The Ninth Circuit released its decision in United States v. João Ricardo DeBorba, No. 24-3304 (9th Cir. June 3, 2026), and the damage it inflicts on Second Amendment jurisprudence extends well beyond the defendant himself. This is not merely a loss in a case involving an unsympathetic criminal — it is a panel opinion that generated unnecessary, court-created precedent on suppressors, NFA registration, and the definition of “arms,” precedent that now casts a long shadow over Sanchez v. Bonta, No. 24-5566, the serious California suppressor-ban challenge argued before the Ninth Circuit in November 2025.
The Court’s Avoidable Error
DeBorba is an illegal alien who had been in the United States without legal status for roughly twenty-five years, lied about his immigration status to obtain a Washington state carry permit, was subject to a domestic violence restraining order with a credible threat finding, and was ultimately convicted on multiple firearms charges including possession of an unregistered suppressor in violation of the National Firearms Act, 26 U.S.C. §§ 5801–5872.
The Ninth Circuit could — and should — have resolved this case on one clean ground: DeBorba is not part of “the people” as that term is used in the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 580 (2008), defines “the people” as those who are “part of a national community or who have otherwise developed sufficient connections with this country to be considered part of that community.” An illegal alien, regardless of how long he evaded removal, has no plausible claim to membership in that community. The Second Amendment analysis should have ended at the threshold. Full stop.
Instead, the panel assumed for purposes of argument that DeBorba was arguably within “the people” and proceeded to conduct a full Bruen analysis — gifting the anti-Second Amendment movement several pages of circuit precedent it never had to earn.
Suppressors Are “Arms” Under Bruen’s Own Text
The panel’s conclusion that suppressors fall outside the Second Amendment’s plain text is in direct conflict with New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). Justice Thomas, writing for the Court, embraced Heller’s definition of “arms” as reaching instruments that facilitate armed self-defense. That language is categorical, not conditional. It does not limit the right to instruments necessary to armed self-defense; it covers instruments that facilitate it.
The Ninth Circuit’s test — whether an accessory is “necessary to the ordinary operation of the weapon” — imports a necessity requirement that Bruen does not recognize. The panel leaned on language from Duncan v. Bonta, No. 23-55805 (9th Cir. 2025), holding that “optional accessories to firearms such as gun slings, scopes, and … silencers fall outside of the Second Amendment’s plain text.” But that reasoning cannot survive honest engagement with Bruen.
A suppressor facilitates armed self-defense. It reduces muzzle blast and preserves the shooter’s hearing, allowing for more accurate follow-up shots. It facilitates training, which the Seventh Circuit recognized as a constitutionally protected activity in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), noting that the right to keep and bear arms is hollow without a corresponding right to develop proficiency. Under Bruen’s own definition, that is enough.
The NFA Registration Problem
The panel also upheld the NFA’s registration scheme as consistent with the historical tradition of firearms regulation, analogizing it to the shall-issue licensing regimes Bruen identified in footnote 9 as presumptively constitutional. That analogy is wrong as a matter of legal history and constitutional structure.
A licensing regime answers one question: is this person a prohibited person? It says nothing about which specific firearms he owns. A registration scheme answers a different question entirely: which specific arms does this specific person possess? That distinction is not semantic. As then-Judge Brett Kavanaugh argued in dissent in Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011), D.C.’s firearm registration requirement was constitutionally distinct from a licensing or permitting regime and lacked historical support. Kavanaugh’s analysis, written a decade before he joined the Supreme Court, tracks exactly the problem with the NFA’s registry: it compiles a government list linking individual owners to individual weapons, and that list has no founding-era analogue. Stephen P. Halbrook’s Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State” (2013) documents in granular detail the historical consequences of gun registration lists — a history the founding generation understood and feared, and that makes the absence of any founding-era registration tradition constitutionally significant.
What DeBorba Means for Sanchez v. Bonta
My deeper concern is what this decision does to Sanchez v. Bonta, the pending Ninth Circuit challenge to California’s comprehensive suppressor ban, argued by Peter A. Patterson of Cooper & Kirk on November 18, 2025. Kostas Moros of the Second Amendment Foundation flagged the collision on X, and the concern is well-founded. DeBorba was authored by a three-judge panel and reaffirms circuit precedent that suppressors are not arms. The Sanchez panel — Judges Jay Bybee, Kenneth Lee, and Ana de Alba — now confronts that precedent as a backdrop, despite the quality of the briefing and argument in that case.
This is the cascading cost of allowing a case with a catastrophically bad fact pattern to generate substantive Second Amendment rulings. The correct disposition of DeBorba was narrow, clean, and textually obvious. The panel chose otherwise, and the rest of us are left paying for it.
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.