USA v. Joseph Berger
Split Score
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Case Summary
Disposition
Affirmed
The Third Circuit affirmed Joseph Paul Berger’s convictions for possessing machine guns and unregistered silencers, rejecting his Second-Amendment challenge. The court held that machine guns are not ‘in common use’ for lawful purposes and therefore may be banned, and that the National Firearms Act’s objective, shall-issue registration regime for silencers does not infringe the right to keep and bear arms.
Circuit Split Identified
Legal Issue
Whether detachable firearm accessories such as silencers fall within the term “Arms” protected by the Second Amendment.
Circuit Positions
Accessories like silencers (and magazines) qualify as protected ‘Arms’ under the Second Amendment (though regulations may still survive).
Accessories such as silencers are not ‘Arms’ within the meaning of the Second Amendment and receive no constitutional protection.
Third Circuit in this opinion assumes arguendo that silencers are Arms but expressly declines to decide the question.
Conflict Summary
Some circuits treat certain accessories—including silencers and large-capacity magazines—as protected ‘Arms,’ while others hold that accessories are not constitutionally protected because they are not necessary for a firearm to function. The Third Circuit (in prior en banc precedent and by assuming without deciding here) proceeds as though accessories may be ‘Arms,’ whereas the Fifth Circuit expressly concludes they are not.