Texas Challenge to the National Firearms Act might Succeed with HB957

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U.S.A.-(AmmoLand.com)- HB 957, the new silencer/gun muffler/suppressor law, will become effective in Texas on 1 September 2021. On that date, the Attorney General,  Ken Paxton, will be able to accept written notification by a United States citizen who intends to make a firearms suppressor as per Section 2.052 of the new law. The Attorney General shall then seek a declaratory judgment from a federal district court.

There is strong Supreme Court precedent the federal government may not command a state to enforce federal law, known as the anti-commandeering doctrine.

HB 957 goes far beyond anti-commandeering. It sets up a test case to undermine the pernicious doctrine which has crept into the federal judiciary over the last 80 years. The doctrine is:  all commerce is essentialy interstate commerce, and may be regulated by the federal government.  From HB957 (now law):

Sec. 2.052. NOT SUBJECT TO FEDERAL REGULATION. (a)  A firearm suppressor that is manufactured in this state and remains in this state is not subject to federal law or federal regulation,including registration, under the authority of the United States Congress to regulate interstate commerce. 

(b) A basic material from which a firearm suppressor is manufactured in this state, including unmachined steel, is not a firearm suppressor and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm suppressor. 

Sec. 2.053.  MARKETING OF FIREARM SUPPRESSOR. A firearm suppressor manufactured and sold in this state must have the words “Made in Texas” clearly stamped on it.

Sec. 2.054. ATTORNEY GENERAL. On written notification to the attorney general by a United States citizen who resides in this state of the citizen’s intent to manufacture a firearm suppressor to which Section 2.052 applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that Section 2.052 is consistent with the United States Constitution.

The United States Courts have created the precedent, since 1942 in Wickard v. Filburn, that all commerce may be regulated by the federal government, because all commerce affects interstate commerce. The precedent was established by courts overwhelmed with justices who were ideological Progressives.

Several cases, starting in 1995, with U.S. v. Lopez(1995), then  U.S. v. Morrison(2000), and even “Obamacare” NFIB v. Sebelieus (2012) establish a different precedent, that the power of the United States government to regulate commerce has some limit.

The most problematic of these sorts of cases is Gonzalez v. Raich (2005). In Raich, the Supreme Court held that people growing Marijuana in their own homes for their own use affected interstate commerce and was subject to regulation by the federal government.

Justice Thomas wrote a famous dissent in Raich, which was decided 6-3. Justice Thomas is the only member of the court who created the Raich decision who is still on the court.

The National Firearms Act (NFA), which is the base federal law used to regulate silencers/gun mufflers/suppressors, is a good test case to work to advance the precedent which limits federal power to regulate all commerce.

The historical record is clear. The taxing power was used, in the case of the NFA, to avoid the limitations on the federal government placed by the Second Amendment, the Tenth Amendment, the Fourteenth Amendment, and the commerce clause. The legislative intent is well documented.

There are numerous precedents that using government power to restrict fundamental rights protected by the Constitution, is invalid.  For example, newspapers may not be taxed more than other, similar establishments.

In other cases, the federal courts are reluctant to restrict taxing powers.

The logical problem is, if you allow taxation of the exercise of Constitutional rights, you grant the government the power to violate those rights.

Silencers are the weakest part of the NFA. There was virtually no legislative history to give intent for the extreme tax on silencers. The tax is not popular; it taxes a safety device; there are numerous examples and statistics to show the tax does not reduce crime.

Silencers are increasing in popularity, while their use in crime is negligible.  There are over 400,000 legal silencers in Texas.

Federal courts, and especially the Supreme Court, have been reluctant to restore constitutional checks and balances, and, especially, limits on federal power, after 80 years of Progressive infringements. The best approach is to offer the court small, incremental steps restoring rights, rather than “all or nothing” efforts which require the courts to invalidate vast expanses of law all at once.

This correspondent believes the way to expand the doctrine of limiting federal power over the commerce clause and to invalidate the NFA, is to argue a person making a silencer for their own use, in their own state, is not “commerce” as defined in the commerce clause of the Constitution.

If everything is commerce, the commerce clause allows the federal government to invalidate the concept of federalism, by invalidating state power to regulate its internal affairs; and to invalidate the Second Amendment by allowing the federal government to selectively apply excessive taxation to a disfavored, fundamental right.

