The Volokh Conspiracy
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Second Amendment Roundup: 5th Circuit holds suppressors not to be protected "arms"
It’s time to have a serious discussion about a device that enhances the exercise of the right.
On February 6, the Fifth Circuit decided United States v. Peterson, holding that noise suppressors (aka silencers or mufflers) are not protected by the Second Amendment. Written by Chief Judge Jennifer Elrod, the court held that suppressors are not "Arms" within the Second Amendment's purview. Under Bruen, if an item is an "arm" within the text of "the right to keep and bear arms," the burden shifts to the government to demonstrate that the restriction is consistent with the historical tradition of arms regulation at the founding.
Under Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." To that, the Peterson court added that "to constitute an 'arm,' the object in question must be a weapon." In other words, for a modern-day instrument to be an arm under the Second Amendment's text, the object itself, standing alone, must be an arm.
Peterson argued that suppressors are "an integral part of a firearm," that "a bullet must pass through an attached [suppressor] to arrive at its intended target," and thus they meet Heller's definition as a weapon that casts and strikes. The court rejected this argument, stating: "A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense." Of course, neither is a barrel, a trigger, a stock, or a safety, but do they have no Second Amendment protection?
The court stated that the Amendment only protects "items necessary to a firearm's operation, not just compatible with it." While a barrel is necessary, a safety is not, neither is a trigger guard, recoil pad, or sights. Are parts that make a firearm safer, more accurate, and useful not protected? They should be protected given Bruen's language, citing Caetano's decision on stun guns, that an arm "covers modern instruments that facilitate armed self-defense." The Supreme Court said "instruments" that "facilitate" armed self defense rather than are "necessary."
The Peterson court relied on United States v. Cox (10th Cir. 2018), which asserted that a suppressor "is a firearm accessory … not a weapon." Does that mean that a rifle sling, which literally enables the person to "bear" the arm, has no protection? The Supreme Court made no such distinction in Heller, Bruen, or Rahimi, none of which even use the term "accessory" or "accessories."
Three unpublished cookie-cutter decisions were also cited, two by district courts and one by an appellate court – United States v. Saleem (4th Cir. 2024). That court conceded that "silencers may serve a safety purpose to dampen sounds and protect the hearing of a firearm user or nearby bystanders," but added, "A firearm will still be useful and functional without a silencer attached…." According to this logic, parts that make a firearm more useful and more functional are not protected, which implies that laws that restrict firearm designs to be the least useful and least functional would be consistent with the Second Amendment.
The Peterson court also rejected Peterson's argument that under United States v. Miller (1939), "arms" include the "'proper accoutrements' that render the firearm useful and functional." According to the court, "the 1785 Virginia statute quoted in Miller used that language to describe items like gunpowder, lead, and cartridges—items necessary to a firearm's operation, not just compatible with it." But the Virginia statute also included "a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket." And a cartridge box was necessary to the efficient operation of the firearm. The same could be said for a silencer.
Textually, a restriction on a firearm with a silencer is a restriction on an entire category of firearms – suppressed firearms. That infringes on the right of the people to keep and bear firearms that fire suppressed rounds. Heller held that an entire category of arms that Americans choose – in that case, handguns – may not be banned. Heller also held that arms that are typically possessed for lawful purposes are protected, and as shown below, suppressed firearms are rarely used in crime and are possessed in large numbers.
As the court noted, the "grand jury indicted Peterson for possession of an unregistered suppressor" under the National Firearms Act (NFA). That was a curious way to represent the indictment, in part because the word "suppressor" is not included in the NFA. To state an offense against the United States, the indictment had to allege that Peterson had an unregistered "firearm," which is defined to include "any silencer (as defined in section 921 of title 18, United States Code)." 26 U.S.C. § 5845(a)(7).
And when we look at § 921 of Title 18, we find: "The term 'firearm' means … any firearm muffler or firearm silencer…." The latter two terms are defined in part to include "any device for silencing, muffling, or diminishing the report of a portable firearm…."
Looking at Peterson's brief on appeal, the indictment did indeed allege that he "knowingly received a firearm, to wit: a black cylinder which is a firearm silencer and firearm muffler, not registered to him in the National Firearms Registration and Transfer Record." As counsel commented in the brief: "Paradoxically, the government now argues that the device for which the defendant received and possessed is not a firearm to deny the constitutional rights of the defendant as provided for by the Second Amendment."
