Rehearing En Banc Sought in 5th Circuit Suppressor Case

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 plent y 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.& lt;/p>

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, e ven 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.