On Wednesday, August 27, the United States Court of Appeals for the Fifth Circuit issued yet another opinion in a case addressing suppressors, their classification as “arms” under the Second Amendment, and their regulation under the National Firearms Act.
In short, the 18-page decision in the case known as United States v. Peterson upheld the NFA’s restrictions on suppressors because it categorized the NFA’s “application procedures” as a shall-issue licensing regime supported by Bruen.
This decision comes after the panel first concluded in February that suppressors are not arms protected by the Second Amendment, and then subsequently withdrew that decision in June, as we reported.
The three-judge panel, including Chief Judge Jennifer Walker Elrod, Circuit Judges Higginbotham and Southwick, concluded that they “assume without deciding that suppressors constitute ‘arms’ under the Second Amendment,” an unusual statement, but one that is nonetheless a positive position to have on record.
They also wrote, “…we AFFIRM the district court’s denial of Peterson’s motion to dismiss because we agree with the government that the NFA’s shall-issue licensing regime is presumptively constitutional under New York State Rifle & Pistol Ass’n v. Bruen.” One error with this decision is that the NFA is not a permit, but is a tax, and literally identifies itself as such in that ATF Form 1 results in the issuance of a tax stamp.
In his analysis of the decision, Second Amendment attorney Kostas Moros observed that, “The Fifth Circuit’s logic in this ruling, applying shall-issue CCW permitting regimes to simple possession of a presumptively protected arm, sounds like it would justify NFA-style registration for ALL guns, if the government wanted to. If that is indeed their conclusion, we hope this will be revisited en banc or by the Supreme Court.”
In a surprising admission, the court acknowledged some of the benefits of suppressors, begging the question of why hearing protection should be regulated:
Many commentators have recognized the benefits of suppressors. For example, while many firearms produce “noise levels of between 140–160 decibels, at which level hearing can be permanently impaired,” suppressors can reduce the noise to around 135 decibels, at which level hearing loss is less likely to occur. Further, hunters may use suppressors to avoid spooking game and to reduce noise pollution in the jurisdictions that permit suppressors in the field.
Even more surprisingly, the court acknowledged that suppressors are infrequently used in crime, putting on the record that, “…in the ten-year period between 1995 and 2004, one researcher found ‘only two federal cases where a silencer was used in a murder.’ ” That level of infrequency would be considered statistically insignificant by almost every researcher.
The court also seems to recognize that another challenge to the NFA will arise out of this decision, writing, “In so holding, we do not foreclose the possibility that another litigant may successfully challenge the NFA’s requirements.”
