PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                ______________

                     No. 15-2859
                   ______________

           UNITED STATES OF AMERICA

                          v.

    ONE (1) PALMETTO STATE ARMORY PA-15
   MACHINEGUN RECEIVER/FRAME, UNKNOWN
      CALIBER SERIAL NUMBER: LW001804;
     WATSON FAMILY GUN TRUST, Claimant

                (D.C. No. 15-cv-02202)


  RYAN S. WATSON, Individually and as Trustee of the
            Watson Family Gun Trust

                          v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;
   DIRECTOR BUREAU OF ALCOHOL, TOBACCO,
         FIREARMS, AND EXPLOSIVES

                (D.C. No. 14-cv-06569)
                    Ryan S. Watson, Individually and as
                    Trustee of the Watson
                    Family Gun Trust,
                                        Appellant
                     _______________

      On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
     (D.C. Civ. Nos. 2-15-cv-02202 and 2-14-cv-06569)
         District Judge: Honorable Stewart Dalzell
                      ______________

                    Argued April 4, 2016

      Before: AMBRO and KRAUSE, Circuit Judges,
             and THOMPSON,* District Judge

               (Opinion filed: May 18, 2016)

Alan A. Beck, Esq.
2692 Harcourt Drive
San Diego, CA 92123

David R. Scott, Esq.
Law Offices of J. Scott Watson
24 Regency Plaza
Glen Mills, PA 19342




*
 The Honorable Anne E. Thompson, District Judge for the
United States Court for District of New Jersey, sitting by
designation.




                              2
Stephen D. Stamboulieh, Esq. [Argued]
P.O. Box 4008
Madison, MS 39130

      Counsel for Appellant

Patrick Nemeroff, Esq. [Argued]
United States Department of Justice
Civil Division
Room 7217
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Michael S. Raab, Esq.
United States Department of Justice
Civil Division
Room 7237
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Jacqueline C. Romero, Esq.
J. Alvin Stout, III, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee




                              3
Robert J. Olson, Esq.
William J. Olson
370 Maple Avenue West
Suite 4
Vienna, VA 22180

             Counsel for Amicus-Appellants


Joran Eth, Esq.
James R. McGuire, Esq.
Morrison & Foerster
425 Market Street
Spear Street Tower
San Francisco, CA 94105

Adam M. Regoli, Esq.
Morrison & Foerster
370 17th Street
Suite 4200
Denver, CO 80202

             Counsel for Amicus-Appellee
                     ______________

                OPINION OF THE COURT
                    ______________

THOMPSON, District Judge

       Appellant Ryan S. Watson (“Watson”), individually
and on behalf of the Watson Family Gun Trust, filed this
action claiming that the de facto ban on the possession of a




                             4
machine gun1 found in 18 U.S.C. § 922(o) is unconstitutional
facially and as-applied to him under the Second Amendment
to the U.S. Constitution. Alternatively, Watson argues that §
922(o) does not apply to the Watson Family Gun Trust
because it only applies to “persons” and a trust is not a
“person” under the statute’s definition. The District Court
granted the government’s motion to dismiss, explaining that
under the Supreme Court’s opinion in District of Columbia v.
Heller, 

(2008), and this Court’s opinion in
United States v. Marzzarella, 

(3d Cir. 2010), the
Second Amendment does not protect the possession of
machine guns. Moreover, the Court found that a trust is not
exempt from § 922(o) because a trust is not an entity distinct
from its trustees, and therefore it cannot own property.
Because we agree that the Second Amendment does not
protect the possession of machine guns, and because trustees,
and by extension trusts, are not exempt from § 922(o), we
affirm.

I.    BACKGROUND

       The National Firearms Act provides that prior to
manufacturing a firearm, any prospective maker must apply
for permission from the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF). 26 U.S.C. §§ 5822, 5841.
ATF will deny the application if making or possessing the
firearm would place the person applying in violation of any
law. See 26 U.S.C. § 5822; 27 C.F.R. § 479.65. Although a
machine gun qualifies as a firearm under the National
Firearms Act, 26 U.S.C. § 5845(a), a separate federal law, the

1
 Federal statutes and caselaw alternate between the spellings
“machinegun” and “machine gun.” We will use “machine
gun” except when quoting materials that spell the term
otherwise.




                              5
Gun Control Act, prohibits the private manufacture of
machine guns in most instances by making it unlawful for any
person “to transfer or possess a machine gun,” with narrow
exceptions for certain government entities and machine guns
lawfully possessed before 1986. 18 U.S.C. § 922(o). The
Gun Control Act defines a “person” as an “individual,
corporation, company, association, firm, partnership, society,
or joint stock company.” 18 U.S.C. § 921(a)(1).

