Texas Silencer Law, NFA, No Commandeering, Commerce Clause, Test Case

Texas Gun iStock-884200682
Texas Silencer Law, NFA, No Commandeering, Commerce Clause, Test Case IMG iStock-884200682

U.S.A.-(AmmoLand.com)- Texas recently passed HB 957 into law. It will become effective on 1 September, 2021. The law repeals the Texas state ban on the possession of silencers/suppressors/gun mufflers, puts into effect a “no commandeering clause” for federal enforcement of the National Firearms Act (NFA) for silencers, and sets up a federal test case of the NFA in federal court.

In a previous article, the repeal of the Texas law and the anti-commandeering section were discussed. The likely federal test case was not.

HB 957 came from the brain of Representative Oliverson of Texas District 130, north of Houston. Dr. Oliverson is not a lawyer.  This correspondent was able to talk to Representative Oliverson about how he formed the idea for the law.

Dr. Oliverson came up with the idea to reform suppressor law in Texas because he had purchased two suppressors. He personally experienced the bureaucratic insanity it takes to legally obtain a silencer/suppressor/gun muffler in the United States.

Representative Oliverson:

I had this idea, last session, and it was something I sort of came up with on my own. The basic idea was, you know, states obviously, in the last decade, I am aware, have in a variety of ways, pushed back against federal law that they thought was overreaching and unnecessary, by simply opting out, and just saying look, we are not invalidating federal law, but as far as the state is concerned, we do not recognize this in the same way that you do, and you cannot use our resources to enforce the law. If you want to enforce it, knock yourself out, but we are not helping you, and we are done.

The first thing Representative Oliverson noticed about states which enacted anti-commandeering laws, was that Colorado did this with Marijuana, and other states started doing it as well.

The federal government did essentially nothing. Representative Oliverson:

“You just sort of saw crickets from the federal government on the issue.”

Representative Oliverson’s personal experience with legally purchasing suppressors convinced him the law should be changed:

I have two firearms suppressors, and I have a trust, and I have been through that inordinately painful process of getting them. And I thought, you know, this is stupid. 

I was aware that the CDC had published a study, in combination with NIOSH, recognizing that firearms suppressors are hearing protection devices that should be used whenever possible.  And there were other countries where they were readily accessible, with no ill effects. 

Representative Oliverson said Gun Owners of America, especially their Texas Director, Rachel Malone, was critical in getting the bill passed.

The anti-commandeering portion of the law makes it unlikely any Texas official will aid the federal government in enforcing the National Firearms Act for silencers.  If they do, their agency is subject to losing any State grant funds for the next year. This is a strong incentive for State agencies to direct their officers not to enforce federal silencer law.

HB 957 goes far beyond anti-commandeering. It sets up an ambitious test case to challenge the entire edifice of overwhelming federal power derived from the current pernicious interpretation of the commerce clause. From the bill (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 commerce clause in the Constitution grants to Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Clearly, there is commerce that is not to be regulated by Congress. Powers to regulate commerce with foreign Nations, among the several States, and with the Indian Tribes would not be listed separately if Congress were given the power to regulate all commerce. Instead, the text would simply read “regulate commerce.”

Over the history of the United States, and especially during the Progressive era, Progressive judges have expanded the Interstate Commerce Clause to mean all commerce and anything affecting commerce.  This gives the United States federal government unlimited power over everything in the United States, making federalism a minor impediment. Huge swaths of federal power rely on this interpretation.

In the last few decades, there has been some push back against the idea that one need only say “interstate commerce” as the magic phrase to allow any and all regulation by the federal government. There are four particularly relevant cases.

The cases are U.S. v. Lopez(1995); U.S. v. Morrison(2000), and even “Obamacare” NFIB v. Sebelieus (2012).

The fourth case gives pause.

Gonzalez v. Raich (2005) is a case where people grew Marijuana in their own homes for their own use. Six justices on the Supreme Court claimed that was “economic activity” and could therefore be regulated by Congress. Justice Thomas is the only justice still sitting who was part of the Court when U.S. v. Raich was decided.

