Litigation Highlight: The NFA and Shall-Issue Licensing

On August 27, a unanimous panel of the Fifth Circuit Court of Appeals upheld the conviction of a man who manufactured and possessed an unregistered silencer (or suppressor) in violation of the National Firearms Act (NFA).  The case applies an interesting legal analysis to the NFA’s taxing and registration requirements by analogizing them to the objective, shall-issue concealed carry licensing that the Supreme Court approved in Bruen.  Perhaps more importantly, the decision from perhaps the most right-leaning federal appellate court in the country suggests that federal judges are not likely to be receptive to broader efforts to invalidate the NFA’s regulatory framework.

The case, captioned United States v. Peterson, involves a Louisiana resident whose home was raided in 2022 after law enforcement received information (through undercover purchasers) that he was operating an unlicensed home gun business.  Peterson had applied for, and received, an FFL license—but that license only authorized him to sell guns and accessories at gun shows or from specific non-residential locations.  During the raid, ATF agents recovered a self-manufactured firearm silencer from a safe in Peterson’s bedroom closet.  The silencer was operable but lacked a serial number and was not registered, as the NFA requires.

Peterson was charged with possessing an unregistered silencer, moved to dismiss on both Second and Fourth Amendment grounds, and then pled guilty while also appealing the denial of his motion to dismiss.  He was ultimately sentenced to two years in prison.  On appeal, the panel first explained that “[s]uppressors function by causing the gasses emanating from a fired weapon to do so more slowly and therefore more quietly,” have benefits related to hunting and noise pollution, and are infrequently used in crimes.[1]  The court then summarized the NFA’s regulatory framework at the time of Peterson’s arrest: the law defines “firearm” to include “any suppressor” and requires that NFA “firearms” be registered, marked with a serial number, and subject to a $200 tax.[2]  The law makes it a crime to receive or possess unregistered silencers.

Peterson mounted an as-applied constitutional challenge to the NFA’s registration requirement under the Second Amendment.  At Bruen’s first step, the panel assumed without deciding that silencers are protected arms—according to the decision, the government interestingly did not contest this point in the litigation.  However, the panel then determined that “the NFA suppressor-licensing scheme is presumptively constitutional because it is a shall-issue licensing regime.”  Bruen, the judges observed, specifically approved of objective licensing requirements for concealed carry, such as laws that require “fingerprinting, a background check, a mental health records check, and training in firearms handling . . . , among other possible requirements.” 

The NFA, the court said, functions in precisely the same way: prospective registrants submit fingerprints and undergo a background check, and the statute provides that registration applications can be denied only when making or possessing an NFA firearm would be “in violation of law.”  And, in a similar way as states that criminalize unlicensed carry, the licensing rules are supported by a criminal prohibition on unlicensed possession.  Thus, the court held, the licensing framework is presumptively lawful and must be upheld unless Peterson could show it had been “put toward abusive ends” (in Bruen’s language).

Here, the panel saw no evidence of abuse.  In fact, Peterson conceded in the trial court that he had not attempted to apply for a license for his homemade silencer but rather “forgot to do the paperwork.”   Thus, there was no evidence in the record about potential delays in processing NFA applications, and Peterson’s counsel declined to submit a supplementary filing related to this issue.  Peterson’s bald assertion of a potentially lengthy wait time, the panel said, was insufficient to defeat the presumption of constitutionality.  The panel was careful to note that the decision “do[es] not foreclose the possibility that another litigant may successfully challenge the NFA’s requirements” under different facts that do indicate a lengthy wait time or other complications with the registration process. 

In a footnote, the court explained that a showing of abusive ends or long wait times would then lead to Bruen’s second step: examining whether, even with such obstacles to obtaining registration, the framework is consistent with historical tradition.  The court cited cases determining that NFA licensing is constitutional under a historical analysis, but reserved decision on that issue for future litigation.  After rejecting Peterson’s challenge to the search that led to the discovery of his silencer, the panel affirmed and upheld Peterson’s conviction.

While it may escape notice in coverage of the decision, the federal government’s concession that silencers constitute protected “arms” is potentially quite important.  To me, at least, that’s neither an intuitive result nor is it broadly consistent with how other federal courts have approached the issue.  Rather, as the Tenth Circuit put it in a 2018 decision:

A silencer is a firearm accessory; it's not a weapon in itself (nor is it “armour of defence”). Accordingly, it can't be a “bearable arm” protected by the Second Amendment.

Or, in the words of a North Carolina district judge, “[a] firearm is effective as a weapon of self-defense without the use of a silencer, but the reverse is not true; a silencer serves no purpose without a firearm.”  There’s a substantial weight of authority at the district court level for this proposition, including post-Bruen—a case that did not deal the definition of protected “arms.”  The government’s concession in Peterson, however, suggests a highly expansive definition of “arms” and may signal DOJ’s intent to weigh in on the issue in LCM cases or related challenges to state regulation (including regulation of pistol braces and other accessories that are neither necessary to the operation of a firearm nor functionally required).

On the other hand, Peterson’s decision to invoke Bruen’s endorsement of shall-issue licensing may create an easy path for other courts to reject broader NFA challenges.  As the ruling notes in passing, other courts have conducted the full historical tradition analysis with regard to the NFA’s registration provisions; or, at least, signaled one way or another how that analysis might come out.  And it’s generally going to be more difficult, given the lack of modern evidence that silencers are disproportionately used in crime, for the government to demonstrate that silencers are “dangerous and unusual” or that the NFA’s restrictions are relevantly similar to historical restrictions on dangerous weapon accessories.  However, if courts follow the Fifth Circuit’s lead in treating the NFA as a de facto permit-to-possess law and use Bruen’s treatment of state shall-issue concealed carry laws as the standard, it will be much easier for the government to defend NFA challenges because extensive historical support will not be required.[3]