[Eugene Volokh] Silencers Aren't "Arms" Protected by Second Amendment, Fourth Circuit Holds

From U.S. v. Saleem, decided today by Judges J. Harvie Wilkinson, Steven Agee, and Allison Rushing:

The Supreme Court in Heller defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Therefore, "the Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." While a silencer may be a firearm accessory, it is not a "bearable arm" that is capable of casting a bullet.

Moreover, while silencers may serve a safety purpose to dampen sounds and protect the hearing of a firearm user or nearby bystanders, it fails to serve a core purpose in the arm's function. A firearm will still be useful and functional without a silencer attached, and a silencer is not a key item for the arm's upkeep and use like cleaning materials and bullets. Thus, a silencer does not fall within the scope of the Second Amendment's protection.

Julia K. Wood represents the government.

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