Petition for Writ of Certiorari — David Schieferle, Petitioner v. United States
Supreme Court briefJul 29, 2024
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IN THE SUPREME COURT OF THE UNITED STATES
__________
DAVID SCHIEFERLE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent,
__________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
__________
PETITION FOR A WRIT OF CERTIORARI
__________
BJORN E. BRUNVAND
Brunvand & Wise Law Group
615 Turner Street
Clearwater, Florida 33756
Ph: (727) 446-7505
Email: bjorn@acquitter.com
Florida Bar No. 0831077
J. JERVIS WISE
Brunvand & Wise Law Group
615 Turner Street
Clearwater, Florida 33756
Ph: (727) 446-7505
Email: jervis@acquitter.com
Florida Bar No. 0019181
Counsel of Record for Petitioner
_________________________________________________
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QUESTIONS PRESENTED
I.
Whether items such as inline fuel filters and
firearms solvent traps, which might be able to
function to muffle or silence the report of a firearm,
can qualify as “firearms silencers” or “firearm
mufflers” under the National Firearms Act when the
items are not marketed as silencers and have not
actually been used to silence or muffle a firearm?
II.
Whether the Second Amendment prohibits any
laws that foreclose law-abiding citizens with ordinary
self-defense needs from possessing items that serve as
firearm mufflers or silencers?
ii
LIST OF PARTIES
The parties to the judgment from which review
is sought are the Petitioner and appellant in the lower
court, David Schieferle, and the Respondent and
appellee in the lower court, the United States of
America.
iii
TABLE OF CONTENTS
Page
Questions Presented ................................................... ii
List of Parties ............................................................. iii
Table of Contents ....................................................... iv
Table of Cited Authorities ........................................ vii
Opinion Below ............................................................. 1
Grounds for Jurisdiction............................................. 1
Constitutional and Statutory Provisions Involved .... 2
Statement of the Case ................................................ 4
Reasons for Granting the Petition ........................... 19
I.
THE QUESTION OF WHETHER
ITEMS SUCH AS INLINE FUEL
FILTERS OR FIREARMS SOLVENT
TRAPS, WHICH MAY BE ABLE TO
FUNCTION
AS
“FIREARM
SILENCERS,” CAN QUALIFY AS
“SILENCERS”
UNDER
THE
NATIONAL FIREARMS ACT WHEN
THE ITEMS ARE NOT MARKETED AS
SILENCERS
AND
HAVE
NOT
ACTUALLY BEEN USED TO SILENCE
OR MUFFLE A FIREARM? ................ 19
iv
A. The Importance of the Question
Presented ......................................... 21
B. The ATF has Wavered in its
Interpretation of What Constitutes a
“Firearm Muffler” or “Firearm
Silencer” and Lower Courts, in Turn,
Have Endorsed an Overly Expansive
Definition of the Terms.................... 23
C. The Lower Circuit Courts are Split in
their Interpretation of the NFA’s
“Firearm Muffler” and “Firearm
Silencer” Definition.......................... 34
II.
THE QUESTION OF WHETHER THE
SECOND AMENDMENT PROHIBITS
ANY LAWS THAT FORECLOSE LAWABIDING
CITIZENS
WITH
ORDINARY SELF-DEFENSE NEEDS
FROM POSSESSING ITEMS THAT
CAN SERVE AS FIREARM MUFFLERS
OR SILENCERS? ................................. 44
A. The Question Presented is Likely to
Arise in Many Future Cases in the
Lower Courts................................... 47
B. The Historical Tradition of Legitimate
Silencer Use and the Steadily
Increasing
Number
of
Lawful
Silencers in Existence in the United
States Exemplify the Need for the
Court to Address the Question
Presented ......................................... 56
v
Conclusion ................................................................. 61
vi
TABLE OF CITED AUTHORITIES
Cases
Page(s)
Caetano v. Massachusetts,
577 U.S. 411, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016)
................................................................................... 48
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)
................................................................................... 30
Cox v. United States,
No. CR11-00022RJB, 2023 WL 4203261 (D. Alaska
Jun. 27, 2023) ............................................................ 53
District of Columbia v. Heller,
554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637
(2008) .................................................................... 45-53
Loper Bright Enterprises v. Raimondo,
144 S.Ct. 2244, 2024 WL 3208360 (Jun. 28, 2024)
.............................................................................. 29-30
vii
TABLE OF CITED AUTHORITIES (Cont.)
Cases (Cont.)
Page(s)
New York State Rifle & Pistol Association, Inc. v.
Bruen,
597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022)
........................................................................ 18, 44-54
Staples v. United States,
511 U.S. 600, 114 S.Ct. 1793, 1804, 128 L.Ed.2d
608 (1994) .................................................................. 21
United States v. Schieferle, --- Fed.Appx. ----,
2024 WL 1905326, No. 23-11792 (11th Cir. May 1,
2024) ............................................................................ 1
United States v. Comeaux,
No. 6:23-CR-00183, 2024 WL 115929 (W.D. La.
Jan. 10, 2024) ............................................................ 54
United States v. Cooperman,
No. 22-CR-146, 2023 WL 4762710 (N.D. Illinois
Jul. 26, 2023) ........................................................ 53-54
viii
TABLE OF CITED AUTHORITIES (Cont.)
Cases (Cont.)
Page(s)
United States v. Cox,
906 F.3d 1170 (10th Cir. 2018) ....................... 52-54
United States v. Crooker,
608 F.3d 94 (1st Cir. 2010).............................. 34-40
United States v. DeFelice,
No. 3:23-CR-116-OAW, 2024 WL 3028425 (D.
Conn. Jun. 17, 2024) ................................................. 54
United States v. Hall,
171 F.3d 1133 (8th Cir. 1999) .............................. 36
United States v. Hay,
46 F.4th 746 (8th Cir. 2022) ................ 26-29, 39-40
United States v. Lanier,
520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432
(1997) .................................................................... 38-39
ix
TABLE OF CITED AUTHORITIES (Cont.)
Cases (Cont.)
Page(s)
United States v. Lightner,
No. 8:24-CR-21-WFJ-CPT, 2024 WL 2882237,
(M.D. Fla. Jun. 7, 2024) ............................................ 54
United States v. Miller,
307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).
................................................................................... 53
United States v. Moore,
253 F.3d 607 (11th Cir. 2001) .............................. 21
United States v. Peterson,
No. 22-cr-231, 2023 WL 5383664 (E.D. La. Aug. 21,
2023) .......................................................................... 54
United States v. Rahimi,
602 U.S. ---, 144 S.Ct. 1889 (Jun. 21, 2024) ... 47-52
United States v. Saleem,
--- F.Supp.3d ----, 2023 WL 2334417 (W.D. N.C.
Mar. 2, 2023) .................................................. 53-54, 57
x
TABLE OF CITED AUTHORITIES (Cont.)
Cases (Cont.)
