Silencers/Suppressors are in Common Use for Lawful Purposes

The number of legal suppressors or silencers in the United States shows they are in common use for lawful purposes.  As of January of 2023, the ATF shows there were over 3.1 million silencers or suppressors legally owned in the United States, for lawful purposes. In January of 2020, there were 1.8 million Over the last three years, the number of legal suppressors has increased by an average of 450,000 suppressors per year. By the end of 2023, it is reasonably expected there will be over 3.6 million suppressors in the United States of America. To own these suppressors, the owners have gone through a complicated and lengthy process, often taking a year or more to process their applications for tax stamps. The tax stamps are required by the federal government to legally purchase a silencer.

The Heller decision was the first in a series of Supreme Court decisions restoring  Second Amendment protections for the right to keep and bear arms.

From Heller, the only weapons allowed to be banned must be both dangerous and unusual. Weapons which are in common use can not be considered unusual.  Stephen Halbrook sums up the common use precedent from Heller:

In District of Columbia v. Heller (2008), the U.S. Supreme Court held that the Second Amendment protects “arms ‘in common use at the time’ for lawful purposes like self-defense” and arms that are “typically possessed by law-abiding citizens for lawful purposes.” Such arms are “chosen by American society,” not the government.

American society chooses what arms are in common use. The government does not do the choosing. By choosing to possess arms, the people choose what is in common use. It is the possession of the arms which determine whether they are in common use or not.  Possession of arms is a use of the arms. In Heller, the Supreme Court of the United States (SCOTUS) ruled:

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

In the Caetano decision, the Heller pronouncement was emphasized and magnified. When an arm was invented has nothing to do with whether it is protected under the Second Amendment. What matters is if the arm is in common use for lawful purposes. This was particularly emphasized by Justice Alito and Justice Thomas. From Caetano, concurrence by Justice Alito, joined with Justice Thomas:

The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.

This was the first time SCOTUS put a number on what is "common use".  200,000 items in possession in the United States of America may be considered high by some, but applies to many items. When legal suppressors were nearly banned by taxes of ten times the price of the item ($20 would buy most suppressors; the tax was/is $200), there were far fewer of them. In 2006, there were 150 thousand legally owned silencers in the USA.  Sometime between 2006 and 2011, the 200 thousand mark was passed. BATF records do not seem to be available from 2006 to 2010. In 2011, there were 285 thousand legal silencers.

The BATF and Biden administration's strategy is to claim silencers are not "arms", but are only an accessory. It is difficult to see how they can claim silencers are not "arms" but are very dangerous.

The Texas case, Paxton v. Richardson appears to be the most likely case to resolve this issue, at this time.  In the case, Texas Attorney General Paxton has argued the common use, Second Amendment case, as well as persuasive arguments against the use of taxation to attack rights protected by the Second Amendment.

The parties cross-motions for summary judgement in the case were heard by Judge Mark Pitmann on June 15, 2023.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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