Second Amendment Roundup: Rehearing En Banc Sought in 5th Circuit Suppressor Case

The panel’s ruling that suppressed firearms aren’t protected should be reconsidered.

A petition for rehearing en banc has been filed seeking review of the Fifth Circuit's panel decision in United States v. Peterson, which held that noise suppressors (aka silencers or mufflers) are not "Arms" protected by the Second Amendment.  As I recently posted about the case here, the decision overlooked that millions of law-abiding Americans use suppressed firearms for ear protection and reduction of recoil, attributes just as relevant to the scope of the Second Amendment as other important firearm features.

The Court has ordered the United States to file a response by March 17.  This is an opportunity for the Attorney General to comply with the President's Executive Order to examine all actions of executive departments and to present a plan to protect the Second Amendment rights of Americans.  That includes review of "The positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights."

The Brief of the United States previously filed under Attorney General Garland is the familiar excuse list of why the Second Amendment never impedes any restriction: suppressors are not "bearable arms," but even if they are, they are "dangerous and unusual," but even if they're not, the registration requirements of the National Firearms Act do not "infringe" on Second Amendment rights, and in any event, the registration requirements are analogous to historical regulation of commerce in firearms.

The same excuse list could be applied to any other firearm feature, including those that anti-gun advocates depict with exaggerated rhetoric to dupe judges who are unfamiliar with firearm technology.  Such false depictions including the horrifying conspicuously-protruding pistol grip on a rifle, the devastating .223 caliber cartridge that blows up people to pieces, or the sniper scope designed to take out enemies two miles away.

The United States should file a response to the petition to rehear that addresses the very serious arguments made in the petition and should change the position of the Merrick Garland-run Department of Justice.  It should acknowledge that suppressors reduce but do not eliminate the noise emitted from a firearm, which supports the safe and effective use of a firearm by reducing damage to one's hearing.  Millions of Americans possess and use suppressed firearms for target practice, self-defense, and hunting, which thus meet Heller's common-use test.

The panel acknowledged that the case was a matter "of first impression in [this] circuit," but with little reasoning held that suppressors are afforded no Second Amendment protection whatsoever.  The panel adopted a broad categorical rule: certain firearm parts, which the panel labeled as "firearm accessories," are not "covered by the plain text of the Second Amendment" because they do not fire projectiles.  Neither do ammunition magazines, adjustable stocks, sights, and braces, but they are standard parts that are used to assemble a firearm.

More fundamentally, the court ignored that suppressed arms are "arms" under the plain text.  The court treats suppressors as optional accessories that do not fire bullets.  The court did not consider that while many suppressors may be installed on and removed from threaded barrels or quick attachable/detachable locks, others are integral with the barrel.  Generally, an integral suppressor is permanently fixed to and is part of the barrel, and it may not be removed from the barrel.  For more details, see "The Truth About Integral Suppressors."

There are plenty of firearms with integral suppressors on the market.  Examples include the S&W SW22 Victory pistol and the Ruger 10/22 rifle.  Both being in .22 rimfire, they are excellent firearms to use to train beginners as well as to use for target shooting and hunting.  To reduce chaos and preserve hearing, a homeowner might choose an integrally-suppressed 9 mm pistol for self-defense.  Given that the suppression feature is part of the functioning firearm itself, just as are the firing pin and the ejector, that feature cannot be characterized as a mere "accessory."

As for firearms with attached suppressors, it no more makes sense to depict them as "accessories" than it would be to call a scope attached to a firearm a mere "accessory."  The former is a suppressed firearm and the latter is a scoped firearm.  These features are integrated into the functioning of the firearm and they are part of the firearm.  The fact that they can be removed and the firearm can still be fired no more removes them from Second Amendment protection than would the fact that a rifle stock can be removed and the rifle will still fire.

The Supreme Court has provided no categorical exception for "accessories."  Bruen held that the "general definition [of 'arms'] covers modern instruments that facilitate armed self-defense." That necessarily includes instruments equipped with various features, whether characterized as so-called "accessories" or not, that affect the functionality of a firearm. Indeed, by restricting suppressors, the NFA really is restricting suppressed firearms.