Page(s)
United States v. Villalobos,
No. 3:19-cr-00040-DCN, 023 WL 3044770 (D. Idaho
Apr. 21, 2023) ............................................................ 53
Constitutional Provisions
U.S. CONST. amend. II .............................. 16-18, 44-60
Statutes and Rules
18 U.S.C. § 2 ................................................................ 9
18 U.S.C. § 921 ................................ 6, 21-22, 41-42, 55
18 U.S.C. § 922 ................................................... 8-9, 21
26 U.S.C. §§ 5801, et. seq ......................................... 21
26 U.S.C. § 5811 ........................................................ 57
26 U.S.C. § 5812 ........................................................ 57
26 U.S.C. § 5821 ........................................................ 57
xi
TABLE OF CITED AUTHORITIES (Cont.)
Statutes and Rules (Cont.)
Page(s)
26 U.S.C. § 5822. ....................................................... 57
26 U.S.C. § 5845 ........................................................ 38
26 U.S.C. § 5861 .................................................... 9, 21
28 U.S.C. § 1254 .......................................................... 1
SUP. CT. R. 10 ...................................................... 41, 60
xii
OPINION BELOW
The United States Court of Appeals for the
Eleventh Circuit affirmed the judgment of the district
court in an unpublished opinion, United States v.
Schieferle, No. 23-11792, 2024 WL 1905326, (11th Cir.
May 1, 2024), which is attached hereto as Appendix A.
GROUNDS FOR JURISDICTION
The Eleventh Circuit issued its panel opinion
on May 1, 2024. Petitioner seeks the jurisdiction of
this Court pursuant to 28 U.S.C. § 1254(1) through the
filing of the instant petition for a writ of certiorari.
1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. CONST. amend. II
A well regulated Militia, being necessary
to the security of a free State, the right of
the people to keep and bear Arms, shall
not be infringed.
18 U.S.C. 922(l):
(l) Except as provided in section 925(d) of
this chapter, it shall be unlawful for any
person knowingly to import or bring into
the United States or any possession
thereof any firearm or ammunition; and
it shall be unlawful for any person
knowingly to receive any firearm or
ammunition which has been imported or
brought into the United States or any
possession thereof in violation of the
provisions of this chapter.
18 U.S.C. § 921(a)(3):
(A) any weapon (including a starter gun)
which will or is designed to or may
readily be converted to expel a projectile
by the action of an explosive; (B) the
frame or receiver of any such weapon; (C)
any firearm muffler or firearm silencer;
or (D) any destructive device. Such term
does not include an antique firearm.
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED (Cont.)
18 U.S.C. § 921(a)(25):
The terms “firearm silencer” and
“firearm muffler” mean any device for
silencing, muffling, or diminishing the
report of a portable firearm, including
any combination of parts, designed or
redesigned, and intended for use in
assembling or fabricating a firearm
silencer or firearm muffler, and any part
intended only for use in such assembly or
fabrication.
3
STATEMENT OF THE CASE
Petitioner David Schieferle was convicted of
alleged offenses arising from his possession of items
that purportedly qualified as “firearms silencers”
under the National Firearms Act. Mr. Schieferle had
no prior criminal history. He served in the United
States Army Reserves and as a police officer before
serving as a senior federal air marshal for the 20 years
prior to his arrest. (Doc. 162 at 49.) The charges he
faced arose from his online orders of inline fuel filters,
some of which could also serve as firearms cleaning
solvent traps, but which also purportedly could be
converted to serve as firearms silencers. (Doc. 162164.)
The pertinent facts began when Customs and
Border Patrol officers at Chicago International
Airport detained two packages that were flagged for
inspection on or about November 24, 2020. (Doc. 162
4
at 12, 15-16, 33, 77.) The packages were mailed from
an address in China and listed David Schieferle as the
intended recipient. (Doc. 162 at 19.)
The first package contained ten items that the
Government later purported to be silencers. (Doc. 162
at 16.) The packaging described the items contained
therein as “003 WI X2403 solvent.” (Doc. 162 at 1920.) The items that were alleged to be silencers were
described as metal cylinders with an inner chamber,
O ring, and an end cap. (Doc. 162 at 21.) The end caps
had a center marking that an agent purported to have
been for the purposes of providing a point to drill
through in order, allegedly, for a projectile to pass
through. (Doc. 162 at 38.)
Two of the ten items
contained “monocore” or “monolithic” baffles on the
interior that already bore holes in their centers. (Doc.
162 at 40.)
The second package contained two items
5
purported to be silencers. (Doc. 162 at 29, 39.) The
package described its content as adaptors. (Doc. 162
at 46.) The items contained inside were described as
barrel cylinders with an end cap and “capsules” on the
inside. (Doc. 162 at 30.)
The items all contained
dimples on the end caps but not holes. (Doc. 162 at 79.)
On December 17, 2020, law enforcement sought
a search warrant for Mr. Schieferle’s home based its
belief that the items contained in the two packages
were firearm silencers. (Doc. 162 at 48.) The affidavit
submitted in support of the requested search warrant
opined “I believe the combination of parts contained in
the packages that are the subject of this investigation,
discussed below, were designed and intended for use
in assembling or fabricating a firearm silencer as
defined in 18 U.S.C. § 921(a)(24)...” (Doc. 38-1 at 7.) A
Magistrate Judge went on to issue a search warrant
for Mr. Schieferle’s residence. (Doc. 38-1 at 19-24.)
6
Mr. Schieferle’s residence was located on a farm
in south Florida. (Doc. 162 at 78.) Present on the
property were tractors, motorized equipment, and fuel
storage tanks. (Doc. 162 at 79.)
Mr. Schieferle’s
property also contained several large shipping
containers that held numerous items that had no
relation to the instant case. (Doc. 162 at 50-52.) The
search of the property revealed that Mr. Schieferle
appeared to order, receive, and store numerous
random items from online retailers such as Amazon.
(Doc. 162 at 77-78.)
Various legal firearms and firearms-related
items were found on Mr. Schieferle’s property. (Doc.
162 at 49-65, 76.) Those firearms were not seized.
(Doc. 162 at 65.) The firearms were secured in safes
in the home. (Doc. 162 at 80-82.)
In addition to
firearms, air rifles were also in the home. (Doc. 162 at
67.)
7
An item purported at trial to be a “firearm
silencer” was collected on a dining table. (Doc. 162 at
74.) It was described as “black in color, containing a
hollow tube with two end-caps, one which was
internally threaded and one with a marking in the
center, and it also had the internal parts such as the
baffles.” (Doc. 162 at 75.) The item was inside of a
closed box. (Doc. 162 at 82.) On the box the item was
contained in was written “solvent tube.” (Doc. 162 at
97.) The item did not contain a serial number or other
such identifying marking. (Doc. 162 at 97.)
No
firearms were present in the room where that box was
found. (Doc. 162 at 100.) The box was, on the contrary,
surrounded by numerous other boxes and various
items unrelated to firearms. (Doc. 109-7.)
On March 8, 2022, Mr. Schieferle was indicted
in the United States District Court for the Southern
District of Florida on two counts of Illegal Importation
8
of a Firearm or Ammunition pursuant to 18 U.S.C. §§
922(l) and 924(a)(1)(C) and one count of Possession of
an Unregistered Firearm pursuant to 26 U.S.C. §
5861(d) and 18 U.S.C. § 2. (Doc. 3.)
On August 26, 2022, Mr. Schieferle filed a
motion to suppress the fruits of the search of his home.
