Silencers Are Second Amendment “Arms,” but NFA § 5861(d) Challenges Fail Absent Proof a Shall-Issue Regime Is “Put Toward Abusive Ends”

I. Introduction

United States v. Comeaux (5th Cir. June 18, 2026) addresses whether the National Firearms Act’s registration requirement for silencers—enforced through 26 U.S.C. § 5861(d)—violates the Second Amendment, either facially or as applied.

After a state-law incident (unlawful discharge), Louisiana deputies searched Brennan James Comeaux’s home and seized firearms and suspected silencers. The ATF concluded the items were “device[s] for silencing, muffling, or diminishing the report of a portable firearm.” Comeaux admitted he manufactured and possessed them. A federal grand jury indicted him under § 5861(d) (possession of an unregistered “firearm,” here, silencers) and § 5861(i) (possession of a “firearm” without a serial number). He moved to dismiss on Second Amendment grounds, lost, entered a conditional guilty plea to § 5861(d), and appealed.

The core issues on appeal were:

  • Classification: Are silencers Second Amendment “Arms”?
  • Burden/trigger: Does § 5861(d), applied to silencers, “implicate” the right to keep and bear arms so as to require a full N.Y. State Rifle & Pistol Ass'n v. Bruen analysis?
  • Precedent constraint: Does United States v. Peterson control and foreclose Comeaux’s challenge absent evidence that the NFA’s process is “abusive” (fees, delays, etc.)?

II. Summary of the Opinion

The Fifth Circuit affirmed Comeaux’s conviction. The panel made two key moves:

  1. Silencers are Second Amendment “Arms.” The court held that silencers “fit” the constitutional definition because they facilitate lawful self-defense by improving safety and effectiveness (reduced hearing loss risk, recoil, muzzle blast; increased accuracy; faster follow-up shots).
  2. But Comeaux loses at Bruen Step 1 under controlling circuit law. Bound by United States v. Peterson, the panel required Comeaux to show the NFA’s shall-issue regime has been “put toward abusive ends” (e.g., “exorbitant fees” or “lengthy wait times”). Because he did not allege such abusiveness, the court held he failed to show § 5861(d) burdens his Second Amendment rights, and therefore his claim fails without reaching Bruen Step 2.

The panel also indicated the facial challenge necessarily fails because United States v. Peterson already upheld an application of § 5861(d), and a facial challenge requires showing “no set of circumstances” under which the statute is valid.

