The other day, obviously having nothing more important on my mind, I got to thinking about the illegality of silencers as applied to firearms. Now I don’t have an extensive background on silencers or suppressors, as Wikipedia likes to categorize them, but years ago I actually had the opportunity to shoot a German made .22 rimfire rifle that had been manufactured with a silencer as an integral part of the barrel. The story was that in Germany big game hunters would keep the silenced smallbore rifle with them in their stand to pot small game without the fear of disturbing other game in the process. It was rather a neat gun. Also many years ago, while on a coaching course with the Shooting Federation of Canada at Fort Benning Georgia, I had the opportunity to shoot some centrefire rifles complete with silencers and shooting sub-sonic ammunition.
But I digress. What did occur to me is that silencers would, in many instances, be extremely useful and certainly have no detrimental effect on public safety. For shooting ranges it would solve the noise problem which would be of enormous benefit. For all shooters, suppressors would significantly reduce hearing damage and for hunters there would be the benefit of game not spooking from the crack of the rifle on a missed shot. Kind of a win-win situation.
So why – I said to myself – are they illegal or at least so heavily controlled in so many places?
In Canada, a device to muffle or stop the sound of a firearm is a “prohibited device” under the Criminal Code. A prohibited device is not inherently illegal in Canada but it does require an uncommon and very specific prohibited device license for its possession, use, and transport. Suppressors cannot be imported into the country.
The United States taxes and strictly regulates the manufacture and sale of suppressors under the National Firearms Act. They are legal for individuals to possess and use for lawful purposes in thirty-eight of the fifty states. However, a prospective user must go through an application process administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which requires a Federal tax payment of US$200.00 and a thorough criminal background check. The $200.00 buys a tax stamp, which is the legal document allowing possession of a silencer. The market for used suppressors in the U.S. is consequently very poor, which has driven innovations in the field (buyers want the height of technology, because they are basically “stuck” with the purchase). Primitive suppressors are available in other countries for under US$40, but they are usually of crude construction, using cheap materials and baffle designs that were obsolete in the United States by the 1970s. While suppressors in the US are more expensive (hundreds to thousands of dollars), they are generally built with highly advanced baffle stacks and exotic materials like Inconel and high-grade heat-treated stainless steels. Several states and municipalities explicitly ban any civilian possession of suppressors.
The Federal legal requirements to manufacture a suppressor in the United States are enumerated in Title 26, Chapter 53 of the United States Code. The individual states and several municipalities also have their specific requirements.
The question is: Why have silencers been demonized and banned and ultra-severe penalties been set?
There doesn’t appear to be a lot of information available on the history of silencer/suppressor laws, but I did find this excellent paper titled Criminal Use of Firearm Silencers written in 2007 by Paul A. Clark. The abstract sums up the situation neatly.
Both the public and sentencing judges regard silenced firearms as more dangerous than ordinary unsilenced firearms, and the federal penalty for possession of a silenced firearm during crime is a 30-year mandatory minimum. The assumption that silenced firearms are more dangerous than ordinary firearms has never been empirically researched. This study examines federal and state court data to compile statistics on who is being prosecuted for possession of silencers and what crimes they are used to commit. This data indicates that both on the federal and state level those prosecuted for crimes involving silencers are far less likely to have a criminal record, and are far less likely to actively use their weapon than those people convicted using ordinary unsilenced firearms.
The data indicates that use of silenced firearms in crime is a rare occurrence, and is a minor problem. Moreover, the legislative history of silencer statutes indicates that these provisions were adopted with little or no debate. The silencer penalty has been justified by a need to crack down on “professional criminals” or to punish people using “dangerous weapons.” The evidence suggests that 30-year minimum sentences make no sense. Mandatory minimums should be repealed and sentencing judges permitted to treat each case on an individualized basis.
I was thinking recently about how pointless many laws are. Too often legislation is written and passed in an attempt to solve (or appear to be attempting to solve) some real or perceived problem, but without any intelligent consideration as to whether there is any logical or practical value to the legislation. Silencer laws seem to fit neatly into that category.
It’s not that anyone would be hard pressed to obtain a working silencer as there is a volume of information available on the internet and construction plans are easily available as well. So if a criminal thought that it would be advantageous for him to have a silenced firearm there would be little to stop him from doing so. Again it turns out that like most laws of this type the people it controls is the law abiding citizens and has no effect on the criminals who don’t obey the laws anyway.
The author of the paper mentioned above did come up with some historical background on how silencers became dangerous in the eyes of the courts and the politicians.
Legislative History of Federal Silencer Regulation
The history of silencer regulation is complicated, and the documentation of why various provisions were passed is sparse. Courts that have tried to determine the legislative history of some of these provisions have expressed dismay at the paucity of information in the legislative record (U.S. v. Hall, 171 F.3d 1133, 1139-40 (8th Cir. 1999)). Scholars who have examined the history of gun control statutes in general have concluded that they tend to be the result of complex compromises and determining legislative purpose is difficult (Hardy, 1986: 585).
