Some Gun Parts Are Not Protected by Second Amendment: Appeals Court

A gun collector looks at guns in EJB's Gun Shop in Capitol Heights, Md., on March 14, 2023. Andrew Caballero-Reynolds/AFP via Getty Images

Some gun parts are not covered by the U.S. Constitution’s Second Amendment, a federal appeals court has decided.

“Possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not,” U.S. Circuit Judge Jennifer Walker Elrod said in the Feb. 6 opinion.

The U.S. Court of Appeals for the Fifth Circuit took up an appeal from a firearm dealer whose Louisiana home was searched by federal authorities. He was charged after authorities discovered an unregistered suppressor, also known as a silencer.

The dealer, George Peterson, filed motions to dismiss the case and/or suppress the evidence gathered, arguing the law to register suppressors violated gun owners’ Second Amendment rights. A federal judge in 2023 denied the motions, finding the law constitutional on the grounds that suppressors are merely accessories, not arms, so are not protected by the amendment.

Peterson in his appeal to the Fifth Circuit said that suppressors are “an integral part of a firearm” in urging the court to overturn the lower court ruling because they’re used to “‘cast ... or strike’ a bullet at another person.”

“Silencers receive the explicit protection of the Second Amendment because they constitute ‘arms’ (or accessories to arms),” he said through his lawyers. “And even if they did not, silencers would still fall within the scope of the Second Amendment’s implicit guarantee because their use is indispensable to exercise of the core second Amendment right, i.e., the use of a gun for self- defense in the home.”

They pointed to a U.S. Supreme Court ruling called Heller that found the arms referenced in the Second Amendment referred to “weapons of offence, or armour of defence.”

Judges on the appeals court disagreed.

“A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense. And unless a suppressor itself is thrown (which, of course, is not how firearms work), it cannot do any casting or striking,” Elrod said, referring to a separate decision in which a judge wrote that a suppressor “could be thrown at someone like a shoe or a baseball, which, most would agree, are not arms protected by the Second Amendment.”

Elrod noted that in Heller, the Supreme Court said that Second Amendment protection is not unlimited and that the nation’s top court interpreted arms as weapons.

The ruling is the first in the Fifth Circuit to tackle the issue, but Elrod noted the decision was in alignment with the U.S. Court of Appeals for the 10th Circuit, which has previously concluded that a suppressor is a firearm accessory versus a weapon.