Bruen’s “Shall‑Issue” Presumption Shields the NFA’s Suppressor Licensing; Good‑Faith Exception Bars Suppression: A Commentary on United States v. Peterson (5th Cir. 2025)

Introduction

United States v. Peterson, a published decision of the U.S. Court of Appeals for the Fifth Circuit (Chief Judge Elrod, joined by Judges Higginbotham and Southwick), addresses two hotly contested constitutional questions in firearms law: (1) whether the National Firearms Act’s (NFA) suppressor licensing and registration scheme violates the Second Amendment post–New York State Rifle & Pistol Ass’n v. Bruen, and (2) whether evidence of an unregistered suppressor discovered during a search should be excluded under the Fourth Amendment. The court assumes—without deciding—that suppressors are protected “Arms,” but holds that the NFA’s suppressor licensing is a “shall‑issue” regime and therefore presumptively constitutional under Bruen. On the Fourth Amendment issue, the court applies the good‑faith exception to the exclusionary rule and affirms the denial of suppression.

Peterson operated a firearms business (PDW Solutions, LLC) out of his home. After undercover transactions and reporting violations, ATF obtained a magistrate‑issued search warrant. Agents found a home‑built, working suppressor in his bedroom‑closet safe that lacked a serial number and NFA registration. A grand jury indicted him under 26 U.S.C. §§ 5841, 5861(d), 5871. He filed (and lost) a Second Amendment motion to dismiss and a Fourth Amendment motion to suppress, then entered a conditional guilty plea preserving both issues for appeal. The Fifth Circuit affirmed in full.

Summary of the Judgment

Second Amendment: Assuming suppressors are “Arms,” the court holds that the NFA’s licensing framework for making suppressors is a shall‑issue regime that is “presumptively constitutional” under Bruen. Because Peterson presented no record evidence of abusive administration—such as “exorbitant fees” or “lengthy wait times”—his as‑applied challenge fails.
Fourth Amendment: Regardless of whether the affidavit actually established probable cause, officers reasonably relied on the magistrate‑issued warrant. None of the exceptions to the good‑faith exception applied. Suppression was therefore properly denied.
Disposition: Conviction affirmed; district court’s denial of the motion to dismiss and motion to suppress affirmed.

Factual and Procedural Background

ATF investigated Peterson for months after controlled purchases and reporting failures. Highlights of the affidavit:

Undercover purchase of two handguns without the required multiple‑sales report (27 C.F.R. § 478.126a).
Observed straw‑style payment sequence (informant pays the agent, who purchases) followed by a sale and no report.
Peterson’s federal firearms license (FFL) application represented that business would be limited to gun shows and a storage unit, but operations ran out of his home.

A magistrate judge issued a warrant to search Peterson’s home and an attached business structure for records, proceeds, firearms, and devices. Agents found a working, home‑built suppressor lacking a serial number and NFA registration. Peterson was indicted for possessing an unregistered suppressor and moved (i) to dismiss the indictment on Second Amendment grounds and (ii) to suppress the evidence on Fourth Amendment grounds. After both motions were denied, he pleaded guilty conditionally, preserving both issues for appeal. He was sentenced to 24 months.

