o)(1). But that

prohibition “does not apply” to “a transfer to or by, or

possession by or under the authority of, the United States or

any department or agency thereof[.]” Id. § 922(o)(2)(A).

The statute’s use of commas to offset the possession and

transfer clauses evinces that these clauses are disjunctive and

must be read distinctively. See Leuthauser v. United States,

71 F.4th 1189, 1196 (9th Cir. 2023) (“As a general rule, the

use of a disjunctive in a statute indicates alternatives and

requires that they be treated separately.” (quoting Azure v.

Morton, 514 F.2d 897, 900 (9th Cir. 1975))). While the

majority accuses me of “invent[ing] a distinction between”

these prongs, it is Congress itself that created this distinction

through its use of statutory language. And, if we follow the

disjunctive language that Congress employed, the statute

exempts from liability any “transfer to or by … the United

States” and any “possession by or under the authority of the

United States.”

The majority’s conclusion to the contrary generally falls

into two camps: one that relies on precedent and another that

focuses on legislative history. First, the majority contends

that this textual analysis is in direct conflict with our court’s

previous decision in Perri. But even if Perri broadly stands

for the proposition that our court has adopted a binding

atextual interpretation of § 925(a)’s statutory exception, I

hardly see why we should extend that error to § 922(o)’s

exceptions. To the contrary, principles of statutory

46 USA V. KITTSON

interpretation counsel in favor of cabining that mistake, and

we certainly don’t ignore commas as “questionably placed”

in other cases. See, e.g., United States v. Paulson, 68 F.4th

528, 537 (9th Cir. 2023) (“A term or phrase set aside by

commas and separated by a conjunctive word from a limiting

clause stands independent of the language that follows.”

(cleaned up)).

The majority’s brief crack at its own statutory analysis

merits a longer response—if only to cover the extent of its

error—but it’s sufficient to say that its adoption of the

Eleventh Circuit’s “detailed recitation of the legislative

history” of § 922(o)’s passage is rather unpersuasive in

overcoming the statute’s plain text. To begin, the entire

enterprise of overcoming a statute’s ordinary meaning with

contemporaneous statements about its passage is

illegitimate. See Mohamad v. Palestinian Auth., 566 U.S.

449, 458 (2012) (“[R]eliance on legislative history is

unnecessary in light of the statute’s unambiguous language.”

(quoting Milavetz, Gallop & Milavetz, P.A. v. United States,

559 U.S. 229, 236 n.3 (2010))); see also Apache Stronghold

v. United States, 101 F.4th 1036, 1107 (9th Cir. 2024) (en

banc) (R. Nelson, J., concurring), cert. denied, 145 S. Ct.

1480 (2025), reh’g denied, No. 24-291, 2025 WL 2824572

(U.S. Oct. 6, 2025) (“That certain members of Congress

made statements about RFRA’s scope as Congress debated

its enactment does not provide any reliable evidence of

RFRA’s meaning.”).

What’s worse, the Eleventh Circuit’s decision in

Farmer—and the majority’s adoption of its rationale—

represents the worst aspects of this forbidden foray into a

statute’s meaning. That’s because the legislative history, as

used by the majority, begins by asking the illegitimate

question of what did Congress “intend” to accomplish when

USA V. KITTSON 47

passing § 922(o). In search of that answer, the majority pulls

statements from individual representatives during floor

debates to conclude (unsurprisingly) that Congress would

have wanted what the majority wants: Kittson to face

criminal liability.

That analysis departs from the now established rule that

courts must aim to determine the objective meaning of

statutory language, rather than the animating intentions of

some legislators who passed it. See Conroy v. Aniskoff, 507

U.S. 511, 519 (1993) (Scalia, J., concurring) (“We are

governed by laws, not by the intentions of legislators.”).

And even if we did aim to divine the intentions of what a

legislature meant to accomplish when passing a criminal

statute, I’m not sure that the majority’s reliance on individual

statements about that statute amount to anything more than

the judicial equivalent of “entering a crowded cocktail party

and looking over the heads of the guests for one’s friends.”

Id. But if I could pursue Justice Scalia’s cocktail metaphor

one step further, I’m not even sure that the majority’s friends

would necessarily agree with it. The statements cited by the

majority simply state the common-sense idea that in the vast

majority of transfers to the government, there will be

someone involved in that transfer with the authority to

accept the firearm on behalf of the government. That cannot

change that the text only requires government authorization

for possession but not transfer.

