The federal government has spent 92 years telling Americans they must submit fingerprints, photographs, and an ATF application to possess a suppressor — and wait up to a year for permission. On June 18, the Fifth Circuit Court of Appeals ruled that a suppressor is a constitutionally protected arm under the Second Amendment. Fifteen days earlier, the Ninth Circuit ruled it is not. Both courts upheld the same criminal conviction. The contradiction is now a formal circuit split.
Writing for a unanimous three-judge panel in United States v. Comeaux (No. 24-30307, June 18, 2026), Judge Jerry E. Smith — a Reagan appointee — ruled that suppressors reduce hearing damage, recoil, and muzzle blast, making firearms safer and more effective for self-defense. Under Bruen and Heller, an arm need not be necessary to a firearm’s operation. It must only facilitate armed self-defense. Suppressors do. “They are,” Smith wrote.
The Ninth Circuit reached the opposite conclusion June 3 in United States v. DeBorba (No. 24-3304). That panel called suppressors optional accessories — like slings and scopes — and ruled that because a gun fires without one, it falls outside the Second Amendment’s plain text. The defendant was an illegal alien with multiple domestic violence restraining orders who lied on federal firearms forms. Bad facts produced broad language that now controls in nine western states.
The government’s position in both cases exposed a contradiction it cannot resolve. Congress classified suppressors as “firearms” under 26 U.S.C. § 5845(a)(7) in 1934, subjecting them to the full weight of the National Firearms Act — registration, fingerprints, photographs, background checks, and ATF approval. The same government argued in court that suppressors are merely accessories carrying no constitutional protection. It demanded the regulatory burden of a firearm and the constitutional protection of a sling.
Neither ruling freed anyone. Both panels upheld convictions by applying a shall-issue presumption drawn from a footnote in Bruen — the NFA’s registration regime is treated as constitutional until a challenger proves it is being run abusively through excessive fees or unreasonable delays. Neither defendant made that showing. Two judges who concurred in Comeaux said the framework itself is the problem.
Judges Edith Brown Clement and Kyle Duncan wrote separately to say the shall-issue presumption contradicts Bruen directly. Bruen requires the government to justify any restriction on a protected arm through the nation’s historical tradition of firearm regulation. The presumption inverts that burden — it assumes the NFA valid and forces the citizen to prove abuse. That is interest-balancing. Bruen eliminated interest-balancing. The concurrence called for the full Fifth Circuit to correct the error.
The historical record gives that concurrence firm ground. The Second Amendment Foundation’s amicus brief in Peterson v. United States made the point with a Founding-era parallel: no state at the Founding banned muskets equipped with bayonets. A bayonet’s purpose is attachment to a firearm — the same function as a suppressor. Soldiers and citizens fitted them without registration, without a tax stamp, without federal approval. Americans also built and repaired firearms in home shops and smithies without government permission. The NFA was enacted in 1934 — 143 years after the Second Amendment. There is no Founding-era analog for requiring a citizen to submit fingerprints and a photograph to possess a device the Founders fashioned on a workbench.
Congress eliminated the $200 transfer tax for suppressors effective January 1, 2026, through the One Big Beautiful Bill (Pub. L. 119-21). The tax is gone. Every other NFA requirement remains: application, fingerprints, photograph, background check, CLEO notification, and ATF approval. Possession without registration is a federal felony carrying up to 10 years in prison and a $250,000 fine. Eight states — California, Delaware, Hawaii, Illinois, Massachusetts, New Jersey, New York, and Rhode Island — ban suppressor ownership outright, meaning residents there cannot enter the federal registration system even if they wanted to.
The Supreme Court has already been asked to resolve this. George Peterson petitioned for certiorari in Peterson v. United States (No. 25-1076) on March 9, 2026, backed by the SAF, NRA, and American Suppressor Association. The government did not file a response — the Solicitor General waived on March 30. The Court denied cert on April 20, six weeks before Comeaux created the circuit split. Sanchez v. Bonta, challenging California’s outright suppressor ban, is already argued before the Ninth Circuit and presents the question without the complicating facts that plagued both Comeaux and DeBorba.
The Court told lower courts in Heller and Bruen that the right to keep and bear arms is not a second-class right subject to government permission schemes lacking historical grounding. Whether that instruction covers suppressors now depends on geography. The circuit split, a pending clean vehicle in Sanchez, and a prior denial that predates the split give the justices every reason to take the question up.
Support Independent Local Journalism — High Country Advocate was created as a real alternative to regional media that too often silences dissenting voices while taking sides in the political struggle. Producing in-depth, unflinching reporting like this series and others is expensive: servers, editing, research time, and legal review all add up quickly. If these articles have informed you or given you new perspective, please consider supporting HCA with a paid subscription — every subscriber helps keep this reporting strong and independent. 