Louisiana Judge Finds Silencers are NOT Protected by Second Amendment

On September 7, 2023, Brennan Comeaux was arrested for possessing unregistered silencers with out serial numbers. He was appointed a federal defender in Louisiana in the USA District Court docket for the Western District of Louisiana. Louisiana is within the Fifth Circuit Court docket of Appeals.

On December 20, 2023, a movement to dismiss was filed by Comeaux’s lawyer. From the Movement to Dismiss:

By indictment, the federal government accuses Brennan Comeaux of possessing unregistered firearms in violation of 26 U.S.C. § 5861(d) (Depend One) and receiving and possessing firearms unidentified by serial quantity in violation of 26 U.S.C. § 5861(i). ECF 1. Particularly, the federal government alleges that Mr. Comeaux constructed his personal firearm suppressors, 5 in whole, and didn’t register them or determine them by serial quantity as required by federal legislation. Mr. Comeaux just isn’t a prohibited particular person prevented from possessing firearms underneath federal or state legislation.

Mr. Comeaux alleges that these statutes violate the Second Modification on their face and as utilized to him as that proper has been interpreted by the USA Supreme Court docket in New York State Rifle & Pistol Affiliation, Inc. v. Bruen, 142 S. Ct. 2111 (June 23, 2022).

The argument put ahead is easy: the requirement to register arms and the requirement for arms to have serial numbers is a latecomer to American jurisprudence, solely occurring after 1911, far too late to be thought-about as a longstanding and accepted legislation inside the suitable to maintain and bear arms.

The Biden administration countered with three arguments.

Silencers are equipment, not “arms,” protected by the Second Modification.
There’s a historical past of regulating “harmful and strange” weapons. Silencers are “dangerously uncommon.”
There’s a historic custom of regulation of commerce in firearms.  Due to this fact, silencers might be regulated with serial numbers and registration.

From the federal government transient:

In brief, underneath Heller, even assuming that silencers are “arms,” inside the that means of the Second Modification, they continue to be unusually harmful and thus fall permissibly inside this nation’s historic custom of regulation.

On January 10, 2024, US District Choose David C. Joseph filed a memorandum that discovered for the Biden administration:

The federal government urges the Court docket to disclaim the Movement for 2 causes. First, it argues that firearm silencers will not be an “arms” inside the that means of the Second Modification and due to this fact will not be protected by it. [Doc. 27]. Second, the federal government argues that even when protected by the Second Modification, the regulation of firearm silencers is “properly consistent with two historic traditions on this nation: first, the historic custom of regulating harmful and strange weapons and, second, the historic custom of regulating commerce in firearms.” Id. at p. 4. Figuring out that firearm silencers qualify as “harmful and strange weapons” based mostly on their historic use and performance, the Court docket needn’t deal with the federal government’s different arguments.

Choose Joseph ignores Bruen when making his resolution. He cites no proof of a historic requirement for serial numbers or firearms registration earlier than 1911. That is far too late to be relevant underneath Bruen. He cites varied governmental entities and people as claiming machine weapons, short-barreled shotguns, and silencers as being “not sometimes used for lawful functions,” claiming the shortage of serial numbers and registration is what makes them not typical. He ignores the shortage of any historic statute requiring registration and serial numbers.

All weapons are “harmful”. The federal government purposely seeks to confuse the difficulty through the use of three separate phrases interchangeably: “harmful and strange” (as utilized in Heller); “harmful or uncommon,” not used within the Supreme Court docket choices; and “dangerously uncommon,” not utilized in any Supreme Court docket choices.

Neither the Biden administration nor the Choose tried to clarify a normal for what’s in widespread use. The choose hides behind the requirement for registration and serialization with out discovering any historic proof within the legislation to indicate these practices have been generally accepted at any time earlier than 1911, lengthy after the Second Modification was ratified. The Fourteenth Modification doesn’t apply as a result of it is a federal legislation, not a state legislation. To say that there are over three million silencers in lawful use doesn’t depend as a result of the federal authorities requires registration and serial numbers begs the query.

Stun weapons, with maybe a few hundred thousand in use in the USA, have been discovered to be “in widespread use” within the Supreme Court docket resolution in Caetano. This correspondent didn’t see the Caetano resolution cited on this case.

If weapons might be regulated as a result of the federal government says they’re “harmful and strange,” there isn’t a stopping level to stop the federal government from regulating them out of existence.

Grounds for an enchantment exist. It’s unknown what sort of plea deal could also be supplied to Mr. Comeaux.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a army officer, was on the College of Wisconsin Pistol Group for 4 years, and was first licensed to show firearms security in 1973. He taught the Arizona hid carry course for fifteen years till the aim of Constitutional Carry was attained. He has levels in meteorology and mining engineering, and retired from the Division of Protection after a 30 12 months profession in Military Analysis, Growth, Testing, and Analysis.