Fifth Circuit backtracks on adverse suppressor ruling

In a single sentence, the U.S. Court of Appeals for the Fifth Circuit added to the high-profile and consequential national conversation on firearm suppressors.

Last week, the court withdrew its three-judge panel opinion from earlier this year in United States v. Peterson, in which it held that suppressors were not “arms” protected by the plain text of the Second Amendment. This unprecedented move in withdrawing the opinion may portend promising developments, not just in the effort to remove suppressors from regulation under the National Firearms Act, but in the effort for their recognition as Second Amendment protected arms.

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In February of this year, the Fifth Circuit issued a ruling upholding a conviction for possession of an unregistered suppressor. The court found that suppressors were not protected under the Second Amendment because they are not items necessary for the firearm’s operation and are merely “compatible” with it. Relying on previous court decisions that treated suppressors only as “accessories,” the court failed to apply the appropriate tests under both the U.S. Supreme Court decisions in Heller and Bruen, which presumptively extend protection to instruments that constitute bearable arms and require a relevantly similar historical tradition to establish a regulation’s validity under the Second Amendment.

The court gave no further explanation for the withdrawal of the opinion beyond a one line declaration: “Pursuant to the court’s directive, the opinion in this case has been withdrawn.” It is worth noting that prior to the decision, the Department of Justice requested a pause on the case for time to re-evaluate its own litigation position on suppressors. While in its supplemental response, the DOJ ultimately recognized suppressors as protected by the Second Amendment, it did not come full circle by rejecting the National Firearms Act regulation of suppressors.

While the next steps for the case are unknown, the hope is for a full review of the case in proper context to recognize the constitutional protections for firearm suppressors.

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