In 1934, the federal government began to regulate machine guns, sawed-off shotguns and silencers by placing a $200 tax on such weapons to discourage their sale (U.S. Congress, 1986b:219-220). The 1934 congressional debates provide no explanation about why silencers were licensed. Paulson (1996:10) opines that during the Great Depression, poaching game was thought to be a problem and silencers were licensed because of this concern.
In 1968 the federal government passed the first major federal gun control provisions. Anyone committing a felony which could be prosecuted in federal court received an additional one to ten years if a firearm was used (88 Stat. 1214, 1225 (Oct 22 1968)). The statute did not distinguish among different types of firearms, or include silencers.
In 1986 Congress adopted a 20-year enhanced sentence for crimes committed with a silencer–and this was increased to 30 years in 1988.6 Congressional debates contain no clear statement of reasons why the additional penalty for use of silencers was enacted. The House report on the legislation says little about silencers but describes them as “used in assassinations and contract murders” (U.S. Congress, 1986b: 4). The most thorough article on the 1986 Act, of which the silencer provision was one small part, does not even mention the silencer provision (Hardy, 1986:585). However, looking at the congressional hearings held on the bill, it is clear that the silencer rovision was a reaction to the murder of a Jewish talk-show host by white-supremacists. Alan Bergwas a well-known radio personality in Denver, whose outspoken criticism of hate groups resulted in his murder in June of 1984. He was ambushed outside his home and riddled with bullets from a .45 caliber sub-machine gun.The murder was widely publicized and resulted in a book being written about it (Singular, 1987).
In December of 1984, the FBI raided the home of their prime suspect, Gary Yarbrough: When agents searched the home, they found the MAC-10 [.45 caliber sub-machinegun] and four crossbows, 100 sticks of dynamite, plastic explosives, hand grenades, semi-automatic rifles, infrared night vision scopes, gun silencers, booby traps, police scanners and 6,000 rounds of ammunition (“Aryan Group, Jail Gangs Linked,” Washington Post, Dec. 18, 1984, cited in U.S. Congress, 1986a:158).
It was assumed that the silencer had been used in the attack, because silencers were found in the same place as the apparent murder weapon. Witnesses testifying before the Judiciary Committee called attention to this possession of a silencer by the prime suspect. Sam Rabinove, Legal Director of the American Jewish Committee told the House Judiciary Committee:
I have with me several news articles, all of which in some way relate to the kind of racist
violence [which] saw the death of Allen [sic] Berg in Denver, with the Aryan Nations, the
Order, and other such racist extremist groups. In each of these articles, there is always the
mention of a silencer, or a 9mm handgun (U.S. Congress, 1986a:142).
It turned out that Yarbrough was not involved in the murder. In 1987 (long after the silencer provision had been adopted), two other members of the neo-nazi group were convicted of the murder and given 150-year prison sentences (“150-Year Sentences Given to Two Killers of Radio Show Host,” 1987). There is no evidence that a silencer was used. The murder was reported by neighbors who heard gunshots, making the silencer theory unlikely (Singular, 1987:19-20).
In any event, a number of witnesses assured the House Committee that machine guns and silencers were “basic tools of racketeers, drug traffickers and professional killers” (Statement of American Academy of Pediatrics, U.S. Congress, 1986a:167). There was no statistical evidence cited as to the incidence of silencers in crime. The Bureau of Alcohol, Tobacco and Firearms was asked to provide information on the incidence of machine guns in crime, but no one bothered to ask for any such data about silencers (U.S. Congress, 1986a:221; see also Hardy, 1986:673).7
Unfortunately, that is all the legislative record contains as far as silencers are concerned. Silencers were declared to be the tools of professional killers with no legitimate purpose. There are a number of other reasons one might advance for the silencer provisions which do not seem to have been considered. One might think that silencers are inherently more dangerous than other firearms. At least one court has declared that it is the dangerous nature of silencers which lead to their control (U. S. v. Dunlap, 209 F.3d 472, 478 (6th Cir. 2000)). Yet there is nothing in the legislative record to indicate the inherent danger of silencers was an issue. One congressman, before being corrected by the expert witness, thought silencers were used “to transform a gun into an automatic weapon” (U.S. Congress, 1986a:75). Otherwise, despite numerous people testifying against silencers at the hearings, no one actually claimed they were dangerous. Congressman Hughes, for example, in discussing the provisions regarding machineguns and silencers, began by declaring: “To have an operating machinegun in somebody’s house, it is a dangerous weapon. It is extraordinarily dangerous. It really is.” He then went on to discuss silencers in a totally different vein, merely declaring that there was no reason “why a sportsman would want a silencer” (U.S. Congress, 1986a:759-60). One might think that silenced firearms are more likely to be discharged than a normal firearm, or that they make it easier for a criminal to get away with a crime. No reasons for punishing use of silencers were advanced; the constant refrain was that these devices were used exclusively by professional criminals.
So in effect, silencers were demonized and banned in the U.S. because some politican at the time sold the legislature and the public a bill of goods on how banning silencers on firearms would stop violent criminals from quietly killing people. And the police chiefs of the day would have nodded their heads and said “Yes, yes, we need this law because if don’t, we won’t hear the gang members shooting each other we won’t know where to go to arrest them”. Other countries, including Canada, went along with the same kind of nonsense.
Doesn’t this all sound a little too familiar?