(Doc. 38.) The motion set out that the items that were
seized at the airport and the item that was contained
in the box at Mr. Schieferle’s home were oil filters and
inline filters that had a legal and legitimate use in
farm equipment for filtering out debris such as rust
and paint chips from farm fuel storage tanks that Mr.
Schieferle had on his farm. (Doc. 38 at 2.) To provide
an example of the nature of the items, Mr. Schieferle
cited an Amazon.com webpage. (Doc. 38 at 2.) The
motion further set that Mr. Schieferle legally
purchased the items at issue on internet websites.
(Doc. 38 at 2.)
9
Mr. Schieferle asserted in the motion that the
affidavit filed in support of the search warrant
application failed to establish probable cause for the
issuance of a warrant. (Doc. 38.) In support of that
position, Mr. Schieferle argued in detail that the
affidavit did not allege that something inherently
illegal, such as a controlled substance, was likely to be
found in the home. (Doc. 38 at 10.) On the contrary,
the affidavit proposed that the home may contain an
item that, in its present form, could be modified to
qualify as illegal contraband if it were to be so
modified without ATF approval. (Doc. 83 at 10.) The
motion included an affidavit from a firearms expert
who would later testify as trial and who opined that
“these solvent traps cannot serve as a silencer until
they are machined, cut and threaded to fit onto a
firearm.” (Doc. 38-2 at 4.)
10
The district court denied the motion to
suppress. (Doc. 160 at 2.)
The case then proceeded to a jury trial
beginning on December 5, 2022. (Doc. 161.)
At trial, the Government presented as an
expert witness a firearms enforcement officer for the
Bureau of Alcohol, Tobacco, Firearms and Explosives.
(Doc. 163 at 38.)
The officer described the
characteristics of a silencer as having “an outer tube,
does it have the caps on the end -- the end-caps that
house everything in the middle -- and does it have
something in the middle that helps in reducing the
sound of a firearm when shot.” (Doc. 163 at 42.)
The officer opined that the various items that
were seized from the mailings qualified them as
silencers.
With respect to the two items that
contained the monolithic baffles, the officer testified
that he could hold the items up to light and see
11
through them, thereby allowing them to serve as
functional silencers. (Doc. 163 at 56-57.)
The
remaining items contained cone style baffles that
would need to be drilled through before a projectile
could potentially pass through. (Doc. 162 at 38-41, 4748.) The officer had tested one of the monolithic baffle
items on a firearm and found that it reduced the noise
level of the firearm by 17 decibels. (Doc. 163 at 58.)
The officer additionally testified that solvent
traps are used to attach to the end of a firearm barrel
to capture any solvent that leaks out during the
process of cleaning the gun. (Doc. 163 at 65.) He gave
the opinion that the items at issue would not make
sense for use as solvent traps or fuel filters. (Doc. 163
at 66-68.) The officer testified on cross-examination,
nonetheless, that it is legal to possess solvent traps
and inline fuel filters. (Doc. 163 at 83.) He further
testified that the items had characteristics of solvent
12
traps. (Doc. 163 at 85.) He believed that the items
would not be effective as fuel filters because they did
not contain filtering elements. (Doc. 163 at 85.) The
officer additionally conceded that empty two liter
bottles or PVC pipes can serve as silencers. (Doc. 163
at 88.)
Mr. Schieferle called as an expert witness a
retired ATF agent who had served 14 years with the
ATF, reaching the level of acting chief of the Firearms
Technology Branch. (Doc. 163 at 108-09.) The expert
testified that the ten cone style baffle items could not
serve as functional silencers in their present form.
(Doc. 164 at 4-5.)
With respect to the monolithic
baffles, the expert testified that they could serve as
silencers but could also serve as solvent traps. (Doc.
164 at 5.) He further testified that those items could
also serve as inline fuel filters with modification. (Doc.
165 at 5-6.) Those cone style baffle items, the expert
13
testified, are available from retailers such as Walmart
and Amazon. (Doc. 165 at 9.)
The expert went on to testify that any object
that can be attached to a firearm muzzle can serve as
a silencer if it has a chamber or opening that allows
gas to slow as it leaves the firearm barrel. (Doc. 165 at
6-7.) The expert provided as examples of objects that
can serve as silencers as a lawn mower muffler, a
Febreeze bottle, a lighter fluid bottle, and a PVC pipe.
(Doc. 165 at 7.) He further testified that purported
silencers can be attached to air rifles. (Doc. 165 at 10.)
Such air powered guns would not qualify as firearms.
(Doc. 165 at 10.)
At the close of the Government’s case, Mr.
Schieferle moved for a judgment of acquittal,
asserting,
among
other
arguments,
that
the
Government failed to prove that the items purported
14
to be silencers were illegal to possess. (Doc. 163 at 10004.) The district court denied that motion, stating:
THE COURT: The standard at this
juncture is to view the evidence in the
light most favorable to the United
States. I believe the record demonstrates
the case must proceed at this stage to the
jury.
There
is
not
only
sufficient
circumstantial evidence as to Mr.
Schieferle's
possession
of
an
unregistered silencer but also his
importation of devices; devices which
Government experts have stated, despite
whatever title was on a package, had no
other purpose but to be a muffler. And
there is also circumstantial evidence of
Mr. Schieferle's intent, demonstrated by
some of the search items found on his cell
phone and laptop, clear evidence of his
familiarity with firearms, firearm
components, with matters relating to
firearms and suppressors.
The potato, Coke bottle argument I think
is a red herring of sorts. That really does
not enter into an analysis for the -- at
least in this Court's opinion -- for the
reason that a potato is meant to be an
edible item and a Coke bottle contains a
beverage.
15
The testimony here is that these pieces
of equipment that Mr. Schieferle had and
had ordered had no other purpose than
to be suppressors for firearms. So I will
deny the defendant's motion for
judgment of acquittal at this time; with
of course the defendant's ability to raise
it after he has presented his case.
(Doc. 105-06.)
On December 9, 2022, the jury returned a
verdict of guilty as charged on the three counts. (Doc.
104.) On May 24, 2023, the district court sentenced
Mr. Schieferle to concurrent sentences of eight months
incarceration to be followed by three years of
supervised release on each count. (Doc. 146.)
Mr. Schieferle thereafter took a direct appeal to
the United States Court of Appeals for the Eleventh
Circuit. He raised three grounds:
I.
Whether the district court erred in
denying the Appellant’s motion for
judgments of acquittal on charges of
illegal importation of firearms and
possession of an unregistered firearm
when the charges arose from the
16
Appellant’s purchase of inline fuel filters
from an online retailer?
II.
Whether the district court erred in
denying the Appellant’s motion to
suppress the fruits of a search of his
home when the Appellant asserted that
the search warrant affidavit failed to
provide probable cause to be believe a
crime was committed or was being
committed? and
III. Whether the Second Amendment
protects the right of an individual to
possess items that might be considered
“firearm silencers”?
On May 1, 2024, the Eleventh Circuit issued a
panel opinion affirming the convictions.
Concerning the sufficiency of the evidence
issue, the Eleventh Circuit found, in relevant part,
that the items at issue “had the features of a silencer
that subjected them to registration under the NFA.”
App. A at 8. In reaching that holding, the court relied
on the Government’s expert witness testimony that
the items could serve to muffle a firearm report, in
their present form as to two of the items, or with
17
modification as to the remainder of the items. App. A
at 7-8.