Arguing an individual, making a safety device, for their own use, which has virtually no effect on interstate commerce, is beyond a reasonable interpretation of the original meaning of the commerce clause, has a chance of being accepted by the federal courts.

Arguing a business, selling a commercial product inside a state, is beyond federal power, is much harder. It has a much lower chance of succeeding.

Limits on federal power, which have been stripped away by Progressive courts over the last 80 years, are unlikely to be restored all at once. They can be restored,  incrementally, over time.

This correspondent recommends the examples used by AG Paxton be selected with care. Sympathetic examples are best; perhaps poor, minority, single mothers can be found.  Selecting sympathetic clients has become a major part of jurisprudence in the federal courts.

If you believe you could be helpful to AG Paxton, you may want to contact him.

The law is set up so the AG can challenge the federal law before any items are made in Texas, under the new law.

This correspondent suspects such efforts are already underway. It is likely the briefs to be filed in federal court are already sketched out.

Texas Attorney General Ken Paxton is not a fool.

It would be poor judgment to set up a shop and start to manufacture and advertise “MADE IN TEXAS” silencers/gun mufflers/suppressors before the Texas AG legal challenge is completed.

Privately made and discreetly held gun mufflers, on the other hand, will be much harder for federal or local authorities to find and/prosecute under the new law, because state and local authorities will be risking their budget to do so. Federal authorities mostly depend on local authorities to find cases.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Russn8r
Russn8r
1 month ago

Cuck Abbot pretends conservative under extreme pressure from real conservatives when he’s up for re-election. Browse through The Texas Minute to see what he & saboteur Speaker Phelan really are. e.g.:

https://texasscorecard.com/state/texans-critique-gov-abbotts-and-speaker-phelans-handling-of-botched-special-session/

Those who are not just self-stroking Chatroom Commandos should consider donating to Dan Huffine’s Campaign to bounce Abbot in next year’s R primary.

Russn8r
Russn8r
1 month ago
Reply to  Russn8r

TX Gov Greg ABBOTT will easily win re-election.”
-TEX/Will (not to be confused with Will Rogers)

You misspelled “CUCK” again, “TEX”.

AJChwick
AJChwick
1 month ago

“to argue that a person making a silencer for their own use, in their own state, is not “commerce” as defined in the commerce clause of the Constitution.”

This is very much akin to a person making their own firearm, which even in the GCA’68 continued to be permitted. Which is another strong argument. Plus the personal making of wine & whiskey, though limited by a maximum quantity.

This does seem to be very promising.

Excellent piece Mr..Weingarten

JimmyS
JimmyS
1 month ago

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

John Adams

USMC0351Grunt
USMC0351Grunt
1 month ago

Dean, ANOTHER fantastic and eloquent article. Between you and several other writers, journalists, and commentators on Ammoland, you feed us the right information, direction and, well, chutzpah necessary for those that wish to get on board with stepping up and defending this great country from the constant onslaught of tyranny we face. Extremely reliable sources. Best of health and harmony to you always.

Russn8r
Russn8r
1 month ago
Reply to  USMC0351Grunt

Blah blah blah. More Chatroom Commando toady bloviation by The Grunt Who Leads From Behind.

Last edited 1 month ago by Russn8r
Neanderthal75
Neanderthal75
1 month ago
Reply to  Russn8r

Yeah, that’s not really a proper rebuttal to anything that the grunt said!

What you’ve done is basically throw a tantrum on the playground, AKA this thread, and then shouted in the air that it’s not fair for whatever happened to to be promoted, like common sense.

You are the keyboard Commando in this instance not the grunt.

Cheers from the oil patch in Central Wyoming

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

Boo hoo. That’s your opinion, and you’re welcome to it.

Orion
Orion
1 month ago
Reply to  Russn8r

so tell us, were you born this this stupid or ….. did it take some phake college degree? inquiring minds would like to know.

Russn8r
Russn8r
1 month ago
Reply to  Orion

Duh HUH!!! Sock puppets talking to each other. Precious!

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Orion

“mentally disturbed moron!…Don’t get into it with that fool…!”
-TEX!, poo-mouth low-IQ illiterate ex-cop hit&run troll with RINO skid marks on his uvula.

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Russn8r

I quote TEX!’s thug posts before it deletes them & RUNS AWAY cackling like a hyena with a false penis, tail between its legs.

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Russn8r

How’s Cuck Abbot’s DNA taste today, TEX!?!?