III. Analysis

A. Precedents Cited (and How They Shaped the Result)

  • United States v. Peterson, 161 F.4th 331 (5th Cir. 2025), cert. denied, 224 L. Ed. 2d 501 (2026)
    Role: Decisive. Peterson upheld a § 5861(d) conviction involving a silencer by treating the NFA’s shall-issue regime as “presumptively lawful” and requiring challengers to show it was “put toward abusive ends.” Comeaux’s panel treated Peterson as controlling under the rule of orderliness, and—because Comeaux did not allege exorbitant fees, excessive waits, or similar administration-based burdens—resolved the Second Amendment claim at Bruen Step 1.
  • N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)
    Role: Framework and (via footnote nine) the contested source of Peterson’s “presumption.” The Comeaux majority applied Bruen’s two-step method in form, but—consistent with Peterson—treated the “shall-issue” discussion in Bruen’s footnote nine as allowing a threshold presumption that can defeat claims before historical analogues are litigated.
  • District of Columbia v. Heller, 554 U.S. 570 (2008)
    Role: Definition of “Arms” and “bear arms.” Heller’s broad textual definition supported the majority’s holding that silencers qualify as “Arms” because they are instruments used “for offensive or defensive action” and facilitate self-defense.
  • United States v. Connelly, 117 F.4th 269 (5th Cir. 2024)
    Role: Restates Bruen Step 2 (“relevantly similar,” “why” and “how”). Not ultimately applied because the panel (following Peterson) ended the case at Step 1, but Connelly framed what a Step-2 inquiry would require if triggered.
  • United States v. Rahimi, 602 U.S. 680 (2024) and United States v. Salerno, 481 U.S. 739 (1987)
    Role: Facial-challenge standard. The opinion used Rahimi (quoting Salerno) for the proposition that a facial challenge demands showing “no set of circumstances” in which the law is valid—making Comeaux’s facial attack untenable after Peterson upheld at least one valid application of § 5861(d).
  • United States v. Mitchell, 160 F.4th 169 (5th Cir. 2025), petition for cert. filed (Feb. 5, 2026) (No. 25-935)
    Role: Rule of orderliness. Mitchell was cited for the binding force of prior panel precedent, locking the Comeaux panel into Peterson’s approach unless and until overturned en banc or by the Supreme Court.
  • Does 1-7 v. Abbott, 945 F.3d 307 (5th Cir. 2019) (per curiam)
    Role: Preservation. Used to confirm that Comeaux preserved both facial and as-applied claims because he raised them and the district court adjudicated both.
  • United States v. Daniels, 124 F.4th 967 (5th Cir. 2025) and United States v. Jones, 88 F.4th 571 (5th Cir. 2023) (per curiam)
    Role: Standards of review (de novo vs. plain error). They mattered procedurally, but the court ultimately treated both challenges as preserved and reviewed them de novo.
  • Mock v. Garland, 7 5 F.4th 563 (5th Cir. 2023) (Willett, J., concurring)
    Role: Persuasive support for treating “safety-improving modifications” as within protected Second Amendment “conduct,” reinforcing the “silencers are Arms” conclusion.
  • United States v. Cox, 906 F.3d 1170 (10th Cir. 2018)
    Role: Descriptive NFA background. The panel cited Cox for the proposition that the NFA requires registration of statutorily defined firearms (including silencers).
  • United States v. Bridges, 150 F.4th 517 (6th Cir. 2025) (Nalbandian, J., concurring)
    Role: Support for Peterson’s narrowness framing. The opinion invoked Bridges to emphasize that Peterson turned on the litigant’s failure to develop an as-applied record.
  • McDonald v. City of Chicago, 561 U.S. 742 (2012)
    Role: Cited in the concurrence to emphasize the Second Amendment is not “second-class” and to criticize any analysis that departs from text/history/tradition.
  • Md. Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc) (Richardson, J., dissenting) and United States v. Speed, 175 F.4th 272 (4th Cir. 2026) (Richardson, J., concurring)
    Role: Concurrence’s critique of Peterson. These authorities were cited for the proposition that treating Bruen’s footnote nine as creating a presumption—and inserting a “half-step” before Step 2—misreads Bruen and improperly displaces historical analysis.
  • United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023) and Brown v. Davenport, 596 U.S. 118 (2022)
    Role: Concurrence’s caution against elevating dicta/footnotes into doctrine, arguing Peterson “traded history for dictum.”

B. Legal Reasoning

1. The NFA scheme and § 5861(d)

The court described the NFA as a registration-and-approval regime for defined “firearms,” including silencers (26 U.S.C. § 5845(a)(7)). For making a covered firearm, the applicant historically had to file identifying paperwork, submit fingerprints/photos, pay a tax (the opinion notes it later decreased to $0), and obtain approval to make/register the firearm. Section 5861(d) then criminalizes possession of an unregistered NFA firearm.

2. Bruen Step 1: the scope of the right

The panel’s most significant doctrinal addition is its affirmative holding that silencers are Second Amendment “Arms”. It rejected two government themes:

  • Not necessary to a firearm’s functioning: The court read Bruen/Heller to require facilitation of armed self-defense, not “necessity.”
  • Not tied to Founding-era militia service: The court invoked Bruen and Rahimi to reject a “trapped-in-amber” view limiting coverage to weapons existing at the Founding or strictly militia-linked items.

3. The Peterson “threshold” within Step 1: whether § 5861(d) implicates keeping/bearing

Despite finding silencers covered “Arms,” the panel held that § 5861(d) must still implicate the ability to keep and bear them to proceed to Bruen Step 2. Under Peterson, the NFA’s shall-issue registration system is treated as “presumptively lawful” unless the challenger alleges it is “put toward abusive ends,” such as:

  • “exorbitant fees,” or
  • “lengthy wait times in processing license applications.”

