Is SCOTUS Ready to Hear a Suppressor Case?

A Louisiana man convicted of possessing an unregistered suppressor is taking his case to the Supreme Court, but are there enough justices ready and willing to take on the thorny issue of the National Firearms Act and its relationship to the Second Amendment? 

U.S. v Peterson has already had some serious twists and turns on its way to the Supreme Court. The DOJ, for instance, reversed its position that suppressors are not protected by the Second Amendment when the case was before the Fifth Circuit Court of Appeals, but argued that even though the arms are covered by the text, the NFA’s taxation and registration requirements impose only a “modest burden” on the right to keep and bear arms, since a suppressor is an accessory and not a firearm itself (despite the language of the NFA that does, in fact, treat suppressors as arms).

In their cert petition, Peterson’s legal team (including 2A attorneys David Thompson, Pete Patterson and FPC Action Foundation head Cody J. Wisniewski) argue that the NFA’s taxation-and-registration scheme for covered firearms cannot be justified as a “shall issue” licensing law as the government claims and the Fifth Circuit concurred. 

If left undisturbed, the Fifth Circuit’s decision establishes a framework under which the Federal Government may require identification of every firearm and its owner—complete with fingerprints and photographs—in a national database, tax the lawful possession of those firearms, and prosecute anyone who fails to comply.

That’s a frightening assertion, but it’s not wrong. The DOJ contends that imposing the same NFA requirements on the purchase of handguns would be problematic, but they don’t present a compelling argument about why those arms should be treated any differently than other arms covered by the Second Amedment. An arm is either protected or not, and if one protected arm can be subject to taxation and registration, then arguably they all can. 

In that sense, getting the DOJ to admit that suppressors are, in fact, protected by the Second Amendment was a Pyrrhic victory for 2A advocates, but SCOTUS can set things right if it takes the case and determines that the NFA’s taxation and registration scheme is not the same as a shall-issue licensing system (which, by the way, the Court has said is 2A-compliant for carrying a gun, not for keeping one). 

Because the Fifth Circuit assumed that the possession of a suppressor is presumptively protected by the Second Amendment, its subsequent refusal to ask whether the NFA’s regime is consistent with our historical tradition of firearm regulation creates a gaping loophole that could apply to the registration and taxation of any firearm. Under the Fifth Circuit’s reasoning, all that is required to trigger this loophole is that the regime deny the Government discretion to prohibit the possession of firearms. If the regime has that singular feature, the Government is presumptively free to track lawful firearm ownership, complete with sensitive personal identifying information about the owner of any specific firearm.

I’ve seen some folks suggest that the DOJ’s position is part of some 4D chess strategy to get an NFA case to SCOTUS, but the fact that the government has declined to reply to the cert petition unless specifically asked to do so by one or more justices throws cold water on that theory. The DOJ appears more than happy to let the Fifth Circuit’s decision stand, despite the unintended consequences it could have for tens of millions of gun owners across the country. 

So, is the Supreme Court ready and willing to hear an NFA case? Given the fact that they’ve dodged challenges to bans on even more commonly-owned semi-automatic firearms and ammunition magazines that can hold more than ten rounds, I’m not all that hopeful. I doubt the Court is ready to take any step that could make it easier to purchase and possess machine guns, but there is a way for the justices to overturn Peterson without taking down the entirety of the NFA. 

The plaintiffs raise two questions for the Court to answer:

1. Whether the National Firearms Act’s taxation-and-registration scheme for covered firearms can be justified as a licensing law.

2. Whether the National Firearms Act’s taxation-and-registration scheme violates the Second Amendment with respect to firearm suppressors.

If the Court addresses these questions narrowly, they don’t have to decide if short-barreled firearms or machine guns are covered by the Second Amendment. They could leave those thorny questions for another day while still agreeing with the DOJ that suppressors are arms, and concluding that the NFA’s taxation and registration requirements are not akin to a shall issue licensing system for bearing arms. 

If SCOTUS does request the government respond to the cert petition, that will be a sign that at least one justice is interested in taking the case. If the cert petititon is discussed in conference without a DOJ reply, though, it almost certainly means that the cert petition will be rejected and the Fifth Circuit’s troubling decision will remain in place… and will be cited by anti-gunners eager to put that edict to the test in blue states outside the Fifth Circuit’s jurisdiction. 

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.

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