Congress Should Remove Suppressors from the NFA

There’s no better proof of the gun control lobby’s senseless vendetta against firearms than their attempts to prohibit, tax, or otherwise restrict firearm suppressors. The good news is that Congress is on the verge of removing suppressors from the NFA. Doing so is both a wise public policy step and Constitutionally mandated. Why? Because the entire NFA registration and tax scheme is unconstitutional when applied to suppressors.

The Center for Disease Control warns that even momentary exposure to sound as loud as a gunshot can cause long-term hearing damage. Suppressors are often referred to as “silencers,” but this is a misnomer. Suppressors reduce, but do not eliminate, the sound of a gunshot. They are safety devices that protect the shooter’s hearing (and the hearing of others in the vicinity of a gunshot). This is one reason the U.S. Marine Corps has been using suppressors for years.

Despite their universally recognized benefit as a personal protection device, suppressors are currently included in and heavily restricted under the federal National Firearms Act (NFA). Not only do gun owners need to register suppressors with the federal government, but they are also subject to redundant background checks, fingerprinting, waiting times, and payment of a $200 tax.

Because the NFA classifies suppressors as “firearms” in the same category as machine guns, its registration scheme is onerous and sets the stage for potential imprisonment.

In New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022), the Supreme Court reaffirmed the District of Columbia v. Heller‘s “text first, historical tradition second” framework to evaluate whether modern firearm regulations violate the Second Amendment. The framework does so by assessing whether the modern law comports with “the Nation’s historical tradition of firearms regulation.” Under the Bruen test, if the conduct at hand implicates the plain text of the Second Amendment, then the burden shifts to the government to provide well-established and representative historical analogues from the Founding period that are similar to the modern firearm regulation at issue. If the government fails to do so, then the regulation falls and may not be enforced.

Textually, suppressors are “arms” under the Second Amendment’s text, which is so obvious that even the U.S. Department of Justice considers them as such.

In Bruen, the Court held that the general definition of “arms” includes “modern instruments that facilitate armed self-defense.” This language provides a necessary bulwark against arguments for limiting Second Amendment protections to the firearm itself and to the parts necessary for a gun to “go bang.” Suppressors facilitate self-defense by reducing the report of gunshots, thereby protecting the hearing of users and improving their situational awareness to detect intruders and other threats. Suppressors also prove invaluable during training sessions at shooting ranges.

Since suppressors constitute “arms,” the legal question becomes: has the government shown a longstanding, representative set of historical firearm regulations analogous to the NFA registration and taxation scheme? The answer is no.

Let’s start with the NFA’s registration requirements.

Before joining the Supreme Court, Justice Brett Kavanaugh wrote about the unconstitutionality of arms registries and their lack of historical precedent in American history. While a judge on the D.C. Circuit, he dissented in Heller v. District of Columbia (2011) (known as Heller II), a case in which the majority found D.C.’s semiautomatic rifle ban and gun registration scheme Constitutional. Then-Judge Kavanaugh wrote, “Registration of all guns lawfully possessed by citizens in the relevant jurisdiction has not been traditionally required in the United States and, indeed, remains highly unusual today.” He continued by distinguishing registration laws from licensing laws, which can sometimes be aimed at gun safety, writing that “[r]egistration requirements, by contrast, require registration of individual guns and do not meaningfully serve the purpose of ensuring that owners know how to operate guns safely in the way certain licensing requirements can. For that reason, registration requirements are often seen as half-a-loaf measures aimed at deterring gun ownership.”

The lack of historical justification for firearms registries is also evinced in the federal Militia Act of 1792. The Founders encouraged individual gun ownership by writing the Act to require every able-bodied male citizen to “provide himself” with a musket or rifle, ammunition, and other equipment, ensuring a ready militia. Far from mandating registration, it presumed citizens would keep arms at home without government oversight. As then-Judge Kavanaugh noted in Heller II, early militia laws required militiamen to show that they possessed the mandatory arms, but “the purpose … was not registration of firearms, but rather simply to ensure that the militia was well-equipped.” These laws applied only to militiamen and covered the specific weapons used for militia purposes, not all arms a person owned, unlike the NFA’s broad suppressor registry. The Militia Act of 1792 underscores that the Second Amendment protects the private possession of arms, including suppressors, without bureaucratic hurdles like registration.

The NFA’s $200 taxation requirement also fails Constitutional scrutiny. It is black letter law that a targeted tax on a Constitutional right is unconstitutional. The Supreme Court found a $1.50 poll tax on voting to be unconstitutional in Harper v. Board of Elections (1966). In 1983, the Supreme Court found in Minneapolis Star v. Minnesota Commissioner that a targeted tax on ink violated the First Amendment’s right to a free press because ink was an important component in printing newspapers. Here, the NFA’s tax targeting suppressors (a/k/a “arms”) would likewise be unconstitutional.

For over 140 years after the Second Amendment was adopted, the federal government did not regulate anything comparable to suppressors, much less require them to be registered. The entirety of the NFA suppressor registration scheme, including the tax, runs afoul of our right to bear arms. Congress should address this Constitutional violation by removing suppressors from the NFA.