Heller's "common-use" test applies generally to firearms without regard to whether they are suppressed or unsuppressed.  Heller held that handguns in general are in common use by law-abiding persons for lawful purposes, rendering the District of Columbia's handgun ban unconstitutional.  That rule would not countenance a ban on subcategories of handguns, such as those with a semiautomatic function, a red-dot sight, a magazine well for a detachable magazine, or a suppressor.  With or without those features, they are handguns.

In support of its opinion, the panel cited Ninth and Tenth Circuit opinions that predated Bruen, an unpublished Fourth Circuit opinion, and two opinions from district courts in other Circuits.  None of those decisions seriously address the Supreme Court's statement in Bruen that "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."

Textually, it is undisputable that a suppressed firearm is an "Arm."  The Second Amendment is not restricted to a bare-bones contraption that will expel a projectile and no more.  Moreover, the Constitution implicitly protects those closely related acts necessary to their exercise.  That's why, for instance, shooting ranges have Second Amendment protection, as Ezell v. City of Chicago (7th Cir. 2011), held.

En banc review would allow the Court to consider the viewpoints of other judges that are inconsistent with the panel decision.  The panel in this case held that "accessories" are not protected, while Judge Willett, concurring in Mock v. Garland (5th Cir. 2023), reasoned that the use of "accessories that make an otherwise lawful weapon safer" likely is "protected Second Amendment 'conduct.'" He was repeating ATF's use of the term "accessories" to describe attachments on pistols, not suggesting that the term described a separate category other than the features of a firearm.

As the petition concludes, the case presents exceptionally important questions.  Suppressed firearms are among the most common, popular, and safe firearm designs in the United States.  But the panel decision went far beyond the issue of suppressers.  As the petition states:

The panel laid down a broadly stated rule that all firearm "accessories" are due no Second Amendment protection…. If that ruling were to stand, the Government could ban all manner of integral components of firearms, effectively rendering a nullity of the fundamental Second Amendment right under the guise of banning "accessories." All the while, the government could continue to prosecute individuals like Peterson on the assertion that such parts are firearms. The Second Amendment's protections are not so flimsy.

The response to the petition by the United States should flip positions from those advocated by the anti-Second Amendment previous Administration.  It should unabashedly confirm that suppressed firearms are protected arms under the Second Amendment.  It should acknowledge that Heller's common-use test is the proper test in arms prohibition cases.  And it should concede that restrictions on suppressors do implicate the text of the Second Amendment, even if it then argues that history justifies the NFA's taxation and registration requirements and that it should be up to Congress to change that.

Comments

[nbfa]

Putatively, “undisputable” is an indisputable error in word choice.

[Dr. Ed 2]

I don't understand why suppressors aren't considered health & safety items that are mandated, much as mufflers on motor vehicles.

The early electric leaf blowers were incredibly noisy, and the government set noise limits and the later ones were more quiet.

Unless suppressors reduce the noise of a gunshot to the point where police officers can't hear it, or mess up the electronic shotspotter microphones, what excuse is there (other than the word "gun") is there for banning them? If there was a device that made cars safer, the government likely would mandate it. And muffler cutouts -- a way to bypass the muffler so your car is louder -- are banned.

[MatthewSlyfield]

Hollywood created mythology.
1. That portrays silencers as tools of assassins.
2. That portrays silencers as far more effective than they really are.

[Daddyhill]

Where's the common sense? When I look at a popular guns and shooting magazine, I can't help but notice that hunters photographed with their kill are using rifles, not handguns, and always the rifles are high-power deer rifles, not AR-15's. Who goes hunting with a handgun? I remember Bill Mauldin's autobiography, in which he mentions that a relative of his hunted wild turkeys with a pistol, and that anyone who hunts turkeys would know what that means. Perhaps that story is out of date, and hunting anything with a pistol is now commonplace. If so, perhaps this author could provide a link to recent photos to document the use of handguns in game hunting.

