Not Protected By The Second Amendment

In a decision issued this past Thursday, a panel on the Fifth Circuit Court of Appeals said that suppressors were not weapons protected by the Second Amendment. The case involved firearms dealer George Patterson of Jefferson Parish, Louisiana. The BATFE was investigating him for certain reporting violations and had obtained a search warrant of his premises. During their search, they found a suppressor made from a kit that was neither serialized nor registered in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. A grand jury indicted him on that charge and Patterson moved to have the indictment dismissed. He argued that the National Firearms Act’s registration requirements violated the Second Amendment. The US District Court for Eastern Louisiana dismissed his motion and he appealed to the 5th Circuit.

The opinion of the court was by Chief Judge Jennifer Walker Elrod who is a George W. Bush appointee. Interestingly, she also wrote the opinion for the en banc decision in Cargill v. Garland that found that bump stocks were not machine guns.

After examining a number of decisions in other circuits that had concluded that suppressors were not weapons, Elrod wrote:

A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense. And unless a suppressor itself is thrown (which, of course, is not how firearms work), it cannot do any casting or striking.3 See United States v. Hasson, No. GJH-19-96, 2019 WL 4573424, at *4 n.5 (D. Md. Sept. 20, 2019) (noting that a suppressor “could be thrown at someone like a shoe or a baseball, which, most would agree, are not arms protected by the Second Amendment”). While a suppressor might prove useful to one casting or striking at another, that usefulness does not transform a gas dissipater into a bullet caster…And while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not. Id. Accordingly, Peterson has not shown that the NFA’s registration scheme burdens a constitutionally protected right.

She also dismissed his argument that a suppressor should be considered a “‘‘proper accoutrements’ that render the firearm useful and functional'” per US v Miller noting that a firearm can still be fired absent a suppressor. His other argument pointed to Ezell v. Chicago but again Chief Judge Elrod dismissed that argument saying that the use of a suppressor is not necessary to the use of a firearm. Thus, she dismissed his appeal of the motion to dismiss from the District Court.

So this leads to the obvious question, if a suppressor is not considered a weapon and merely an accessory, then why is it regulated under the National Firearms Act of 1934? The obvious answer is that it should not be.

There are currently bills in both houses of Congress that would remove suppressors from the National Firearms Act. The first to be introduced was HR 404/ S364 – Hearing Protection Act. This bill introduced by Rep. Ben Cline (R-VA) and Sen. Mike Crapo (R-WY) would remove suppressors from the NFA, eliminate the $200 tax, prohibit states from imposing any taxes on their purchase other than normal sales taxes, and allow their sale with a simple background check. This bill is supported a number of organizations including  American Suppressor Association (ASA), the National Shooting Sports Foundation (NSSF), the National Rifle Association (NRA), the Congressional Sportsmen’s Foundation (CSF), and the Academy of Doctors of Audiology (ADA). 

A second bill, the Silencers Helping Us Save Hearing (SHUSH) Act, has been introduced by Sen. Mike Lee (R-UT) in the Senate and by Rep. Michael Cloud (R-TX) in the House. The SHUSH Act is supported by National Association for Gun Rights, Gun Owners of America, the National Rifle Association, and the National Shooting Sports Foundation. It goes further than the Hearing Protection Act in that it removes suppressors entirely from Federal regulation.

From Sen. Lee’s press release:

The SHUSH Act aims to:

• Eliminate federal regulation of suppressors as firearms under the National Firearms Act (NFA) and the Gun Control Act (GCA).
• Remove existing taxes, fees, and registration requirements associated with suppressors.
• Allow current or retired law enforcement officers to carry concealed firearms with suppressors.
• Preempt state regulations on the manufacture, transfer, transport, or possession of suppressors.
• Strike provisions requiring mandatory minimum sentences for suppressor possession in certain cases.
• Exempt suppressors from regulation by the Consumer Product Safety Commission.
• Provide a provision for a refund of the $200 transfer tax for anyone who purchased a suppressor within two years prior to the enactment of the bill.
• If passed, the SHUSH Act will work alongside the Hearing Protection Act to further deregulate suppressors and remove them from the Gun Control Act of 1968.

I would support passage of both laws but I must say I really like the SHUSH Act better. The question is, of course, getting either bill through the Senate.

Given that the courts are refusing to treat suppressors or silencers as protected by the Second Amendment and are considering them merely accessories, now is the time to treat them like they are in countries around the world. That is, an accessory sold over the counter without regulation that protects hearing, mitigates recoil, and reduces noise pollution.

H/T Marc E.