As to the Second Amendment issue, the
Eleventh Circuit reviewed for plain error and
provided that “[n]either we nor the Supreme Court
have addressed whether silencers are protected by the
Second Amendment.” App. A at 8. The court further
reasoned, “[t]o the extent Schieferle relies on Bruen,
that case did not directly address whether silencers
constitute “arms” under the Second Amendment.”
App. A at 9 citing New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1, 8-11, 142 S.Ct.
2111, 213 L.Ed.2d 387 (2022).
This petition follows.
18
REASONS FOR GRANTING THE PETITION
I.
THE QUESTION OF WHETHER
ITEMS SUCH AS INLINE FUEL
FILTERS OR FIREARMS SOLVENT
TRAPS, WHICH MAY BE ABLE TO
FUNCTION
AS
“FIREARM
SILENCERS,” CAN QUALIFY AS
“SILENCERS”
UNDER
THE
NATIONAL FIREARMS ACT WHEN
THE ITEMS ARE NOT MARKETED AS
SILENCERS
AND
HAVE
NOT
ACTUALLY BEEN USED TO SILENCE
OR MUFFLE A FIREARM?
Petitioner David Schieferle was convicted of
possessing products that were marketed as inline fuel
filters
and
firearm
cleaning
solvent
traps.
Undisputed evidence presented at trial established
that he never used any of the items as firearm
silencers or ever even attempted to fit any of the items
on a firearm. Instead, he was convicted of the charges
levied against him merely because the items were able
to be used or modified to fit on a firearm to serve as a
“silencer” or “muffler” and because, according to the
19
Government, he purportedly had intent to later use
the items as such. The evidence at trial, however,
established that countless other items, even such
common items as plastic soft drink bottles or PVC
pipes, could be used to silence or muffle a firearm just
as an inline fuel filter or solvent trap could.
Consequently, the proper interpretation of the
definition of a “firearm silencer” or “firearm muffler”
is a critical issue that has not been addressed by this
Court and will likely arise in many future cases in
lower courts. The instant case thereby presents the
important question of whether an item can qualify as
a “firearm silencer” or “firearm muffler” under the
relevant provisions of the National Firearms Act
[NFA] merely because it is able to be used to muffle or
silence a firearm but has not been marketed for such
a purposes nor used for such a purpose?
20
A. The Importance of the Question Presented
As set forth above, 18 U.S.C. § 921(a)(3)
includes within the definition of a “firearm,” “any
firearm muffler or firearm silencer” 18 U.S.C. §
921(a)(3)(C). The statute, in turn, defines the terms
“firearm silencer” and “firearm muffler” in 18 U.S.C.
§ 921(a)(25).1 The plain text of the statute defines a
“silencer” or “muffler” as “any device for silencing,
muffling, or diminishing the report of a portable
firearm, including any combination of parts, designed
or redesigned, and intended for use in assembling or
1In addition to the 18 U.S.C. § 922(l) counts alleged in Counts
One and Two of the Indictment, Mr. Schieferle was also convicted
under 26 U.S.C. § 5861(d) of Possession of an Unregistered
Firearm arising from the possession of the purported “silencers.”
Proof of that charge required proof that the defendant “knew of
the features of the ‘firearm’ that brought it within the scope of
the National Firearms Act, 26 U.S.C. §§ 5801-5872.” United
States v. Moore, 253 F.3d 607, 609 (11th Cir. 2001) citing Staples
v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 1804, 128
L.Ed.2d 608 (1994). All three charges alleged against Mr.
Schieferle thereby required proof that the purported silencers
qualified as “firearm silencers” or “firearm mufflers” under
subsection 921(a)(25), which would have, in turn, qualified them
as “firearms” under subsection 921(a)(3).
21
fabricating a firearm silencer or firearm muffler, and
any part intended only for use in such assembly or
fabrication.” 18 U.S.C. § 921(a)(25) (emphasis added).
The statutory definition clearly and unequivocally
requires the parts or combination of parts be intended
for use in or as a firearm silencer. The items at issue
in the instant case were not “commercial silencers,”
but rather, were marketed as serving a function other
than silencing a firearm. Given the plain text of the
statutory definition, those items cannot thereby
qualify as silencers. The inline fuel filters, which the
evidence established are sold by legitimate retailers in
the United States, cannot qualify as silencers on their
own because they are not intended for use as a firearm
silencer. Despite the testimony from the Government
witnesses that manufacturers purportedly market
solvent traps and inline fuel filters as a ruse, the fact
remains that the items were marketed to the public,
22
to include Mr. Schieferle, for intended uses as solvent
traps and inline filters. Consequently, without proof
that the items were actually intended for use as a
“firearm muffler” or “firearm silencer,” or were
actually used to silence or muffle a firearm, the plain
text of the statutory definition should preclude items
such as the inline fuel filter and solvent traps from
qualifying as firearms under the NFA.
B. The ATF has Wavered in its Interpretation
of What Constitutes a “Firearm Muffler” or
“Firearm Silencer” and Lower Courts, in
Turn, Have Endorsed an Overly Expansive
Definition of the Terms
The question presented is a critical question
that is likely to arise frequently in the lower courts in
the future.
The reason for that likelihood is that
under the expansive view of the statutory definition of
“firearm muffler” and “firearm silencer” that the ATF
and some lower courts have taken, innocuous items
that virtually every adult citizen possesses on a daily
23
basis can qualify as firearms. Those items can be as
simple as plastic bottles or PVC pipes.
To further complicate matters, the ATF’s
enforcement of the NFA’s regulations with respect to
firearms mufflers and silencers has been markedly
inconsistent.
In 2017, the ATF issued Technical
Bulletin 17-02, which was titled “Solvent Traps.” ATF
Technical Bulletin 17-02 at 1 (Apr. 20, 2017). The
bulletin stated that solvent traps have a recognized
purpose of catching excess fluid during firearms
cleaning but can also be used as a firearm silencer. Id.
at 1-2. The bulletin went on to advise:
Certain commercially available items
such as cleaning solvent traps,
automotive oil/fuel filters, flashlights,
and freeze plugs are sometimes used to
assemble firearm silencers. Such items
are unregulated until a possessor
assembles, accumulates, or otherwise
demonstrates these articles are to be
used for making a firearm silencer. Once
such an item(s) is possessed with intent
to be used in assembling or fabricating a
firearm silencer, it comes within the
24
purview of the GCA and NFA and is
properly classified as a “firearm
silencer.”
Id. at 2 (emphasis in original). That interpretation, of
course, was consistent with the plain text of the
relevant provisions of the NFA.
Under that
interpretation of the NFA, the ATF likely would have
never begun an investigation of Mr. Schieferle for
purported possession of firearm silencers.
By 2019, however, ATF had changed its view
and interpretation of the NFA’s classification of
mufflers and silencers. In ATF Technical Bulletin 2001, the agency acknowledged its prior position from
Bulletin 17-02, but stated that it was changing course:
Recently,
FTCB
[ATF
Firearms
Technology Criminal Branch] has
observed an increased number of
criminal
cases
involving
firearm
silencers manufactured from IFFs
[inline fuel filters]. This increase in the
use of IFFs as silencers, as well as the
need for more thorough analysis of these
items, prompted FTCB personnel to
25
clarify the classification of inline filters
purportedly used as solvent traps.