        Watson is the sole trustee of the Watson Family Gun
Trust (“the Trust”). On May 23, 2014 and June 24, 2014,
Watson submitted applications on behalf of the Trust for
permission to make and register an M-16-style machine gun.
On August 5, 2014, an ATF examiner mistakenly approved
one of Watson’s applications. Shortly thereafter, Watson had
a machine gun manufactured pursuant to that approval.
However, on or about September 10, 2014, ATF informed
Watson that the approval had been a mistake and that his
application had been “disapproved.” ATF explained in a
letter that Watson’s application was denied because he was
prohibited by law from possessing a machine gun. Watson
claimed to be exempt from the prohibition on possessing
machine guns because he had applied on behalf of a trust,
which he argued was not a “person” covered by the Gun
Control Act. ATF explained that although a trust is not a
“person” under the Act, a trust cannot legally make or hold
property. Therefore, ATF considers the individual acting on
behalf of the trust to be the proposed maker and possessor of
the machine gun.

      Watson received a telephone call from an ATF agent
on October 10, 2014 inquiring whether a machine gun had
been made pursuant to the initial application approval. The
ATF agent indicated that if any machine gun had been made,
the gun must be surrendered to ATF. On November 14,
2014, Watson met with an ATF agent and surrendered his




                              6
machine gun under protest. That same day, he filed suit
against the U.S. Attorney General and the ATF Director
(collectively, “the government”), seeking declarative and
injunctive relief from 18 U.S.C. § 922(o), 26 U.S.C. § 5801 et
seq., and the implementing regulations found in 27 C.F.R. §
479.1 et seq. Watson alleged that these statutory and
regulatory provisions act as a de facto ban on an entire class
of arms in violation of the Commerce Clause and the Second,
Ninth, and Tenth Amendments to the Constitution.
Additionally, Watson alleged violations of his due process
rights under the Fifth Amendment and his equal protection
rights under the Fourteenth Amendment, as well as a claim
for detrimental reliance based on the ATF’s initial approval of
his application. The government separately initiated a
forfeiture action for Watson’s machine gun, which was later
consolidated with his challenge.

        On January 16, 2015, the government moved to
dismiss Watson’s action for lack of standing and failure to
state a claim. On July 22, 2015, the District Court ruled that
Watson did have standing, but that he failed to state a claim
upon which relief can be granted.2 Among other holdings,
the Court held that Watson failed to state a claim under the
Second Amendment because the Second Amendment does
not protect the possession of machine guns. He appeals that
decision as well as the District Court’s finding that a trust is
incapable of owning a machine gun under § 922(o). Because
these are the only issues briefed by Watson on appeal, we will
not discuss the District Court’s other holdings. See Laborers’

2
  On appeal, the government continued to argue that Watson
lacked standing, but based on Watson’s position at oral
argument that he is challenging the Gun Control Act and not
the National Firearms Act, the government essentially
conceded this point.




                               7
Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy
Corp., 

, 398 (3d Cir. 1994) (issues not briefed on
appeal are waived). However, we note that all of Watson’s
claims against the government were dismissed.

        The government’s consolidated forfeiture claims are
still pending, which led us to question whether the decision
being appealed was a final order, and thus whether we had
jurisdiction. But on August 13, 2015, the District Court
issued a certification of entry of final judgment. This cured
any jurisdictional defect in the case. See In re Fosamax
(Alendronate Sodium) Prods. Liab. Litig. (No. II), 

, 156 (3d Cir. 2014).

II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1346. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a district court’s grant of a
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Foglia v. Renal Ventures
Mgmt., LLC, 

, 154 n.1 (3d Cir. 2014); Ballentine
v. United States, 

, 808 (3d Cir. 2007). We “are
required to accept as true all allegations in the complaint and
all reasonable inferences that can be drawn from them after
construing them in the light most favorable to the
nonmovant.” 

n.1 (citations omitted).

III.   DISCUSSION

       As a matter of constitutional avoidance, we will first
turn to Watson’s argument that § 922(o) of the Gun Control
Act does not apply to a trust. See Crowell v. Benson, 

, 62 (1932) (“When the validity of an act of the
Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this




                               8
Court will first ascertain whether a construction of the statute
is fairly possible by which the question may be avoided.”).
Watson argues that § 922(o) of the Gun Control Act does not
apply to a trust because § 922(o) applies only to “persons”
and a trust is not a “person” under the terms of the statute.