Silencers (yes, I do know that 'suppressor' is a more accurate descriptor) are often featured in movies and TV about assassinations and mob hits. I do know that those scenes are fake. Apparently, the FBI and other LE have good data to show that silencers are only rarely used in gun crimes. Fair enough. Even so, LE organizations such as the IACP recommend against removing silencers from NFA regulations because doing so "would undermine the safety of the public and law enforcement by preventing law enforcement from quickly and effectively responding to active shooters, as silencers
(suppressors) make it harder to recognize the sound of gunfire and mask muzzle flash, making it more difficult to locate and engage armed offenders."

So that leaves the question of silencers as hearing protection, and advocates are framing this as a public health issue. But who, other than the military and LE, shoots so often or so rapidly that ordinary ear plugs and headsets can't protect them? If you are doing a lot of shooting for practice, will you or the range choose a silencer rather than a headset? The range might offer you the choice I suppose, but does that actually happen? Do LE officers or instructors, who shoot a lot to maintain their skills, use silencers or do they use headsets?

Bryce Towsley attributes his hearing loss to unsuppressed shooting--over his entire lifetime of big and small game hunting. He kind of acknowledges that advancing age may also be a factor, but he doesn't put much emphasis on that. At 75 I need hearing aids, and I can count my number of shots ever fired on my 20 appendages. It's called presbycusis, and it's kind of like prostate enlargement in men: if you live long enough you're going to get it. Moreover, if you've incurred noise-related hearing loss in adulthood, presbycusis will be worse for you than if you haven't. And just FYI, prostate enlargement is treatable with inexpensive meds (I so testify), whereas hearing loss requires expensive hardware or surgery.

If you're keeping a handgun for home protection, will you be shooting at some bad guy so quickly and so many times that your hearing is really at risk? Maybe so. Some data show that a single shot above 140 decibels can cause immediate damage. But again, it turns out that the best suppressors are very expensive and reduce the shot sound by about 20-35 db--the same range as good headsets and plugs. So how about this: you wake up suspecting a home invasion, grab your Glock from under your pillow (if you don't have children) or your lockbox (if you do have them and love them), and in just a second or two you can slip on the headset you've prudently kept right there with your gun. Bad guys are stupid and clumsy, so you're still going to be able to hear them through your headset. Outcome? Bad guy will be dead, and your hearing will be protected.

This all makes my head hurt. It would be helpful to know how many people actually incur gunfire-related hearing loss in comparison to the numbers of people killed by instant intentional or unintentional serum lead levels. This is a public health issue of far less importance, if any at all, than hearing loss in general and gun violence. And again just FYI, when I do a search for something like "silencers hearing FOP", all I see are sites either selling or promoting silencers. Follow the money.

[Rossami]

Your head hurts because you are credulously accepting nonsense claims and trying to treat them as rational. The law enforcement claim about "responding to active shooters" is an example of such nonsense. It is offered without evidence or support and is contradicted by the experience of law enforcement in other countries which do not have bans on suppressors.

No, most people aren't going to be shooting at a bad guy so often that their hearing is at risk because the vast majority of us will never face a bad guy at all. We will, however, practice for the same reason that we all have smoke detectors even though very few of us will ever have a dangerous house fire. During practice, earmuffs and plugs help some - and suppressors would help more. This is not an either-or situation. As you say, a shot can be 140 dB or so and a suppressor (or earmuff/plugs) can reduce that by 25 dB or so but that's still a long way from safe (generally accepted at about 85 dB). In countries that do not have bans, yes you regularly see law enforcement (and their instructors and everyone else) using suppressors and also using earmuffs and plugs.

Your final paragraph makes no sense because you are trying to compare hearing loss with shooting deaths as if there were a trade-off. But the rate of shooting deaths is unaffected by the existence (or lack) of suppressors. Bad people will still use guns (and good people will still have accidents) regardless.

[Brett Bellmore]

"No, most people aren't going to be shooting at a bad guy so often that their hearing is at risk "

It's not a "how often" question. A solitary shot from an unsuppressed firearm can materially damage your hearing for life.

[Aubrey LaVentana]

try shooting indoors, as it would be in a home encounter.

