USCA4 Appeal: 23-4693 Doc: 40 Filed: 12/12/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4693

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ARBAB SALEEM,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Senior District Judge. (3:21-cr-00086-FDW-SCR-1)

Submitted: August 26, 2024 Decided: December 12, 2024

Before WILKINSON, AGEE, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: William R. Terpening, TERPENING LAW, PLLC, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Julia K. Wood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Arbab Saleem pled guilty to knowingly possessing an unregistered short-barreled

shotgun, in violation of

(a)(6) and

(a)(2), 5861(d), 5871;

and to knowingly possessing an unregistered silencer in violation of

(a)(3)(C), (a)(25) and

(a)(7), 5861(d), 5871. Following entry of

his guilty plea, Saleem moved to dismiss the indictment based on the Supreme Court’s

decision in New York State Rifle & Pistol Association, Inc. v. Bruen,

(2022).

Saleem argued that both counts of the indictment to which he pled guilty were facially

unconstitutional, asserting that the plain text of the Second Amendment protected the

possession of short-barreled shotguns and silencers and there were no analogous historical

traditions supporting the regulation of his conduct. The district court denied Saleem’s

motion to dismiss the indictment and sentenced him to 18 months’ imprisonment. Saleem

now appeals, challenging the district court’s denial of his motion.

“We review the district court’s factual findings on a motion to dismiss an indictment

for clear error, but we review its legal conclusions de novo.” United States v. Perry,

(4th Cir. 2024), cert. denied, No. 23-7413,

(U.S. June 10,

2024); see also United States v. Pruess,

(4th Cir. 2012). The Second

Amendment provides, “A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.

amend. II. “Prior to Bruen, courts evaluating the constitutionality of a gun regulation

balanced the individual’s Second Amendment right to possess a gun with the state’s interest

in promoting safety. Bruen replaced this balancing test.” United States v. Claybrooks, 90

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, 255 (4th Cir. 2024) (internal citations omitted). In Bruen, the Supreme Court

rejected the means-end analysis that many circuit courts had adopted after District of

Columbia v. Heller,

(2008), instead holding “in keeping with Heller,” that

“when the Second Amendment’s plain text covers an individual’s conduct, the Constitution

presumptively protects that conduct. To justify its regulation, the government . . . must

demonstrate that the regulation is consistent with this Nation’s historical tradition of

firearm regulation.”

.

In determining whether the Second Amendment’s plain text covers conduct, we ask,

inter alia, “whether the weapons regulated by the challenged regulation were in common

use for a lawful purpose.” United States v. Price, __F.4th.__, __, No. 22-4609,

, at *5 (4th Cir. Aug. 6, 2024) (internal quotations marks omitted). While “the

Supreme Court has not elucidated a precise test for determining whether a regulated arm is

in common use for a lawful purpose,” “[w]e know from Supreme Court precedent that

short-barreled shotguns and machineguns are not in common use for a lawful purpose.”

. Specifically, in Heller, the Supreme Court discussed United States v. Miller,

(1939), in which the Court upheld as constitutional under the Second Amendment

convictions for transporting unregistered short-barreled shotguns under the National

Firearms Act, one of the regulations challenged here. Heller,

. “Nothing

in Bruen abrogated Heller’s extensive discussion of the contours of the scope of the right

enshrined in the Second Amendment.” Price,

at *4. Accordingly,

“Miller stood for the proposition ‘that the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for lawful purposes, such as

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short-barreled shotguns’—a proposition Heller adopted as ‘according[ing] with the

historical understanding of the scope of the [Second Amendment] right.’”

(quoting

Heller,

). Therefore, Saleem’s possession of a short-barreled shotgun is not

protected by the Second Amendment.

With respect to the second challenged regulation, concerning silencers, Saleem

contends that silencers are considered arms that fall within the scope of Second

Amendment protection, or if not arms, reasonably necessary accoutrements. We disagree.

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.”

(internal quotation marks omitted). 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. Cf. Miller, 307, U.S. at 182.

Thus, a silencer does not fall within the scope of the Second Amendment’s protection. The

district court therefore properly denied Saleem’s motion to dismiss the indictment based

on Bruen.

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Accordingly, we affirm the district court’s judgment and deny Saleem’s motion to

expedite as moot. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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