        With certain narrow exceptions, the provision states
that “it shall be unlawful for any person to transfer or possess
a machinegun.” 18 U.S.C. § 922(o). The Gun Control Act
defines a person as “any individual, company, association,
firm, partnership, society, or joint stock company.” 18 U.S.C.
§ 922(a)(1). As Watson notes, a “trust” is not one of the
listed entities. However, this does not mean that a trust is
therefore entitled to possess a machine gun.

       As the District Court stated, a trust is not an entity
distinct from its trustees, nor is it capable of legal action on its
own behalf. 76 Am. Jur. 2d Trusts § 3 (citing Restatement
(Third) of Trusts § 2 (2003)). Indeed, Watson himself does
not dispute that he is the “individual human being” seeking to
possess a gun on behalf of the Trust. He argues, however,
that because trusts are not “persons” under the statute, he may
act on behalf of the Trust in his capacity as a trustee without
triggering the prohibition on natural persons transferring or
possessing a machine gun. Appellant’s Br. 55-56. But
nothing in the Gun Control Act supports such a reading.
Irrespective of whether Watson is a trustee, he is also a
natural person and therefore prohibited from performing any
of the acts forbidden of natural persons under the Gun
Control Act. His inability to comply with the Gun Control
Act, in turn, prevents ATF from granting his application
under the National Firearms Act. See 26 U.S.C. § 5822; 27
C.F.R. § 479.65.
       Moreover, this holding is necessarily correct because
to interpret the Gun Control Act as Watson suggests would
allow any party—including convicted felons, who are




                                 9
expressly prohibited from possessing firearms under 18
U.S.C. § 922(g)(1)—to avoid liability under this section
simply by placing a machine gun “in trust.” Any “individual,
company, association, firm, partnership, society, or joint
stock company” could lawfully possess a machine gun using
this method. 18 U.S.C. § 921(a)(1). Interpreting the statute
so as to include this exception would thereby swallow the
rule. We refuse to conclude that with one hand Congress
intended to enact a statutory rule that would restrict the
transfer or possession of certain firearms, but with the other
hand it created an exception that would destroy that very rule.
See Abdul-Akbar v. McKelvie, 

, 315 (3d Cir.
2001) (rejecting an interpretation of a statute that would allow
the exception to swallow the rule); In re New York City
Shoes, Inc., 

, 685 n.6 (3d Cir. 1989) (same); see
also Elrod v. Burns, 

, 359 n.13 (1976) (same).

       We turn next to Watson’s argument that § 922(o) is
unconstitutional facially and as-applied to Watson under the
Second Amendment. We agree with the District Court that
Watson offers no facts to distinguish why the challenged laws
should not apply to him. Therefore, we will treat Watson’s
claim as a facial challenge. The Second Amendment reads,
“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. To determine
whether § 922(o) impermissibly burdens the Second
Amendment right, we must begin with District of Columbia v.
Heller, 

(2008).

       In Heller, the Supreme Court struck down several
statutes in the District of Columbia prohibiting the possession
of handguns and requiring lawfully owned firearms to be kept

. Grounding its inquiry in
historical analysis, the Court found that the Second
Amendment protects an individual’s right to possess firearms,




                              10
at least for purposes of self-defense in the home. 

636. However, the Court warned that “the right [is] not a
right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” 

see also
McDonald v. City of Chicago, 

, 786 (2010)
(plurality opinion). The Court recognized that “the Second
Amendment right, whatever its nature, extends only to certain
types of weapons,” 

(citing United
States v. Miller, 

(1939)), and specified that it
was referring to those weapons “in common use” and not
“those weapons not typically possessed by law-abiding
citizens for lawful purposes,” 

627. Turning to the
handgun ban at issue in the case, the Court struck down the
ban because it “amount[ed] to a prohibition of an entire class
of ‘arms’ that is overwhelmingly chosen by American
society” for the “lawful purpose” of self-defense in the home,
“where the need for defense of self, family, and property is
most acute.” 

         Based on Heller, we adopted a two-pronged approach
to Second Amendment challenges. 