[Rossami]

You missed my point (which, in fairness, I may not have stated as clearly as I should have). The hearing risk of 'shooting at a bad guy' is statistically insignificant because the majority of gun owners will never do that at all. We will all, however, practice with our chosen weapons so that we're ready for the bad guy. (And preparing for the unlikely is rational for the same reason that we buy smoke detectors even though most of our houses will never burn down.) The hearing risk of that practice is not even a risk - it's an eventuality. Minimizing the population's hearing damage from our gun range practice should be (and in almost every other country in the world, is) completely non-controversial.

[Longtobefree]

Just for the record:
Depending on the caliber of the firearm, most gunshots will register around 150-170 dB.

180db Space shuttle lift-off
120db Pain threshold
90db factory machinery at 3 ft.
OSHA requires employers to implement a hearing conservation program when noise exposure is at or above 85 decibels averaged over 8 working hours, or an 8-hour time-weighted average (TWA).

[jimc5499]

You confuse "law enforcement" with the Police Union mouthpieces who spout the Liberal anti-gun mantras. My Cousin was a Firearms Instructor for the State Police before he retired. Some of the current officers still come to him for private instruction at his range. I shoot with them often. You would be surprised how many of them are strong supporters of the Second Amendment, but, can't say so publicly.

[MatthewSlyfield]

"Silencers (yes, I do know that 'suppressor' is a more accurate descriptor)"

Suppressor may be more accurate from a descriptive perspective, but "silencer" is what the original inventor named it in like 1908 and "silencer" and "muffler" are the terms used for such devices in the text of the NFA.

[WuzYoungOnceToo]

When I look at a popular guns and shooting magazine, I can't help but notice that hunters photographed with their kill are using rifles, not handguns, and always the rifles are high-power deer rifles, not AR-15's. Who goes hunting with a handgun?

Your leading with this level of topical ignorance was enough for me to stop right there rather than waste any more time reading further. No, not all hunting is performed with "high-power deer rifles". Both handguns and smaller-caliber rifles (including those chambered in .223 Remington/5.56mm and other cartridges loaded with the same/similar-sized projectiles...which include AR-15 pattern and similar rifles) are also used for hunting. A 10 second Google search would have revealed many examples of both.

[Stephen Lathrop]

Halbrook's advocacy here examples a growing style of pro-gun advocacy. It purports to transform the debate, to remove altogether the Constitutional question, whether a specifically Constitutional purpose is served, and replace it with a default presumption that any gun-related purpose must be vindicated as Constitutional by default.

To thwart that style of argument is by itself sufficient judicial reason to decide against silencers. The Court needs to serve notice on gun advocates that the 2A is there to protect specifically Constitutional uses of firearms, not every conceivable use of firearms.

[Aubrey LaVentana]

Rights circumscribe powers. Powers do not circumscribe rights.

Constitutional limits are imposed on governments, not the governed.

[JoeFromtheBronx]

Rights and powers work off each other.

An enumerated power gives the government the ability to do something that limits the rights of others in some fashion.

The people delegate to the government certain powers, reducing their liberty in the process to some degree.

"We the People" have the ultimate sovereignty. A constitution can limit the rights of the governed. A person does not have the right to own slaves. The Constitution limits the people's right to pass referenda stripping gun rights in a variety of respects.

[WuzYoungOnceToo]

the 2A is there to protect specifically Constitutional uses of firearms

As usual, you have nothing to offer on the subject but pompous gibberish. Define for us what an "unconstitutional" use of a firearm would be?

[Longtobefree]

"The court treats suppressors as optional accessories that do not fire bullets. "

Now do 80% lowers - - - - -

[Longtobefree]

A suppressor is useful for a militia unit specializing in scout/sniper or other tasks where avoiding detection is a consideration, so "shall not be infringed".

[Bubba Jones]

What is the constitutional basis for the federal government regulating this?

The excuse is a tax. Perhaps we should overturn this sleight of hand? Because that logic allows no limits to federal power.

[Aubrey LaVentana]

When Congress passed the NFA, they admitted that they could not ban certain firearns. They imposed the tax, a tax that was exorbitant in the dollars of the time, because the tax is all they could get away with.
Fast-forward to the Hughes Amendment, where Congress chose to no longer collect the tax on new covered weapons, so no new weapons could enter commerce.