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Russn8r

“You collect downvotes on Ammoland!”
-TEX!/Will (not to be confused with Will Rogers)

Boo hoo. I don’t live for upvotes, unlike poo-mouth illiterate loser thug ex-cop troll TEX! & his posse of sock-puppet pu$$ies.

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  USMC0351Grunt

“Just ignore Rusky and his moron sidekick JSNMGC. They work in unison with their bullshit and are only on AMMOLAND to argue and continue to make idiots out of themselves. Plus,they are two Wyoming boys! ‘Nuff said!!!!”
-TEX!!!/Will!!! (not to be confused with Will Rogers)

Duh HUH!!!

Now delete your posts & RUN AWAY cackling like a hyena with a false penis, as usual. YOU GO GIRL!!!

Last edited 1 month ago by Russn8r
Neanderthal75
Neanderthal75
1 month ago
Reply to  USMC0351Grunt

Well I live in wyoming, and I disagree with both of them, so would you care to take an idea of what I believe concerning your derogatory terms?

Like my granddad used to say who was an Okie, who came of age during the Great Depression:

“You can tell a Texan a mile off, but when he gets up close you can’t tell him nothing!”

Because of the influx of people from out of state, these days Texans are like that old saying “all hat and no cattle!”

Cheers from the oil patch in Central Wyoming

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

“Nothing at all wrong with Wyoming ! Been through there many times when we lived in Billings,MT. These two are constantly trashing TEXAS and I just got back at them is all.”
-TEX!!!/Will!!! (not to be confused with Will Rogers)

Lying sack. You repeatedly trash Wyoming, assuming I live there, then delete your comments and RUN AWAY.

I don’t trash Texas. I’m trying to save it from RINOs like you, donating to real conservatives like Dan Huffines to bounce Cuck Abbot next year.

JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

“TEX” (Will),

You continue to try and make this a state issue.

I’ve said multiple times I like Texas and there are a lot of good people in Texas (including my family and friends).

You are not Texas – you are just some guy who lives in Texas.

You continue to lie and misrepresent things with hyperbolic comments. Again, I feel sorry for the great people of Texas who had to endure you when were an enforcer. You are one of the reasons people are uncertain of what percent of LEOs are good.

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

Yep.

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

Okies & Texans have always had a friendly type of trash talk about each other! Nothing new!”
TEX!/Will! (not to be confused with Will Rogers)

Trash talk spews readily out of your trash mouth.

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

Stop lying, Tex.

Roland T. Gunner
Roland T. Gunner
1 month ago

So, how long till machine shops here in Texas can start cranking out the Ingrams?

JSNMGC
JSNMGC
1 month ago

“This correspondent recommends the examples used by AG Paxton be selected with care. Sympathetic examples are best; perhaps poor, minority, single mothers can be found. Selecting sympathetic clients has become a major part of jurisprudence in the federal courts.”

Why not have AG Paxton and Governor Abbott be the examples?

Neanderthal75
Neanderthal75
1 month ago
Reply to  JSNMGC

More and more with each passing article, you pay less and less attention to the actual details written in the articles! Take a look at the word sympathetic will you? Weingarten even defined the term for you: a young single mother who is poor financially speaking! This type of person would be someone that the media would have an extremely difficult time attacking without severe backlash! Why don’t you put aside the hate filled bias that you carry inside your head and your heart and spirit every single moment, and chuck them for an hour just to see what it… Read more »

Finnky
Finnky
1 month ago
Reply to  Neanderthal75

I believe a grandparent with noise induced hearing loss (from gun fire) who wants a suppressor in order to safely teach shooting to his grandchildren (including granddaughters of course) would make a better sympathetic plaintiff. Add the race angle for extra points – perhaps an Asian child-in-law with mixed race grandchildren who have suffered from recent anti-Asian violence. Hate to say it, but if grandparent is raising their grandkids because parent(s) died in service to our country – it would make them even more “sympathetic”. Make granddad an old retired LEO and let grandma have been raped and/or killed coming… Read more »

JSNMGC
JSNMGC
1 month ago
Reply to  Neanderthal75

Calm yourself, drama queen. Dean described a strategy for the inevitable legal action associated with the suppressor law. I made an alternate suggestion – I wrote this: “Why not have AG Paxton and Governor Abbott be the examples?”   You then wrote some long-winded comment about how I didn’t read the strategy Dean described and then I said I had “hate-filled bias.” Why don’t you discuss an issue rather than make emotionally charged accusations? I read what Dean wrote – I just don’t agree with it and I suggested a different strategy. The idea of pushing a person with no power… Read more »

Russn8r
Russn8r
1 month ago

Not for long if RINOs like you don’t stop shilling for RINOs like Phelan and Abbot.

