Texas, Silencers, ATF and the Supreme Court Bruen Case

Hellion Kitted01
The Hellion also makes a great suppressor host due to its adjustable gas regulator and rearward balance. IMG Jim Grant

U.S.A.-(AmmoLand.com)-– On July 15, 2022, Texas Attorney General Ken Paxton amended the complaint filed in federal court against the Attorney General, Merrick Garland, in the Texas lawsuit against the ATF. The complaint challenges the constitutionality of the NFA and the Gun Control Act of 1968 to regulate privately made silencers/suppressors/gun mufflers made and kept in Texas.

The amendment incorporates the Second Amendment decision by the Court in Bruen, which establishes a refined and clarified procedure for courts to use in Second Amendment cases.

The Texas case came into existence as part of the requirements of HB 957, which became law in Texas in 2021. From Ammoland:

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.

Following the law, AG Paxton filed a lawsuit on February, 24, 2022. From AmmoLand:

The brief filed by AG Paxton is clear, the arguments are strong. The NFA restrictions on Silencers are attacked on the grounds of taxation of a Constitutional right (Second Amendment), inappropriate use of the commerce clause, and as a law that has no public safety justification.

The amendment filed on July 15, explains how the recent Bruen decision is applicable to and relevant in the lawsuit about federal regulation of silencers/suppressors/gun mufflers. Here are some of the arguments presented in the amendment. From the recent amendment to Paxton v. Richardson:

4. There is a historical tradition of prohibiting the carrying of dangerous and unusual weapons, id. at 2128, but firearm suppressors are neither dangerous nor unusual. They are in “common use,” and therefore the Second Amendment protects their possession and use.Id.

5. There is no historical tradition that can justify regulation of making firearm suppressors for non-commercial, personal use in Texas—including requirements that citizens ask permission before making a firearm suppressor, pay a $200 tax, place a serial number on the firearm suppressor, and register it.

Some of the other arguments made:

Courts may not apply Means-Ends scrutiny to Second Amendment cases, only historical and textual arguments. The government has to prove its case; not the people claiming Second Amendment rights.

114. Post-Bruen, courts may not “balance” the government’s “legitimate interests” against citizens’ rights, or use “tiers of scrutiny” or means-ends scrutiny when reviewing the constitutionality of statutes and regulations that regulate the right to keep and bear arms for self-defense. “Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 142 S. Ct. at 2127.

The government may not require advance permission to exercise a Constitutional Right.

Abuse of procedure, as mentioned in Bruen, with “lengthy wait times in processing … applications” and “exorbitant fees”, is not acceptable.

84. BATFE apparently believes that it can extend the application process indefinitely and ask for any “additional information” it wants. This includes additional information which could be used by BATFE to prosecute Form 1 applicants under the provision of the NFA declaring parts intended to be used to make a firearm suppressor are regulated as if they are already firearm suppressors.

The government may not tax the exercise of a Constitutional Right. The 1943 case applied to the First Amendment.

113. The government cannot tax the exercise of constitutional rights. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 113 (1943). Post-Heller, taxing the making of firearms in Texas for non-commercial, personal use in Texas is taxing the exercise of a constitutional right, and is prohibited.

The amendment closes with arguments contending the amended NFA of 1934, with regards to silencers is unconstitutional.

127. The portions of the National Firearms Act of 1934, as amended, and the regulations made pursuant thereto, requiring Texans to apply for and receive permission to make firearm suppressors in Texas for non-commercial, personal use in Texas are unconstitutional.

128. Federal laws and regulations which require Texans to apply for and receive permission to make firearm suppressors for non-commercial, personal use in Texas regulate the right to keep and bear arms for self-defense, which is protected by the Second Amendment. These laws and regulations do not have an historical analogue and are being put toward abusive ends. Accordingly, they are unconstitutional under Bruen.

The response from the Biden administration uses long-standing precedent in cases that expand the federal power via taxation.  It claims silencers are not arms and are not protected by the Second Amendment.  The arguments are essentially these:

  • Federal taxes are exempt from lawsuits. (anti-injunction act)
  • Precedents exist before Heller and Bruen, which claim taxing powers used to register weapons are Constitutional…
  • Silencers are accessories, not “arms” protected by the Second Amendment.
  • There is no precedent that taxes affecting the Second Amendment are unconstitutional. The precedent only applies to the First Amendment.
  • Texas has no standing because the law affects individuals, not Texas as a State.
  • The NFA is “longstanding”; therefore, it is exempt from scrutiny under Bruen.

Opinion:

It appears to me that the Biden administration’s arguments are based on cases settled before the Supreme Court handed down the Heller, McDonald, Caetano, and Bruen decisions.  Those precedents may be overturned by the Second Amendment cases.

Because a previous court declared the NFA as a legitimate taxing measure does not mean it is so under the recent decisions.

This case may become a vehicle to show the Second Amendment is not inferior to the First Amendment.

If the federal government can use the taxing authority to avoid Second Amendment scrutiny, the Second Amendment becomes a dead letter.


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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Arizona

The NFA is unconstitutional.

And it’s funny how Biden’s handlers argue suppressors are and are not arms at the same time. FBATFE. FJB

Duane

There are still plenty of falderal Judges out there who do not believe in the constitution.