. “First, we ask whether the challenged law imposes a
burden on conduct falling within the scope of the Second
Amendment’s guarantee.” 

does not, the inquiry ends.

does, we move on to the second step: “[W]e evaluate
the law under some form of means-end scrutiny. If the law
passes muster under that standard, it is constitutional. If it
fails, it is invalid.” 

subsequent decisions in our Court make
clear that the de facto ban on machine guns found in § 922(o)
does not impose a burden on conduct falling within the scope
of the Second Amendment. Turning first to Heller, we note
that that opinion discusses machine guns on several
occasions, and each time suggests that these weapons may be
banned without burdening Second Amendment rights. See




                             11


(“It may be objected that if
weapons that are most useful in military service—M-16 rifles
and the like—may be banned, then the Second Amendment
right is completely detached from the prefatory clause. . . .
But the fact that modern developments have limited the
degree of fit between the prefatory clause and the protected
right cannot change our interpretation of the right.”); 

(suggesting that it would be a “startling” reading of
Miller that restrictions on machine guns are unconstitutional).

        Next, we turn to our Circuit’s caselaw. We examined
this question in Marzzarella. Marzzarella concerned whether
Appellant Michael Marzzarella’s conviction under 18 U.S.C.
§ 922(k) for possession of a handgun with an obliterated
serial number violated his Second Amendment 

. We reiterated that “[a]t its core, the Second
Amendment protects the right of law-abiding citizens to
possess non-dangerous weapons for self-defense in the
home,” and thus, under Heller, “restrictions on the possession
of dangerous and unusual weapons are not constitutionally
suspect because these weapons are outside the ambit of the
amendment.” 

92 (citing 

,
635). Marzzarella argued that because he possessed the
unlawful weapon in his home, the challenged statute
regulated protected conduct. However, we found that “it
cannot be the case that possession of a firearm in the home
for self-defense is a protected form of possession under all
circumstances.” 

If this were the case, “[p]ossession
of machine guns or short-barreled shotguns—or any other
dangerous and unusual weapon—so long as they were kept in
the home, would then fall within the Second Amendment.
But the Supreme Court has made clear that the Second
Amendment does not protect those types of weapons.” 

307 U.S. at 178; United States v. Fincher, 

, 874 (8th Cir. 2008), cert. denied, 

(2009)).




                              12
       In case Marzzarella left any doubt, we repeat today
that the Second Amendment does not protect the possession
of machine guns. They are not in common use for lawful
purposes. See, e.g., Haynes v. United States, 

, 87
(1968) (describing machine guns as “weapons used
principally by persons engaged in unlawful activities”);
United States v. Jennings, 

, 799 n.4 (5th Cir.
1999) (noting “machine guns . . . are primarily weapons of
war and have no appropriate sporting use or use for personal
protection”) (quoting S. Rep No. 90-1501, at 28 (1968)); H.R.
Rep. No. 99-495, at 4 (1986) (noting that machine guns are
“used by racketeers and drug traffickers for intimidation,
murder and protection of drugs and the proceeds of crime”);
H.R. Rep. No. 90-1956, at 34 (1968) (Conf. Rep.), as
reprinted in 1968 U.S.C.C.A.N. 4426, 4434 (describing
machine guns as “gangster-type weapons”). They are also
exceedingly dangerous weapons. See, e.g., United States v.
O’Brien, 

, 230 (2010) (noting “[t]he immense
danger posed by machineguns”); United States v. Henry, 

, 640 (9th Cir. 2012), cert. denied, 

(2013) (“A modern machine gun can fire more than 1,000
rounds per minute, allowing a shooter to kill dozens of people
within a matter of seconds. Short of bombs, missiles, and
biochemical agents, we can conceive of few weapons that are
more dangerous than machine guns.”) (internal citation
omitted); United States v. Kirk, 

, 1001 (5th Cir.
1997) (en banc) (per curiam) (Higginbotham, J., concurring)
(“Machine guns possess a firepower that outstrips any other
kind of gun.”). As such, Heller dictates that they fall outside
the protection of the Second Amendment.

       Our sister circuits have consistently come to similar
conclusions. In Fincher, the Eighth Circuit found that
“[m]achine guns are not in common use by law-abiding
citizens for lawful purposes and therefore fall within the




                              13
category of dangerous and unusual weapons that the
government can prohibit for individual 

.
We previously quoted this very sentence in our opinion in
Marzzarella. In Henry, the Ninth Circuit ruled that “machine
guns are highly ‘dangerous and unusual weapons’ that are not
‘typically possessed by law-abiding citizens for lawful

. And in Heller v. District of
Columbia (“Heller II”), the D.C. Circuit noted that “Heller
suggests that ‘M-16 rifles and the like’ may be banned
because they are ‘dangerous and unusual.’” 

