The United States Court of Appeals for the Fifth Circuit issued a stunning order today in United States v. Peterson, No. 24-30043: it has withdrawn the three-judge panel opinion published back in February 2025. That February opinion held that suppressors are not “arms” protected by the Second Amendment. It was wrong when it came out, I said so immediately, and now the court appears to agree. This almost never happens — and the fact that it’s happening without any accompanying en banc grant tells me exactly what is going on.
A Terrible Opinion Gets Pulled
The February 6, 2025 opinion in Peterson was written by Chief Judge Jennifer Walker Elrod, joined by Circuit Judges Higginbotham and Southwick. The panel held that a suppressor, standing alone, is not a “weapon” and therefore falls outside the Second Amendment’s protection of “arms.” I wrote about this extensively — including a piece for Bloomberg Law cataloguing the errors — because the reasoning was embarrassingly flawed.
The withdrawal order issued June 17, 2025, reads simply: “Pursuant to the court’s directive, the opinion in this case has been withdrawn.” That is it. No en banc grant. No reference to the full Fifth Circuit taking the case. Just the panel’s own work — vacated.
Here is why that framing matters. When a court of appeals takes a case en banc, the grant order almost always simultaneously withdraws the panel opinion. What we have here is different: a panel withdrawing its own opinion with no en banc language attached. My read is that the three-judge panel itself intends to rewrite and reissue a corrected opinion — they screwed it up, they know it, and they want to fix it. I think they are going to get it right.
The DOJ Pivot That Changed Everything
After the February ruling, George Peterson filed a petition for rehearing. Then came a critical development. The Trump administration’s initial filings basically maintained the Biden-era position: suppressors aren’t arms, the panel got it right. I urged people not to panic because Solicitor General D. John Sauer had not yet been confirmed, and Harmeet Dhillon, who would become Assistant Attorney General for Civil Rights, was also pending Senate confirmation. I predicted that once confirmed, the right people would reassess. That is exactly what happened.
After Sauer and Dhillon were confirmed — Dhillon on April 3, 2025, Sauer on April 4, 2025 — the Trump DOJ filed a supplemental brief reversing course, arguing that suppressors are protected arms under the Second Amendment. The brief laid out the practical case with force:
“Suppressors have several benefits to persons in exercising their Second Amendment rights. Most importantly, suppressors limit the noise caused by firearms, reducing a firearm’s audible muzzle blast by up to 30 dB. This noise reduction helps shooters avoid permanent hearing damage and facilitates communication with others when engaging in both civilian self-defense and public defense. Indeed, because of the hearing-related benefits of suppressors, the U.S. Marine Corps began issuing them in infantry units in 2020.”
The Marine Corps reference is smart advocacy. There are still plenty of law-and-order conservative judges shaped by military culture who respond to that grounding. If the Marines issue suppressors to protect warfighters in the field, it is very difficult for those judges to say a law-abiding American has no business using one.
Why Suppressors Are Arms Under the Second Amendment
Let me run through why the original opinion got it wrong, because these arguments will matter when the panel re-issues its decision.
Bruen is clear that the Second Amendment’s definition of “arms” covers “modern instruments that facilitate armed self-defense.” New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). A suppressor is an instrument that facilitates armed self-defense — the DOJ brief explains exactly how. That should be the end of the textual analysis.
Second, banning suppressors is not merely banning an “accessory.” It is banning an entire category of firearms capable of firing suppressed rounds. That analysis applies with equal force to magazine bans and other so-called accessory restrictions.
Third, the NFA’s $200 tax on suppressors is a targeted tax on a constitutional right. Under Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), and Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), taxes that single out constitutional rights are unconstitutional. Once a suppressor is recognized as a protected arm, that $200 tax stamp is constitutionally suspect on its face. In Peterson and in its amicus brief in Barnett v. Raoul, the challenge to Illinois’ rifle and magazine bans in the Seventh Circuit, the Trump DOJ has stated that a complete ban on suppressors would be unconstitutional.
Where This Heads Next
A legislative fix is also moving through Congress. The One Big Beautiful Bill, which passed the House as of this writing, includes Hearing Protection Act provisions that would remove suppressors from the NFA’s registration requirements. Even if that becomes law, it would not necessarily protect George Peterson — his offense occurred while the prior law was still in effect, a separate legal question. The Second Amendment argument in Peterson still has to be litigated to a conclusion.
The trend is unmistakably positive. The Trump DOJ is firmly on the right side of this question. The Fifth Circuit panel appears ready to correct its own error. The legislative track is moving in parallel. Every one of these steps is a brick in the foundation of restoring Second Amendment rights across this country.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.