DOJ Attorney Says Silencers Aren’t Protected By the Second Amendment

We’re still waiting to see what will come of Attorney General Pam Bondi’s investigation into the policies and practices at federal agencies impacting our Second Amendment rights, but a recent court filing in the Fifth Circuit Court of Appeals indicates that the DOJ isn’t backtracking on at least one position taken by the Biden administration: possession of a suppressor not registered under the National Firearms Act is a crime.

The Gun Owners Foundation was the first to report the argument made by Acting U.S. Attorney Michael Simpson in a case called U.S. v. Peterson, where a three-judge panel recently upheld George Peterson’s two-year prison sentence for illegal possession of an unregistered silencer.

🚨BREAKING🚨

Acting U.S. Attorney Michael Simpson files brief for @TheJusticeDept arguing that silencers are NOT arms & are NOT protected by the Second Amendment. pic.twitter.com/PHd7IT72SP

— Gun Owners Foundation (@GunFoundation) March 17, 2025

How can that be, given that the NFA specifically includes suppressors in their list of “arms” that are covered by the Act?

🧐 pic.twitter.com/FAlKpSFEpX

— Gun Owners Foundation (@GunFoundation) March 17, 2025

The acting U.S. Attorney doesn’t actually say that silencers aren’t arms, but that they aren’t “arms within the meaning of the Second Amendment”. Given that phrasing, I expected the Fifth Circuit panel to have concluded that silencers were “dangerous and unusual” and therefore beyond the scope of the Second Amendment’s protections. But that’s not what the panel decided at all. Instead, just as Gun Owners Foundation suggested, the panel concluded that suppressors aren’t arms at all, despite their designation as such under the NFA.  

Peterson posits that suppressors are “an integral part of a firearm”and therefore warrant Second Amendment protection: “Inasmuch as a bullet must pass through an attached [suppressor] to arrive at its intended target, ”suppressors are used for casting and striking and thus fit Heller’s definition. But that is wrong. 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. 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. Instead, we agree with the Tenth Circuit that a suppressor “is a firearm accessory . . . not a weapon.” And while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not. Accordingly, Peterson has not shown that the NFA’s registration scheme burdens a constitutionally protected right.

Nowhere in the Fifth Circuit’s decision did the judges wrestle with the fact that the NFA declares silencers by themselves to be “firearms”, which strikes me as odd, to say the least. The panel says suppressors are an accessory, but the statute says they’re firearms. Those two positions are at fundamental odds with one another, and it is beyond disappointing to see the DOJ adopt the Fifth Circuit’s circular logic instead of pushing back against their finding. 

Bullshit arguments about guns (or parts of guns) not being “arms” are such tiring bad faith. Especially when the NFA literally treats suppressors as “firearms” in and of themselves.

Bondi’s DOJ should retract this opposition and file a new brief asking for en banc reversal.… https://t.co/p5baGFwLUJ

— Kostas Moros (@MorosKostas) March 17, 2025

How can Peterson be guilty of possessing what the NFA calls an unregistered firearm when the federal courts say he didn’t possess a firearm at all? As Moros says, this Kafka-esque decision should be challenged, not embraced by the DOJ. Let’s hope this is an aberration from Bondi’s DOK, and one that will soon be corrected once Simpson’s superiors get wind of his stance.