Two June 2026 Circuit Rulings Create Circuit Split
Within two weeks this June, two federal appeals courts upheld convictions for possessing an unregistered silencer under the National Firearms Act, (“NFA”) and reached that same result for opposite reasons. The Ninth Circuit held in United States v. DeBorba that silencers are not even “arms” the Second Amendment protects. However, the Fifth Circuit held in United States v. Comeaux that silencers in fact are protected arms, yet affirmed the conviction anyway. João DeBorba was convicted after a stipulated-facts bench trial of a stack of firearms offenses, including unlawful possession of an unregistered silencer under 26 U.S.C. §§ 5861(d) and 5845(a)(7). On the silencer count, he raised both a Second Amendment and a Fifth Amendment vagueness challenge, which the Ninth Circuit rejected in upholding his conviction. In the separate case, Brennan Comeaux was charged under § 5861(d) with possessing unregistered, homemade silencers. He entered a conditional guilty plea preserving his Second Amendment challenge and was sentenced to 24 months. The Fifth Circuit affirmed his conviction, but took a very different path to get there.
In DeBorba, the Ninth Circuit held that silencers are not “arms” within the plain text of the Second Amendment at all. Relying on a previous decision in Duncan v. Bonta, the court treated silencers as “optional accessories” or “accoutrements,” treating them similar to slings and scopes for firearms, reasoning that because they are not necessary to a firearm’s ordinary operation they do not rise to the level of protection guaranteed by the Second Amendment. Further, the Court ruled, that even if silencers were arms, the NFA is a presumptively constitutional “shall-issue” licensing regime under footnote 9 of Bruen, the recent Supreme Court decision that has reopened how courts view gun rights in the United States. Because DeBorba offered no evidence that the registration process is put toward “abusive ends,” such as charging exorbitant fees or leading to lengthy processing delays, the scheme nonetheless survives scrutiny. The court also noted that the $200 making/transfer tax was reduced to $0 as of January 1, 2026, which moots any “exorbitant fee” theory built on that previous tax. Taking a completely different stance mere weeks after DeBorba, the Fifth Circuit held that silencers are “arms” under the Second Amendment. In arriving at this opposite conclusion, the Fifth Circuit reasoned that silencers facilitate armed self-defense by reducing loudness and the risk of hearing loss, lowering recoil, eliminating muzzle blast, improving accuracy, and enabling faster follow-up shots. The Fifth Circuit explicitly rejected the government’s argument that an item must be necessary to a gun’s function, or tied to militia service, to qualify for protection under the Second Amendment, relying on Bruen which requires only that an arm “facilitate armed self-defense,” and the Supreme Court has warned against a “trapped-in-amber” reading frozen at the time of the passage of the Second Amendment. Nonetheless, Comeaux’s conviction was upheld, with the appellate court finding that it was bound by an earlier decision in United States v. Peterson, which found that footnote 9 of Bruen makes the NFA’s shall-issue silencer regime “presumptively lawful” and because Comeaux, like Peterson, never alleged that the regime had been put toward abusive ends, his challenge failed and his conviction was upheld.
These decisions are the beginning of a “circuit split” which typically generate new challenges across the country, especially for matters where a person’s liberty and constitutional rights are at stake and make it more likely that the Supreme Court of the United States weighs in on the issue. In practice, any challenge to a federal silencer charge or conviction continues to face steep odds, but anyone facing said charges should at a minimum hire an experienced criminal defense attorney who understands how to appropriately mount a challenge and preserve the constitutional issues at play as more courts continue to weigh in on the issue which may be bound for the Supreme Court.
