Silencer Saturday #376: The Curious (Legal) Case Of George Peterson

Posted 14 days ago by admin in Firearms 8

silencer saturday 376 the curious legal case of george peterson

Good afternoon, everyone, and welcome back to TFB’s Silencer Saturday, brought to you by Yankee Hill Machine, manufacturers of the new Victra-12 shotgun suppressor. This week, we are looking at a criminal case involving an unregistered silencer. While that may sound like a run-of-the-mill case, it led to an interesting appellate court decision and a very intriguing signal for future policy changes.

Silencer Saturday @ TFB:

Background

Silencers in the United States are very regulated items. The National Firearms Act (NFA) of 1934 created a special category of firearms with additional restrictions. Short-barreled rifles, short-barreled shotguns, machine guns, “any other weapons,” and (last but not least) silencers all fell victim to this regulatory structure. Unlike standard firearms, these required payment of an additional tax stamp and more thorough vetting by law enforcement.

One of these NFA items is very different from the rest. Silencers are the only NFA item incapable of launching a projectile on their own. Ok, fine, machine gun conversion devices also can’t fire without being attached to a host gun, but those were a later addition based on agency decisions. Machine guns were pretty clearly understood to be actual fully automatic firearms when the NFA was adopted.

United States v. George Peterson

This case started in the Eastern District of Louisiana. George Peterson had a Federal Firearms License and engaged in various gun sales that brought him to the attention of the ATF. That eventually led to a raid by the ATF, which turned up an unregistered “silencer” (solvent trap) in his possession. That went how it usually goes for someone when the ATF finds an NFA item without the appropriate paperwork: he was arrested.

Eventually. Mr. Peterson agreed to a plea deal with the government, but it included a special exception that allowed him to appeal the motion to dismiss that he had lost. He appealed to the Fifth Circuit, and a three-judge panel heard the issue. After briefing and then oral arguments in December, the court issued its decision in February.

In short, he lost. But why he lost is the interesting part; the judges decided 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.” By reaching this decision they sidestepped the real question of whether or not the NFA was unconstitutional under the Heller and Bruen decisions.

This is an interesting conclusion but I see how the judges got there. Silencers are not guns by any common language definition. They are used on guns, and they change how guns operate, but they are not independently capable of launching a projectile. I haven’t listened to the oral arguments nor read every piece of briefing, but there is a serious disconnect between deciding a silencer is not an “arm” while it is simultaneously a “firearm” under 26 USC 5848(a)(7). Someone presumably raised that in the briefing but it seems somewhat obvious that if Congress decided a device is a fireARM then it is probably an arm that deserves second amendment protections.

But there is more to the story! There was much wailing and gnashing of teeth when this decision came out. Many saw it as a signal that the Trump administration, which had represented itself as pro gun rights, was not going to deliver on campaign promises. Various gun manufacturers and dealers (including B&T, Palmetto State Armory, and Silencer Shop) and advocacy groups (including FRAC and GOA) filed amicus briefs in the case in the hopes that an en banc rehearing (where all judges of that court hear the case instead of a smaller panel) would find differently.

But before the court could decide whether or not it would hold the en banc hearing the prosecutors filed a motion asking for a 30-day stay of the case. Extending deadlines is a common thing in lawsuits but the reasoning for this motion is what was interesting. The United States Attorneys asked for the 30-day pause “to further consider its position. On February 7, 2025, the President issued Executive Order 14206, Protecting Second Amendment Rights (EO 14206), directing the Attorney General to examine all executive actions to present a proposed plan to protect the Second Amendment rights of all Americans. In implementing that order, the Department of Justice is re-evaluating its litigation positions regarding silencers.”

Where Do We Go From Here?

We are all waiting to see what new positions the DOJ may take on silencers, but there are a few options. All of these approaches assume that Congress will not be changing the NFA. One possibility is a temporary pause on any prosecutions for simple possession of an unregistered silencer. This would leave open the option to prosecute someone who used a silencer in a crime (like Luigi Mangioni…) while also keeping people who bought solvent traps out of federal prison. This does have the downside that a future administration (or even this same one) might see the issue differently and decide to bring those cases back.

Another approach would be an amnesty for unregistered silencers. If ATF automatically approved any request for a tax stamp with no charge (sort of like what happened with arm braces being registered as SBRs) it could stop pending prosecutions while still keeping the registry in place. This would spike the number of silencers in the registry.

Or, in a more radical departure from prior norms, ATF could declare people to be Special Occupational Taxpayers without the traditional hurdles and expense. This would be a very creative approach because most regulation of SOTs is decided by the ATF rather than defined in statute. And if any interested person could be an SOT and manufacture NFA items to their heart’s content with only a $1 fee it would act as a sort of amnesty while also boosting the number of NFA items in circulation to push them into the “common use” category for the Bruen analysis.

ATF’s new Chief Counsel is Robert Leider, a gun law scholar who has written on many Second Amendment issues. I would bet he has already thought deeply about how to handle this situation and he probably has other creative ideas. For now, though, we will have to wait and see what happens. But this pause is probably a positive development for American silencer owners.

silencer saturday 376 the curious legal case of george peterson