Second Amendment Roundup: Arms and Accoutrements

United States v. DeBorba, decided on June 3, is the latest Ninth Circuit decision that seeks to exclude firearm parts from protection in the reference to the “arms” that the people have a right to keep and bear.  The court held that “‘optional accessories’ to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment’s plain text because they are ‘accoutrements’ and not arms.”  The test for whether an object is included in “arms” is supposedly based on whether it “is necessary to the ordinary operation of the weapon.”  “Ordinary” means anything you want it to mean.

That conclusion derives from the Ninth Circuit’s 2025 en banc decision in Duncan v. Becerra, which claimed that a ten (or fewer) round magazine is necessary to operate a semiautomatic firearm and is thus protected, but a magazine that holds over ten is not necessary and therefore has no protection.  For the basis for this illogic, see my post here.

It’s no surprise that the DeBorba court applied that “test” to the much-derided suppressors, but gun slings and scopes?  Perhaps the court is laying the groundwork for the California legislature to ban “assault slings” and “assassin scopes.”  After all, slings may be used in the standing (off-hand) position to shoot more accurately, as they often are at shooting matches.  But that could make spray firing more accurate as well.  And despite their use in hunting, scopes are inherently “military-style” as depicted in the movie American Sniper, making them adaptable to political assassinations.

Absurdities aside, slings and scopes should be considered within the term “arms” as they are very much part of the arms on which they are used.  Bruen held that the “general definition [of ‘arms’] covers modern instruments that facilitate armed self-defense.”  The Court said “facilitate,” not just barely essential for a shot to go off.  That necessarily includes instruments equipped with various features, whether characterized as so-called “accoutrements” or not, that enhance or otherwise affect the functionality of a firearm.

Under the Militia Act of May 8, 1792, a citizen was required to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges.”  Reference was made to “the arms, ammunition and accoutrements, required as aforesaid.”  Taken together, these items constituted “arms.”  A musket would not fire without a flint, even though Duncan listed flints as accoutrements, not arms.  And ammunition was necessary to fire a shot.  There was nothing about use of the term “accoutrements” that excluded items from Second Amendment protection.

That brings us to the facts in DeBorba, which involved an unregistered suppressor.  It is noteworthy that the Gun Control Act itself defines “firearm” to include a “firearm silencer or firearm muffler.”  And in DeBorba, “When the ATF attached DeBorba’s device to a portable firearm and fired the gun, the device ‘reduced sound reporting by at least twelve decibels.'”  That certainly made it, to use Bruen‘s terms, an instrument that could “facilitate” armed self-defense.

The Ninth Circuit’s test is that anything that the legislature may ban that is not absolutely necessary for a gun to go bang is a mere accessory excluded from the term “arms.”  If that includes a scope, it also includes just regular sights.  Indeed, that’s been the antigun argument all along, that features (like a pistol grip or adjustable stock) that make a firearm more accurate and comfortable to fire make it “unusually dangerous” and thus subject to prohibition.  Under that logic, a firearm could be stripped of every feature other than the barrel and firing mechanism, and since it would still go bang, that’s all that is protected by the Second Amendment.

Even if suppressors have Second Amendment protection, DeBorba continues, footnote 9 in Bruen creates a presumption of constitutionality for permitting processes that “do not require applicants to show an atypical need for armed self-defense” and for which “‘narrow, objective, and definite standards’ guid[e] licensing officials.”  The NFA is a “shall-issue” scheme under which one need only file a written application with fingerprints and photograph and await ATF to register the suppressor.

But that overlooks that footnote 9 concerns permits to carry firearms, not authorization merely to possess a firearm as does the NFA.  Licensing involves checking whether a person is disqualified from possessing arms, while registration involves the government tracking who possesses what guns.  No national consensus has ever existed that mere possession of a firearm warrants permanent registration with the government, including the persons’ fingerprints, photograph, and address.  Carrying firearms in public has always been distinguished by law from possession of firearms in the home.  Whatever the historical justification for the “shall-issue” permitting schemes, no historical analogues exist for NFA-type restrictions as applied to the private keeping of arms.

In Heller II (D.C. Cir. 2011), D.C.’s witnesses admitted that no crimes were ever solved with the District’s registration scheme.  As then-Judge Brett Kavanaugh wrote in his dissent:

D.C.’s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.

The Ninth Circuit’s devotion to excluding various firearm features from being included in protected “arms” recalls the pre-Heller days when some federal courts were only too happy to exclude actual people from “the people” in the Second Amendment, when it would have sufficed to hold that some people, like violent felons, lose their rights under the Amendment.  João Ricardo DeBorba’s real crimes included repeated violations of restraining orders, being an illegal alien, and lying on firearm forms, all the while being in unlawful possession of firearms based on such status.  Nothing in the court’s coverage of those issues raise any red flags for purposes of the Second Amendment.  Inventing “tests” that infringe on the rights of law-abiding citizens does a disservice to the Constitution.