Detailed Analysis

Precedents Cited and Their Role

District of Columbia v. Heller, 554 U.S. 570 (2008): Recognized an individual right to keep and bear arms but emphasized the right is “not unlimited.” Notably described “conditions and qualifications on the commercial sale of arms” as “presumptively lawful.” That presumption figures prominently in post‑Bruen doctrine.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Replaced means‑end scrutiny with a text-and-history test. Crucially distinguished restrictive “may‑issue” licensing from “shall‑issue” licensing. Footnote 9 and Justice Kavanaugh’s concurrence state that shall‑issue regimes are generally constitutional but remain subject to as‑applied challenges if fees or delays effectively deny the right.
McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024): The Fifth Circuit read Bruen as preserving a presumption of constitutionality for shall‑issue “ancillary firearm regulations,” such as background checks; treated Bruen’s assurances as binding guidance (even if dicta). Applied the presumption to the NICS background check and its brief default waiting period.
Md. Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc): Upheld a shall‑issue handgun licensing regime as presumptively constitutional because it screens for law‑abiding citizens via objective criteria. Cited by the Fifth Circuit as consistent authority.
United States v. Rahimi, 602 U.S. 680 (2024): As‑applied challenges focus on the defendant’s own facts; cited for that as‑applied posture.
United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025) and United States v. Diaz, 116 F.4th 458 (5th Cir. 2024): Reiterate the Bruen framework: begin with text, then consult historical tradition; also reemphasize that the right is not unlimited.
Paxton v. Dettelbach, 105 F.4th 708 (5th Cir. 2024): Provides a concise description of suppressors, anchoring the definitional context.
United States v. Phillips, 645 F.3d 859 (7th Cir. 2011); Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014); Does 1–7 v. Abbott, 945 F.3d 307 (5th Cir. 2019): Establish that as‑applied challenges require a developed, particularized factual record and cannot rest on general allegations or hypotheticals.
Fourth Amendment authorities: United States v. Sibley, 448 F.3d 754 (5th Cir. 2006) (outlines the four Goodman exceptions to good‑faith); United States v. Craig, 861 F.2d 818 (5th Cir. 1988) (magistrate‑issued warrants typically support officer good faith); United States v. Cherna, 184 F.3d 403 (5th Cir. 1999) (standard of review for good faith); United States v. Brown, 941 F.2d 1300 (5th Cir. 1991) (examples of “bare bones” affidavits).

The opinion also collects district court decisions that would sustain the NFA’s suppressor requirements at Bruen’s historical step, while declining to reach that question on the record presented.

The Court’s Legal Reasoning: Second Amendment

Step One—Textual Coverage: The court assumes, without deciding, that suppressors are “Arms” within the Second Amendment, noting both parties took that position. This assumption allows the panel to address the dispositive issue: whether the NFA licensing scheme is constitutionally structured under Bruen’s framework.
Bruen’s “Shall‑Issue” Presumption Applies: The court characterizes the NFA’s process for “making” a suppressor (application, fingerprints, photo, background check, $200 tax, and a single, objective denial criterion—approval must be denied if the making/possession would violate law, 26 U.S.C. § 5822; 27 C.F.R. § 479.65) as quintessentially “shall‑issue.” Under Bruen and McRorey, such regimes are presumptively constitutional provided they employ “narrow, objective, and definite standards” and function to ensure that those who bear arms are “law‑abiding, responsible citizens.”
No Rebuttal of the Presumption: Bruen recognizes the possibility of as‑applied challenges where shall‑issue regimes are “put toward abusive ends” via “exorbitant fees” or “lengthy wait times in processing license applications.” Here, the record was empty: Peterson never applied, never paid the tax, and admitted he “simply forgot to do the paperwork.” He offered no proof of contemporary processing delays or that the $200 tax effectively denied him his right. His post‑argument assertion of eight‑month backlogs was unsupported, and the government represented processing in “a few days.” Without evidence, the presumption stands unrebutted.
Doctrinal Guardrails: The panel underscores that if a litigant assembles a developed factual record showing burdensome fees or delays that functionally deny the right, then a court will (i) entertain an as‑applied claim and (ii) if necessary, proceed to Bruen’s historical tradition step. The court notes other decisions that would uphold the NFA’s suppressor scheme at step two, but expressly declines to reach that question here.

Taken together, the Fifth Circuit both applies and fortifies the Bruen/McRorey “shall‑issue” presumption for objective, screening‑type firearms regulations—not just for carry licenses or background checks, but specifically for the NFA’s suppressor‑making process.