Justice Thomas wrote a vigorous dissent against the majority opinion.

The time seems ripe to challenge the National Firearms Act (NFA) on interstate commerce, Second Amendment, 14th Amendment, Ninth and Tenth Amendment grounds.  Even the taxing power may be challenged, as the record of legislative intent shows the taxing power was used specifically to overcome objections on Second Amendment, Tenth Amendment, and commerce clause grounds.

Texas law under HB  957 offers a good vehicle. It does not require an ordinary person to risk their liberty and property in a challenge to the NFA.

The test case is to be done before any silencer is made. From the law:

intent to manufacture”

All the power and might of the State Attorney General can be used to challenge the law.

In Kansas, an attempt was made to challenge the NFA law on silencers. Two people relied on that change and were convicted of federal felonies. The Kansas Attorney General defended the law, but the federal Court ruled the arrests were lawful under the federal taxing power.

Test cases are not for the merely enthusiastic. The defendant(s) needs to be chosen with care. The case has to be set up exactly right, or it will be knocked down on arcane procedural grounds. Do not attempt to be a test case without substantial legal advice. Do not do so on your own (pro se).

HB 957 will make it difficult to be arrested for illegal possession of a silencer in Texas.

Those who try hard enough, by posting about homemade suppressors on social media, bragging about their non-tax stamp suppressor, or loudly challenging federal agents to arrest them, are likely to find federal law can still be enforced by federal agents.

Do not be a test case through one of the above-listed methods. Let Attorney General Ken Paxton do his job.

What Attorney General Paxton may be looking for in a test case (He should be looking now), and arguments that may be presented, will be the subject of a future article.

The author is not an attorney. The article is for educational purposes only.


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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JSNMGC
JSNMGC
1 month ago

Does anyone know of any retailers who are selling made-in-Texas suppressors to people in Texas without going through the federal process?

Silencer Central will not sell them without going through the federal process.

https://www.silencercentral.com/blog/new-texas-suppressor-law-explained/

They have indicated the Texas law provides the buyer and the seller absolutely no protection from federal prosecution (only state prosecution). Therefore, they will not deviate from the federal law.

Wild Bill
Wild Bill
1 month ago
Reply to  JSNMGC

I think that naming names, here, on a site that is regularly read by a fed, would be … ah … counterproductive.

JSNMGC
JSNMGC
1 month ago
Reply to  Wild Bill

What good is the law?

Wild Bill
Wild Bill
1 month ago
Reply to  JSNMGC

,
Do you mean that seamless web that guides everything known generally as “The Law”? Or do you mean the Texas statute?

Last edited 1 month ago by Wild Bill
JSNMGC
JSNMGC
1 month ago
Reply to  Wild Bill

HB 957 that was passed into law. There has been some discussion on the legislation over the last several months. My point of view was that there was no change to the federal law, but it would be great if Texas set a successful precedent with their view that since the suppressor was made in Texas, sold in Texas, and stayed in Texas, that the Federal law did not apply to the transaction. If Texas was successful, other states would follow. I believed the best chance of success was if a large number of high profile politicians, appointees, and hangers-on… Read more »

Wild Bill
Wild Bill
1 month ago
Reply to  JSNMGC

JSNMGC, We have an astute group, here, although some are getting ahead of themselves. There is going to be a test case. I don’t want it to be me. The Gov and Texas Repubs have set up this contest quite cleverly by forcing the Feds to use criminal law. That, inturn, will require the S. Ct to apply a strict scrutiny standard to the issue of federal power verses individual constitutional rights. And finally, the commerce clause has been so over used for the past one hundred years for the Feds to get their way, that, I think, the S.… Read more »

Last edited 1 month ago by Wild Bill
JSNMGC
JSNMGC
1 month ago
Reply to  Wild Bill