None of the majority’s arguments to abandon

§ 922(o)(2)(A)’s plain text are persuasive. Because

Congress employed disjunctive language when writing those

statutory exceptions, I would give full weight to its chosen

language and interpret “transfer to … the United States” as

separate from “possession … under the authority of, the

United States.” § 922(o)(2)(A).

48 USA V. KITTSON

B. Section 922(o)(2)(A)’s transfer prong contains no

state of mind requirement.

As previously explained, § 922(o)(2)(A) exempts

transfers of machineguns to the government. That exception

contains no state of mind requirement. It merely states that

a machinegun “transfer to … the United States” is not a

crime. § 922(o)(2)(A). And because everyone agrees that

Kittson transferred a machinegun to the government, this

should be a fairly straightforward case.

But the majority modifies the statute’s text by adding a

new, unwritten element. Under its holding, Kittson must not

only transfer a firearm to the government, but must also do

so knowingly. Courts often read state of mind requirements

into statutes to mitigate criminal liability, such as to “require

that the defendant know the facts that make his conduct

illegal.” Staples v. United States, 511 U.S. 600, 605 (1994).

But I’m unaware of any case—and the majority cites none—

that requires the opposite. That is, the majority does not

point to a single case where a court has required a defendant

to show an innocent state of mind to avail himself of an

exception to a criminal law’s prohibition that contains no

such textual requirement.

That’s a concerning development with implications

beyond just this case. Consider a criminal statute that makes

it illegal to drive faster than 15 miles per hour in a school

zone. Later on, lawmakers realize that the prohibition is

unnecessary on weekends, so they provide an exception: a

speed limit of 35 miles per hour applies on Saturday and

Sunday. If a person drives 30 miles per hour there on a

Sunday, but believes that it is Monday, are they guilty of

violating the statute? Of course not. They didn’t exceed the

applicable speed limit, regardless of their mistaken belief.

USA V. KITTSON 49

But the majority’s approach in this case would uphold a

conviction against that driver for thinking they committed a

crime.

The majority’s thought-crime rule would run headlong

into how courts typically distinguish between attempted and

completed crimes. For example, our court considered this

distinction in United States v. Quijada, 588 F.2d 1253, 1255

(9th Cir. 1978). There, an undercover officer negotiated the

purchase of cocaine from a defendant and eventually bought

eight ounces of a white substance. Id. at 1254. The police

arrested the defendant and charged him with distribution of

cocaine. Id. But there was a problem with that charge.

Although the defendant believed that he sold cocaine to the

officer, he actually sold him lidocaine hydrochloride, which

is not a controlled substance. Id. Since federal law

criminalizing the distribution of controlled substances

requires that a defendant actually distributed a controlled

substance, the government could indict the defendant only

for attempting to distribute cocaine, not the substantive

crime of distribution. Id.; see also 21 U.S.C. § 841(a)(1).

In that context, where the government tried a defendant

for attempted distribution, our court rejected a legal

impossibility argument and held that—for purposes of an

attempt prosecution—a defendant is stuck with the facts as

he understood them even if those facts were wrong. Id. at

1255. But if that principle extended beyond attempted

crimes and into substantive ones, then the government would

have had no problem convicting the Quijada defendant of

the substantive crime of cocaine distribution, our mistaken

50 USA V. KITTSON

school zone driver for speeding, or even Michael Scott for

possession of a controlled substance. 9

And that’s the problem with the majority’s attempt to

stick Kittson with the facts as he understood them. Had the

government convicted Kittson of attempting to transfer a

machinegun to the government, then it would have a much

better argument on appeal and Kittson’s complaints about

undercover officers would fit the majority’s response. But

that’s not the conviction before us. 10 Instead, Kittson was

convicted of completing a transfer of a machinegun and the

majority denies him the benefit of an exception to that

substantive offense because he was unaware of the

circumstances of its existence. The majority’s insistence

that such a standard does not create a reverse state of mind

requirement belies reality and conflates § 922(o)’s

prohibition with statutes that contain no comparable

exception to § 922(o)(2)(A). The majority can protest all it

wants that its opinion does not add a reverse state of mind

requirement to a criminal statute, but that is exactly what it

does. Only defendants who know that the recipient of their

machinegun transfer is the government could enjoy the

protection of § 922(o)(2)(A)’s transfer exception—a

requirement found nowhere in the statute.