The Court’s Legal Reasoning: Fourth Amendment

The panel affirms denial of the motion to suppress under the good‑faith exception. Even assuming arguendo that the affidavit failed to establish probable cause, officers reasonably relied on the magistrate‑issued warrant. The affidavit recited multiple controlled buys, reporting failures, and misrepresentations regarding the business premises—far from a “bare bones” submission. None of the four exceptions to the good‑faith rule applied:

No showing that the magistrate was misled by knowingly false statements or reckless omissions.
No abandonment of judicial role by the magistrate.
The affidavit was not so lacking in indicia of probable cause as to render reliance entirely unreasonable.
The warrant was not facially deficient.

Because good faith applies, suppression is inappropriate; the suppressor evidence was properly admitted.

How the Court Treated the Record and the Litigant’s Burdens

As‑Applied Challenges Demand Particularized Facts: The court emphasizes that an as‑applied Second Amendment challenge lives or dies on the challenger’s own facts. Conclusory assertions and general complaints (e.g., historical cost burdens in 1934 or anecdotes about delays in other cases) are insufficient. Peterson’s failure to apply, to pay the tax, or to furnish proof of delay or denial doomed his claim.
Binding Weight of Recent Supreme Court Dicta: Relying on McRorey, the panel rejects the characterization of Bruen’s footnote 9 and concurrence guidance as mere dicta to be ignored. The Fifth Circuit “is generally bound by Supreme Court dicta, especially when it is recent and detailed.” That methodological stance is pivotal to the outcome here.
Cabined Holding: The opinion is careful to leave open the broader questions it need not decide—most notably whether suppressors are in fact “Arms” under the Second Amendment and whether, on an adequate record, the NFA would pass Bruen’s historical-tradition step for suppressors.

Interaction with Related Decisions and Inter‑Circuit Trends

Alignment with McRorey (5th Cir.) and Moore (4th Cir. en banc): The decision tracks a growing appellate consensus that objective, screening‑type licensing regulations are presumptively valid after Bruen, subject to proof of abusive administration.
Consonance with Rahimi’s As‑Applied Focus: By confining analysis to Peterson’s circumstances, the panel showcases the Supreme Court’s insistence that as‑applied adjudication hinges on developed, party‑specific facts.
District Court Landscape on Suppressors: The court cites district decisions concluding either that suppressors are not “arms” or that, even if they are, the NFA satisfies historical tradition. Peterson adds an appellate‑level holding that, regardless of the ultimate “arms” question, the NFA suppressor process is a valid shall‑issue regime on the record presented.

Impact and Practical Implications

Second Amendment Litigation: In the Fifth Circuit (Texas, Louisiana, Mississippi), litigants who target the NFA’s suppressor provisions must come armed with evidence—actual applications, proof of processing times, fees paid, denials, and how those burdens effectively foreclosed exercise. Mere policy objections, historical pricing comparisons, or generalized allegations of delay will not suffice.
Scope Beyond Suppressors: The logic applies naturally to other NFA “shall‑issue” processes that use objective criteria (e.g., making or transferring short‑barreled rifles/shotguns, certain AOWs, and destructive devices). It does not address firearms or items subject to categorical bans (such as post‑1986 machineguns under 18 U.S.C. § 922(o)), which raise distinct questions.
Administrative Practice: Agencies and licensing officials should maintain objective standards, avoid discretionary creep, keep processing times reasonable, and set fees that do not effectively deny the right. The opinion underscores that documented abuses could trigger successful as‑applied challenges.
Criminal Enforcement: Good‑faith reliance on a magistrate‑issued warrant remains robust. Affidavits with concrete investigative facts—controlled buys, observed violations, false statements—will sustain officer reliance even if probable cause is later debated.
Defense Strategy: For suppression motions, litigants should confront the good‑faith exception head‑on and develop arguments for one of the four recognized exceptions. For Second Amendment motions, build a record: apply, document delays, fees, communications, and denials.