ATF Technical Bulletin 20-01 at 1 (Oct. 30, 2019). The
bulletin went on to opine that some fuel filters and
solvent traps were being marketed through “deceptive
advertisements” that “sometime include an ‘NFA
Warning’ or a legal disclaimer regarding the use or
modification of these devices as, or in the fabrication
of, firearm silencers.” Id. at 3. Since that time, as the
instant case exemplifies, the ATF has taken to
arbitrary approach to deciding if an item that could
serve to muffle a firearm report is in fact a “silencer”
or “muffler” under the NFA.
To illustrate the danger inherent in failing
provide the ATF and the lower courts with further
guidance on what constitutes a muffler or silencer, the
Eighth Circuit, in United States v. Hay, 46 F.4th 746
(8th Cir. 2022), recently addressed the issuance of a
search warrant under circumstances similar to those
26
of the instant case. In Hay, U.S. Customs and Border
Protection seized two packages in international mail
that were listed as containing “Fuel Filters” and
“Filters.” Id. at 748-49. Inspections of the packages
revealed them to contain items consistent with “NAPA
4003” fuel filters. Id. at 749.
Law enforcement
thereafter sought a search warrant for the address of
the intended recipient of the packages. Id.
When,
however, law enforcement sought the search warrant,
it relied on bulletins of the aforementioned ATF
Technical Bulletin 20-01 that alleged that the items
at issue qualified as “silencers” in their present forms.
Id. at 748 (emphasis added).
After a search warrant was later issued and the
defendant was arrested based on evidence seized
under the warrant, the defendant filed a motion to
suppress asserting, among other grounds, that “the
warrant application did not establish probable cause
27
to justify the search of his residence because it relied
on the confidential Bulletin, which in Hay's view
represents an attempt by the ATF to improperly
change the law by defining all fuel filters and solvent
traps as silencers regardless of how a person intends
to use them.” Id. at 750. The Eighth Circuit reasoned
that the Appellant was reading the ATF overbroadly
and found that “[t]he only “fuel filters” that the
Bulletin and affidavit claim qualify as ‘firearm
silencers’ without additional evidence of intent are
those with specific characteristics that render them
incapable of functioning as legitimate solvent traps
but capable of being used as silencers—like those
marketed as ‘NAPA 4003’ fuel filters.” Id. It went on
to hold “[t]hus, rather than attempting to change the
law, the Bulletin merely seeks to inform law
enforcement officers of items that qualify as firearm
silencers under the law as it already exists.” Id. In so
28
finding, the Eighth Circuit arguably took an overly
narrow view of the Bulletin’s directive. In any event,
however, the Eighth Circuit clearly recognized the
significance of the ATF Bulletin to law enforcement.
It, furthermore, endorsed the ATF view that an item
that is marketed to an unsuspecting purchaser as
something other than a silencer can still qualify as a
silencer under the NFA even without any evidence
that it is being used as a silencer.
While, to be sure, the ATF Bulletins were not
the basis for the denial of the Rule 29 motion for
judgment of acquittal in the instant case, the ATF’s
interpretation of the NFA was clearly the catalyst that
led to Mr. Schieferle’s prosecution, just as it was the
catalyst that led to the Hay defendant’s prosecution.
Moreover, even in spite of this Court’s recent holding
in Loper Bright Enterprises v. Raimondo, 144 S.Ct.
2244, 2024 WL 3208360 (Jun. 28, 2024), which
29
overruled the deference standard promulgated in
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d
694 (1984), the ATF will continue to have a need to
make its own assessments of the relevant provisions
of the NFA in carrying out its duties as a law
enforcement agency.
The ATF’s view of what
constitutes a “silencer” or “muffler” will therefore
clearly drive its decisions to conduct investigations
and make arrests.
An additional concern inherent in the ATF’s
current interpretation of what constitutes a “silencer”
or “muffler” is at what point otherwise innocuous
items that can be used to create a “silencer” or
“muffler” actually become a “silencer” or “muffler”
under the NFA. The present view taken by the ATF,
and seemingly by the Eight and Eleventh Circuits, is
that the items can qualify as a “silencer” or “muffler”
30
at any point. Perhaps the greatest problem with that
interpretation is that an individual may lawfully
create a silencer with items such as fuel filters and
solvent traps so long as he or she does so with ATF
approval. See Form 1 – Application to Make and
Register a Firearm (ATF Form 5320.1), Bureau of
Alcohol,
Tobacco,
Firearms
and
Explosives,
https://www.atf.gov/firearms/docs/form/form-1application-make-and-register-firearm-atf-form53201/download (last revised December 2022).
To
illustrate the frequency by which that occurs, on
March 18, 2022, 168 members of Congress signed a
letter to the acting direct of the ATF expressing
concern
that
constituents
were
recently
being
restricted from lawfully creating mufflers or silencers.
See
https://biggs.house.gov/sites/evo-
subsites/biggs.house.gov/files/evo-mediadocument/2022-03-
31
18%20House%20GOP%20to%20ATF%20re%20Silenc
ers_Final.pdf. The letter set out that:
We have learned that the ATF has begun
denying Form 1 requests from lawabiding citizens seeking to make
silencers for their personal use. These
individuals sought to follow the law by
filing Form 1 requests, and they often did
so carefully following published ATF
guidance. The individuals sought
approval to make silencers from
individually sourced raw materials,
components, or kits that included items
that are manufactured for other nonfirearm purposes, such as flashlight
tubes or fuel filters. In denying the Form
1 requests, the ATF informed these
individuals that they were in violation of
the NFA because they had not received
prior approval to own the materials in
question, which the ATF claims to meet
the legal definition of a silencer. Because
of the ATF’s actions, these law-abiding
citizens are now concerned that they
could be in violation of a law that carries
punishments of up to 10 years in prison
and $250,000 in fines.
Id. at 1-2. The letter thereby asserted that the “ATF
attempt to expand the definition of a silencer—like
the ATF’s other regulatory actions—is contrary to
32
years of ATF precedent and beyond the scope of the
agency’s authority under federal law.” Id. at 1. While
the instant case is a prime example of the concern that
the letter from Congress seeks to address, the letter is
a further indication that, under the current ATF view,
a person who obtains an item that could become a
component of a silencer can be guilty of possessing a
silencer despite having purely innocent intentions.
Without further guidance on what actually
constitutes a “silencer” or “muffler” under the NFA,
the ATF will be left to continue to arbitrarily decide
what constitutes a “silencer.”
On one end of the
spectrum would be readily-identifiable silencers that
are marketed as such.
On the other end of the
spectrum would be plastic bottles and PVC pipes.
Under the current interpretation taken by the ATF
and at least two of the Circuits, items falling along the
entire spectrum could qualify as silencers. Therefore,
33
to ensure consistency and the appropriateness of the
enforcement of the NFA’s regulations of firearms
silencers and mufflers, it is imperative for this Court
to take up the question presented herein.
