In U.S. v. Peterson, the U.S. District Court for the Eastern District of Louisiana convicted Peterson of possessing a firearm “silencer” without complying with the registration and tax provisions of the National Firearms Act of 1934. “Silencer” is the NFA’s term for a sound suppressor, which reduces the noise of a firearm, but in most examples doesn’t silence it.
Peterson appealed to a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which upheld the conviction.
Peterson then appealed to the Fifth Circuit for a hearing “en banc” (by the full court). The Department of Justice has asked the court to hold its horses while the Department reconsiders the NFA’s “silencer” provisions in light of President Trump’s executive order that Attorney General Pam Bondi review, among other things, “The positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights.”
Because of the particulars of the panel’s ruling, the outcome of Peterson and of Bondi’s review potentially have ramifications for more than suppressors.
The panel’s ruling
Peterson objected to his conviction on Second Amendment and Fourth Amendment grounds. Where the Second Amendment is concerned, the panel upheld the conviction on its assertion that “Suppressors are not ‘Arms’ within the Second Amendment’s purview,” because:
“A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense.”
“An operable firearm will work perfectly well without a [suppressor], but a [suppressor] will not transform an inoperable firearm into an operable one.”
“A suppressor ‘is a firearm accessory,’ 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.”
To put it mildly, the panel’s argument is not convincing.
First, no firearm part—trigger, hammer, bolt, barrel, grip, adjustable-length stock, flash suppressor, bayonet lug, sight(s), magazine, etc.—would, “by itself . . . . be of much use for self-defense,” but when those parts are assembled together they are. And, the panel admitted, so would a suppressor attached to a firearm.
That admission should be fatal to the panel’s ruling before the full Fifth Circuit or the Supreme Court, because the high court ruled in District of Columbia v. Heller (2008) that at the Second Amendment’s adoption “self-defense . . . was the central component of the right (to keep and bear arms)” and “the inherent right of self-defense has been central to the Second Amendment right.”
Second, it’s not necessarily true that a firearm will “work perfectly well” without a suppressor. It might “work”—it might go “bang.” But that wouldn’t necessarily constitute working “perfectly.” A suppressor, in addition to protecting the user’s hearing, which would improve his or her ability to communicate with others during a pause in firing, reduces muzzle flash, which would otherwise temporarily damage the user’s natural night vision in a low ambient light condition. Its weight can reduce muzzle climb, helping to control recoil. And, in some firearms it can reduce malfunctions.
Also, though not at issue in Peterson, but noteworthy because the Supreme Court will likely soon hear challenges to statewide bans on ammunition magazines that hold more than 10 rounds, firearms designed for such magazines, if limited to others arbitrarily limited to 10 rounds, would not “work perfectly well” for the defensive purposes for which the firearms are designed.
And if what the panel meant by “work perfectly well” was “work,” by that standard even one-round magazines could be banned, because even without a magazine, almost all firearms will “work”—go “bang”—once. And if that’s all they could do, they’d be next to useless for the purpose for which the Second Amendment was adopted.
Third, it’s not true that a firearm accoutrement or accessory can’t be an “arm.” A bayonet is certainly a firearm accessory. However, as a weapon designed for impaling an enemy, it’s just as certainly an “arm.” At least the Supreme Court presumably thinks so. In Heller, it observed that during the founding era, “arms” was defined broadly as “weapons of offence and armour of defense,” and on that and other bases concluded that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.”
Fourth, while it’s true that “possession of firearms themselves is covered by the plain text of the Second Amendment,” it’s not true that “possession of firearm accessories is not.” The “plain text” of the amendment says “arms,” which, as explained above and below, includes accoutrements and accessories—certainly those that could make a firearm more useful for Second Amendment purposes.
That the panel so obviously misstated the text of the amendment, not caring that its error would be recognized immediately by millions of Americans who are familiar with the Second Amendment, as well as by other federal judges and the justices of the Supreme Court, is an example of the arrogance, malfeasance, and sense of untouchability that has recently led to calls for Congress to begin impeaching certain federal judges, or defund and eliminate their positions. And, as discussed below, the panel provided other such examples.