Complex Concepts Simplified

“Shall‑Issue” vs. “May‑Issue”: A shall‑issue regime requires issuance when an applicant meets objective, predefined criteria (e.g., background check, fingerprints). A may‑issue regime gives officials broad discretion to deny even qualified applicants (e.g., “proper cause” to carry). Bruen condemned the latter; it preserved the former, subject to proof of abusive implementation.
Presumption of Constitutionality for Objective Licensing: Under Bruen (and Heller), objective, screening‑type regulations tied to ensuring that bearers are law‑abiding are presumptively valid. But that presumption can be rebutted by showing the regime’s actual operation blocks ordinary citizens via excessive fees or delays.
As‑Applied vs. Facial Challenges: An as‑applied challenge targets how a law operates for a particular person; success requires evidence specific to that person’s experience. A facial challenge asserts a law is invalid in most or all applications; it typically faces a higher bar and broader proof.
Exclusionary Rule and Good‑Faith Exception: Evidence obtained under a defective warrant is not automatically suppressed. If officers reasonably rely on a magistrate’s warrant, the good‑faith exception applies unless: (1) the magistrate was misled by known or reckless falsehoods; (2) the magistrate abandoned neutrality; (3) the affidavit was so bare it gave no basis for probable cause; or (4) the warrant was facially deficient.
NFA “Making” Process: To make a suppressor lawfully, an applicant submits an ATF form with identifying information, fingerprints, and a photograph, pays a $200 tax, and awaits approval. Approval is denied if making/possession would violate law (e.g., prohibited person, state ban). If approved, the made item must be marked with a serial number and registered in the National Firearms Registration and Transfer Record.

Key Takeaways

The Fifth Circuit cements Bruen’s shall‑issue presumption for the NFA’s suppressor licensing: objective criteria, background‑check‑style vetting, and fixed taxes are presumptively lawful absent evidence of abusive implementation.
As‑applied Second Amendment challenges must be evidence‑rich. Not applying at all, or offering unsupported assertions about delays or costs, will not carry the day.
The panel carefully leaves undecided whether suppressors are “Arms” and whether the NFA also survives at Bruen’s history step on a robust record—issues that are reserved for future cases.
Good‑faith reliance on a magistrate’s warrant remains a powerful bar to suppression. Affidavits with concrete investigative facts will usually avoid the “bare bones” label.

Open Questions and Limits

Are suppressors definitively “Arms”? The court assumed without deciding. A future case may squarely decide this threshold issue.
What evidentiary showing rebuts the presumption? The opinion highlights “exorbitant fees” and “lengthy wait times” but leaves open what magnitudes or durations cross the constitutional line. It favorably cites cases sustaining brief (e.g., 10 business-day) waits.
Historical analogues at Bruen’s step two: Although several district courts have upheld the NFA on historical grounds, the Fifth Circuit reserved that analysis, to be addressed if and when the presumption is overcome by evidence in an as‑applied record.

Conclusion

United States v. Peterson is a consequential Fifth Circuit decision that translates Bruen’s “shall‑issue” assurances into concrete protection for the NFA’s suppressor licensing. By treating Bruen’s guidance as binding and insisting on a fact‑rich, as‑applied record, the court both stabilizes objective licensing regimes and channels Second Amendment litigation into evidence‑based disputes over actual administrative burdens. On the Fourth Amendment front, Peterson reiterates that the good‑faith exception remains robust: where officers rely on a magistrate‑issued warrant backed by more than “bare bones” assertions, suppression is inappropriate even if probable cause is later questioned.

The opinion’s careful cabining—assuming, but not deciding, that suppressors are “Arms,” and declining to reach historical analogues—signals judicial restraint and leaves room for future litigants to test the limits with developed records. For now, however, the rule in the Fifth Circuit is clear: the NFA’s shall‑issue suppressor licensing is presumptively constitutional, and without proof of abusive fees or delays, an as‑applied Second Amendment challenge will fail.