The Fifth Circuit Court of Appeals in New Orleans has ruled that suppressors are not firearms and thus are not covered by the Second Amendment. The ruling upheld a District Court ruling in a criminal case. The Fifth Circuit looked to years of previous rulings by other Circuits that had ruled similarly as a basis for its not-a-firearm opinion.
The case, United States v. Peterson, involved a company called PDW Solutions that ATF alleges had sold firearms to individuals the company had reason to know were prohibited persons. ATF also alleges they completed sales without doing the required background checks.
When executing a search warrant in Peterson’s home, ATF discovered an unregistered homemade suppressor. Peterson sought to have the charge of possession of the suppressor dismissed based on his rights under the Second Amendment, but the lower court denied that and now the three-judge panel has affirmed that ruling.
As the Court ruled . . .
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.
You may notice a contradiction here. You’re probably aware that silencers are considered firearms under the National Firearms Act. They’re also considered firearms under ITAR. And buyers must complete a 4473 — a Firearms Transaction Record — when purchasing one legally. Yet the Fifth Circuit says they aren’t firearms at all. According to the three justices who ruled in this case, they’re no different than a muzzle brake or a flash hider…items that aren’t regulated in the least.
Those are contradictions that will need to be resolved by other courts on other days. In the mean time, you can read the full ruling here.
Impeach all three for deliberate retardation.
Slow down, reread the reasoning of the decision and consider future implications if upheld especially across multiple circuits.
No, they should be impeached. Their opinion is dependent upon saying it is a firearm and isn’t a firearm. That’s deliberate retardation and makes them unfit for the bench.
They ruled it’s not a firearm.
It isn’t.
I don’t see the problem here. Impeach ’em if you want, but saying a silencer is a firearm is equivalent to saying “trans women ARE women”. No, they aren’t. And no, a silencer is a firearm.
So what’s there to impeach them over?
The plaintiff was convicted of felon in possession OF A FIREARM.
“The plaintiff was convicted of felon in possession OF A FIREARM.”
I’m not sure if you missed it or what, but that’s the ‘appeal’ here. If its not a firearm, then his conviction for being “felon in possession OF A FIREARM” due to the ‘suppressor’ can be overturned because the ‘suppressor’ is not a firearm. His mistake was saying its is a firearm thus protected under the 2A.
We in the gun community have been saying a suppressor is a firearm only because the ATF said its a firearm and a firearm under the NFA. In physical and contextual and subjective and actual reality its not a firearm, it was only included as such under the NFA because of irrational unsubstantiated fear and false-logic and ‘magical thinking’ that some way or another it makes a firearm ‘silent’ and it never did and does not. Basically the 5th ruled its an inert-chunk-of-material-thing that doesn’t do anything firearm’ish that one can use as a firearm accessory or not the same as things, for example, like ranger bands or a light mount for their use-effect or desire.
If its not a firearm, as ruled by the fifth, its not legally been included under the NFA and not legally ‘enforceable’ by the ATF all these many years.
Think of all of the ATF bogus convictions that can be overturned. Like the air marshal that was recently prosecuted by the ATF for buying actual factual fuel and water filters for his home farming operation on a china web site that happen to sell the same actual factual fuel and water filters that Amazon sells from another company, because they were cheaper on the china site – but the china site also happened to sell ‘solvent’ traps which the guy did not buy. The ATF claimed the actual factual fuel and water filters were ‘silencers/suppressors’ due to the nature of the china web site to sell ‘solvent traps’ and ‘supressor making’ stuff according to the ATF – because ‘suppressors’ are firearms under the NFA which gave them their ‘authority’ to prosecute him and terrorize his family at gun point threatening death for buy actual factual fuel and water filters for farming. If they are not firearms, neither the NFA or the ATF or federal government or a state government has authority over them and can’t regulate or prosecute for possession of the accessory – thus no requirement for a form 1 or a $200.00 tax stamp .
So basically, the fifth did the guy a favor by ruling the suppressor he was convicted for (in part) is not a firearm.
So I don’t understand why you want to impeach the 5th judges here. They did us all a favor by ruling a ‘suppressor’ is not a firearm.
It would be nice if people actually read the documents
“The use of a suppressor, as we noted above, is not necessary to the use of a firearm, so it is not protected by the plain text of the Second Amendment. The Second Amendment, therefore, is not offended by the NFA regulation, so we AFFIRM the district court’s denial of Peterson’s motion to dismiss. ”
“while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not.”
These are bad, no good, communist judges. They were not doing us any favors. They were pissing on the document they were sworn to protect.
I still don’t get your beef.
The judges ruled that it wasn’t a firearm, and therefore not protected by the 2nd Amendment. Is that the part you’re mad about? Because it isn’t a firearm and it was a stupid-ass ATF that decided to call it a firearm decades ago just so they could regulate it. But it isn’t a firearm, and it doesn’t fall under the ATF’s jurisdiction, so they should be removed from the Gun Control Act and everybody should be able to buy them at CVS and Amazon. That would be the win. And that’s what the 5th has paved the way for.
Sucks for that guy, because he botched his own case by claiming that it WAS a firearm and therefore protected under the 2nd Amendment. It isn’t, so it isn’t. A suppressor is to a firearm as a tripod is to a camera. The tripod isn’t a camera, no matter what some dumbass agency says. It isn’t, it never was, and the correct ruling is what these judges came up with.
These are quality judges who exhibit common sense and are just trying to rip down the wall of bull**** the ATF has built for themselves. Now we have a circuit split and a judge ruling that at least part of the GCA is dead. Maybe the Supremes will have to settle it.
