LA: District Court Judge finds Silencers are not Protected by Second Amendment

On September 7, 2023, Brennan Comeaux was arrested for the possession of unregistered silencers without serial numbers.  He was appointed a federal defender in Louisiana, in the United States District Court for the Western District of Louisiana. Louisiana is in the Fifth Circuit Court of Appeals.

On December 20, 2023, a motion to dismiss was filed by Comeaux's attorney. From the Motion to Dismiss:

By indictment, the government accuses Brennan Comeaux of possessing unregistered firearms in violation of 26 U.S.C. § 5861(d) (Count One) and receiving and possessing firearms unidentified by serial number in violation of 26 U.S.C. § 5861(i). ECF 1. Specifically, the government alleges that Mr. Comeaux built his own firearm suppressors, five in total, and did not register them or identify them by serial number as required by federal law. Mr. Comeaux is not a prohibited person prevented from possessing firearms under federal or state law.

Mr. Comeaux alleges that these statutes violate the Second Amendment on their face and as applied to him as that right has been interpreted by the United States Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (June 23, 2022).

The argument put forward is simple: the requirement to register arms and the requirement for arms to have serial numbers is a late comer to American jurisprudence, only occurring after 1911, far too late to be considered as a longstanding and accepted law within the right to keep and bear arms.

The Biden administration countered with three arguments.

1. Silencers are accessories, not "arms" protected by the Second Amendment.

2. There is a history of regulating "dangerous and unusual" weapons. Silencers are "dangerously unusual".

3. There is a historical tradition of regulation of commerce in firearms.  Therefore silencers can be regulated with serial numbers and registration.

From the government brief:

 In short, under Heller, even assuming that silencers are “arms,” within the meaning of the Second Amendment, they remain unusually dangerous and thus fall permissibly within this nation’s historical tradition of regulation.

On January 10, by United State District Judge David C. Joseph filed a memorandum which found for the Biden administration:

The government urges the Court to deny the Motion for two reasons. First, it argues that firearm silencers are not an “arms” within the meaning of the Second Amendment and therefore are not protected by it. [Doc. 27]. Second, the government argues that even if protected by the Second Amendment, the regulation of firearm silencers is “well in line with two historical traditions in this country: first, the historical tradition of regulating dangerous and unusual weapons and, second, the historical tradition of regulating commerce in firearms.” Id. at p. 4. Determining that firearm silencers qualify as “dangerous and unusual weapons” based on their historical use and function, the Court need not address the government’s other arguments.1

Analysis:

Judge Joseph ignores Bruen in making his decision. He cites no evidence of a historical requirement for serial numbers or for firearms registration before 1911. This is far too late to be applicable under Bruen. He cites various governmental entities and individuals as claiming machine guns, short barreled shotguns and silencers as being "not typically used for lawful purposes", claiming the lack of serial numbers and registration is what makes them not typical. He ignores the lack of any historical statute requiring registration and serial numbers.

All weapons are "dangerous". The government purposely seeks to confuse the issue by using three separate phrases interchangeably: "dangerous and unusual" (as used in Heller); "dangerous or unusual", not used in the Supreme Court decisions; and "dangerously unusual", not used in any Supreme Court decisions.

Neither the Biden administration nor the Judge attempt to explain a standard for what is in common use. The judge hides behind the requirement for registration and serialization, without finding any historical evidence in the law to show these practices were commonly accepted at any time before 1911, long after the Second Amendment was ratified. The Fourteenth Amendment does not apply because this is a federal law, not a state law. To claim the over three million silencers in lawful use do not count, because the federal government requires registration and serial numbers, begs the question.

Stun guns, with perhaps a couple of hundred thousand in use in the United States, were found to be "in common use" in the Supreme Court decision in Caetano. This correspondent did not see the Caetano decision cited in this case.

If weapons can be regulated because the government says they are "dangerous and unusual" there is no stopping point to prevent the government from regulating them out of existence.

Grounds for an appeal exist. It is not known what type of plea deal may be offered to Mr. Comeaux.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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