9

See THE OFFICE, Framing Toby – The Office US, at 1:10 (YouTube,

Oct. 30, 2020), https://www.youtube.com/watch?v=19MNAajZnts.

10

Kittson could not be charged for attempting to violate § 922(o), since

that statute criminalizes only completed acts and not attempts. See

United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983) (“There

is no general federal ‘attempt’ statute. A defendant therefore can only

be found guilty of an attempt to commit a federal offense if the statute

defining the offense also expressly proscribes an attempt.”).

USA V. KITTSON 51

Next, the majority contends that Kittson’s conduct

doesn’t fit the transfer exception anyway, since he didn’t

comply with technical regulatory requirements of transfers

to the government. I’m frankly baffled. For one, that’s a far

more extreme position than even the government advocated

for, which no party briefed at any point on appeal. But it

also doesn’t make any sense.

Aside from the fact that the majority’s holding would

enable regulatory agencies to expand the contours of

criminal law by regulatory fiat, forcing everyday Americans

to parse the pages of the federal register before transferring

a machinegun to the government would undercut § 922(o)’s

purpose of limiting private machinegun ownership.

Consider an example where, after Crazy Uncle Bob dies and

leaves everything to you, you discover he illegally owned a

machinegun. Concerned, and vaguely aware that keeping

such a firearm constitutes a crime, you want to surrender that

weapon to a government agency. Simple enough, right?

But imagine coming across today’s opinion while searching

for the right agency. The Ninth Circuit now says that your

transfer of that weapon must accord with the many technical

regulations for making a machinegun transfer. And if you

mess up, you’ve just committed a federal felony. Are you

still sure about giving that weapon to the government?

Probably not. Maybe you pretend you never found the gun.

Maybe, scared of going to jail for giving the gun to the

government, you give it to a trusted friend instead. Or

maybe you “drop it in a lake.” What you probably don’t do

is call a government official and announce, “I’m about to do

something that could land me in federal prison if I don’t

dodge all the regulatory traps correctly.”

The majority’s primary textual rejoinder here is that

“context matters,” and because regulations govern

52 USA V. KITTSON

machinegun transfers elsewhere in federal law, we should

give different meanings to the word “transfer” in

§ 922(o)(1)’s prohibition and § 922(o)(2)(A)’s exception.

But see Mountain Communities for Fire Safety v. Elliott, 25

F.4th 667, 677 n.4 (9th Cir. 2022) (“When the language is

clear as it is here, we need not look to ‘history’ or ‘purpose’

of a regulation ….”).

While I generally agree that context matters, it’s still

hard to see how a statute criminalizing firearm “transfers”

except where those “transfers” are to the government could

be talking about anything other than the same act. To the

contrary, the majority’s attempt to separate “transfer” in

§ 922(o)(1)’s prohibition from “transfer” in

§ 922(o)(2)(A)’s exception, and then pigeonhole the federal

register’s technical requirements into the latter, is the kind of

faux textualism disfavored in statutory interpretation and

roundly rejected in criminal law. See Yates v. United States,

574 U.S. 528, 543 (2015) (“[A] word is known by the

company it keeps—to avoid ascribing to one word a

meaning so broad that it is inconsistent with its

accompanying words, thus giving unintended breadth to the

Acts of Congress.” (internal quotation omitted)); see also

Dubin v. United States, 599 U.S. 110, 130 (2023) (“Time and

again, this Court has prudently avoided reading incongruous

breadth into opaque language in criminal statutes.”). The

majority need look no further than its own reasoning to

defeat its argument. If Congress wished for § 922(o)(2)(A)’s

transfer exception to require compliance with additional

regulations—to quote the majority—“it could have easily

done so by inserting such language into § 922(o).”

Finally, the majority retreats to its own belief that a plain

application of § 922(o) would create “the absurd result” of

limiting undercover sting operations. I don’t question the

USA V. KITTSON 53

majority’s sincerity, but I think it’s misplaced.

