Fifth Circuit’s Suppressor Decision Could Gut Second Amendment Protections

Earlier this week a three-judge panel on the Fifth Circuit Court of Appeals issued its third ruling in a case dealing with a Louisiana man’s possession of an unregistered suppressor. Unfortunately, the third time wasn’t the charm for George Peterson, with the panel once again upholding his conviction, as it did in its original opinion in February and its first revised opinion in August. 

This time around, the panel assumed without deciding that suppressors are protected by the Second Amendment, but ruled that the National Firearms Act’s taxation and registration scheme is akin to a “shall issue” concealed carry permitting regime and is therefore presumptively constitutional.

The panel essentially agreed with the DOJ, which, under Attorney General Pam Bondi, has recognized that suppressors are protected by the Second Amendment, but still maintains that the NFA taxes and registration are constitutional. As the panel wrote in its unanimous decision:

The NFA provides that the ATF will deny a firearm-making application if the “making or possession of the firearm would place the person making the firearm in violation of law.” This is precisely the “objective and definite” licensing criterion held permissible under Bruen.

Further, we have no reason to doubt on this record that the NFA’s fingerprint, photograph, and background-check requirements are “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law abiding, responsible citizens.’” Peterson’s failure to make any showing as to how the requirement places an unconstitutional burden on his Second Amendment rights alone is dispositive. It is not even clear he could claim that this requirement posed an unconstitutional burden as applied to him given his explanation that he failed to register because he “forgot” to do so. Finally, the NFA enforces its objective shall-issue licensing requirement through prohibiting suppressor possession by unlicensed persons, as did several of the “shall-issue” licensing regimes that Bruen cited approvingly.

The Fifth Circuit panel avoided any debate on the constitutionality of the $200 tax imposed by the NFA (something the DOJ has described as a “modest burden” on our Second Amendment rights) by declaring that, since Peterson brought an as-applied challenge and he never attempted to pay the $200 tax, the question is not germane to his case. 

While the panel left open the possibility that other as-applied challenges to the NFA could be successful, the judges were pretty adamant that the NFA and its requirements are no different than a “shall issue” system for issuing concealed carry licenses. And since the Supreme Court hasn’t said anything about various arms enjoying different levels of protection under the Second Amendment, any restriction imposed on the purchase and possession of suppressors could be imposed on commonly-owned handguns, rifles, and shotguns as well… at least in the states where the Fifth Circuit has jurisdiction. 

Those states are Louisiana, Mississippi, and Texas, so I’m not particularly worried about any of them suddenly deciding to apply NFA language to semi-automatic handguns or AR-15s. If the Fifth Circuit’s logic is adopted by other appellate courts, though, it’s not difficult to imagine anti-gun lawmakers in blue states doing just that. We’re already seeing a number of Democrat-controlled states push for permit-to-purchase laws, so adding additional taxes and registration requirements to those statutes wouldn’t be difficult. 

The DOJ has been criticized by 2A groups like Gun Owners of America and Firearms Policy Coalition for continuing to defend the constitutionality of the NFA. That is a legitimate concern, and the fact that DOJ is also acknowledging that at least some NFA items are protected by the Second Amendment could also wreak havoc on our 2A rights in statehouses and courtrooms across the country. 

As I said, SCOTUS has never suggested that the Second Amendment has tiers of protection for various arms. So when the DOJ says that a $200 tax on suppressors is only a “modest” and constitutionally permissible burden on our right to keep and bear arms, anti-gun politicians (and jurists) can use that to argue that a $200 tax on so-called assault weapons, semi-automatic handguns, or even all firearms is equally compliant with the Second Amendment. 

I think the Fifth Circuit panel took some care not to give anti-2A politicians any legal ammunition to that effect, but I’m afraid they’ve opened up a Pandora’s Box by stating that the NFA’s restrictions are no different than a “shall issue” system for concealed carry. Let’s hope that an en banc panel of the Fifth Circuit or the Supreme Court close the lid on this “logic” before the gun control lobby uses it as a cudgel to attack our 2A rights.   

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

Help us continue to report on and expose the Democrats’ gun control policies and schemes. Join Bearing Arms VIP and use promo code FIGHT to get 60% off your VIP membership.