National Firearms Act

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Not Protected By The Second Amendment

February 9, 2025 by 2 Comments

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.

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A Win In Garland V. Cargill

June 14, 2024 by 5 Comments

In a 6-3 decision with the majority opinion written by Justice Clarence Thomas, the Supreme Court has struck down the ban on bump stocks. Joining in the majority opinion were Chief Justice Roberts and Associate Justices Alito, Gorsuch, Kavanaugh, and Barrett. Justice Alito also had a concurring opinion. Finally, in no surprise to anyone reading this, Justice Sotomayor wrote the dissenting opinion in which she was joined by Justices Kagan and Jackson.

From the opinion which affirmed the 5th Circuits en banc decision in favor of Michael Cargill:

We hold that a semiautomatic rifle equipped with a bump stock is not a “machinegun” because it cannot fire more than one shot “by a single function of the trigger.” And, even if it could, it would not do so “automatically.” ATF therefore exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns

Justice Thomas examined the mechanics of how a semi-automatic trigger works in an AR-15. Illustrating this with graphic diagrams, he concluded that the addition of a bump stock does not change the single “function of the trigger”. He said it merely reduces the time between the separate functions of the trigger. He goes on to add, “A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does.” Too bad he didn’t mention Jerry Miculek by name! He goes on to say that the position of the ATF and Justice Sotomayor’s dissent are logically inconsistent. This is due to the acknowledgement that a person can bump fire without using a bump stock and that a semi-auto rifle without a bump stock fires only one shot with each pull of the trigger.

Justice Alito in his concurrence notes that the statutory language is clear and the Court must follow it. Taking note of the Mandalay Bay shooting, Alito says a tragic event itself does not change the law’s meaning. If there is to be a national ban on bump stocks, then it is up to Congress to amend the law.

In her dissent, Justice Sotomayor says the majority has just put bump stocks back in the civilian hands. This, of course, ignores the fact that actual machine guns reside in the hands of civilians as the National Firearms Act did not ban civilian ownership but merely taxed the possession. The rest of her dissent goes on to criticize Thomas’ opinion and its examination of the mechanics of a trigger function.

She ends with this hyperbole:

Today’s decision to reject that ordinary understanding will have deadly consequences. The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.

I am sure that the gun control industry will be wailing and gnashing their teeth over this decision regardless of how faithful it is to the letter of the law. While some states have banned the possession and sale of bump stocks which is their sovereign right, there is not now a national ban on them. It does emphasize just how important the elections in November will be for our civil rights. If President Biden wins and the Democrats take both houses of Congress, I am sure a national ban will follow forthwith.

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ATF Celebrates Anniversary Of NFA

June 26, 2022 by 9 Comments

Whoever is the social media specialist at the Bureau of Alcohol, Tobacco, Firearms, and Explosives is clueless. Their Facebook page is evidence of that.

Often their posts seem more like an effort to tee up negative comments than anything else. They go on about straw purchasing which tees up questions about Project Gunwalker aka Operation Fast and Furious. They talk about arson which tees up responses dealing with the raid on the Branch Davidian compound. Indeed, on February 28th, the anniversary of the ATF raid on the Branch Davidian compound in Waco, Texas, they memorialize the agents killed in the raid. You can imagine the comments that engendered!

Today’s post was celebrating the enactment of the National Firearms Act on June 26, 1934. I am posting a screen shot of it below.

Umm. The NFA Handbook says on the length of rifle barrels, “A rifle subject to the NFA has a barrel or barrels of less than 16 inches in length.”

I think ATF’s Facebook page needs to have a disclaimer on it. Something like, “This page is for entertainment purposes only. Do not rely on it for regulatory or legal issues because we will get it wrong.”

I admit the primary reason I even pay attention to the page is to read the comments by well-known libertarian Spike Cohen. His comment today is representative of them.

88 years of doing nothing but violating people’s rights, criminalizing and murdering peaceful people, and government agencies trafficking guns to cartels and terrorists.

And all because, instead of just admitting that alcohol prohibition had led to massive gang violence, government decided to blame the guns. The same guns that had been available for sale at stores and in magazines by mail for anyone, with no regulation whatsoever, and with no previous massive violence.

Turns out government has a long, proud history of making everything it touches worse.

Happy Birthday. May it be your agency’s last one.

I don’t know how many of our tax dollars go to support the person or persons responsible for handling social media for ATF but I know that it is money wasted.

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Quote Of The Day

January 1, 2021 by 1 Comment

The quote of the day comes from an op-ed in the Washington Times. In it, Mark Houser and Matthew Larosiere discuss the inclusion of short barreled rifles and shotguns in the National Firearms Act of 1934. As originally written, the bill would have effectively banned all small concealable firearms and especially handguns. That was going too far for Congress and the handgun portion was stripped from the eventual bill that passed. However, they never got around to removing the language on minimum lengths for rifles and shotguns.

Having minimum lengths was necessary if you were going to ban handguns to prevent people from just cutting down a rifle or shotgun. However, once handguns were removed from the bill, it really served no purpose.

But even in 1934, exempting handguns from the NFA was necessary to secure sufficient support for its passage. And with the demise of the handgun ban, the minimum size rules now serve about the same function as a cancer-prone vestigial organ: They don’t accomplish anything useful, but they sure can get you into trouble.

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The Biden Gun Tax

July 10, 2020 by 2 Comments

If you own an AR or AK or anything remotely classified as an “assault weapon” (sic) or own a standard capacity magazine, then a President Biden would allow you to keep them. That is, provided that you registered each and every item with the Bureau of Alcohol, Tobacco, Firearms, and Explosives as a National Firearms Act item and pay the $200 tax for each and every item.

Used with permission.

Don’t believe me. Here is what it says on his campaign website.

  • Ban the manufacture and sale of assault weapons and high-capacity magazines. Federal law prevents hunters from hunting migratory game birds with more than three shells in their shotgun. That means our federal law does more to protect ducks than children. It’s wrong. Joe Biden will enact legislation to once again ban assault weapons. This time, the bans will be designed based on lessons learned from the 1994 bans. For example, the ban on assault weapons will be designed to prevent manufacturers from circumventing the law by making minor changes that don’t limit the weapon’s lethality. While working to pass this legislation, Biden will also use his executive authority to ban the importation of assault weapons. 
  • Regulate possession of existing assault weapons under the National Firearms Act. Currently, the National Firearms Act requires individuals possessing machine-guns, silencers, and short-barreled rifles to undergo a background check and register those weapons with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Due to these requirements, such weapons are rarely used in crimes. As president, Biden will pursue legislation to regulate possession of existing assault weapons under the National Firearms Act. 
  • Buy back the assault weapons and high-capacity magazines already in our communities. Biden will also institute a program to buy back weapons of war currently on our streets. This will give individuals who now possess assault weapons or high-capacity magazines two options: sell the weapons to the government, or register them under the National Firearms Act.

You need to read the whole thing. It is compendium of every item that you could possibly think of on the gun prohibitionists’ wish list.

And by the way Joe, the Second Amendment has nothing to do with duck hunting.