DOJ Lawyer Argues Suppressors are Not Protected Arms Then Reverses Course

Under Pam Bondi’s leadership, the Department of Justice (“DOJ”) was supposed to take a hard look at cases that might have affected an American’s Second Amendment rights. Now, in a recent case out of Texas, the DOJ argued that the Second Amendment does not protect suppressors.

The United States v. George Peterson case caused an uproar in the Second Amendment community when a three-judge panel from the United States Court of Appeals for the Fifth Circuit declared that silencers are not protected arms.

This ruling flies in the face of the federal statute dealing with the hearing-saving device. Under both the National Firearms Act (“NFA”) and the Gun Control Act (“GCA”), the government has declared suppressors to be “arms.” If suppressors were not firearms, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) should not be regulating them.

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The three-judge panel’s decision led the defense to ask for an en banc hearing. An en banc hearing means the entire bench hears the case. The panel’s decision would be vacated like it never happened. Many hoped that, with President Trump’s executive order on Second Amendment cases, the DOJ would not object to an en banc hearing. Initially, that wasn’t the case. Acting United States Attorney Michael Simpson filed a motion asking the court to deny the en banc hearing on Monday. A request that wouldn’t last the week.

Simpson was made acting United States Attorney on February 25, 2025, a month after Trump took office and Bondi took over the running of the DOJ. He was made First Assistant United States Attorney in 2018 under Trump’s last term. Simpson has been with the DOJ since George W. Bush was president, so this isn’t a case of a Biden holdover doing the bidding of his former boss.

The acting United States Attorney argued that the Second Amendment does not protect suppressors. The government claims that the right to bear arms only applies to bearable arms such as a gun.

Simpson made a similar argument to the Fifth Circuit three-judge panel. He stated that suppressors by themselves are not weapons. Many other accessories, such as magazines, are considered protected arms outside the Ninth Circuit Court of Appeals. The argument is made that magazines are needed for a firearm to function, but a gun will work without a suppressor, and he claimed that makes all the difference in the case.

Simpson claimed that the only cases referenced by Peterson’s attorneys are Heller and Bruen. He claims these cases have no bearing on the case since suppressors are not protected. If they believe suppressors are protected arms, those cases could be highly effective tools for Peterson. Heller says arms in common use cannot be banned. With millions of hearing safety devices in circulation, they are undoubtedly in common use. The government would also have difficulty finding historical analogues from the founding era to satisfy step two of a Bruen test.

Simpson argued that if suppressors are considered protected arms, then “a pillow or a plastic soda bottle” taped to the end of a gun must also be deemed to be protected by the Second Amendment. The problem with his argument is that suppressors work. Pillows and soda bottles that dampen sound only work in Hollywood movies. Simpson was either intellectually dishonest or misinformed.

The brief reads: “Rather, it is Peterson’s proposed test that would contravene the Supreme Court’s Second Amendment jurisprudence. A pillow or a plastic soda bottle taped to the barrel of a firearm can also reduce the noise from the discharge of a bullet. Do these items, too, become weapons when attached to a gun and therefore gain constitutional protection? And, of course, not all suppressors are created equal. If a suppressor is protected by the Second Amendment because it is a useful attachment, how much noise does it need to reduce before it becomes useful enough? How does a Court measure a suppressor’s utility against Congress’s reasons for imposing a regulation? Does a suppressor need to effect greater noise reduction for less onerous regulation?”

Simpson also argued that it wouldn’t have mattered even if suppressors were found to be protected by the Second Amendment. He stated that the NFA is constitutional. Simpson stated the background check required by the NFA is presumptively constitutional. He seemed to be referencing “footnote 9” of Bruen. Some on the anti-gun side of the debate believe gives the okay for background checks.

After three days, the DOJ reversed course and asked for 30 days pause so it can reevaluate its stance. According to verified inside sources the White House nor the DOJ was aware that Simpson was going to file a brief arguing that suppressors are not protected arms under the Second Amendment. The White House and the DOJ were made aware of the brief by outside sources. Simpson stated that he is asking for a pause because of the Trump executive order.

After GOA & @gunfoundation broke the news that a Biden-era holdover acting U.S. Attorney argued that suppressors were NOT arms & were NOT protected by the Second Amendment, @thejusticedept is requesting 30 days to reconsider its anti-gun brief.

This is HUGE! https://t.co/edhoChRNSk

— Gun Owners of America (@GunOwners) March 20, 2025

If the brief is pulled, which is expected, the case will center on the constitutionality of the NFA if an en banc hearing is granted. This case will have an impact on other legal wrangling in the future. It could change the Second Amendment forever.

Whether the Fifth Circuit grants an en banc hearing remains to be seen. If an en banc hearing is not granted by the Appeals Court, Peterson can file for a writ of certiorari with the Supreme Court asking them to weigh in on the subject.

The quick action by the DOJ and the White House to pause the case is a good sign for gun owners. The argument that suppressors are not arms under the Second Amendment would have been accepted and celebrated by the Biden White House.

ASA General Counsel Michael Williams reacts to the exciting news of the DOJ’s request for a 30-day delay as it reconsiders its stance on suppressors and whether they qualify as arms protected by the Second Amendment. pic.twitter.com/3N89A45cDs

— American Suppressor (@AmSuppressor) March 20, 2025

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About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.