JSNMGC
JSNMGC
1 month ago
Reply to  Russn8r

“TEX” (Will) – Who was replying to Russn8r: “F you! You and your moron sidekick stay in Wyoming and stay envious of how great things are in TEXAS! (Wyoming the least populated state in the country) LMFAO! .” JSNMGC comment to Russn8r: I told you it gets funnier than downvotes. I can only imagine what the great people of Texas had to endure with Will (“TEX”) waddling around with a gun, a badge and a radio. I can just hear him shrieking “you can’t video record me!” and “I smell an odor” and arresting people for resisting arrest and for… Read more »

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

LOL. Will/TEX(!!!) (not to be confused with Will Rogers) lashes out with low-IQ enforcer-quality crap then deletes it & runs away yipping like a female hyena with a false penis, in this case making it look my comment was directed towards Dean.

USMC0351Grunt
USMC0351Grunt
1 month ago
Reply to  Russn8r

It’s is past the stage of “BORING AS ALL HELL!” with you guys and your pissing matches on these comment sections. Why don’t you guys put on your Big Boy Pants and keep your eye on the ball?

JSNMGC
JSNMGC
1 month ago
Reply to  USMC0351Grunt

WHY doN”T YOu gET yOUR APathETIC ASS doWN to the VFW haLL and get the VETERans to sign a LETTer oPPosing CHIPMAN’s appOINTMENT to the DIRECtor of the BATFE???? PERIOD!!!!!!

Go to the media and let them know that Texas Veterans with their Eye on the BALL oppose Chipman’s appointment.

Get your apathetic ass moving.

Report back tomorrow.

Russn8r
Russn8r
1 month ago
Reply to  USMC0351Grunt

vs your fascinating sycophantic rah rah regurgitations.

The Grunt is good for public masturb…I mean pontification, and “leading from behind”, but he never does anything effective, as JSNMGC notes.

Last edited 1 month ago by Russn8r
Neanderthal75
Neanderthal75
1 month ago
Reply to  Russn8r

Wow you’re really upset!

Must have lost your binky a while ago and still not able to find it!

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

Duh HUH!!! Says the Dude who backs JBTs in Wyoming.

Russn8r
Russn8r
1 month ago
Reply to  Neanderthal75

LOL

Russn8r
Russn8r
1 month ago
Reply to  JSNMGC

P.S. I’m a natural born Texan and I don’t live in Wyoming.

Russn8r
Russn8r
1 month ago
Reply to  Russn8r

“Bullshit! In Texas it’s called native TEXAN not natural born! You lying scum!” -TEX!/Will! (not to be confused with Will Rogers) Now ask me if I care what an ignorant thug thinks. “Native Texan” includes born in Texas to non-citizen parents. That’s the definition in Sen Springer’s bill. I mean natural born in the intended constitutional sense: Jus Sanguinis & Jus Soli. In my case, born in Texas & father born in Texas. Must be frustrating that I know more about Texas than you do, and I haven’t lived there for decades. Now go look up Jus Sanguinis & Jus… Read more »

Last edited 1 month ago by Russn8r
Russn8r
Russn8r
1 month ago
Reply to  Russn8r

Thug Fail. Ha ha!

Russn8r
Russn8r
1 month ago
Reply to  Russn8r

It’s all you’re worth.

Russn8r
Russn8r
1 month ago
Reply to  Russn8r

I love how you delete anything that isn’t quoted, TEX. What a coward.

Russn8r
Russn8r
1 month ago
Reply to  Russn8r

This comment NOT directed to Dean. It was a reply to “F-U” TEX!!! aka Will, not to be confused with Will Rogers. But “F-U” TEX/Will(!!!) likes to delete his stupid posts and run away like a big P.

APG member
APG member
1 month ago
Reply to  Russn8r

Dang those old RINOs there everywhere!LOL!

Russn8r
Russn8r
1 month ago
Reply to  APG member

“there” everwhere!

Duh HUH!!! Huh-huh-huh. Huh! Huh-huh!

LMFAO!!!