Gun ‘Silencer’ Ruling Suppresses Second Amendment Protections

Five federal courts, including the usually conservative US Court of Appeals for the Fifth Circuit, have upheld restrictions on making or purchasing silencers for firearms since 2018. These decisions could greenlight gun-grabbing regulations across a variety of components—sights, optics, stocks, and trigger guards—needed for the full exercise of one’s right to bear arms.

US Supreme Court Justice Clarence Thomas once called the Second Amendment a “constitutional orphan,” referring to lower courts consistently refusing to give it due deference as an enumerated right. Meanwhile, the Fifth Circuit in February joined four other courts in repeating the mistake Thomas identified in 2018 and left components essential to gun rights unprotected.

The Second Amendment must be read to protect guns themselves, as well as related items inherent to their safe and proficient use, such as noise suppressors.

The statute in question here requires owners to register and pay a tax on their noise suppressors with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. It raises its own interesting constitutional questions, but courts have skirted around analyzing those, preferring to explore whether the components themselves enjoy Second Amendment protections. The dangerous and inexact logic of these holdings is that certain components of firearms aren’t protected by the Constitution.

In the most recent of these decisions, United States v. Peterson, the Fifth Circuit held that noise suppressors aren’t protected by the Second Amendment because “a suppressor, by itself, is not a weapon.” The three-judge panel went on to write that “while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not.”

The Fifth Circuit’s conclusion runs afoul of the US Supreme Court’s language in N.Y. State Rifle & Pistol Ass’n v. Bruen providing that, “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”

Noise suppressors are instruments that facilitate armed self-defense. A law that restricts the possession or use of firearms capable of firing suppressed rounds is a restriction on that category of “arms.”

Criminal defendant George Peterson asked the court on March 5 to rehear its decision en banc; the next day, the court ordered the government to respond by March 17. Acting US Attorney for the Eastern District of Louisiana Michael Simpson initially affirmed the panel’s interpretation of our nation’s gun laws, questioning whether a “pillow or a plastic soda bottle taped to the barrel of a firearm” when used to reduce noise “too, become weapons.”

According to the Department of Justice and the ATF, the answer is a resounding “yes.” Any object—pillow, soda bottle, or otherwise—when used “for silencing, muffling, or diminishing the report of a portable firearm” is considered a suppressor and, by extension, a firearm as explicitly defined under the National Firearms Act.

It appears that the DOJ has realized this mistake. On March 20, it filed a subsequent motion requesting the court delay its ruling while the government reconsiders its position on Peterson’s request, citing President Donald Trump’s executive order protecting Second Amendment rights.

It’s exactly this loose thinking that is a gift to gun restriction advocates. Many components or parts that courts have wrongly characterized as “accessories” aren’t strictly essential for a firearm to “go bang,” but are nonetheless essential to the exercise of the Second Amendment.

The straightforward application of this logic could allow the government to ban popular components that are important to gun owners, including triggers, scopes, or sights of any kind. At the very least, it opens the door to questionable regulations that make suppressors and other components unreasonably difficult and expensive to obtain.

Banning components and accessories substantially infringes on Second Amendment rights. Take scopes, for example. Roughly 11 million Americans hunt deer every year, according to the National Deer Foundation. Deer hunting is usually done at distance, with skilled marksmen felling the animal from hundreds of yards away. A scope is necessary for accuracy. But, following the Fifth Circuit’s approach, scopes don’t enjoy Second Amendment protection because a scope “by itself, is not a weapon.”

Scopes are only one component that improves the safety and functionality of firearms. Recoil pads make guns comfortable to use, especially for younger and older shooters. Muzzle brakes serve a similar purpose. Safeties disengage a firearm that is otherwise ready for use. And so on.

Suppressors are similarly important. Responsible gun owners mitigate noise to protect their hearing and as a courtesy to others. Nearly every range in this country requires ear protection as a condition of use.

At a range, the best hearing protection is to use both a suppressor and ear protection because a “silencer” doesn’t really silence the report of a firearm, it merely reduces the noise. In self-defense scenarios, few ear protection systems are as effective as a suppressor. It is both strange and inconsistent with precedent for courts to hold that components, which make guns safer and more functional, don’t enjoy constitutional protection.

There is little hope of a successful appeal to the Supreme Court unless the full Fifth Circuit or some other court breaks with the emerging consensus and affords suppressors the protection they are due.

Under Trump, the DOJ should reverse course, request the court grant Peterson’s petition for rehearing en banc, and follow through on Trump’s promises to be a champion for Second Amendment rights. Regardless of what DOJ decides, the Fifth Circuit should rehear the case to correct its mistake.

The case is United States v. Peterson, 5th Cir., No. 24-30043, motion to stay en banc petition review granted 3/24/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Mark W. Smith is a constitutional attorney, distinguished scholar and senior fellow of law & public policy at the Ave Maria School of Law.

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