The majority’s claim that its argument is settled law in other

circuits relies entirely on cases where a defendant possessed

a machinegun—and sometimes didn’t even get the chance to

transfer it. So I don’t think the government is going to have

trouble prosecuting your typical bad guy trying to sell a

machinegun to an undercover agent, when they show up to

the undercover sting in possession of a machinegun. 11

But even if the majority’s concerns were better-founded,

ultimately it shouldn’t matter what judges think about the

wisdom of Congress’s choice of legislation. That’s a point

the majority repeatedly confuses in misconstruing my

argument as relying on an assumption “that Congress would

care deeply about someone possessing a machinegun, but

couldn’t care less about someone who wanted to transfer

that same machinegun to the vilest of criminals.” 12

11

The majority contends—through various Tom Clancy-style plots that

range from arms dealers to cartel leaders—that a “Legion of Doom”

could avoid prosecution by simply ordering others to do the dirty work

of transferring firearms to bad guys for them. But the majority’s point

fails twice over. First, that example only works if the Legion of Doom

transfers firearms to the government. Second, it’s unclear how any of

the majority’s examples could avoid prosecution for constructively

possessing a machinegun. Even the worst villain of all time, Darth

Vader, “though lacking … physical custody, still ha[d] the power and

intent to exercise control over” the Death Star sufficient to establish

constructive possession of that weapon. Henderson v. United States, 575

U.S. 622, 626 (2015).

12

I’ll admit that I’m perplexed by the majority’s contention that I don’t

believe Congress cared about criminalizing transfers to vile criminals. I

don’t know how anyone could reach that conclusion given the fact that

§ 922(o) expressly criminalizes such transfers. What I understand the

majority to mean here is that I don’t think Congress cared about catching

criminals in sting operations. But there’s no evidence that members of

Congress considering § 922(o) even thought about sting operations at all.

54 USA V. KITTSON

My interpretation of § 922(o) does not rely on any

assumptions about what Congress “cares” about. To the

contrary, my reading of § 922(o) begins and ends with the

statutory text and does not attempt to ascertain or optimize

Congress’s unwritten desires. What the majority contends—

without outright saying—is that the plain textual reach of

§ 922(o)(2)(A)’s exceptions is absurd and ought not apply.

But the majority has a hard hill to climb if it wants to

overcome § 922(o)(2)(A)’s text with that argument. The

absurdity canon has never empowered courts to engage in a

freewheeling inquiry to improve unwise statutory language

whenever Congress acted foolishly. See United States v.

Paulson, 68 F.4th 528, 542 (9th Cir. 2023) (describing the

absurdity canon as applying in only rare and exceptional

circumstances). Instead, the absurdity canon only requires

that a statute’s plain text produce “rational” results, not

“wise” ones—much less the best ones. United States v.

Paulson, 68 F.4th 528, 544 (9th Cir. 2023). So a statute’s

text may lead to results that, in a judge’s view, are “not wise”

or “misguided,” so long as “it is at least rational.” Id.

(quoting In re Hokulani Square, Inc., 776 F.3d 1083, 1088

(9th Cir. 2015)). “And ‘the bar for “rational” is quite low.’”

Id. (quoting United States v. Lopez, 998 F.3d 431, 438 (9th

Cir. 2021)).

Congress’s decision to broadly exempt from liability any

transfer to the federal government clears that low hurdle. By

granting immunity to individuals who transfer machineguns

Congress never carved out sting operations from its exception for

transfers to the government, and even the majority’s dive into legislative

history fails to show that even a single member of Congress ever talked

about sting operations when passing this statute. If Congress meant to

carve out sting operations from the transfer exception like the majority

contends, then it makes sense that it would have said so.

USA V. KITTSON 55

to the federal government, Congress encourages the central

goal of § 922(o): limiting machineguns in private ownership

and stopping the interstate transfer of those weapons. See

United States v. Rybar, 103 F.3d 273, 283 (3d Cir. 1996).

