Reported / Citable
Background
After Brennan Comeaux was arrested for unlawfully discharging a firearm, Louisiana sheriff’s deputies executed a search warrant on his residence and seized multiple firearms, suspected silencers, and related paraphernalia. ATF confirmed the devices qualified as silencers, and Comeaux admitted to an agent that he had manufactured and possessed them. A federal grand jury charged him with possessing unregistered firearms under 26 U.S.C. § 5861(d) and possessing firearms without serial numbers under § 5861(i), with the silencers listed as the “firearms” in both counts.
Comeaux moved to dismiss the indictment, arguing that § 5861(d) violated the Second Amendment both facially and as applied to him. The Western District of Louisiana denied the motion, reasoning that silencers are “dangerous and unusual weapons” outside Second Amendment protection. Comeaux then entered a conditional guilty plea preserving his constitutional challenge for appeal. The district court sentenced him to 24 months in prison and three years of supervised release.
While the appeal was pending, a separate Fifth Circuit panel decided United States v. Peterson, 161 F.4th 331 (5th Cir. 2025), cert. denied, 224 L. Ed. 2d 501 (2026), which upheld a § 5861(d) conviction on the ground that the NFA’s shall-issue registration regime is presumptively constitutional and does not burden a defendant’s Second Amendment rights unless the regime has been put to “abusive ends” through exorbitant fees or unreasonable processing delays.
The Court’s Holding
The Fifth Circuit affirmed the conviction. Writing for the panel, Judge Smith first resolved a question left open in Peterson: silencers are Second Amendment “Arms.” Applying Heller‘s definition — anything a person “takes into his hands, or useth in wrath to cast at or strike another” — the court reasoned that silencers facilitate armed self-defense by reducing noise, recoil, and muzzle blast while improving accuracy, making firearms safer and more effective for their core lawful purpose. The court rejected the government’s argument that silencers must be necessary to a firearm’s function or tied to militia service at the Founding, noting that Bruen requires only that an item “facilitate armed self-defense.”
Despite that conclusion, the court held that Comeaux’s challenge failed at Step 1 of the Bruen analysis under the rule of orderliness, because Peterson controls. Under Peterson, the NFA’s shall-issue silencer-registration regime is presumptively lawful and does not implicate the Second Amendment unless a challenger demonstrates the system has been put to abusive ends — through exorbitant fees or excessive processing delays. Comeaux made no such showing; he argued only that he wished to possess silencers for lawful self-defense but never alleged the NFA denied him that right in practice. Accordingly, § 5861(d) did not burden his Second Amendment rights and his conviction stood.
Judges Clement and Duncan concurred in the judgment but separately criticized Peterson‘s framework. Judge Clement argued that Peterson misread Bruen footnote nine — which merely clarified that shall-issue regimes are not automatically unconstitutional because may-issue regimes are — and improperly transformed that dictum into a freestanding presumption of constitutionality. She contended this “half-step” between Bruen‘s Step 1 and Step 2 effectively resurrects interest-balancing and forecloses the historical inquiry Bruen requires, urging the en banc court to recalibrate the circuit’s Second Amendment jurisprudence.
Key Takeaways
- The Fifth Circuit expressly holds that silencers are Second Amendment “Arms” because they facilitate armed self-defense — a question Peterson had left open — rejecting any requirement that a device be necessary to a firearm’s function or historically tied to militia use.
- Under binding circuit precedent (Peterson), the NFA’s shall-issue registration regime for silencers is presumptively constitutional; a challenger must affirmatively show the regime has been put to abusive ends (e.g., exorbitant fees or unreasonable wait times) to proceed to Bruen Step 2 — a showing Comeaux did not make.
- A two-judge concurrence signals significant internal tension: Judges Clement and Duncan view Peterson‘s presumption as incompatible with Bruen‘s text-and-history methodology and call for en banc reconsideration.
- Facial challenges to § 5861(d) remain foreclosed so long as any application of the statute is valid, as affirmed in Peterson.
Why It Matters
This decision is the Fifth Circuit’s clearest statement to date that silencers enjoy Second Amendment protection as “Arms,” which carries implications beyond the NFA context — potentially affecting regulations on other firearm accessories and modifications. At the same time, by affirming the Peterson presumption, the court insulates the NFA’s registration framework from as-applied challenges unless defendants can document concrete, systemic failures in the application process itself.
The concurrence’s pointed call for en banc review, echoing a dissent from the Fourth Circuit and a concurrence within the Fifth, signals that the circuit’s approach to shall-issue licensing under Bruen remains unsettled. If the Fifth Circuit revisits Peterson en banc — or if the Supreme Court addresses the shall-issue question directly — the NFA’s registration requirements for silencers and potentially other NFA-regulated items could face a more demanding constitutional test.