I agree the commerce clause has been abused and the federal government, absent any clever and novel approaches, is going to use it to ruin someone’s life (like Kettler in Kansas) to scare everyone else. I don’t like the idea of pushing a low-income single mother out front as cannon fodder and then make some half-assed attempt to defend her after she is charged. I’d rather see Abbot, Paxton, Cruz, Cornyn, Crenshaw, Boebert, Trump, McCarthy, McConnell, Graham, and dozens of other high profile people defiantly buying suppressors together on live TV without going through the federal process. A massive amount… Read more »

USMC0351Grunt
USMC0351Grunt
1 month ago
Reply to  JSNMGC

They, (SilencerCentral) or anyone else from what I am told by Representative Oliverson’s office has filed for a declaratory judgement on the constitutionality of the law so that alone tells me they may be blindly assuming much of what isn’t so.

JSNMGC
JSNMGC
1 month ago
Reply to  USMC0351Grunt

They indicated the Texas law undermines federal law.

Finnky
Finnky
2 months ago

That case sprang to mind while reading this article. That case was decided incorrectly and is a great example of federal overreach through the commerce clause. While I can understand stretch to regulating commodity trading, I disagree. Texas suppressor test case will be supported by a strong legal team funded by the state and should be a great case to reopen this subject. Did you not read the same article I did? Dean specifically addressed potential implications of this case – reining in federal overreach based on the commerce clause. Pushback is long overdue in this arena and I would… Read more »

JSNMGC
JSNMGC
2 months ago

Dean,

Have you heard of TX FFLs getting letters from the BATFE indicating that suppressors made in TX and sold in TX and that never leave TX must still go through the regular federal process (paperwork, wait, stamp, etc.)?

Less than 5 weeks until the go live date.

Are there any TX retailers taking orders (for in-state sales)?

Have any TX suppressor manufacturers made statements?

Stag
Stag
2 months ago
Reply to  JSNMGC

I have one. Of course I can’t post the file or even a screen shot of it.

Wild Bill
Wild Bill
1 month ago
Reply to  Stag

,
Good opec, bro.

Russn8r
Russn8r
3 months ago

Who’s the “you” in that schart? No one’s talking about Jews except you. No one cares about your life story. Lay off the peyote.

Last edited 3 months ago by Russn8r
Russn8r
Russn8r
3 months ago
Reply to  Russn8r

Take your word for it? I guess we’ll never know. Anyway, I’ve never thought of Schart as a Jewish name or pastime. This last of yours was actually a reasonably short reply. You must be working on your man-kegels, LOL.

Last edited 3 months ago by Russn8r
Link
Link
3 months ago

Your actually one of the few people who know of this historical case and how it expanded government power on interstate commerce.

Too bad there are too many arrogant people here who refuse to learn history and how it effects the second amendment.

BillyBobTexas
BillyBobTexas
3 months ago

I live and buy in Texas. Does this law portent to make made in Texas with all Texas ingredients silencer available, soon? And will the prices drop, as more manufacturers get in on this business?
I can envision that a LOT of Texans will soon be sporting these on their guns….. and we Texans have just a few guns. Except me, of course. Actually had to sell all mine to pay my electric bill last winter. Asking for a friend…,

Last edited 3 months ago by BillyBobTexas
Finnky
Finnky
2 months ago
Reply to  BillyBobTexas

Until test case is resolved, this law is symbolic. Only after Texas wins in court (assuming we do), will you see movement. Don’t expect anything beforehand. If you reread the article, you may see that Texas is seeking a sympathetic plaintiff who INTENDS to build a suppressor. Idea is that Texas will take federal government to court for a final ruling before anyone actually makes a “made in Texas” suppressor so that no one risks the crazy fines and prison time. While who the plaintiff is shouldn’t matter, it does. With protections above we can hopefully find someone with capability… Read more »

Bill
Bill
3 months ago

Good points! Thank you!