Although the majority might not consider the textual breadth

of this exception wise, or might prefer a narrower

construction that allows more room for sting operations, the

plain meaning of § 922(o)’s exception still serves a rational

purpose by making clear that all transfers to the government

are lawful. That clarity, in turn, encourages individuals to

engage in the conduct of transferring machineguns to the

government, without fear of prosecution. Far from

absolving the core of the law, the statute’s plain text supports

it. 13

Because § 922(o)(2)(A)’s transfer exception does not

contain an innocent state of mind requirement, and because

the majority does not present a compelling reason to

judicially add one, I would apply the plain text of the statute

and exempt from liability any machinegun transfer to the

government.

III. The panel should have vacated Kittson’s sentence

under harmless error review because Kittson

13

I also remain unconvinced that applying the plain language of

§ 922(o)(2)(A) “would curtail the use of sting operations in many

traditional contexts,” since the scenarios cited by the majority do not

implicate a comparable exception to the one at issue here. For example,

the majority’s claim that law enforcement could not arrest pedophiles for

sharing child sex abuse material with undercover officers falls flat when

you consider federal law’s prohibition on the sharing of that material

contains no wholesale government transfer exception. See 18 U.S.C.

§ 2252A(a)(2)(A) (criminalizing the receipt or distribution of child sex

abuse material).

56 USA V. KITTSON

preserved his objections to the jury instruction

and the error was not harmless.

Kittson preserved his argument that the district court

erred by including § 922(o)’s transfer prong in the jury

instructions. He did not contest at trial and does not contest

on appeal that he transferred the machinegun. Instead,

Kittson repeatedly argued that § 922(o)’s transfer provision

does not reach his conduct, and the district court erred by not

striking the transfer prong from the jury instructions.

Because that argument addresses whether “the amply proved

conduct simply fails to come within the statutory definition

of the crime as charged in the indictment,” it falls under

Yates legal error review. Galecki, 89 F.4th at 740 (internal

quotations omitted); see also Yates v. United States, 354 U.S.

298, 311–12 (1957), overruled on other grounds by Burks v.

United States, 437 U.S. 1 (1978).

Preserved “errors of the Yates variety are subject to

harmless-error analysis.” Skilling v. United States, 561 U.S.

358, 414 (2010). Under harmless-error analysis, a panel can

find a Yates error harmless only if, “after a ‘thorough

examination of the record,’” it “‘conclude[s] beyond a

reasonable doubt that the jury verdict would have been the

same absent the error.’” Galecki, 89 F.4th at 741 (quoting

Neder v. United States, 527 U.S. 1, 19 (1999)). And the error

of including the transfer prong in the jury instructions here

was not harmless.

Leeds v. Russell demonstrates both the error and the

harm here. 75 F.4th 1009, 1024–25 (9th Cir. 2023). There,

Nevada tried a defendant for several charges, including first-

degree murder. Id. at 1012. Nevada supported the first-

degree murder charge with two theories: (1) that the

defendant committed felony-murder by killing a victim

USA V. KITTSON 57

during a burglary or (2) that he committed “willful,

deliberate, and premeditated murder ….” Id. But the state

alleged that the predicate felony of burglary was a burglary

of his own home—an erroneous legal interpretation under

Nevada law. Id. at 1019.

A jury convicted the defendant in a general verdict form

that did not specify which theory it used to convict for first

degree murder. Id. at 1012. It also convicted the defendant

of burglary. Id. at 1014–15. This court found that the

erroneous instruction was not harmless error. Id. at 1024. In

doing so, we relied heavily on the fact that we “c[ould] not

determine whether the jury (or any juror) relied on the

felony-murder theory” because of the general verdict form.

Id. We also noted that because the jury convicted the

defendant for burglary, “[i]t is probable that at least one juror

relied on the felony-murder theory.” Id. That probability

foreclosed a finding of harmless error because “the outcome

of the trial would have been different if even ‘one juror

would have struck a different balance.’” Id. at 1024–25

(quoting Wiggins v. Smith, 539 U.S. 510, 537 (2003)).

So too here. The jury convicted Kittson with a general

verdict form that did not specify the theory it used to

convict—transfer or possession. And the jury’s not-guilty

verdict “[w]ith respect to Count Two, Felon in Possession of

a Firearm,” makes it especially “probable that at least one

juror relied on the [transfer] theory” to convict. Leeds, 75

F.4th at 1024.