Bubba

Hang ‘‘em all.

GomeznSA

Bubba – I doubt that all of them would need to be hung – start with a couple of high profile ones and I suspect that the rest would get their act together or simply resign. The rope manufacturers might complain a bit since the demand for their products would decline. OTOH ropes DO have other uses 😉

gregs

didn’t we revolt from England because of excessive taxation? seems to be a longstanding precedent. according to their logic, legal precedent was that women and blacks could not vote. is that still true? so i guess precedent changes. if suppressors are not arms, why do they include them in the nfa and gca? if it is an accessory, which other accessory is taxed by the government? violation of 14th Amendment, equal protection under the law. again, according to their logic, the government would be able to tax someone who wants to exercise their First Amendment rights to speak out against… Read more »

Tionico

didn’t we revolt from England because of excessive taxation? no, not really. We are often told that to distract us from the REAL reasons. Along with the taxes (which were not burdensome, just insulting and onerous) other issues were no privacy, subject to arrest and search/seizure at the whim of any government agent, being evicted from the entire city of Boston after three private merchant vessels were liberated from effecgive British seizure/detainment, having the lafully established collonial government bodies shut down and replaced by the king’s hirelings, but the one situation that sparked the war and fueled it to victory… Read more »

Ope

TEXAS Governor Greg Abbott and TEXAS AG Ken Paxton fight for the 2A rights and freedoms of all law-abiding TEXANS everyday 24/7. TEXANS will soon be able to purchase silencers (NFA items) without any government involvement and interference or their $200 theft tax. TEXAS AG Ken Paxton works hard to have NFA rescinded.He and many other AG’s around the country (17) have signed on to accomplish just that. Life’s good !

Orion

the Texas law deals with individuals making their own, not buying one manufactured commercially.

MP71

The laws also allows the manufacture and sale of suppressors within the state.

Bubba

I think they have to be stamped made in Texas and are only legal in Texas.

Ope

Bubba, you’re right and so is MP17. Made in TEXAS stays in TEXAS. Must have “Made in Texas” stamped on the can.

Ope

Bubba,you’re right and so is MP71. They are made in TEXAS and stays in TEXAS silencers.. Must have made in TEXAS stamped/engraved on the can.

Tionico

Yup. The old made here stays here concept. Flies in the face of the Filburn SCOTUS “decision” back in the 1930’s when Filburn got trashed for growing some wheat for his own family on his own property, which never left the property and was used as food for his own family. The gummit claimed it was still an “interstate commerce issue” because had Filburn NOT grown those few boshels of wheat, he would have had to BUY them, and some of those kernels of wheat COULD have come from another state, or even if they did not, other wheat COULD… Read more »

MP71

From what little I know, it seems like a whole bunch of SCOTUS decisions from20th century were statists affirming that the gubmint had the power to do whatever it wanted,

Bigfootbob

Texas has Abbott and Paxton, Florida has DeSantis and Moody all of which are strong 2A supporters. My state, which probably has the highest drug vagrant population, crime thru the roof, (cops have had their hands tied concerning probable cause/reasonable suspicion so much so that over 1000 times since the new law went into effect perps have just drove off when the cops light them up. Several perps even have called 911 during the pursuit and told the dispatchers to call off the illegal chase!!! AND THEY TURN OFF THE LIGHTS AND QUIT). We have Inslee and Bob Ferguson as… Read more »

John Dow

“Silencers are accessories, not “arms” protected by the Second Amendment.”

If they’re not arms, then how can they be restricted by the National FIREARMS Act?

hippybiker

The United States government just loves to spend the peoples money they steal from us to try to put the screws to same! As Charlton Heston decried I the classic movie…” The Planet of the Apes…It’s A Mad House!”

CourageousLion

They don’t spend the people’s money. They take that from you so you’ll BELIEVE that they need it to spend.

chiefton

If I read this correctly, and the NFA is saying that suppressors are not firearms, then the NFA lacks jurisdiction over controlling them. They cannot have it both ways.

swmft

atf has played the two sided bs so long they dont even remember the excuses they have given
between them and fbi next congress and president have their hands full to dump the trash may just have to start over and jail the lot

Last edited 1 month ago by swmft
Bubba

Then by that logic:
Bump Stocks are not.
Forced reset triggers are not.
Cheek rest or shoulder stock are not.
Disband the ATF, NFA, GCA, FBI any other TLA’s(Three Letter Acronym’s)

CourageousLion

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” Sound familiar?

Russn8r

“Denied, in many cases, trial by jury…”

CourageousLion
Tionico

Federal taxes are exempt from lawsuits. (anti-injunction act) anyone else remember the old Poll Taxes (a tax to exercise the right to vote) and how they got shot down bigtime? Same thing here Precedents exist before Heller and Bruen, which claim taxing powers used to register weapons are Constitutional… they claim that, but claiming it does not make it constitutional. Silencers are accessories, not “arms” protected by the Second Amendment. then so are detachable magazines of any capacity, bump stocks, self-resetting triggers, Glock switches, and ammunitioni There is no precedent that taxes affecting the Second Amendment are unconstitutional. The precedent… Read more »

archmark

Paxton is GREAT!!! Abbott is nothing more than a bottom-feeding RINO POS!!!