For clarity: if the guy had appealed on the basis of “my suppressor is not a firearm, so it’s not a felony for me to have it” then these judges would have thrown out his conviction because he’d be right.
But that’s not what he did. He said “my suppressor IS a firearm, and therefore protected by the 2A.” They didn’t agree with his defense, he used the wrong argument, and since they agree that a suppressor is not a firearm they denied his appeal.
It can be considered at the federal level as nothing more than a paperweight, but CA will continue to prohibit it. Not because of logic, but because muh Leftist feelz, and such.
If silencers are “not firearms” then why are they regulated under the 1938 National Firearms Act? Hmmmm?
Well at least a few people noticed the actual interesting bits of this case.
That’s exactly what I’m talking about. These judges have just pointed out that the emperor has no clothes.
Sure would be nice for us all to get a refund of that $200 tax stamp we all paid because suppressors aren’t and never were “firearms”.
Folks,
The legal issues this case presents are a lot more nuanced, and can’t be reduced to the simple syllogism many of you are understandably applying. Allow this old lawyer to explain.
There are two different things going on here. First is the scope of the Second Amendment. The other is how statutory construction works. These are completely separate legal concepts, and can’t be conflated just because both involve gun related stuff.
Let’s look at the Second Amendment. It applies to bearable “arms,” which the Supreme Court has correctly held isn’t limited to guns but also extends to stun guns, knives, swords, etc. That’s the analysis the Fifth Circuit panel was using: is the suppressor itself a “bearable arm”? The conclusion the Court reached that they not is not a wholly unreasonable position, albeit one I think is wrong for the same reason that ammunition is considered to be “arms” covered by the Second Amendment even though it is useless without a firearm: while by itself it’s not a bearable arm, it’s used with one and thus falls under the protection of the Second Amendment. (This latter argument is the one that should be made.)
What of the fact that suppressors are defined as “firearms” under the NFA? That’s actually immaterial: the statutory definitions in the NFA do not and cannot have squat to do with Second Amendment analysis, because a statute can neither restrict or expand the scope of a constitutional right — the Second Amendment analysis stands or falls on its own.
Think of it this way: if a Democrat administration passed a statute or issued a regulation that provided that “‘arms’ under the Second Amendment are defined to be only muskets and single shot pistols,” would that have any legal effect on Second Amendment cases? Or if PDT issued an EO that “arms” under the Second Amendment includes horses (for whatever reason — this is just a demonstrative example). Of course not, because neither Congress nor the President can amend the Constitution by statute or regulation: the definition of “arms” under the Second Amendment stands on its own.
What of the fact that, for NFA taxation / regulatory purposes, suppressors are defined as firearms when in fact (a-la the Fifth Circuit’s analysis) they actually aren’t firearms because they can’t actually cause a projectile to be put into motion by the effect of an explosion? From a legal standpoint, that’s of no moment.
Remember that legislators can (and do) define terms in a statute to mean whatever they want, even in illogical ways. For example , for many years Texas alcoholic beverage law defined “ale” to be a fermented malt beverage with an alcohol content over a certain percentage (6% if memory serves). So while “ale” actually and technically is a fermented malt beverage produced by using top-fermenting yeast (and thus includes lower alcohol beers like dry stout, bitter, mild, Kolsch, etc.), under the old Texas law those could not be labeled as “ale,” while higher alcohol products (e.g., Schlitz Malt Liquor) that are technically not “ale” because they are produced with bottom-fermenting yeast were considered “ales” *for purposes of Texas law.*
The long and short of statutory construction is that even if the definition of a term in a statute is technically incorrect or contrary to the ordinary meaning of a term, legislators are free to define the meaning of the terms they use in a statute anyway they want. Think of a statutory definition as just being a shorthand *for purposes of the statute* and not a legal declaration of what the term means for any other purpose (such as constitutional interpretation, which as discussed above can’t be affected by a statute).
That’s how under some state laws, air guns and paintball guns are prohibited / regulated as “firearms” even they technically aren’t: rather than state plainly that airguns are prohibited / regulated the same as firearms, the law just shorthands it by including airguns in the statutory definition of “firearms.” This is how statutes are commonly written.
Back to the NFA. Does Congress have the power to tax / regulate the possession of, say, bicycle wheels? Without getting into the weeds of whether Wickard v. Filburn (which held Congress’ power to regulate interstate commerce is essentially unrestricted) was correctly decided, under the current state of the law, it does.
Could Congress thus define “firearms” to include bicycle wheels and thus put them under the NFA? While it would be silly, because a statutory definition is just shorthand and Congress has the power to tax / regulate bicycle wheels, they could — just like New Jersey and other states can ban airguns by illogically defining “firearms” to include them for purposes of NJ law. That’s why even though suppressors are not actually firearms they can be taxed / regulated under the NFA: absent an overriding Second Amendment right, Congress has the power to tax / regulate them like any other widget, and can use an illogical shorthand statutory definition that picks them up.
Again, I think the Fifth Circuit panel (and the defendant unluckily drew one that I’m not surprised was less than friendly to the Second Amendment) got the Second Amendment analysis wrong, and hopefully the court will take it up en banc. But the arguments being made that the NFA definition of “firearms” to include suppressors can have anything to do with the interpretation of a Constitutional right are just plain wrong.
Thanks for the clarity.
Looks like the only good permanent solution is to Musk ’em. Musk the ATF. Musk ’em all.