Since this error was not harmless, the “general verdict of

guilt must be set aside” because “the verdict is supportable

on one ground, but not on another, and it is impossible to tell

which ground the jury selected.” Galecki, 89 F.4th at 739;

58 USA V. KITTSON

Yates, 354 U.S. at 312. Accordingly, I would have vacated

Kittson’s conviction and remanded for a new trial.

IV. The majority should have remanded the Second

Amendment issue.

Although I would not reach the issue, I’ll note only

briefly that the majority errs by relying on Ninth Circuit

precedent holding that machineguns do not enjoy

constitutional protection. The Supreme Court’s decision in

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1

(2022), upended this court’s interpretive approach to the

Second Amendment and abrogated its cases applying that

approach. Bruen now requires lower courts to conduct

inquiries into “the historical tradition that delimits the outer

bounds of the right to keep and bear arms” when evaluating

firearm regulations. Id. at 19. Only after locating a historical

analogue to a modern-day firearm regulation may a court

uphold a restriction on the right to keep and bear arms. Id. at

30.

United States v. Henry, 688 F.3d 637 (9th Cir. 2022), did

not conduct that analysis. Instead, it defined as “dangerous”

anything that “is ‘likely to cause serious bodily harm’”—a

definition that could apply to any firearm—and cursorily

concluded without citation that “machine guns largely exist

on the black market.” Id. at 640.14 Bruen’s demand, that “the

14

When discussing the historical inquiry analysis now required for

Second Amendment questions, three Justices have separately explained

that Bruen and Rahimi do not license lower courts to abstract to such

high levels of generality. United States v. Rahimi, 602 U.S. 680, 740

(2024) (Barrett, J., concurring) (“[A] court must be careful not to read a

principle at such a high level of generality that it waters down the

right.”); id. at 736 (Kavanaugh, J., concurring) (explaining that judges

must not “let constitutional analysis morph into policy preferences under

USA V. KITTSON 59

government must demonstrate that the regulation is

consistent with this Nation’s historical tradition of firearm

regulation,” is irreconcilable with Henry’s cursory analysis.

Bruen, 597 U.S. at 17.

What’s worse, we don’t even have a factual record in this

case upon which to conduct the required Bruen analysis.

The district court did not engage in any factfinding when

considering Kittson’s motion to dismiss Count One of the

Indictment. In a six-page order, it instead found that

machineguns do not enjoy constitutional protection by

concluding—based on Henry—that machineguns are

dangerous weapons not possessed by law-abiding citizens.

The district court’s failure to engage in any fact finding is

particularly troubling where the extent of private machinegun

ownership is disputed by amici on appeal. That disagreement

over the extent of machinegun ownership presents a key

factual question, particularly given the Supreme Court’s

signal that stun guns enjoy Second Amendment protection

despite only 200,000 existing in the United States. See

Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito,

J., concurring).

Given the disputed extent of private machinegun

ownership and “the highly fact-specific nature of [Bruen’s

historical analogue] inquiry, it is best left to

the guise of a balancing test that churns out the judge’s own policy

beliefs”); id. at 711 (Gorsuch, J., concurring) (“Courts must proceed with

care in making comparisons to historic firearms regulations, or else they

risk gaming away an individual right the people expressly preserved for

themselves in the Constitution’s text.”). Broadly relying on abstract

historical principles like banning “dangerous” weapons, without

referencing any accompanying close historical analogue, treats the

Second Amendment inquiry precisely in the manner that

Bruen instructed against. Bruen, 597 U.S. at 30.

60 USA V. KITTSON

the District Court to undertake the analysis in the first

instance.” Salazar v. Buono, 559 U.S. 700, 722 (2010). I

would have remanded the Second Amendment question to

the district court to conduct this analysis.

* * *

Federal law broadly exempts from criminal liability

transfers of machineguns to the government. Daniel Kittson

appears to be an unsavory character, but his conviction at

issue in this appeal runs squarely into that clear exception.

Although the majority’s opinion puts up a veneer of

mundaneness, its decision strips bare to this: the government

need not prove that a defendant committed a crime, only that

he didn’t know his conduct wasn’t a crime. The majority’s

reasoning in support of its result boils down to a belief that

Congress should have done more than it did. Maybe

Congress should adopt the majority’s view of federal

machinegun prohibitions. But it didn’t. Until it does, I

cannot agree with the majority’s expansion of criminal law,

and thus I respectfully dissent.