On the same day that the Justice Department (DOJ) posted a video defending its stance on Second Amendment issues, it filed a legal brief in opposition to an en banc hearing in a Second Amendment case in the United States Court of Appeals for the Fifth Circuit.
The case, United States v. Peterson, involves George Peterson, a Louisiana man, who was arrested for having an unserialized suppressor. Suppressors in the United States have to be serialized and registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) under the National Firearms Act of 1934 (NFA). This process requires submitting fingerprints, photographs, undergoing multiple background checks, and paying a $200 tax stamp fee.
Mr. Peterson was found guilty of NFA violations at the District Court level, but appealed the charges to the Fifth Circuit Court of Appeals. The case was heard in front of a three-judge panel. The three-judge panel rejected the defendant’s claim that the NFA restrictions on suppressors violated the Second Amendment of the United States Constitution. The three-judge panel concluded that suppressors are only firearm accessories and do not enjoy Second Amendment protections, which puts it at odds with the federal statute and the DOJ’s official stance.
After the loss, the Firearms Policy Coalition (FPC) stepped in to help out Mr. Peterson. The group assisted with filing a request for an en banc hearing. An en banc hearing is when the full Fifth Circuit bench would hear the case. If an en banc hearing is granted, the panel’s decision would be vacated.
The government has now responded to the request, arguing that the en banc hearing should not be granted, calling the NFA “modest restrictions on possessing firearm suppressors as part of its shall-issue licensing scheme did not violate George Peterson’s Second Amendment rights.”
Mr. Peterson contends that the panel misapplied the Bruen standard. A Bruen analysis consists of two steps. The first step is whether the conduct is covered under the original text of the Second Amendment. Mr. Peterson is among the people, and under federal statute, suppressors are classified as firearms. However, if suppressors are considered only firearm accessories, the defendant would fail step one. Step two is a historical analysis of the law through the use of analogues from the founding era. This burden falls to the state.
The DOJ argues that the NFA is consistent with the Second Amendment because Peterson failed to demonstrate a conflict with Supreme Court precedent. The DOJ says that the “NFA’s modest burden on suppressors” does not deny Peterson’s right to keep and bear arms. They stated that the NFA is like any other licensing fee and is consistent with the history and tradition of the nation’s firearms regulations from the founding era.
The DOJ also argues that Peterson is wrong when his attorneys claim there is a circuit split between the Fifth Circuit and the Third Circuit. Mr. Peterson referenced Koons v. New Jersey. The Third Circuit held that the additional $50 fee for handgun carry permits that was allocated to a crime-victim compensation fund was likely unconstitutional. Since Koons did not involve the NFA, the government argues that it is irrelevant and too different from this case to help establish a circuit split. The government’s legal team also highlights that the law Koons challenged was a response to the Bruen opinion passed in 2022, as opposed to the NFA, which is 91 years old.
The DOJ also claims that the NFA doesn’t put a burden on ordinary firearms. They claim it only burdens “nonessential firearm accessories.” Although the DOJ walked back its claim that suppressors are not protected firearms, the brief seems to imply otherwise by calling them “nonessential firearm accessories.”
The brief reads: “The questions the panel resolved, however, are narrower than Peterson claims. The NFA regulation at issue does not target ordinary firearms such as handguns but only nonessential firearm accessories that are uniquely adaptable to criminal misuse. Law-abiding citizens remain free to possess suppressors so long as they register them. Also, recent legislative changes mitigate Peterson’s taxation concerns. Effective January 1, 2026, there will be no taxation on making and transferring suppressors.”
The government closed by saying that if the NFA applied to “ordinary firearms,” it might be unconstitutional.
In a statement to AmmoLand, Knox Williams, President and Executive Director of the American Suppressor Association, criticized the DOJ’s position.
“AUSA Simpson has once again demonstrated that he has no understanding of suppressors or the Second Amendment. To claim that a federal gun registry is a ‘modest restriction’ that does not violate the constitutional rights of law-abiding Americans is gaslighting at best. To make that claim amid a government shutdown, during which NFA applications are not being processed, a clear violation of the Second Amendment, is an irony that cannot be overlooked.”
“The fact of the matter is simple: federal gun registries violate the Second Amendment. As AUSA Simpson has acknowledged in previous briefs, suppressors are protected by the Second Amendment. They are not ‘nonessential accessories’; they are a protected device in common use that millions of law-abiding Americans use to safeguard their hearing. Suppressors are not ‘uniquely adaptable to criminal misuse’; they are uniquely essential to preserving one of our five senses while exercising our Second Amendment rights. To argue otherwise is to spread blatant misinformation.”
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About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
