Fifth Circuit Takes Unusual Step in Suppressor Case

Back in February of this year, the Fifth Circuit Court of Appeals issued their opinion in U.S. v. Peterson upholding the conviction of a man sentenced for possession of an unregistered suppressor. In their ruling, a three-judge panel held that “suppressors do not trigger Second Amendment protection”, arguing that a “suppressor, by itself, is not a weapon.”

George Peterson decided to appeal to an en banc panel of the Fifth Circuit, and he’s received a lot of support from the Second Amendment community, including the Firearms Policy Coalition and FPC Action Foundation, whose president Cody J. Wisniewski is serving as one of Peterson’s attorneys. 

In April, the Trump administration asked the Fifth Circuit for a 30-day delay in considering the en banc petition “to allow the government an opportunity to further consider its position”. The appellate court granted that request, and in May the DOJ submitted its reply, stating that the government has “re-evaluated its position in this case.”

In the view of the United States, the Second Amendment protects firearm accessories and components such as suppressors. As a result, restrictions on the possession of suppressors burden the right to bear arms, and a ban on the possession of suppressors or other similar accessories would be unconstitutional. The government’s earlier argument to the contrary was incorrect. But the National Firearms Act’s registration and taxation requirement is constitutional because it imposes a modest burden on a firearm accessory that is consistent with this Nation’s historical tradition because suppressors are specially adaptable to criminal misuse. For this reason, the panel correctly affirmed Peterson’s conviction. Accordingly, although rehearing en banc is unwarranted, the Court should grant panel rehearing to correct the panel opinion’s analysis.

Now it appears the Fifth Circuit is doing just that. Today the appeals court issued a directive to both plaintiffs and defendants letting them know that the panel’s earlier opinion has officially been withdrawn. 

So, is this good news? Second Amendment scholar and attorney Mark W. Smith of Four Boxes Diner seems to think so. In a post on X.com, Smith opined that “the panel 100% messed up its decision,” but now it “[l]ooks like they intend to fix” their error. 

I certainly hope that’s the case, but I’m not as confident as Smith is that the panel is going to completely reverse itself. On the surface, anyway, the panel appears to be following the suggestion of the DOJ to “correct the panel opinion’s analysis”, but the Trump administration also argued that the panel should still uphold Peterson’s conviction and the constitutionality of the National Firearms Act’s taxation and registration requirements. 

That would hardly be good news, which is why Peterson’s attorneys argued on June 12th that an en banc hearing is still the most appropriate next step in the case. 

The Government’s letter brief only underscores why this Court should rehear this case en banc, as the Government now admits that suppressors are protected by the plain text of the Second Amendment. And while the Government argues that application of the National Firearms Act’s (“NFA’s”) taxation-and-registration scheme to suppressors nonetheless is consistent with the Second Amendment, its arguments lack merit. 

… The Government suggests that the panel could pretermit en banc rehearing by following the Government’s lead in finding suppressors protected by the Second Amendment, but it does not explain why the panel would change its position simply because the Government has. And while Mr. Peterson would welcome such a change, the question is important enough to warrant the fullCourt’s attention.

What is more, while the Government now properly recognizes that the NFA’s taxation-and-registration scheme for suppressors implicates the Second Amendment, it seeks to salvage its conviction of Mr. Peterson by arguing that the scheme is consistent with this Nation’s historical tradition of firearm regulation. Like the question whether suppressors are protected by the Second Amendment, the question whether protected arms may be subjected to taxation and registration is a vitally important one deserving the attention of the en banc Court. And it is one the Government is wrong about. The citizens of this Nation cannot be made to pay a tax that singles out the “exercise of … a high constitutional privilege.”

Peterson’s attorneys also argued that the DOJ’s position opens the door to taxing and registering all firearms in the future, though it noted that “the Government apparently recognizes that such a result would be untenable.”

It therefore in a footnote seeks to distinguish suppressors from firearms on the grounds that “a law regulating or taxing the firearm itself would impose a more severe burden on the right to keep and bear arms than regulations on useful but non-essential accessories such as suppressors.” But this purported distinction fails. For components of a firearm like suppressors that “facilitate armed self-defense,” it makes no sense to draw lines between arbitrary categories such as accessory/non-accessory or essential/non-essential. The Government admits the use of a suppressor “helps shooters avoid permanent hearing damage and facilitates communication with others when engaging in both civilian self-defense and public defense,” that “[s]uppressors appear to improve accuracy,” and that “suppressors aid in target shooting … by reducing noise pollution and providing additional hearing protection beyond personal protective equipment.” It should make no difference to the analysis whether the object of regulation is suppressed firearms or suppressors themselves. The end result is the same—use of suppressed firearms is restricted. The Government offers no logical or historical basis for treating the situations differently.

Professor Smith says it’s almost unheard of for an appellate court to withdraw an opinion once it’s been issued, and I can’t recall this happening in my 20+ years of covering the Second Amendment and the courts. It does appear likely that the panel will conclude that suppressors are protected by the Second Amendment when it issues its new opinion, but it would be a big step backwards if the judges accept the DOJ’s position that the NFA’s taxation and registration requirements are “modest” burdens that don’t violate the Second Amendment. So long as the Fifth Circuit is reconsidering its position on suppressors, I’d say the Justice Department needs to rethink its position on the constitutionality of the NFA’s taxation and registration schemes.