In layman’s terms: The U.S. Court of Appeals for the Fifth Circuit erroneously upholds the NFA’s registration requirement for suppressors by making an analogy to firearms licensing requirements mentioned in Bruen.
Highlighting the judicial brinksmanship that seems to play out only around the civil liberty regarding the right to keep and bear arms, on December 10, the United States Court of Appeals for the Fifth Circuit issued its third decision in a case addressing the constitutionality of federal regulations regarding restricting the use and possession of suppressors.
“We withdraw our prior opinion and substitute the following,” writes Jennifer Walker Elrod, Chief Judge, joined by Circuit Judges Higginbotham and Southwick. The same panel concluded first in February that a suppressor is not an “arm,” and is not protected under the Second Amendment. Then in August, the panel “assume[d] without deciding that suppressors constitute ‘arms’ under the Second Amendment.”
In their most recent as-applied decision, the panel again affirms the district court’s denial of Peterson’s motion to dismiss while “Assuming without deciding that the Second Amendment protects suppressors.”
The court defends its position writing, “…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… and Peterson’s as-applied challenge fails on this record.”
Why a third decision in this case?
“…they’re trying to draw a distinction between this particular case and future cases involving suppressor challenges under the NFA…. they’re trying to save face, because again, it’s pretty embarrassing if you have to issue three opinions in a case and you still can’t get it right,” states constitutional lawyer, News2A contributor, and host of Four Boxes Diner, Mark Smith, in his analysis.
The court is attempting to walk a fine line between acknowledging that suppressors constitute arms, while also trying to regulate them. It has, in fact, issued statements three different times to that effect, sometimes contradicting itself. “The government agrees that the Second Amendment protects suppressors, but it maintains that the NFA is constitutional under New York State Rifle & Pistol Ass’n v. Bruen.”
However, as Mark Smith notes, this question of whether suppressors constitute firearms is generally not disputed for three reasons:
- Bruen says that any instrument that facilitates armed self-defense is an “arm.”
- Rahimi states that in any government regulation that regulates “arms-bearing conduct,” the burden shifts to the government to justify the modern-day gun regulation.
- If you regulate suppressors, you’re regulating an entire category of firearms – i.e., firearms that are capable of firing suppressed rounds.
However, the court’s discussion in this third decision is mostly in the context of upholding the NFA’s registration requirement, the $200 tax requirement now being defunct, struck down with the passing of the “One Big Beautiful Bill” signed by President Trump in July of 2025, (which will go into effect in just a couple of weeks on January 1, 2026.) The court mentions only that since Peterson didn’t pay the tax, there’s no record of it being “put toward abusive ends” in his case.
As we’ve previously reported, shortly after the striking down of the tax, gun rights groups challenged the now-toothless and taxless NFA under a new lawsuit, stating that if there is no tax, the regulation scheme fails. They moved in October to request summary judgment. Silencer Shop v. Bondi is actually one of three significant lawsuits to challenge the NFA. The others are Brown v. ATF and Jensen v. ATF.
Turning back to the Fifth Circuit’s decision, it defends the NFA’s registration scheme by erroneously linking it to licensing schemes permitted in Bruen reasoning, “…we assume without deciding that suppressors constitute ‘arms’ under the Second Amendment, as both parties now contend. Even so, the NFA suppressor-licensing scheme is presumptively constitutional because it is a shall-issue regime…”
As Smith notes, this position runs contrary to what Supreme Court Justice Brett Kavanaugh wrote in his dissent in Heller, making it unlikely to stand in a challenge:
The fundamental problem with DC’s gun registration law is that registration of lawfully possessed guns is not “long-standing.” 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. In considering DC’s registration requirement, it’s initially important to distinguish registration laws from licensing laws.
