NEW ORLEANS — The Criminal Division of the Department of Justice continues to defend suppressor restrictions and registration under the National Firearms Act as both a supposed deterrent against criminal misuse and consistent with the nation’s historical tradition of regulating certain “dangerous” weapons.
The position is outlined in the DOJ’s July 20 response to the petition for rehearing en banc as it relates to United States v. Comeaux. The government is asking the United States Court of Appeals for the Fifth Circuit to deny a request by the defendant to rehear the case en banc.
In this same case, the Fifth Circuit recently ruled in June that silencers ARE arms under the Second Amendment, and thus worthy of constitutional protection.
The government makes much ado about suppressors, which have no innate lethal capabilities. The United States uniquely regulates suppressors, while many other countries consider them a mandatory part of shooting etiquette and essential for hearing protection.
In its brief, the DOJ lays out a technical argument for why it believes a different case (Peterson) is a more suitable case to litigate the subject, but at its core, the entire brief supports the registration of suppressors under the NFA, claiming that “…the Act does not ban silencer possession; rather, it requires only registration, a background check, and (at the time of Comeaux’s offense) payment of a modest tax. These modest burdens are comparable to the burdens imposed by historical laws taxing weapons that posed a special danger of misuse.”
The brief does offer a single statement that acknowledges that there is a beneficial use for suppressors, writing, “This is not to say that silencers are widely used for criminal purposes – their beneficial use is overwhelming in relation to their criminal use – but they do present a niche case for criminal use.”
The fallback to the position that suppressors should be regulated because of a possible criminal use is incongruent with how the government treats many other far more dangerous weapons.
The government also compares the NFA’s regulation of suppressors with licensing schemes from shall-issue states, suggesting that, “The Act’s restrictions on silencers also resemble historical laws in ‘how’ they burden the right to bear arms. The Act imposes only a minor burden on the right of armed self-defense.”
While the Criminal Division of the DOJ argues in favor of the NFA and suppressor registration, another department of the DOJ – the Civil Rights Division – is fighting suppressor bans, at the local level that is. A May 14 amended complaint filed by the Second Amendment Section of the DOJ, led by AAG Harmeet Dhillon, argues that “suppressors are also in common use by law-abiding Americans and categorically banning them violates the Second Amendment.”