C. The Lower Circuit Courts are Split in
their Interpretation of the NFA’s
“Firearm Muffler” and “Firearm Silencer”
Definition
The Eleventh Circuit’s holding in the instant
case is seemingly consistent with the Eighth Circuit’s
interpretation of the scope of the NFA’s definition of a
firearm
muffler
or
silencer,
but
is
markedly
inconsistent with the reasoning of the First Circuit.
The First Circuit addressed a scenario analogous that
of the instant case in United States v. Crooker, 608
F.3d 94 (1st Cir. 2010). In that case, law enforcement
intercepted a mailing that contained a “large caliber
airgun” and a purported silencer that was “a cylinder
made of black metal with a hole running through it,
threading that allowed attachment to the muzzle of
34
the airgun and baffles inside.” Id. at 95.
The
purported silencer was apparently homemade. Id. at
99 n.4. Law enforcement also later found evidence
connecting the defendant to an article titled “Federal
Law Definition of a Silencer,” which described how an
airgun silencer could function as a firearm silencer.
Id.
The defendant was thereafter charged and
convicted of transporting a firearm in interstate
commerce as a convicted felon based on that purported
silencer. Id. At trial, the Government called an expert
to testify “that the seized device could be used to
muffle the sound of an ordinary firearm in various
ways, including the holding of the device against the
barrel of the firearm with one’s hand so that the bullet
would pass through the device.” Id. The witness also
testified that, when test firing the silencer, he, for
safety purposes, had attached the silencer to the
firearm “by threading an ‘adapter’ onto both the barrel
35
of an ordinary gun and the silencer to connect the two
implements, because the silencer did not fit directly to
the testing pistol.” Id.
When the case reached the First Circuit, the
court recognized that “[i]n the ordinary criminal case,
the device charged as a silencer is one manufactured
for use with a firearm and is easily connected (e.g., by
threading one onto the other); and the possessor
knows perfectly well the intended function of the
device.” Id. at 96-97 citing United States v. Hall, 171
F.3d 1133, 1152 (8th Cir. 1999). It reasoned, on the
other hand, that the Crooker case was problematic
because the alleged silencer was intended for use with
an airgun and required modification to be used as a
firearm silencer. Id. at 97.
The court found the
“problems arise in two different dimensions: its
capability for use as a silencer and, separately, the
defendant’s knowledge, purpose or both with respect
36
to the device.” Id.
In addressing those problems, the court
concluded that the statutory definition of a silencer
“by its terms requires something more than a
potential for adaptation and knowledge of it.” Id. The
court plainly noted that “[t]he statute does not refer
either to capability or adaptation; it speaks of a device
‘for’ silencing or muffling.” Id.
The court then
reasoned that:
…the airgun silencer in this case
required a further ‘part’ (the adapter),
arguably making the case fall within one
of the ‘parts’ definitions that require
intent. Worse still for the government,
the use of a ‘capability’ and ‘knowledge’
definition-as applied to a home-made
silencer-could also extend to a soda
bottle or even a potato.
Id.
The court then distinguished the statutory
definition of “silencers” from the statutory definition
of a “machine-gun.” Id. at 98. The court noted that the
machine gun definition, in contrast to the silencer
37
definition, “explicitly adopts a test of objective
capability: it covers any weapon “which shoots, is
designed to shoot, or can be readily restored to shoot ”
automatically multiple shots with a single trigger
pull. Id. quoting 26 U.S.C. § 5845(b) (emphasis in
original). The court correspondingly found “the range
of physical objects that can muffle a firearm is so large
and of so many alternative uses that some filtering
restriction is needed to prevent overbreadth and
possibly vagueness.” The court went on to reverse the
defendant’s conviction and remand for entry of a
judgment of acquittal. Id. at 100. In so holding, the
court provided:
To read the statute literally, as we do, is
conventional with criminal statutes in
order to provide fair notice, United
States v. Lanier, 520 U.S. 259, 266, 117
S.Ct. 1219, 137 L.Ed.2d 432 (1997), and
in this instance tempers problems of
overbreadth and vagueness created by
the multiple legitimate objects that can
be used to silence a firearm. Conversely,
the fact that a possessor does have a
38
purpose to use, or to pass on the device to
someone to use, as a silencer for a
firearm increases the danger of such a
use and makes it precisely the threat
against which the statute means to
guard.
Of course, this literal construction poses
no barrier to prosecuting anyone who
knowingly possesses a commercial
silencer. In such a case, it would be
suitable to charge that the jury need only
find that the defendant knowingly
possessed a device designed to be used as
silencer for firearm. The defendant’s
purpose becomes a pivotal issue only for
a device not so designed, but that is the
case before us; or at least the
government’s evidence and arguments
leave it in that posture.
Id. at 99
The First Circuit’s holding in Crooker stands at
odds with the Eleventh Circuit’s holding in the instant
case. In Crooker, Hay, and the instant case, the items
at issue were not “commercial silencers,” but rather,
were marketed as serving a function other than
silencing a firearm. Furthermore, just as in Crooker,
in the instant case, the evidence established that any
39
of the alleged “silencers” at issue could have been used
as airgun silencers just as readily as they could have
been used as firearm silencers. The evidence likewise
established that Mr. Schieferle owned and possessed
at least one airgun in his home. Notwithstanding that
potential application of the items as airgun silencers,
under the Crooker reasoning, the plain text of the
statutory
definition
of
“silencers”
would
not
encompass the purported silencers at issue in Hay nor
in the instant case. On the other hand, under the
reasoning of the Eighth and Eleventh Circuits, those
items qualify as silencers despite not having been
40
marketed for or used for that purpose.2
For the reasons set forth above, the question
presented herein is one of great importance that has
not yet been decided by this Court and one which will
likely arise frequently in lower courts in the future.
SUP. CT. R. 10(c).
While functionally ignoring the
“intended for use” component of the statutory
definition, the Government’s current interpretation of
the NFA would seemingly have every item that might
be able to be used in fabricating a silencer qualify as
2 While none of the items at issue can qualify as “silencers” based
on the plain text of 18 U.S.C. § 921(a)(25), that conclusion is
particularly true of the filers that contained the cone style
baffles. The evidence clearly established that those filers could
not serve as silencers in their present forms. At most, those
filters could be nothing more than “any part” that could allegedly
be used to assemble or fabricate a silencer. 18 U.S.C. § 921(a)(25).
As such, they could only potentially qualify as a “silencer” if they
were “intended only for use in such assembly or fabrication.” Id.
In contrast, the Government expert alleged that the two filters
with the monolithic cores could be used as silencers in their
present form. Nonetheless, that fact remains that those filters
were marketed for a purpose other than to muffle a firearm and
were capable of serving as an oil/fuel filter capable of filtering
large particles, just as Mr. Schieferle intended to use it. 18
U.S.C. § 921(a)(25).
41
a silencer. Under that overly broad interpretation,
nearly every citizen in the United States could be
guilty of possessing a silencer based on their
possession of some innocent item that could be found
in their home, such as a lawn mower muffler, a Coca
Cola bottle, or a household water pipe. The plain text
of section 921(a)(25) does not, however, support such
an absurd interpretation. When, as in this case, the
items at issue are not marketed and sold for the
purpose of muffling or silencing a firearm, and no
steps have been taken to use the items for such a
purpose, the items cannot be intended for use in
assembling or fabricating a silencer simply because
they might be able to function for that purpose. As a
result, Petitioner Schieferle respectfully requests this
Honorable Court to grant certiorari to determine
whether an item can qualify as a “firearm silencer” or
“firearm muffler” under the relevant provisions of the
42
National Firearms Act merely because the item is able
to be used to muffle or silence a firearm but has not
been marketed for such a purpose nor used for such a
purpose?