,
1263 (D.C. Cir. 2011); cf. Hamblen v. United States, 

, 474 (6th Cir. 2009), cert. denied, 

(2010)
(the Second Amendment does not protect the possession of
unregistered machine guns); Friedman v. City of Highland
Park, Illinois, 

, 408 (7th Cir.), cert. denied sub
nom. Friedman v. City of Highland Park, Ill., 

(2015) (upholding a ban on semi-automatic assault weapons
against a Second Amendment challenge).

        Watson nonetheless argues that the District Court
misapplied Heller’s “dangerous and unusual” language
because the doctrine does not pertain to “the mere possession
of a firearm,” but only applies to “the manner in which that
right is exercised.” Appellant’s Br. 18. As the above
discussion suggests, Watson’s unconventional reading
contradicts the interpretation adopted by all of the federal
circuits that have considered this language. See, e.g.,

; New York State Rifle & Pistol
Ass’n v. Cuomo, 

, 256 (2d Cir. 2015); Henry,

; Heller II, 

; Marzzarella, 

; United States v. Chester, 

, 679 (4th Cir.
2010); Fincher, 

. Watson himself concedes that
“a majority of courts” interpret the “dangerous and unusual”
language in Heller to describe possession of a weapon,
Appellant’s Reply Br. 12, but in fact no case was found
adopting the alternative analysis proposed by Watson.




                             14
        This is likely because Heller plainly states that mere
possession of certain weapons may be prohibited. See, e.g.,

(noting that the Second Amendment
is “not a right to keep and carry any weapon whatsoever”)
(emphasis added); 

(suggesting that the possession
of “M-16 rifles and the like” may be banned); 

(same); see also 

(holding that short-
barreled shotguns are unprotected under the Second
Amendment). And looking at the “dangerous and unusual”
phrase in context, the most logical reading is that “dangerous
and unusual” describes certain categories of weapons, and not
the manner in which the weapons are used. The Court
discusses “dangerous and unusual” weapons immediately
after discussing what “sorts of weapons” Miller protects, and
just before the Court discusses why certain types of weapons,
even those “that are most useful in military service—M-16
rifles and the like—” may be banned. See 

. We therefore decline to adopt Watson’s interpretation of
Heller’s “dangerous and unusual” language.

       Similarly, Watson’s arguments against categorical
bans on certain firearms fail to persuade. Heller limits its
holding to bans on “handguns held and used for self-defense
in the home.” 

. Heller gives special
consideration to the District of Columbia’s categorical ban on
handguns because they “are the most popular weapon chosen
by Americans for self-defense in the home.” 

This
does not mean that a categorical ban on any particular type of
bearable arm is unconstitutional. As explained above, Heller
contains clear statements to the contrary.

      Nor does our opinion in Marzzarella support Watson’s
argument, as he suggests. When Marzzarella discusses
categorical decisions, the opinion objects to the idea of
categorically protecting certain weapons, not categorically




                             15
banning them. See 

(“[I]t also
would make little sense to categorically protect a class of
weapons bearing a certain characteristic wholly unrelated to
their utility.”). In fact, Marzzarella specifically recognizes
that there are particular categories of weapons that fall outside
the protection of the Second Amendment. See, e.g., 

91 (noting that “the right to bear arms, as codified in the
Second Amendment, affords no protection to weapons not
typically possessed by law-abiding citizens for lawful
purposes”); 

(noting that “the Second Amendment
affords no protection for the possession of dangerous and
unusual weapons”). When discussing machine guns and
short-barreled shotguns, the opinion states that “the Supreme
Court made clear the Second Amendment does not protect
those types of weapons.” 

Nothing in Heller or
Marzzarella supports Watson’s argument.

      Because we find that under Heller and Marzzarella the
possession of a machine gun is not protected under the
Second Amendment, our inquiry is at an end. These cases
make clear that § 922(o) does not burden conduct falling
within the scope of the Second Amendment, and thus,
Watson’s facial challenge to § 922(o) must fail.

IV.    CONCLUSION

       Since the Supreme Court’s opinion in Heller, courts
nationwide have debated the parameters of that decision, and
the extent to which government regulation may be reconciled
with the Second Amendment. However, on at least one issue
the courts are in agreement: governments may restrict the
possession of machine guns. This finding follows from prior
caselaw and the plain language provided by the Supreme
Court. We decline to depart from this standard today.
Further, we decline to reinterpret the Gun Control Act to
allow an individual to circumvent the law through the use of a




                               16
trust. For these reasons, the District Court’s opinion will be
affirmed.




                             17