Lying about the historical record
The panel said:
Attempting to broaden the Second Amendment’s scope, Peterson points to United States v. Miller, 307 U.S. 174 (1939). That case, he says, stands for the proposition that “arms” includes the “‘the proper accoutrements ‘that render the firearm useful and functional.’” Notwithstanding that the Supreme Court did not identify this principle in Heller’s extensive treatment of Miller, a suppressor is hardly the sort of “accoutrement” Miller contemplated. Rather, the 1785 Virginia statute quoted in Miller used that language to describe items like gunpowder, lead, and cartridges—items necessary to a firearm’s operation, not just compatible with it.
Taking the panel’s errors in the order in which they appear in that paragraph:
First, it’s a deception to claim that Heller didn’t consider firearm accoutrements. Heller was concerned with only whether the Second Amendment protects a fundamental, private, individual right to keep and bear arms (versus a so-called “right” of a militiaman to carry a firearm on-duty), and the District of Columbia’s bans on handguns, on having a loaded firearm of any type in the home, and on carrying a handgun in the home without a permit, which D.C. refused to issue.
The court ruled in favor of an individual right, against the first of those bans, and implicitly required D.C. to issue Mr. Heller a permit. However, it unnecessarily brought up Miller—essentially lied about it, as explained below—to concoct a rationale with which it could pretend to justify the 1986 federal ban on new-production automatic firearms. But—and here’s the point—accoutrements (and accessories) had nothing to do with it, and the words don’t even appear in the court’s decision.
Second, as just noted, in Heller, the court essentially lied about Miller, a case in which two defendants were charged with possessing a short-barreled shotgun without complying with the NFA.
Arguably, despite its flaws, Miller is the case in which the Supreme Court has come closest to interpreting the Second Amendment in a manner consistent with the purpose for which the amendment was adopted: “the security of a free state.”
By the time the court heard the case, one defendant had died and the other had disappeared, so their lawyer didn’t appear before the court to present evidence on their behalf. So, the court said:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
For the proposition that the right to arms includes warfighting arms, the court cited the Tennessee Supreme Court’s decision in Aymette v. The State (1840), which, referring to the Tennessee constitution’s right to arms provision, said:
As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.
However, Miller also observed that historically, members of the militia “when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” So, about Miller, Heller said:
Read in isolation, Miller’s phrase “part of [the] ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
However, Heller didn’t read Miller’s two statements “in tandem.” It gave weight to only Miller’s observation that militia members were expected to report for duty with arms “in common use.” And it did so to justify banning M16s, on the grounds that they aren’t “common.”
Miller’s more important statement—the one by which it decided the short-barreled shotgun question at issue in the case—is that the right to arms includes arms that relate to “the preservation or efficiency of a well regulated militia,” such as those that are “ordinary military equipment” and others the use of which “could contribute to the common defense.” And that statement—“startling” or not—indisputably places M16s within the scope of the right to arms, which is why the court gave it no weight.
Heller also lied in pretending that M16s are not “in common use.” M16s have been the most common arm of the active-duty military since the 1960s and of the organized component of the Militia of the United States (the National Guard) for decades as well. The only reason M16s aren’t common among private citizens is that they’ve been restricted under federal law since 1934, they’re banned altogether by about half the states, and a federal law imposed in 1986 banned the private possession of any automatic firearm manufactured after May 19th of that year.
Justice Stephen Breyer recognized that, and in his dissent in the case explained the absurdity of Heller’s “common use” argument. Using the NFA’s term for an automatic firearm such as an M16, “machinegun,” Justice Breyer wrote:
According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.
Third (returning to the panel’s errors), a suppressor is absolutely “the sort of ‘accoutrement’ Miller contemplated.” Miller contemplated civilian possession of “ordinary military equipment,” which suppressors have become. According to the Army, its new rifle “was designed to be suppressed and comes with a quick detach suppressor optimized for the system to deliver reduction in both sound and visible flash signatures with a significant decrease in the flow of gases back to the receiver.”
The fact that suppressors have become de rigueur relatively recently is of no consequence. As Heller noted:
Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Fourth, the panel even mischaracterized the Virginia statute. The statute didn’t limit accoutrements to “items like gunpowder, lead, and cartridges.” It said:
The county-lieutenants, colonels, lieutenant-colonels, and majors, with a sword, the captains, lieutenants and ensigns, with a sword and espontoon, every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. (Emphasis added.)
