FPC and FPCAF Tee Up Challenge to NFA Firearm ‘Silencer’ Laws in Fifth Circuit, Seek Full-Court Review of Dangerous 3-Judge Panel Decision

NEW ORLEANS (March 20, 2025) – Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) issued the following statement regarding United States v. George Peterson, a criminal matter presenting an FPC-backed challenge to the U.S. Government’s regulation of suppressors through unconstitutional registration and taxation requirements. Key case documents in Peterson can be viewed at firearmspolicy.org/peterson.

Background

• In 1934, Congress enacted the National Firearms Act (“NFA”) (26 U.S.C. § 5801, et seq.) which, among other things, regulates firearm suppressors (“silencers”), imposing registration and tax payment requirements.
• Under federal law, the terms “firearm silencer” and “firearm muffler” mean “any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.” (18 U.S.C. § 921(a)(25).)
• In 2022, the United States Government criminally charged Mr. George Peterson, a resident of Louisiana, with possession of an unregistered firearm suppressor (i.e., “silencer”) in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871.
• Mr. Peterson has been and remains an FPC member.
• As an affirmative defense to the charge, Mr. Peterson challenged the NFA’s constitutionality with respect to its regulation of suppressors as being unconstitutional under the Second Amendment.
• In 2023, Mr. Peterson entered a conditional plea of guilty (pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure), reserving the right to have the United States Court of Appeals for the Fifth Circuit review the district court’s denial of his motions to dismiss the Indictment and to suppress evidence.
• In February 2025, a 3-judge panel of the Fifth Circuit affirmed the district court’s denial of Mr. Peterson’s motion to dismiss in a horrifically flawed and dangerous decision.
• Recognizing the danger the panel decision represents to Second Amendment-protected rights, FPC agreed to financially back world-class counsel for Mr. Peterson’s appeal. Mr. Peterson has retained attorneys David H. Thompson, Peter A. Patterson, William V. Bergstrom, and Athanasia O. Livas of Cooper & Kirk as well as FPCAF President Cody J. Wisniewski in order to petition the Fifth Circuit for en banc (full court) rehearing, a reversal of the panel decision, and a decision that the NFA’s registration and taxation regulations are unconstitutional with respect to firearm suppressors.
• Earlier this month, Mr. Peterson filed his Petition for Rehearing En Banc explaining why the 3-judge panel must be vacated and the case re-heard by the full Fifth Circuit. The Government subsequently filed its Response, arguing that the Court should not re-hear the case because a suppressor is not an “arm” protected by the Second Amendment.
• This case squarely presents the question of whether firearm components are “arms” subject to the Second Amendment, and is a case of first impression in the Fifth Circuit.
• Any decision in this case has the potential to directly impact the regulation of suppressors under the NFA, as well as items such as ammunition magazines, barrels, sights, and even triggers or firing pins.

What’s at Stake

If left to stand, the panel’s decision could have the extraordinary effect of permitting the Government to ban, for example, ammunition magazines, adjustable stocks, sights, braces, and other items that promote the safe and effective use of firearms, so long as the Government could show that the item in question is not strictly ‘necessary’ to the use of a firearm. Additionally, violations of the NFA have a maximum penalty of ten (10) years imprisonment and/or a fine of up to $10,000.

How to Support This Case

1. Join FPC at firearmspolicy.org/join.
2. Donate to support this and dozens of other important cases at firearmspolicy.org/donate.
3. Make a tax-deductible donation to FPC Action Foundation here.
4. Share this news with friends, family, and gun owners.

Next Steps

The Fifth Circuit will now poll the active judges on the Circuit to decide whether to grant Mr. Peterson’s petition. If the petition is granted, the matter will likely be re-briefed and re-argued before the full Fifth Circuit. If not, then Mr. Peterson’s next deadline would be to file a petition for a writ of certiorari with the U.S. Supreme Court, if he so chooses.

Excerpts

5th Circuit Panel Opinion, at *6: “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.” Cox, 906 F.3d at 1186.4 And while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not. Id.”

5th Circuit Panel Opinion, at *7-*8: “The use of a suppressor, as we noted above, is not necessary to the use of a firearm, so it is not protected by the plain text of the Second Amendment. The Second Amendment, therefore, is not offended by the NFA regulation, so we AFFIRM the district court’s denial of Peterson’s motion to dismiss.”

Petition for Rehearing En Banc, at *7: “If the Second Amendment is to mean anything, then an ‘arm’ must include not just complete firearms but also component parts that function integrally with the firearm. Of course, the panel was right that a suppressor, by itself, is not capable of expelling a projectile. See Op. at 6. But no part of a firearm can, by itself, expel a projectile or do any casting or striking. A functioning firearm is a collection of component parts. Yet regulation of other components that support the safe and effective use of a firearm—like an ammunition magazine, a rifle barrel, a set of sights, or even a trigger or firing pin—would regulate the use of a firearm. See, e.g., Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 116 (3d Cir. 2018) (holding that magazine are ‘arms’). So too here. Regulation of a component part is not only a regulation on that part in the abstract or in a vacuum. It is a regulation of the keeping and bearing of the firearms that function with that component part.”

Petition for Rehearing En Banc, at *9: “[T]he plain text of the Second Amendment is implicated because a regulation of suppressors cannot be viewed in isolation—it effectively is a regulation of suppressed firearms, which indisputably are arms. And even if that were not so, suppressors at least facilitate the exercise of the Second Amendment right. For this reason too, it was [an] error to hold that suppressors are entitled to no constitutional protection.”

Quotes

FPC President Brandon Combs: “Under binding Supreme Court precedent, the National Firearms Act’s registration and tax requirements are unconstitutional, full stop. The Fifth Circuit’s 3-judge panel decision in this case is a horrifically flawed opinion that would, if left to stand, severely undermine the scope of the Second Amendment and its protections for peaceable people and their arms. The full Fifth Circuit must rehear this case and issue a decision consistent with the text of the Second Amendment and constitutionally relevant history.” 

FPC Action Foundation President Cody J. Wisniewski: “The very definition of ‘arms’ is at stake in this vital appeal, and with it, the ability of millions of peaceable people to exercise their natural, constitutionally protected rights. We are proud to represent Mr. Peterson in this critical challenge to the federal government’s unconstitutional and immoral infringement.”

About the Organizations

Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit membership organization, exists to create a world of maximal human liberty, defend constitutional rights, advance individual liberty, and restore freedom. We work to achieve our strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs. Our FPC Law program (FPCLaw.org) is the nation’s preeminent legal action initiative focused on restoring the right to keep and bear arms throughout the United States. Individuals who want to support our work to eliminate unconstitutional laws can join the FPC Grassroots Army at JoinFPC.org or make a donation at firearmspolicy.org/donate. For more on our lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on Instagram, X (Twitter), Facebook, and YouTube.

FPC Action Foundation (FPCActionFoundation.org), a 501(c)(3) nonprofit organization, exists to create a world of maximal human liberty through charitable legal action, public policy, education, and research programs. Individuals who want to support this and other cases can make a tax-deductible donation to FPC Action Foundation here.