Key Takeaways
- The Fifth Circuit ruled that silencers qualify as ‘arms’ protected by the Second Amendment, while the Ninth Circuit disagreed.
- This split creates a significant circuit disagreement, potentially beneficial for suppressor owners.
- The Fifth Circuit emphasized that if a device aids self-defense, it qualifies as an arm, while the Ninth Circuit viewed silencers as optional accessories.
- Both cases upheld convictions due to non-ideal test circumstances, illustrating the complexities of the registration process.
- The split may encourage the Supreme Court to address the definition of suppressors and their status under the Second Amendment.
Estimated reading time: 4 minutes
NEW ORLEANS, LA — Two federal appeals courts just looked at the same question weeks apart and gave opposite answers. The question was simple. Is a silencer an “arm” the Second Amendment protects?
On June 18, the Fifth Circuit said yes. On June 3, the Ninth Circuit said no. That disagreement is now a real circuit split, and it may be the best thing to happen to suppressor owners in years.
I covered the Ninth Circuit loss earlier this month in United States v. DeBorba. Now the Fifth Circuit has answered back.
Start with the win. In United States v. Comeaux, a three-judge Fifth Circuit panel ruled that silencers are protected “Arms.” Brennan James Comeaux had been convicted of possessing an unregistered silencer under the National Firearms Act after deputies searched his home and he admitted making the devices. He challenged the charge on Second Amendment grounds.
Earlier rulings had ducked the core question, assuming silencers might be arms without deciding it. Judge Jerry E. Smith decided it. “They are,” he wrote.
His reasoning tracks the Constitution. Silencers cut noise and recoil, reduce muzzle blast, and improve accuracy and follow-up shots. Those functions make a gun safer and more effective for lawful self-defense. Because a silencer facilitates armed self-defense, it falls within the plain text of the Second Amendment. The government’s argument that a silencer is not necessary to fire a gun did not move the court. Under Bruen, an arm does not have to be necessary. It only has to facilitate self-defense.
Now compare that to the Ninth Circuit. In DeBorba, the same kind of NFA charge produced the opposite holding. That panel called silencers “optional accessories,” lumped them in with slings and scopes, and ruled they are not arms because a gun fires without one. Same statute, same Supreme Court precedent, completely different result.
This is the heart of the split. The Fifth Circuit asks whether a device facilitates self-defense. The Ninth Circuit asks whether a device is strictly necessary to make a gun go bang. One test protects the modern tools gun owners actually use. The other lets a court carve away any feature it decides is optional, and there is no obvious stopping point once scopes and sights are on the table.
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Here is the frustrating part the two cases share. Both men still lost, and both courts leaned on the same crutch to get there. Under the shall-issue theory borrowed from a single Bruen footnote, the NFA’s registration scheme is treated as presumptively lawful unless a challenger proves it is being abused through things like excessive fees or long delays. Neither defendant made that showing. Both panels also noted that the old $200 making tax dropped to zero on January 1, 2026, which knocked out any argument that the fee was excessive.
So even the court that got the arms question right still upheld the conviction. That tells you the registration fight and the arms fight are two separate battles.
There is a reason the Comeaux concurrence is worth reading. Judge Edith Brown Clement, joined by Judge Kyle Duncan, wrote separately to say the Fifth Circuit’s own shall-issue rule was wrongly decided. She argued it stretched that lone Bruen footnote into a doctrine that flips the proper analysis and revives the interest-balancing the Supreme Court threw out. She called for the full court to revisit it. That is the Fifth Circuit signaling its own discomfort with the half-measure.
I will be honest about how we got here. Neither Comeaux nor DeBorba was the ideal test case. DeBorba in particular was about the worst possible vehicle, an illegal alien who lied about citizenship on gun forms and was under a domestic violence order. Bad facts invite bad law, and the Ninth Circuit took the bait. But the silver lining is undeniable. We now have two circuits openly disagreeing on whether suppressors are arms, and a clean split is one of the strongest reasons the Supreme Court agrees to take a case.
I will keep tracking both rulings, the push for en banc review in the Fifth Circuit, and whether this split carries the question all the way to the Supreme Court.