A bayonet is an accessory that is not “necessary to a firearm’s operation” as a firearm, but is necessary to a firearm’s use as a spear. Whether handheld or affixed to a firearm, it is certainly an “arm.” And that further discredits the panel’s claim that “arms” doesn’t include accoutrements and accessories.
In sum, Peterson is not “attempting to broaden the Second Amendment’s scope.” Rather, by mischaracterizing the Second Amendment’s text, Miller, what Heller considered in Miller, and the Virginia statute, the Fifth Circuit panel is trying to narrow it. And, as the Supreme Court said in Heller, “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
Avoiding the Second Amendment’s purpose
The panel’s mischaracterizations mentioned in the previous paragraph are telling. They remind us that when judges who think they are untouchable don’t want you have a suppressor or, more often, a gun, they figure out a way to write a ruling to that end.
But, the mischaracterizations are beside the point. The point is that the panel was wrong to pretend that the appropriate question in Peterson is whether a suppressor is an “arm.”
This is akin to Heller’s error. Justice Antonin Scalia, the great “originalist” who wrote Heller’s majority opinion, after dishonestly saying the test for whether M16s can be banned is whether they’re “common” (an idea for which there is no basis from the founding era), thumbed his nose at the Framers of the Bill of Rights by saying that he wouldn’t be bound to respect the purpose for which they adopted the Second Amendment. He wrote:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Just as whether M16s are “common” is not the correct test for whether they’re within the scope of the right to keep and bear arms, whether a suppressor is an arm, accoutrement, or accessory is not the correct test.
Instead, the correct test for any weapon, accoutrement, or accessory—M16, AR-15, suppressor, pistol grip, adjustable-length stock, flash suppressor, bayonet mount, bayonet, telescopic rifle sight, weapon light, laser/illuminator, ammunition magazine that holds the number of rounds considered standard by firearm designers, manufacturers, professional users, and millions of private citizens, or body armor (“armour of defence”), to name some obvious examples—is whether the item is consistent with the Second Amendment’s purpose: again, “the security of a free state.” And if it is, it’s within the scope of the right to arms.
As noted, Heller said that self-defense has always been “central” to the right to arms. However, the historical record shows that the Second Amendment was adopted to protect the right to arms for collective defense against tyranny. Statements to that effect by the Founding Fathers who had anything to say about the subject make that clear. Consider two prominent examples:
In The Federalist, #46, Madison, the author of the Bill of Rights in the House of Representatives, wrote:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Similarly, Hamilton wrote in The Federalist, #29:
[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.
The NFA’s provisions
Contrary to what some pro-Second Amendment groups say, the NFA doesn’t ban suppressors, it requires that to own one, a person must pass a background check, pay a $200 tax, and be registered as its owner. Each of those requirements is unconstitutional under the standard adopted by the Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022).
That standard is that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Bruen’s majority opinion, written by Justice Clarence Thomas, didn’t make clear when “historical tradition” begins and ends, so Justice Amy Coney Barrett, in a concurring opinion, clarified that “today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” (It was the mid-to-late 19th century when states violated the Second Amendment by imposing restrictions on the carrying of firearms and edged weapons for self-defense, restrictions that in most cases were repealed by National Rifle Association-supported Right-to-Carry legislation from the late 1980s to the early 2000’s.)
When “historical tradition” begins and ends is important, because if it centers around the founding era, as it should, regulations like those imposed by the NFA are unconstitutional, because at the founding, those regulations didn’t exist. Most obviously unconstitutional is the NFA’s tax provision, because when it was imposed, it was intentionally prohibitive—$4,700 in today’s dollars. (FDR wanted the NFA to be a ban, but his Department of Justice said a ban would violate the Second Amendment, so a ban was effectively achieved by imposing a prohibitively-expensive tax.)
In conclusion, if Peterson is heard by the full Fifth Circuit, the court should reverse the panel’s ruling and find that the NFA’s “silencer” provisions violate the Second Amendment for the reasons mentioned. If the Fifth Circuit refuses to take the case or upholds the panel’s ruling, and Peterson appeals to the Supreme Court, that court should take the case and do what should have been done in the first place.
Copyright © Mark Overstreet 2025