A few weeks ago a three-judge panel on the Fifth Circuit Court of Appeals issued its decision in United States v. Peterson, a case dealing with a Louisiana man's conviction for possessing an unregistered suppressor in violation of the National Firearms Act.
While the Fifth Circuit has a reputation for being one of, if not the most conservative appellate courts in the country, the panel's decision not only upheld George Peterson's conviction (and the constitutionality of the NFA as it applies to suppressors), but would allow for taxes and registration requirements to be imposed on all firearms, not just those restricted by the NFA.
The panel assumed, but did not decide, that suppressors are arms protected by the Second Amendment, but still upheld Peterson's conviction on the grounds that "the NFA’s shall-issue licensing regime is presumptively constitutional" under Bruen. While the Supreme Court did say that "shall issue" licensing regimes for concealed carry permits were presumptively constitutional, it said nothing about shall issue licensing regimes for keeping arms. Further, the Court did note that excessive wait times or exorbitant fees could render even "shall issue" regimes unconstitutional.
The panel dodged deciding whether or not the $200 tax imposed on the transfer of suppressors is exorbitant, even though it was explicitly imposed to limit the number of Americans who could afford to pay the tax. Instead, the panel concluded that since Peterson never registered his suppressor or paid the tax, "the record is therefore devoid of any facts indicating that the NFA has been 'put toward abusive ends' as applied to him."
Of course, if Peterson had submitted his NFA paperwork and paid the $200 tax he wouldn't have been charged with possession of an unregistered suppressor to begin with, and the panel wouldn't be considering this case at all.
Instead of appealing directly to the Supreme Court, Peterson's attorneys this week filed for an en banc review of the panel's decision by the entirety of the Fifth Circuit; a move applauded by the Firearms Policy Coalition, which is supporting Peterson's case. In their brief, the attorneys argue that the panel's decision contains multiple errors.
First, the panel equated the National Firearm Act’s taxation and registration regime with mere licensing. As then-Judge Kavanaugh explained, licensing is distinct from registration. See Heller v. District of Columbia (“Heller II”). For this reason, any presumption of constitutionality for shall-issue licensing regimes has no bearing and should not have been applied to save the Government’s taxation and registration regime . The ordinary test—which the Government cannot satisfy—must apply. Indeed, the Supreme Court has already suggested that the “National Firearms Act’s restrictions” in particular “might be unconstitutional” when applied to protected arms.
Second, and relatedly, the panel was wrong to equate taxation on the exercise of a constitutional right with a mere licensing-fee. In the First Amendment context, the Supreme Court has indicated that a licensing regime may include a fee to defray the costs of granting licenses. Taxation, on the other hand, seeks to raise revenue and has the effect of deterring constitutionally protected conduct. The citizens of this Nation cannot be made to pay a tax that singles out the “exercise of … a high constitutional privilege.”
The historical record is clear that the tax was created with the intent of deterring people from purchasing NFA items. It's true that $200 today isn't what it was back in the 1930s, but we have Democrats in Congress who are pushing to increase NFA taxes to $5,000 or $6,000 per item, using the argument that the $200 tax isn't enough of a financial impediment anymore.
The request for an en banc review also points out there's now a circuit court split on the constitutionality of fees (or taxes) imposed on the exercise of a right, with the Third Circuit ruling earlier this week that a $50 fee on carry permits imposed by New Jersey likely violates the Constitution because it's not used or needed to defray the cost of administering the shall issue system.
If left to stand, the panel’s broadly stated rule presuming the constitutionality of government registration and taxation requirements on constitutionally protected conduct would create a license by which the Government could undermine the Supreme Court’s recent Second Amendment precedents.
The practical impact of the panel’s holding is likewise significant. As Peterson has explained, suppressors are highly popular in the United States, with millions owned by law-abiding Americans. Suppressors reduce the sound of a firearm and therefore protect the hearing of individuals and those around them when a firearm is used for lawful purposes such as training, self-defense, or hunting. Whether the Government may tax and require the registration of these hugely popular Arms—with attendant criminal penalties for mistakes in compliance—will impact millions of Americans.
But the panel’s reasoning goes beyond suppressors. Indeed, it would appear to allow the Government to tax and require the registration of every privately owned firearm in the Nation. This is a sure sign that something in the panel’s opinion has gone awry.
Those seem like pretty compelling arguments to me. We'll soon see if a majority of the judges on the Fifth Circuit agree, or if Peterson's next step will be filing a cert petition with the Supreme Court for review.
Editor's Note: Unelected federal judges are misreading the Supreme Court's Second Amendment jurisprudence and upholding unconstitutional laws.
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