nrringlee
nrringlee
3 months ago

This is what happens when people in law schools, sitting in Constitutional Law classes never read the Constitution. Stare Decisis has a reverse gear as well. So does Congress. So will an Article V Convention of States. Fail in those and you can always do it by civil war. I have participated in four. Not the preferred path. Semper Fidelis

nrringlee
nrringlee
3 months ago

This is the incrementalist approach to challenging federal over reach and getting our dual sovereignty back in order. I applaud any effort to put the federales back in their box. The Big Blue Arrow approach is the one I prefer: Article V Convention of States. This will serve two purposes. First, advance 10 or 12 amendments to fix our dual sovereignty issues once and for all. Secondly it will serve to educate the American People on their Constitution and how self correcting our Constitution can make our Republic. Educating the American People is step one. If you need some help… Read more »

JimmyS
JimmyS
3 months ago

Shut up and get back to work, slave!

AZ Lefty
AZ Lefty
3 months ago

No it will never happen we settled that in 1865

musicman44mag
musicman44mag
3 months ago

No need to argue with this moron. He is Oregonian educated and was working with the demonrat prison system and has a BS degree in BS and knows everything and is an authority on everything.

He is nothing more than a trouble making troll that never get’s off your leg.

Oregone, the druggie capital of the world.

AZ Lefty
AZ Lefty
3 months ago
Reply to  musicman44mag

Wow does mommies know you are on the Computer ITG?

musicman44mag
musicman44mag
3 months ago

Lord Schart You are the problem my lying X prison guard that needs a carry permit in order to carry a firearm that worked at the capital building when the Kommiefornians came to OreGONE and you let them mess it up along with all your other buddies working in the capital with their BA/BS degrees and now you continue to be a problem on here with your stupid ideas that only people who served should have the right to vote and people imprisoned should loose that right forever which would result in the loss of another 2nd amendment supporter and… Read more »

Russn8r
Russn8r
3 months ago
Reply to  musicman44mag

Schart probably took it as much as he gave it in prison, so now he can’t pinch it off – despite all his man-kegels – and it just randomly sprays. Here he replies to no one, on a topic not raised. Just below he replies to himself and calls himself a “bigot first of all, no better than Goebbels.”

Last edited 3 months ago by Russn8r
musicman44mag
musicman44mag
3 months ago

Yea, delete the trouble making troll.

from the druggie capital of the USA OrGONE>

musicman44mag
musicman44mag
3 months ago
Reply to  musicman44mag

He would just change his name to what it should be. John Lord Ann Schart and keep doing the same thing.

LOL, I think maybe that is what the down vote button says but he won’t get it. He takes all the down votes without an argument in pride because it is showing that he is saying the truth and no one else besides Skipper is smarter than he to argue it.

LOL Lord Ann Schart. Get off our legs..

Arizona
Arizona
3 months ago
Reply to  musicman44mag

Anyone who copies and pastes a response to being down-voted has serious self-esteem issues, as well as OCD problems.

musicman44mag
musicman44mag
3 months ago
Reply to  Arizona

This might be before your time. He reminds me of a song by a band called Traffic. He’s gone gone gone. He hasn’t hit there coming to take me away yet or maybe he just hasn’t been caught.

Ryben Flynn
Ryben Flynn
3 months ago

I have two Form 1 Suppressors. The first one took 9 months to get approved in Jan. 2015, a 5.56, and the second one took 6 months to be approved, a 30 Caliber in Aug. 2016. Ridiculous as it took less than 2 hours to assemble them.

Arizona
Arizona
3 months ago
Reply to  Ryben Flynn

WRONG, WEASEL. You are so giddy at the idea of fining and taxing others, and demanding things be regulated. You obviously are not a fan of freedom, free will, and market demands driving growth and innovation, and prefer to try to force things to go your way, because you falsely assume you know best. Regulation and the gov picking winners and losers is wrong, it doesn’t work, it creates unintended consequences, and it is rife with corruption and abuse by people like you.

