The National Rifle Association, American Suppressor Association, and Independence Institute are responding to last month’s decision by a three-judge panel on the Fifth Circuit Court of Appeals that could have far-reaching consequences for all gun owners if it remains in place. In their opinion, the panel upheld the conviction of a man named George Peterson for possessing an unregistered suppressor by claiming “the NFA’s shall-issue licensing regime is presumptively constitutional” under the text, history, and tradtion test laid out by the Supreme Court in Bruen.
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It’s true that the Supreme Court did say that “shall issue” licensing regimes for concealed carry permits were presumptively constitutional, but Bruen said nothing about shall issue licensing regimes for keeping arms. The Court also made sure to note that excessive wait times or exorbitant fees could render even “shall issue” regimes unconstitutional.
The Fifth Circuit panel dodged deciding whether or not the $200 tax imposed on the transfer of suppressors is exorbitant, or even if a tax on the purchase of an NFA item is akin to a licensing fee, even though the tax was explicitly meant to limit the number of Americans who would possess NFA items by creating a government-imposed financial barrier.
Instead, the panel concluded that since Peterson never registered his suppressor or paid the tax, “the record is therefore devoid of any facts indicating that the NFA has been ‘put toward abusive ends’ as applied to him.”
Peterson’s attorneys have requested an en banc review of the panel’s decision, and today the NRA, ASA, and Independence Institute filed an amicus brief in support of that request, arguing that the panel’s decision sets a “perilous precedent.”
By upholding registration requirements for suppressors while assuming they are protected arms, the logical extension of the decision is that the government may require the registration of all arms—and without needing to satisfy the Supreme Court’s test for Second Amendment challenges.The Supreme Court has repeatedly stated that its text-and-history test applies to all firearm regulations. The panel, however, made a series of errors that led it to the conclusion that the Supreme Court’s test does not apply to firearm registration laws. First, the panel concluded that regulations the Supreme Court has recognized as “presumptively lawful”are spared from the Court’s test. Next, the panel determined that shall issue carry licensing laws are “presumptively lawful.” Then, the court equated laws requiring the registration of individual arms with shall issue carry licensing laws, despite the regulations serving distinct purposes and being applied through different means. The result is that registration schemes are shielded from Second Amendment scrutiny.
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The brief goes on to argue that registration schemes “raise serious constitutional concerns,” noting that “history is replete with examples of firearm registration lists being used to confiscate weapons, and examples of confiscation leading to tyranny.”
Englishmen under King Charles II, Jews in the Weimar Republic, and citizens of the Third French Republic are only a few examples of people who suffered the consequences of firearm registration lists in the wrong hands. To shield such regulations from Second Amendment scrutiny, as the panel did, is perilous and contrary to the Supreme Court’s mandate that all firearm regulations be justified with historical regulations. The Court should grant the petition for rehearing en banc to rectify the injustice in this case and the troubling precedent it sets.
If the Fifth Circuit declines to do so Peterson can always take his appeal to the Supreme Court, but there’s no guarantee the Court will grant cert. Seeking an en banc review from what is arguably the most 2A-friendly appellate court in the country is a prudent step, and hopefully the Fifth Circuit will grant Peterson’s request for a review by the entirety of the appeals court. It will probably be a few more weeks before we learn what the appellate court will do with Peterson’s case, and we may see more amicus briefs filed in support of his in the coming days… as well as briefs from gun control arguments arguing that the panel’s decision should stand.
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Editor’s Note: Judges around the country are doing everything they can to ignore the Bruen decision or twist what it said.
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