The U.S. Supreme Court has consistently ruled that the Second Amendment protects “the right of the people to keep and bear arms.”
Many gun rights advocates believe this constitutionally settled right includes any accessories associated with any firearm. That is not the case.
On February 6, 2025, the Fifth Circuit Court of Appeals made this point abundantly clear when it joined three other federal circuit courts of appeal—the Tenth, Ninth, and Fourth—in concluding that a “suppressor” is not an “arms” within the meaning of the Second Amendment.
The Fifth Circuit case, United States v. Peterson, involved George Peterson’s Louisiana business, PDW Solutions—a firearms business he operated out of his home in Jefferson Parish. The Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF), over a several-month period in 2022, developed evidence that Peterson sold firearms he did not register with the agency.
Based on this information outlined in an affidavit seeking a search warrant of Peterson’s home/business, a U.S. magistrate authorized a warrant seeking the seizure of Peterson’s transactional and financial records, proceeds from firearms sales, firearms themselves, computers, and digital devices, along with other things.
The ensuing search the next day discovered a “firearm suppressor” in Peterson’s bedroom closet. The ATF agents learned that Peterson had not purchased the suppressor from a manufacturer but had instead bought a kit and made it himself. Although the device was in working condition, it did not have a serial number and had not been registered by Peterson, as required by law (26 U.S.C. §§ 5841, 5861(d), and 5871), with the National Firearms Registration and Firearms Records.
Reserving his right to appeal several issues he raised in pretrial challenges to his indictment, including the National Firearms Act of 1934 (NFA) from which his indictment stemmed), violated the Second Amendment, Peterson entered a conditional guilty plea and was sentenced to twenty-four months in prison.
The issue of whether or not a firearms suppressor was one of “first impression” for the Fifth Circuit. The appeals court began its constitutional analysis with what constitutes a suppressor and its historical origins. Invented by Hiram Percy Maxim (who also invented the “muffler” for automobiles) between 1902 and 1909, the “silencer” from the outset was so controversial that its use on firearms was eventually outlawed by the NFA even though it was used by President Theodore Roosevelt on his rifle when hunting small game. The device does not actually silence the discharge of a firearm but rather muffles its noise much like the muffler does to sounds of an automobile engine.
Justice Antonin Scalia, in the U.S. Supreme Court decision District of Columbia v. Heller, which recognized significant Second Amendment protections, cautioned that the amendment’s guarantees are not “unlimited.”
Fourteen years after the Heller decision, the Supreme Court in N.Y. State Rifle & Pistol Ass’n v. Bruen not only reaffirmed Heller but established a two-step analysis in determining the constitutional reach of the Second Amendment. The Fifth Circuit explained this two-step analysis:
“‘We start, as always, with the text.’ That is, we first consider whether ‘the Second Amendment’s plain text covers an individual’s conduct.’ If it does, ‘the Constitution presumptively protects that conduct.’ But if it does not, we need to move to the second step, which compares our ‘Nation’s historical tradition of firearm regulation’ against the regulation at issue.”
Heller made clear that this analysis applies to all bearable firearms, even those not in existence when the Second Amendment was ratified.
Against this constitutional backdrop, the Fifth Circuit noted that every federal circuit court of appeals and every U.S. district court that has considered the suppressor/Second Amendment issue has found that the amendment does not afford suppressors constitutional protections. The Ninth Circuit stated that suppressors do not enjoy constitutional protection because they “are not typically possessed by law-abiding citizens for lawful purposes.”
The Fifth Circuit addressed the suppressor issue this way:
“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.”
