The Fifth Circuit Court of Appeals has a reputation for being one of, if not the most, conservative circuit courts in the United States, and we've seen some big wins for gun owners come out of appellate court in recent years. On Wednesday, however, a three-judge panel sided with the DOJ in upholding a Louisiana man's conviction for possessing an unregistered suppressor, holding that the National Firearms Act's taxation and registration scheme amounts to a "shall issue" licensing regime that's presumptively allowed under the text and history of the Second Amendment.
In the opinion, the panel assumed without actually deciding that the suppressors are "arms" protected by the Second Amendment, but still upheld the taxation scheme even though the stated purpose of adopting the NFA back in the 1930s was to make it too expensive for many Americans to purchase items the law restricted.
Though the Supreme Court held in Bruen that even "shall issue" licensing regimes can violate the Second Amendment if they involve “lengthy wait times in processing license applications or exorbitant fees", the Fifth Circuit dodged an evaluation of whether or not the NFA fits the bill because:
Here, Peterson neither alleges that he applied for an NFA license to make a suppressor, nor asserts that he paid the $200 tax, nor claims that the tax or application-processing times discouraged him from submitting an application to the ATF. Instead, he explains that he “simply forgot to do the paperwork after” he made the suppressor. The record is therefore devoid of any facts indicating that the NFA has been “put toward abusive ends” as applied to him. See United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011) (“[W]hen we are presented with an as-applied challenge, we examine only the facts of the case before us and not any set of hypothetical facts under which the statute might be unconstitutional.”).
The court also found that Peterson failed to offer any evidence of extensive wait times in processing NFA applications, while the government contended that NFA applications are now generally processed in just a few days. The panel also noted that the Fifth Circuit has previously upheld a 10-day waiting period on firearm transfers, which puts it at odds with the Tenth Circuit's recent decision declaring New Mexico's 7-day waiting period an unconstitutional infringement on the right to keep and bear arms. Presumably, NFA processing times would have to be longer than a week and a half, on average, for the Fifth Circuit to even consider the argument that the delay is "lengthy".
While the panel declared that "we do not foreclose the possibility that another litigant may successfully challenge the NFA’s requirements," in a footnote the judges also opined that "some courts have concluded that the NFA’s suppressor-registration requirements pass constitutional muster under Bruen’s second step".
If nothing else, the Fifth Circuit's opinion is a great example of why we can't rely on litigation alone to protect our Second Amendment rights. Thanks to Republicans in Congress, starting in January the $200 transfer tax on suppressors will be zeroed out thanks to language included in the One Big Beautiful Bill Act, and that legislative improvement will also help aid lawsuits in the future, since the registration requirement is essentially a record of who's paid the tax. With no tax to pay, how can the registration requirement stand? The Fifth Circuit (and other courts) will soon have to address that argument, and the opinion handed down on Wednesday is far from the last word from the judiciary on the constitutionality of the NFA.
Editor's Note: Radical judges are doing everything they can to hamstring our Second Amendment rights.
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