Unfortunately, Peterson's brief went downhill after that. It states: "Following Heller, the Appellate Courts have employed a two-step inquiry to determine whether a statute violates the Second Amendment." It then recites the test as involving, first, whether the restriction is a burden within the scope of the Amendment, and second, the duty of the court to "apply an appropriate form of means-end scrutiny…." It then states that "the government's argument is unable to bear its burden of showing the NFA satisfies the appropriate level of means-end scrutiny."
As Justice Thomas wrote in Bruen, "this two-step approach … is one step too many." While Heller "demands a test rooted in the Second Amendment's text," it does "not support applying means-end scrutiny," and instead "the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."
But Peterson's brief, which was filed in May 2024, fails so much as to cite Bruen, which was decided in June 2022. That was inexplicable, as counsel was on notice of the decision because the district court discussed Bruen for over a page in its Order and Reasons that denied his motion to dismiss the indictment. Counsel included the district court's opinion in the Record Excerpts on appeal.
What's more, as authority for his argument in favor of means-ends scrutiny, Peterson cited the Fourth Circuit's 2017 decision in Kolbe v. Hogan, which upheld Maryland's ban on semiautomatic rifles and which was abrogated by Bruen. Kolbe was reaffirmed by Bianchi v. Frosh, which the Supreme Court reversed and vacated for reconsideration in light of Bruen. The Fourth Circuit reaffirmed Bianchi in what is now styled Snope v. Brown, which is now before the Court and which has been relisted for Friday February 21.
Peterson goes on to argue, "As explained above, using silencers improves accuracy, reduces disorientation after firing, and helps prevent substantial and irreversible damage to users' health." Unfortunately, while true, nothing of the kind is "explained above," nor is it explained elsewhere in the brief.
The brief argues that suppressors "are (1) commonly possessed by law-abiding citizens (2) for lawful purposes" and "the government's interest in regulating silencers is particularly insubstantial given the infrequency with which they are used in crime." It continues, "Despite the presence of roughly 1.5 million registered silencers in the United States -- to say nothing of any unregistered silencers -- they are exceedingly rare instruments of criminal activity."
Yet the brief cited nothing to substantiate those claims. It could have. According to the American Suppressor Association, there are actually 3,613,983 registered suppressors as of January 2024. Ronald Turk, ATF Associate Deputy Director, wrote in 2017 that "silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification and should be considered for reclassification under the GCA." And Paul A. Clark's Criminal Use of Firearm Silencers concluded that "the data indicates that use of silenced firearms in crime is a rare occurrence, and is a minor problem."
Counsel could have done a quick internet search and found further legal arguments and empirical information in my article Firearm Sound Moderators: Issues of Criminalization and the Second Amendment. The article includes information from the medical community about the harmful auditory effects of shooting firearms, even with ear muffs, and the need to reduce the noise at the source.
According to CDC research at a shooting range published in 2011, "The only potentially effective noise control method to reduce students' or instructors' noise exposure from gunfire is through the use of noise suppressors that can be attached to the end of the gun barrel." While published after the briefs were filed, the following statement by the audiology community published in 2024 is significant: "The American Academy of Otolaryngology-Head and Neck Surgery endorses the use of firearm suppressors as an effective method of reducing the risk of hearing loss, especially when used in conjunction with conventional hearing protective measures."
Not surprisingly, the Biden Administration's brief in Peterson repeated the usual arguments currently being made in Second Amendment litigation: suppressors are not "arms," they are "dangerous and unusual," and even if protected, the NFA's requirements of taxation, registration, and serialization are consistent with Bruen (which, the government delightfully noted, Peterson's counsel did not even cite).
Peterson's counsel did not bother to file a reply brief. Presumably his client is now serving his two-year sentence in prison for having a "black cylinder" in his safe, harming no one. Indeed, virtually all federal gun control laws constitute classic malum prohibitum, victimless crimes.
The Peterson case was a missed opportunity to have a meaningful constitutional dialogue about whether the Second Amendment protects a firearm device that enhances the right to armed self-defense by reducing harmful noise, blinding flash, and recoil. The claim that a suppressor is not even an "arm" textually could be applied to any other part of a firearm that increases safety and accuracy but is not absolutely necessary for the bare function of expelling a projectile. It is time to have a serious discussion about a device that reduces – not actually silences – noise and that would serve the interests that the Second Amendment was designed to protect.