Arizona
Arizona
3 months ago
Reply to  Arizona

Ammoland really needs an ignore button for trolls like him. He copies and pastes the same garbage over and over, has delusions of intelligence, and in between bouts of criticizing the Constitution for how it was designed to protect freedom, he displays his own tyrannical desires to control the populace. Unreal!

musicman44mag
musicman44mag
3 months ago
Reply to  Arizona

He is an X prison guard, he is used to controlling others all except his wife and his dog that both left him all sad and lonely so he causes trouble on here for attention because for a true idiot, bad attention is better than no attention. His neighbors probably wont even acknowledge his existence so he only has people who write interesting articles thoughts and responses to those and attack them for the attention. The only exception is his butt buddies that he worked with in prison that give him the only true love and attention that he craves.… Read more »

musicman44mag
musicman44mag
3 months ago
Reply to  Arizona

More from the cut and paste clown without an original thought that has any common sense or logic.

I am sure even your computer is tired of your lame writings that you copied from someone else.

From OreGONE the druggie capital of the USA and portland, home of Lord Schart.

musicman44mag
musicman44mag
3 months ago
Reply to  Arizona

Ya, right now, today, earlier you said that only people who served in the military should be able to vote because they earned it. You are so wishy washy you either need to be the number one troll on this board or a true psycho.

Now get off his leg troll.

From OreGONIA the druggie capital of the USA.

JSNMGC
JSNMGC
3 months ago

Dean did Texas firearm owners a favor by being more explicit in this article regarding Texas residents still being subject to Federal laws regarding suppressors (unfortunately). He also made it clear that the suppressors must be made and sold in Texas (at least one person didn’t read the law with respect to that important point). He could have made it more clear that the Texas law will not protect a resident of another state from traveling to Texas and buying a made-in-Texas suppressor and returning to their home state with it, nor will the Texas law protect a Texas resident… Read more »

musicman44mag
musicman44mag
3 months ago
Reply to  JSNMGC

more thumbs down for you than anyone on here you clown.

Russn8r
Russn8r
3 months ago

Hope Tx follows on with a generalized law for all firearms, ammunition & parts made & kept in Tx. Guess we’ll have to wait 2 years for it – assuming Trump’s 3 unvetted ‘federalist’ society ‘justices’ don’t betray us again.

Arizona
Arizona
3 months ago
Reply to  Russn8r

You really should use quotes when copying and pasting quotes from smarter men than yourself, rather than presenting these statements as your own.

musicman44mag
musicman44mag
3 months ago
Reply to  Russn8r

But it wont do any good for a close minded psycho like yourself because you are so full of yourself you don’t believe anyone else. Moron. There, I just used a bad word so it must be true and you can stick that up your down vote.

Bubba
Bubba
3 months ago
Reply to  Russn8r

Not sure why he is getting all this negative feedback. What he says is true. I think most of the thumbs down are not understanding. He is Capitalist. He does not believe in the overreaching of our current government. If I read your thoughts correctly, you believe in the Constitution and the Bill of Rights as written. (Leave me alone so long as I am not hurting someone else) You also believe in the Federalist Idea. Please correct me if I am wrong. Just out of curiosity: What do you think should happen to Amazon, Google, Twitter, Facebook, Microsoft? What… Read more »

Bubba
Bubba
3 months ago
Reply to  Bubba

I see the thumbs down but no answer to my questions. Hiding behind a thumbs down is lame especially since questions were asked.
What’s the point of a thumbs down if you have no 2cents?

Russn8r
Russn8r
3 months ago
Reply to  Russn8r

Your latest schart sprayed the screen with idiotic, lame strawmen and highlights your lunacy in bold italics.

Did I say officially? No.

Does being vetted imply being confirmed? No.

Does the senate sometimes reject vetted candidates? Yes. You confuse vetting with confirmation or rejection.

Does the Constitution bar a president from “officially” or unofficially vetting noms before sending them to the senate for more “vetting” & confirmation-rejection? No, but a loon like you would think so.

Apparently you think presidents shouldn’t bother vetting noms. Nice. Just randomly pick someone and let the senate “vet” them.

You’re a d0ouchebag, Schart.

Russn8r
Russn8r
3 months ago
Reply to  Russn8r

Nice try “WEASALING” out of the obvious, Schart.

Last edited 3 months ago by Russn8r