In United States v. Kittson, --- F.4th ---, No. 23-4132 (9th Cir. 2025), a divided Court affirmed Daniel Matthew Kittson’s conviction for possessing or transferring a machinegun in violation of 18 U.S.C. § 922(o).
Kittson was arrested as part of a sting operation. He argued that section 922(o) was inapplicable because he transferred a machinegun to a federal agent. The majority rejected his argument.
Relevant here, § 922(o)(1) provides that “it shall be unlawful for any person to transfer or possess a machinegun.” But 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.” § 922(o)(2)(A).
The majority held that the exceptions in § 922(o)(2) are “extremely limited” (citation omitted)), and only apply to transfers “authorized by the government for the benefit of federal, state, or local government entities.” In short, "the involvement of an undercover agent does not shield a defendant from liability." (The dissent disagreed on this point).
The majority further held that the statute was not unconstitutional under the Second Amendment because “machine guns are ‘dangerous and unusual weapons’ that are unprotected by the Second Amendment.”
