Second Amendment Roundup: 5th Circuit holds suppressors not to be protected “arms”
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
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
