The Fifth Circuit Court of Appeals is probably the friendliest appellate court for gun owners when it comes to defending their Second Amendment rights, but that doesn't mean that every gun law that faces a challenge in the Fifth Circuit's jurisdiction is destined to be struck down. Though the Fifth Circuit has found fault with bans on handgun sales for under-21s, the ATF's rule treating bump stocks as machine guns, and several other federal statutes, a three judge panel has upheld the federal restrictions on suppressors... as well as a man's conviction for illegally possessing one. 

In U.S. v Peterson, a three-judge panel that included Fifth Circuit Chief Judge Jennifer Walker Elrod concluded that the Second Amendment only applies to firearms and gun parts that are essential to make a gun functional... and suppressors, as helpful as they might be, are nothing more than an accessory that falls beyond the scope of the Second Amendment's protections. 

“A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense,” Elrod said.

George Peterson was selling guns out of his house when the Bureau of Alcohol, Tobacco, Firearms and Explosives ran a warrant on it. During the search, they found the suppressor, which Peterson had made from a kit and hadn’t registered as required by federal gun law.

The trial court rejected Peterson’s argument to suppress the evidence against him on grounds that the suppressor was protected by the Second Amendment. He pleaded guilty but reserved the right to appeal the constitutionality of the National Firearms Act’s registration scheme.

The Second Amendment protects the right of the people to “keep and bear Arms,” Elrod said. The right extends to all instruments that constitute weapons, she said.

Whether suppressors constitute “Arms” under the Second Amendment was an issue of first impression for the Fifth Circuit, but Elrod noted that every other federal circuit to address the issue has ruled that it is not.

Peterson argued that, under the Supreme Court's infamous Miller decision,  "arms" includes the "'proper accoutrements' that render the firearm useful and functional." 

Elrod and the other judges on the panel rejected that argument, proclaiming that "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. See Miller, 307 U.S. at 181-82. As the government aptly explains, "[a]n operable firearm will work perfectly well without a [suppressor], but a [suppressor] will not transform an inoperable firearm into an operable one."

Peterson also pointed to the Seventh Circuit's decision in Ezell v. City of Chicago, which concluded that the city's prohibition on ranges was likely a violation of the Second Amendment. The court noted that the right to keep and bear arms "wouldn't mean much without the training and practice that make it effective", essentially holding that the Second Amendment protects more than just the right to possess and carry a gun. 

The Fifth Circuit panel didn't disagree with Ezell's holding, but instead argued that, "it can hardly be said that suppressor regulation has rendered the right to bear arms meaningless." 

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.

The Fifth Circuit's decision suggests that even if suppressors were banned outright, instead of being heavily regulated by the National Firearms Act, there would be no Second Amendment issue. 

If nothing else, the Peterson decision underscores the fact that we can't put all of our 2A eggs in the litigation basket and think we'll be protected by the courts. Heller, McDonald, and Bruen are all extremely helpful in defending our right to keep and bear arms, but the Supreme Court's Second Amendment jurisprudence doesn't negate the need for us to lobby to overturn existing restrictions and to keep new ones from being put in place. If we want to see suppressors de-regulated, it's probably going to take an act of Congress, not the courts, and we should be talking to our congresscritters about supporting the Hearing Protection Act that was recently introduced in the Senate. As hard as it might be to get that bil enacted into law, I suspect it's still going to be easier than convincing the Supreme Court that suppressors are already protected by the text and tradition of the Second Amendment.