Comeaux did not allege he applied, paid, was delayed, was discouraged, or otherwise faced “abusive” administration. Therefore, the panel concluded the record did not show he was effectively denied Second Amendment rights, and his claim failed at Step 1 (without reaching historical analogues under Step 2).

4. Facial versus as-applied

The panel treated the facial challenge as foreclosed because Peterson upheld at least one application of § 5861(d), and under Rahimi/Salerno, a facial challenger must show “no set of circumstances” where the law is valid.

5. The concurrence: a direct invitation to revisit Peterson

Judge Clement (joined by Judge Duncan) concurred fully in the judgment and in the holding that silencers are protected “Arms,” emphasizing the operative test is lawful purpose, not necessity. But the concurrence argued Peterson’s “presumption of constitutionality for shall-issue licensing regimes” overreads Bruen’s footnote nine, improperly inserts a “half-step” before Bruen Step 2, and risks reintroducing interest-balancing through an “abusiveness” screen. The concurrence urged en banc reconsideration to restore “text, history, and tradition” analysis.

C. Impact

  • Doctrinal clarification within the Fifth Circuit: silencers are “Arms.”
    This is a meaningful Step-1 holding. Future litigants in the Fifth Circuit no longer need to rely on assumptions about whether silencers fit the Second Amendment’s textual coverage.
  • Practical barrier to NFA challenges remains (for now): the Peterson requirement.
    Even with silencers covered, Comeaux confirms that—under current Fifth Circuit law—a challenger must plausibly allege and develop a record that the NFA’s shall-issue regime is being administered abusively (fees, delays, or similar) to force Bruen Step 2 litigation.
  • Litigation incentives: “as-applied” record-building will be central.
    The opinion signals that successful challenges (if any) will turn on concrete evidence about processing times, administrative obstacles, and other implementation facts—rather than purely abstract historical arguments.
  • Internal pressure for en banc review.
    The concurrence openly critiques Peterson’s methodology and labels it incompatible with Bruen’s two-step framework. That raises the likelihood of en banc petitions (or strategic case selection) designed to revisit Peterson’s “presumption/half-step.”
  • Potential downstream effects beyond silencers.
    The opinion’s “lawful purpose, not necessity” framing may influence disputes about other firearm components or modifications claimed to facilitate self-defense, even where those items are regulated as accessories or parts rather than the firearm itself.

IV. Complex Concepts Simplified

  • Facial vs. as-applied challenge
    A facial challenge argues a law is unconstitutional in all applications. An as-applied challenge argues the law is unconstitutional as applied to the specific person and facts. Facial challenges are harder because courts ask whether any valid application exists.
  • Bruen’s “two-step” method
    Step 1: Does the Second Amendment’s text cover the conduct (keeping/bearing “Arms”)? If yes, protection is presumptive.
    Step 2: The government must justify the regulation by pointing to a historically grounded tradition of analogous regulations (similar “why” and “how”).
  • “Shall-issue” licensing
    A “shall-issue” system generally requires the government to issue approval if objective criteria are met (as opposed to “may-issue,” where officials have broader discretion).
  • “Put toward abusive ends”
    In this line of Fifth Circuit cases, that phrase means a licensing/registration regime might burden the Second Amendment if it is administered in a way that effectively blocks access—through extreme costs, long delays, or similar obstacles.
  • Rule of orderliness
    A Fifth Circuit panel must follow earlier Fifth Circuit panel decisions unless overruled by the en banc court or the Supreme Court.

V. Conclusion

United States v. Comeaux establishes (or at least firmly announces) an important point: silencers are Second Amendment “Arms.” Yet it also reinforces that, within the Fifth Circuit and under United States v. Peterson, a defendant challenging § 5861(d) must do more than invoke self-defense; the challenger must allege and support that the NFA’s shall-issue system is being administered in an “abusive” way that effectively burdens access. The concurrence underscores that this screening rule is contested and may be ripe for en banc reconsideration, setting the stage for further development in how Bruen is operationalized for registration and licensing regimes.