43
II.
THE QUESTION OF WHETHER THE
SECOND AMENDMENT PROHIBITS
ANY LAWS THAT FORECLOSE LAWABIDING
CITIZENS
WITH
ORDINARY SELF-DEFENSE NEEDS
FROM POSSESSING ITEMS THAT
CAN SERVE AS FIREARM MUFFLERS
OR SILENCERS?
Assuming for purposes of argument that the
items at issue in this case meet the definition of a
“silencer,” the additional question presented is
whether the Second Amendment protects a lawabiding individual’s right to possess such “silencers.”
As this Court held in the relatively recently decided
and highly impactful case, New York State Rifle &
Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct.
2111, 213 L.Ed.2d 387 (2022), the Second Amendment
protects an individual’s right to carry a firearm for
self-defense outside of his or her home. Id. This Court
held in Bruen that “[w]hen the Second Amendment’s
plain text covers an individual’s conduct, the
44
Constitution presumptively protects that conduct.
The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Bruen, 597
U.S. at 24. “Only then may a court conclude that the
individual’s
conduct
falls
outside
the
Second
Amendment.” Id.
In so holding, this Court dispensed with the
means end scrutiny analysis that lower courts had
employed since District of Columbia v. Heller, 554
U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In
place of the means end scrutiny analysis, the Court
provided that “[i]nstead, the government must
affirmatively prove that its firearms regulation is part
of the historical tradition that delimits the outer
bounds of the right to keep and bear arms.” Bruen, 597
U.S. at 19.
Conducting that historical tradition
review requires courts to “assess whether modern
45
firearms regulations are consistent with the Second
Amendment’s text and historical understanding.” Id.
at 26.
That is because, as the Court provides,
“Constitutional rights are enshrined with the scope
they were understood to have when the people
adopted them.” Id. at 34 quoting Heller, 554 U.S. at
634-35 (emphasis in original).
The broadly presented question in the instant
case is whether the Second Amendment’s plain text
protects the right of an individual to possess objects
that could qualify as suppressors under the National
Firearms Act? The Second Amendment, of course,
provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” U.S.
CONST. Amend II. The inherent narrower question
that will lend an answer to the broader overall
question is whether a firearm suppressor is an “arm”
46
as contemplated in the Second Amendment?
The
questions at issue are questions that this Court has
not yet addressed, but questions that will likely arise
in many lower court cases in the future.
A. The Question Presented is Likely to
Arise in Many Future Cases in the
Lower Courts
The recent Bruen and Rahimi decisions
indicate that the question presented herein is ripe for
this Court’s consideration.
The Court reasoned in
Bruen,
to
“when
it
comes
interpreting
the
Constitution, not all history is created equal.” 597
U.S. at 34. With respect to the question of what might
constitute “arms,” the Court noted “[w]e have already
recognized in Heller at least one way in which the
Second Amendment’s historically fixed meaning
applies to new circumstances: Its reference to ‘arms’
does not apply ‘only [to] those arms in existence in the
18th century.’” Id. at 28 quoting Heller, 554 U.S. at
47
582. “‘Just as the First Amendment protects modern
forms of communications, and the Fourth Amendment
applies to modern forms of search, 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.’” Id.
quoting id (citations omitted in original). As the Court
went on to hold in Bruen, “even though the Second
Amendment’s definition of ‘arms’ is fixed according to
its historical understanding, that general definition
covers modern instruments that facilitate armed selfdefense.” Id. citing Caetano v. Massachusetts, 577
U.S. 411, 411–412, 136 S.Ct. 1027, 194 L.Ed.2d 99
(2016) (per curiam) (addressing stun guns).
This Court’s even more recent decision in
United States v. Rahimi, 602 U.S. ---, 144 S.Ct. 1889
(Jun. 21, 2024), further highlights the need for the
Court to take up the question presented in the instant
48
case.
In Rahimi, the Court reiterated the Bruen
historical tradition test and provided that the inquiry
must
revolve
around
“whether
the
challenged
regulation is consistent with the principles that
underpin our regulatory tradition.”
Id. at 1898.
Again, as the Court stated in Bruen, the Second
Amendment’s protections and limitations are not
restricted to the “arms” and regulations that existed
at the time of the Nation’s founding. The Court found
in Rahimi, “[h]olding otherwise would be as mistaken
as applying the protections of the right only to
muskets and sabers.” Id. at 1898.
Rahimi further clarified that, for a current
regulation to be consistent with a regulation that
would have been in effect at the time of the founding,
the regulation at issue need not be a “dead ringer” or
a “historical twin” to the historical regulation. Rahimi,
144 S.Ct. at 1898.
In making the relevant
49
determination, a reviewing court must “ascertain
whether the new law is ‘relevantly similar’ to laws
that our tradition is understood to permit, ‘apply[ing]
faithfully the balance struck by the founding
generation to modern circumstances.’” Id. quoting
Bruen, 142 S.Ct. at 2111.
Consistent with that
reasoning, the Court had earlier cautioned in Bruen
that reviewing courts must “guard against giving
postenactment history more weight than it can rightly
bear.” Id. at 2136. As such, historical evidence from
the late nineteenth century and the twentieth century
“does not provide insight into the meaning of the
Second Amendment when it contradicts earlier
evidence.” Id. at 2154 & n.28.
In deciding Rahimi, the Court noted that “some
courts have misunderstood the methodology of our
recent Second Amendment cases.” Rahimi, 144 S.Ct.
at 1897. The Court seemingly found that those lower
50
courts had erroneously concluded that this Court’s
Second Amendment cases, to include Heller, Bruen,
and Rahimi, were “meant to suggest a law trapped in
amber.” Id. As the Court made abundantly clear in
Rahimi, that is not the case.
The lower court cases that have addressed the
Second Amendment’s impact on the regulation of
firearms suppressors are a prime example of such
lower court misinterpretation of this Court’s recent
holdings. In finding that firearm suppressors are not
“arms” in the context of the Second Amendment, many
lower courts have reasoned contrary to this Court’s
directive that “the Second Amendment is not limited
only to those arms that were in existence at the
founding.” Id. at 1897 citing Heller, 554 U.S. at 582.
To be sure, this Court made clear in Bruen that the
question of whether an object constitutes an arm
turns on its purpose in facilitating armed self-defense.
51
A silencer undoubtedly serves to facilitate armed selfdefense.
Many of the lower courts that have
addressed the question of whether a firearm
suppressor or silencer is an “arm” protected under the
Fourth Amendment, have failed to recognize Bruen’s
guidance on what constitutes an “arm.” Those courts
have instead employed an overly restrictive definition
of the term “arm.” In so reasoning, those lower courts
are examples of the courts that Rahimi found to
mistakenly interpret Heller and its progeny to trap
the Second Amendment in amber. See e.g. United
States v. Cox, 906 F.3d 1170 (10th Cir. 2018) (finding
that at the time of founding and at present “the
Second Amendment covers ‘[w]eapons of offence, or
armour of defence,’ or ‘any thing that a man wears for
his defence, or takes into his hands, or useth in wrath
to cast at or strike another,’ but failing to conduct a
principles test and consequently finding that a
52
silencer “is simply a firearm accessory; it’s not a
weapon in itself (nor is it ‘armour of defence’)” id. at
1186 quoting Heller, at 5534 U.S. 581); United States
v. Saleem, --- F.Supp.3d ----, 2023 WL 2334417 (W.D.
