Most non-shooters don't get how a firearm suppressor (often incorrectly called a silencer) works. Too many stupid television shows and movies have a shooter screwing a small object the size of a flash hider onto the barrel of a pistol or rifle, then firing the piece with a barely audible thwip. That's not how it works. A pistol or rifle with a suppressor attached still makes a considerable bang; these devices are not actually silencing the piece, although they do significantly reduce report and recoil. In gun-unfriendly Europe, hunters routinely use suppressors to avoid annoying people with loud reports; they are considered more or less a requirement. Here in the United States, though, they are (stupidly) regulated in the same manner as fully-automatic weapons under the 1934 National Firearms Act.
Now, a recent decision from the 5th Circuit may be changing that, in that it deems these to be "arms" and not "accessories," and hence protected under the Second Amendment, in the post-Bruen sense.
A unanimous three-judge panel of the U.S. Fifth Circuit last week ruled that suppressors are protected by the Second Amendment, exactly the opposite of a decision from the California-based Ninth Circuit.
In the 11-page decision in the appeal of U.S. vs. Comeaux (24-30307) published in the Western District of Louisiana on June 18, the court fell back on the "text, history, and tradition" guidelines of Bruen and the meaning of "bear arms" as explained in the Heller ruling ("wear, bear, or carry . . . for the purpose . . . of being armed and ready for offensive or defensive action in case of conflict with another person.") to explain that "silencers" (suppressors) are bearable arms.
"Silencers fit that definition," wrote U.S. Circuit Judge Jerry E. Smith, a 1987 Reagan appointment, for the majority in Comeaux. "Silencers lead to 'reduced loudness (and reduced risk of hearing loss), lower recoil from the firearm, elimination of muzzle blast, increased accuracy, and faster follow-up shots.' Those are all critical functions that make firearms both safer and more effective for their core lawful purpose of self-defense. Because silencers are used in self-defense "to cast at or strike another," they are Second Amendment "Arms.'"
This stands in seeming contradiction to another case in the 9th Circuit.
The ruling in Comeaux stands at odds with an appeal recently decided on the West Coast by the Ninth Circuit. Handed down on June 3, U.S. v. DeBorba (24-3304), a unanimous panel rejected the argument that the device possessed by João Ricardo DeBorba was protected by the Second Amendment, holding that suppressors are firearm accessories and do not fall under the plain text definition of being protected "arms."
With such a clear circuit split in the federal judiciary, the question of whether suppressors are "arms" is now primed for the Supreme Court to answer if further appeal is sought. Moreover, that answer could help bring such devices to the eight states in which consumer ownership of suppressors is currently banned.
While no petition seeking Supreme Court review has been filed as of this writing, the conflict between the 5th and 9th Circuits makes it likely one eventually will be.
Read More: In a Sane World, Firearms Suppressors Would Be Unregulated
NRA, Other Groups File Suit to Overturn 91-Year Old Gun Law
Here's the thing: The entire issue over the United States' idiotic over-regulation of these devices is based on what was described above, a TV/movie caricature of what these devices are able to do. The prevailing idea seems to have been that these could allow a criminal to fire a weapon with no report audible from more than a few feet away. That's simply not the case, but the anti-Second Amendment, would-be gun-grabbers have never been overly burdened with facts. This is a case that we can hope gets decided in SCOTUS in favor of hearing protection for American shooters — and the Second Amendment.
As it happens, I was recently able to fire a couple of rifles equipped with suppressors, and these were powerful big-game rifles to boot; it was a revealing experience. Watch:
We will continue to watch any progress on these cases with great interest.
Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.
Help us continue to report on their efforts and legislative successes. Join RedState VIP and use promo code FIGHT to receive 60% off your membership.
Join the conversation as a VIP Member