Thanks for the clarity.

Looks like the only good permanent solution is to Musk ’em. Musk the ATF. Musk ’em all.

Folks,

The legal issues this case presents are a lot more nuanced, and can’t be reduced to the simple syllogism many of you are understandably applying. Allow this old lawyer to explain.

There are two different things going on here. First is the scope of the Second Amendment. The other is how statutory construction works. These are completely separate legal concepts, and can’t be conflated just because both involve gun related stuff.

Let’s look at the Second Amendment. It applies to bearable “arms,” which the Supreme Court has correctly held isn’t limited to guns but also extends to stun guns, knives, swords, etc. That’s the analysis the Fifth Circuit panel was using: is the suppressor itself a “bearable arm”? The conclusion the Court reached that they not is not a wholly unreasonable position, albeit one I think is wrong for the same reason that ammunition is considered to be “arms” covered by the Second Amendment even though it is useless without a firearm: while by itself it’s not a bearable arm, it’s used with one and thus falls under the protection of the Second Amendment. (This latter argument is the one that should be made.)

What of the fact that suppressors are defined as “firearms” under the NFA? That’s actually immaterial: the statutory definitions in the NFA do not and cannot have squat to do with Second Amendment analysis, because a statute can neither restrict or expand the scope of a constitutional right — the Second Amendment analysis stands or falls on its own.

Think of it this way: if a Democrat administration passed a statute or issued a regulation that provided that “‘arms’ under the Second Amendment are defined to be only muskets and single shot pistols,” would that have any legal effect on Second Amendment cases? Or if PDT issued an EO that “arms” under the Second Amendment includes horses (for whatever reason — this is just a demonstrative example). Of course not, because neither Congress nor the President can amend the Constitution by statute or regulation: the definition of “arms” under the Second Amendment stands on its own.

What of the fact that, for NFA taxation / regulatory purposes, suppressors are defined as firearms when in fact (a-la the Fifth Circuit’s analysis) they actually aren’t firearms because they can’t actually cause a projectile to be put into motion by the effect of an explosion? From a legal standpoint, that’s of no moment.

Remember that legislators can (and do) define terms in a statute to mean whatever they want, even in illogical ways. For example , for many years Texas alcoholic beverage law defined “ale” to be a fermented malt beverage with an alcohol content over a certain percentage (6% if memory serves). So while “ale” actually and technically is a fermented malt beverage produced by using top-fermenting yeast (and thus includes lower alcohol beers like dry stout, bitter, mild, Kolsch, etc.), under the old Texas law those could not be labeled as “ale,” while higher alcohol products (e.g., Schlitz Malt Liquor) that are technically not “ale” because they are produced with bottom-fermenting yeast were considered “ales” *for purposes of Texas law.*

The long and short of statutory construction is that even if the definition of a term in a statute is technically incorrect or contrary to the ordinary meaning of a term, legislators are free to define the meaning of the terms they use in a statute anyway they want. Think of a statutory definition as just being a shorthand *for purposes of the statute* and not a legal declaration of what the term means for any other purpose (such as constitutional interpretation, which as discussed above can’t be affected by a statute).

That’s how under some state laws, air guns and paintball guns are prohibited / regulated as “firearms” even they technically aren’t: rather than state plainly that airguns are prohibited / regulated the same as firearms, the law just shorthands it by including airguns in the statutory definition of “firearms.” This is how statutes are commonly written.

Back to the NFA. Does Congress have the power to tax / regulate the possession of, say, bicycle wheels? Without getting into the weeds of whether Wickard v. Filburn (which held Congress’ power to regulate interstate commerce is essentially unrestricted) was correctly decided, under the current state of the law, it does.

Could Congress thus define “firearms” to include bicycle wheels and thus put them under the NFA? While it would be silly, because a statutory definition is just shorthand and Congress has the power to tax / regulate bicycle wheels, they could — just like New Jersey and other states can ban airguns by illogically defining “firearms” to include them for purposes of NJ law. That’s why even though suppressors are not actually firearms they can be taxed / regulated under the NFA: absent an overriding Second Amendment right, Congress has the power to tax / regulate them like any other widget, and can use an illogical shorthand statutory definition that picks them up.

Again, I think the Fifth Circuit panel (and the defendant unluckily drew one that I’m not surprised was less than friendly to the Second Amendment) got the Second Amendment analysis wrong, and hopefully the court will take it up en banc. But the arguments being made that the NFA definition of “firearms” to include suppressors can have anything to do with the interpretation of a Constitutional right are just plain wrong.

For clarity: if the guy had appealed on the basis of “my suppressor is not a firearm, so it’s not a felony for me to have it” then these judges would have thrown out his conviction because he’d be right.

But that’s not what he did. He said “my suppressor IS a firearm, and therefore protected by the 2A.” They didn’t agree with his defense, he used the wrong argument, and since they agree that a suppressor is not a firearm they denied his appeal.

That’s exactly what I’m talking about. These judges have just pointed out that the emperor has no clothes.

Sure would be nice for us all to get a refund of that $200 tax stamp we all paid because suppressors aren’t and never were “firearms”.

I still don’t get your beef.

The judges ruled that it wasn’t a firearm, and therefore not protected by the 2nd Amendment. Is that the part you’re mad about? Because it isn’t a firearm and it was a stupid-ass ATF that decided to call it a firearm decades ago just so they could regulate it. But it isn’t a firearm, and it doesn’t fall under the ATF’s jurisdiction, so they should be removed from the Gun Control Act and everybody should be able to buy them at CVS and Amazon. That would be the win. And that’s what the 5th has paved the way for.

Sucks for that guy, because he botched his own case by claiming that it WAS a firearm and therefore protected under the 2nd Amendment. It isn’t, so it isn’t. A suppressor is to a firearm as a tripod is to a camera. The tripod isn’t a camera, no matter what some dumbass agency says. It isn’t, it never was, and the correct ruling is what these judges came up with.

These are quality judges who exhibit common sense and are just trying to rip down the wall of bull**** the ATF has built for themselves. Now we have a circuit split and a judge ruling that at least part of the GCA is dead. Maybe the Supremes will have to settle it.

Well at least a few people noticed the actual interesting bits of this case.

It would be nice if people actually read the documents
“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. ”
“while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not.”
These are bad, no good, communist judges. They were not doing us any favors. They were pissing on the document they were sworn to protect.

So basically, the fifth did the guy a favor by ruling the suppressor he was convicted for (in part) is not a firearm.

So I don’t understand why you want to impeach the 5th judges here. They did us all a favor by ruling a ‘suppressor’ is not a firearm.