N.C. Mar. 2, 2023) (finding that a silencer is not an
“arm” within the purview of the Second Amendment
despite recognizing that “‘arms’ at the founding
included not just the firearm itself, but also ‘proper
accoutrements that rendered that firearm useful and
functional.’” id quoting United States v. Miller, 307
U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206 (1939));
United States v. Villalobos, No. 3:19-cr-00040-DCN,
023 WL 3044770 (D. Idaho Apr. 21, 2023) (following
Cox); Cox v. United States, No. CR11-00022RJB, 2023
WL 4203261 (D. Alaska Jun. 27, 2023) (following
Saleem); United States v. Cooperman, No. 22-CR-146,
2023 WL 4762710 (N.D. Illinois Jul. 26, 2023) (finding
that “the Supreme Court and the Seventh Circuit
53
have not specifically addressed whether silencers
constitute bearable arms,” but adhering to the Tenth
Circuit’s pre-Bruen decision in Cox); United States v.
Peterson, No. 22-cr-231, 2023 WL 5383664 (E.D. La.
Aug. 21, 2023) (following Cox); United States v.
Lightner,
No.
8:24-CR-21-WFJ-CPT,
2024
WL
2882237, (M.D. Fla. Jun. 7, 2024) (adhering to Cox
and Saleem); United States v. DeFelice, No. 3:23-CR116-OAW, 2024 WL 3028425 (D. Conn Jun. 17, 2024)
(same); compare United States v. Comeaux, No. 6:23CR-00183, 2024 WL 115929 (W.D. La. Jan. 10, 2024)
(rejecting the argument that firearms are not “arms”
but failing to conduct an adequate principles test and
instead finding that the Second Amendment does not
protect possession of silencers because “silencers have
been regulated by Congress for the same period of
time and for the same purpose as sawed-off shotguns
and machineguns” and that “firearm silencers were
54
perceived by the American public as dangerous
shortly after they were patented in 1908.” id at *3).
Indeed, rather than addressing whether firearm
suppressors serve to facilitate armed self-defense, the
vast majority of the above-cited lower courts have
instead erroneously decided the “arms” question
based on an analysis of silencers’ mechanical
functionality.
To further illustrate the overly restrictive view
the majority of those courts have taken in defining the
term “arm” as it applies to silencers, the plain text
Congress chose to use in defining “firearm silencer”
and “firearm muffler” clearly indicates that Congress
views a silencer or muffler as an arm. As set forth in
the preceding question presented, Congress included
“firearm muffler” and “firearm silencer” within the
actual definition of a “firearm.” 18 U.S.C. § 921(a)(3).
Not only does the plain text of the NFA include a
55
silencer within the definition of a firearm, but it also
indicates that Congress likewise views silencers to
serve the same purpose of facilitating self-defense
that a more commonly recognized firearm would
serve.
Given, therefore, the lower courts’
inconsistent interpretation of the question presented,
coupled with Congress’ apparent position on the
question, the question of whether firearm mufflers
and silencers are “arms” protected under the Second
Amendment is a question of great importance that is
likely to arise in many future cases in the lower courts.
B. The Historical Tradition of Legitimate
Silencer Use and the Steadily Increasing
Number of Lawful Silencers in Existence in
the United States Exemplify the Need for the
Court to Address the Question Presented
While firearm mufflers and silencers may not
have existed in their present form at the time of the
Nation’s founding, they do have long history of
legitimate use in the United States. The first patent
56
for a silencer appears to have issued in 1894. J. Stahel,
Device for Lessening the Noise of Firearms, No.
516,236. Patented Mar. 13, 1894.
Silencers then
became readily available commercially by 1902. Emily
Rupertus, Suppressors: The History, NRA BLOG,
https://www.nrablog.com/articles/2016/10/history-ofsuppressors/ (Oct. 5, 2016).
The silencers were
“marketed to all sportsmen and intended to enhance
the shooting experience by reducing the risk of
hearing damage and noise pollution.” Id. Theodore
Roosevelt was a proponent of and regular user of
silencers. Id. see also Saleem, 2023 WL 2334417 at
*10 n.7, 9 quoting id.
When the NFA was later
implemented in 1934, it included guidelines for the
lawful manufacture and possession of silencers. Id.
Those regulations remain in place today. Id. at *11 n.
9 citing 26 U.S.C. §§ 5811, 5812, 5821, 5822.
57
In fact, as of 2021, 2,664,774 silencers were
lawfully registered in the United States. U.S. Dep’t of
Justice, Bureau of Alcohol, Tobacco, Firearms and
Explosives, Firearms Commerce in the United States:
Annual
Statistical
Update
(2021)
(avail
at:
https://www.atf.gov/firearms/docs/report/2021firearms-commerce-report/download). The figure has
steadily and exponentially increased over the course
of a decade since 2012, when 360,534 lawfully
registered silencers existed in the Nation. U.S. Dep’t
of Justice, Bureau of Alcohol, Tobacco, Firearms and
Explosives, Firearms Commerce in the United States:
Annual
Statistical
Update
(2012)
(avail
at:
https://www.atf.gov/resource-center/data-statistics).
As history and present statistics demonstrates,
the silencer is a useful arm with recognized lawful
purposes. Indeed, silencers perform the legitimate
function of muffling the otherwise dangerous report of
58
a firearm for those who lawfully use firearms for sport,
hunting, and self-defense.
That muffling function
protects the hearing of firearm users, as well as
bystanders, and creates a much more comfortable
environment for shooting. To be sure, the device has
seemingly received a bad name in movies and other
media.
In reality, however, history and the
widespread lawful ownership of the devices indicate
that silencers are genuine modern instrumentalities
to facilitate armed self-defense.
Furthermore, the
steadily increasing number of lawful silencers
registrations and registration applications indicate
that Second Amendment questions concerning the
purchase, possession, and use of firearm mufflers and
silencers are likely to arise frequently in the lower
courts.
For those many reasons, the question of
whether the Second Amendment prohibits any laws
that foreclose law-abiding citizens with ordinary self-
59
defense needs from possessing items that serve as
firearm mufflers or silencers is a question of great
importance that has not yet been decided by this
Court and one which will arise frequently in the lower
courts in the future. SUP. CT. R. 10(c).
60
CONCLUSION
Based
on
the
foregoing,
the
Petitioner
respectfully requests that this Honorable Court grant
this petition for a writ of certiorari.
Respectfully Submitted on this
____ day of July 2024,
BJORN E. BRUNVAND
Brunvand and Wise Law Group
615 Turner Street
Clearwater, Florida 33756
Ph: (727) 446-7505
Email: bjorn@acquitter.com
Florida Bar No. 0831077
Counsel of Record for Petitioner
61
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.