The United States Court of Appeals for the Fifth Circuit has just done something genuinely important and genuinely frustrating in the same opinion. In United States v. Comeaux, No. 24-30307 (5th Cir. June 18, 2026), a three-judge panel held that suppressors are “Arms” within the plain text of the Second Amendment. That is the correct answer, and it matters. Yet the panel still affirmed Brennan Comeaux’s conviction under the National Firearms Act for possessing an unregistered silencer, because it considered itself bound by its own prior decision in United States v. Peterson. The result is a good holding shackled to a bad precedent.
The Holding That Got It Right
Under the Heller–Bruen method, you begin with the plain text. The right of the people to keep and bear “Arms” turns on what an “arm” is, and the answer is linguistic, drawn from founding-era usage. I have argued repeatedly that a suppressor is an arm because it is an instrument that facilitates armed self-defense. Judge Jerry E. Smith, writing for the panel, embraced that view almost word for word.
Our Peterson case left open the question whether silencers are Second Amendment arms. They are.
The court then catalogued exactly why. Silencers reduce loudness and the risk of hearing loss, lower recoil, eliminate muzzle blast, increase accuracy, and enable faster follow-up shots — functions that make a firearm safer and more effective for its core lawful purpose of self-defense. The government’s contrary argument, that silencers are not “necessary” to a gun’s operation and not tied to militia service, was correctly rejected. As the panel explained, Bruen requires only that an instrument “facilitate armed self-defense,” not that it be essential, and the Supreme Court has warned lower courts against the “trapped in amber” approach that would freeze the definition of “Arms” at whatever existed in 1791.
That last point deserves emphasis. The anti-gun bar treats the “not trapped in amber” language from Rahimi as a license for new regulation. It is the opposite. Heller protected modern handguns precisely because they came into common use, even though the founders theoretically could have addressed them. The right ratchets toward freedom. Suppressors did not exist at the founding; they exist now, they are in common use, and they are therefore protected arms.
Where the Panel Was Handcuffed
Having gotten the plain text exactly right, the panel ran straight into Peterson. In United States v. Peterson, 161 F.4th 331 (5th Cir. 2025), cert. denied (2026), a prior panel held that the NFA’s silencer registration scheme survives the Second Amendment. Under the Fifth Circuit’s “rule of orderliness,” one panel cannot overrule another; only the en banc court can. So the Comeaux panel followed Peterson and affirmed.
Under our court’s rule of orderliness, we are bound by Peterson, which requires a challenger to the NFA shall-issue silencer registration regime [to] show that the system has been put toward abusive ends through exorbitant fees or lengthy wait times in processing license applications.
Comeaux, like Peterson before him, did not rebut the presumption that the regime is lawful, so his challenge failed at Bruen step one.
The Error Buried Inside Peterson
Here is the core mistake, and it is not a close call. Peterson took Bruen’s footnote 9 — a passing observation that shall-issue licensing regimes are presumptively permissible — and treated it as a presumption of constitutionality. It then equated a licensing regime with a registration scheme and concluded that the NFA’s registration requirement is therefore fine. Registration is not licensing. The two are different in kind.
Then-Judge Brett Kavanaugh explained the distinction in his dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). A licensing regime confirms that a person is competent and not prohibited. A registration scheme links a named owner to a specific firearm by serial number — the precise government recordkeeping the founders feared because it is the predicate for confiscation. Footnote 9 said nothing approving registration, and it did not relieve the government of its burden to prove a historical tradition. Peterson conflated the two and got the result backward.
Why I Expect Peterson to Fall
The most encouraging part of Comeaux is the concurrence. Judge Edith Brown Clement, joined by Judge Stuart Kyle Duncan, wrote separately to say plainly that Peterson should be revisited.
I write separately to address a problem with our decision in United States v. Peterson, which held that Bruen imposes a presumption of constitutionality for shall-issue licensing regimes. I join Judge Richardson of the Fourth Circuit in concluding that such a reading overextends Bruen’s dictum in footnote 9 and in turn flips the two-step analytical method on its head.
That is correct, and it is why Comeaux lost a case he should have won. Peterson is binding on every Fifth Circuit panel until the en banc court overrules it, which I believe it will. The panel now agrees suppressors are arms. Two judges have flagged the registration error in writing. The handwriting is on the wall. We will win the suppressor fight, one step at a time, and the Supreme Court is where it ends.
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.